TABLE OF CONTENTS

CIVIL PROCEDURE

A. JUDGMENTS IN GENERAL ........................... 95

B. CONTENTS OF A JUDGMENT....................... 97
C. JUDGMENT ON THE PLEADINGS ................ 98

I. GENERAL CONCEPTS ............................... 2

D. SUMMARY JUDGMENTS .............................. 98

A. CONCEPT OF REMEDIAL LAW ........................2

E. RENDITION OF JUDGMENTS AND FINAL

ORDERS ............................................................ 101

B. SUBSTANTIVE LAW VIS--VIS REMEDIAL

LAW .......................................................................2

F. ENTRY OF JUDGMENT AND FINAL ORDER 101

C. RULE MAKING POWER OF THE SUPREME

COURT .................................................................. 3

G. AMENDMENTS TO JUDGMENT .................. 101

V. POST-JUDGMENT REMEDIES .............. 102

D. NATURE OF PHILIPPINE COURTS ................ 4

II. JURISDICTION ......................................... 6

A.
MOTION
FOR
NEW
TRIAL
OR
RECONSIDERATION ........................................ 102

A. ASPECTS OF JURISDICTION ...........................6

B. APPEALS ......................................................105

B. JURISDICTION OF COURTS .......................... 10

C. JURISDICTION OVER SMALL CLAIMS .......... 17

COMPARATIVE TABLE ON THE MODES OF

APPEAL .................................................... 123

D. CASES COVERED BY RULES ON SUMMARY

PROCEDURE ...................................................... 17

C. RELIEF FROM JUDGMENTS. ORDERS, AND

OTHER PROCEEDINGS .................................... 125

E.
CASES
COVERED
BY
BARANGAY
CONCILIATION ................................................... 17

D. ANNULMENT OF JUDGMENTS OR FINAL

ORDERS AND RESOLUTIONS ......................... 127

F. TOTALITY RULE.............................................. 18

E. COLLATERAL ATTACK OF JUDGMENTS .... 129

III. COMMENCEMENT OF ACTIONS TO TRIAL

.................................................................... 18

VI. EXECUTION, SATISFACTION AND

EFFECT OF JUDGMENTS .......................... 130

A. ACTIONS......................................................... 18
B. CAUSE OF ACTION ........................................ 21

A. FINALITY FOR PURPOSES OF APPEAL AND

FOR PURPOSES OF EXECUTION .................... 130

D.VENUE ............................................................ 30

B. WHEN EXECUTION SHALL ISSUE ................ 131

E. PLEADINGS .................................................... 31

C. HOW JUDGMENT IS EXECUTED ................. 134

F. SUMMONS ..................................................... 53

D. PROPERTIES EXEMPT FROM EXECUTION 139

G. MOTIONS IN GENERAL ................................ 58

E. PROCEEDINGS WHERE PROPERTY CLAIMED

BY THIRD PERSONS .........................................141

I. MOTION FOR BILL OF PARTICULARS .......... 60

F. RULES ON REDEMPTION ............................ 142

J. MOTION TO DISMISS...................................... 61

G. REMEDIES OF JUDGMENT CREDITOR IF

JUDGMENT NOT SATISFIED ............................ 145

K. DISMISSAL OF ACTIONS .............................. 68

L. PRE-TRIAL ..................................................... 70

H. EFFECT OF JUDGMENT OR FINAL ORDERS

........................................................................... 146

M. INTERVENTION ............................................. 77
N. SUBPOENA ....................................................78
O. MODES OF DISCOVERY ............................... 80

I. ENFORCEMENT AND EFFECT OF FOREIGN

JUDGMENT OR FINAL ORDERS ...................... 148

P. TRIAL ............................................................. 89

VII. PROVISIONAL REMEDIES .................. 149

Q. DEMURRER TO EVIDENCE .......................... 94

A. PRELIMINARY ATTACHMENT .....................150

IV. JUDGMENTS AND FINAL ORDERS ....... 95

B. PRELIMINARY INJUNCTION ........................ 154

C. RECEIVERSHIP ............................................. 159

TABLE OF CONTENTS
D. REPLEVIN ..................................................... 162

C. VENUE .......................................................... 215

A COMPARATIVE CHART ON THE

PROVISIONAL REMEDIES ........................ 166

D. EXTENT OF JURISDICTION OF PROBATE

COURT .............................................................. 216

VIII. SPECIAL CIVIL ACTIONS.................... 168

E. POWERS AND DUITIES OF A PROBATE

COURT .............................................................. 216

A.

IN GENERAL ........................................... 168

III. SUMMARY SETTLEMENT OF ESTATES 217

B. INTERPLEADER ........................................... 169

A. EXTRAJUDICIAL SETTLEMENT OF ESTATES

........................................................................... 217

C. DECLARATORY RELIEFS AND SIMILAR

REMEDIES ........................................................ 170

B. SUMMARY SETTLEMENT OF ESTATES OF

SMALL VALUE .................................................. 218

D. REVIEW OF JUDGMENTS AND FINAL

ORDERS OR RESOLUTION OF THE COMELEC
AND COA .......................................................... 172

C. REMEDIES OF AGGRIEVED PARTIES AFTER

EXTRA-JUDICIAL SETTLEMENT OF ESTATE .. 219

E. CERTIORARI, PROHIBITION, MANDAMUS 173

IV. PRODUCTION AND PROBATE OF WILL

................................................................. 220

F. QUO WARRANTO ........................................ 180

G. EXPROPRIATION ........................................ 182

A. NATURE OF PROBATE PROCEEDINGS ..... 220

H.
FORECLOSURE
OF
REAL
ESTATE
MORTGAGE ...................................................... 188

V. ALLOWANCE OR DISALLOWANCE OF
WILL ......................................................... 221

I. PARTITION ..................................................... 192

A. WHO MAY PETITION FOR PROBATE;

PERSONS ENTITLED TO NOTICE .................... 221

J. FORCIBLE ENTRY AND UNLAWFUL

DETAINER......................................................... 195
K. CONTEMPT.................................................. 200

B. CONTENTS OF PETITION FOR ALLOWANCE

OF WILL............................................................ 222

THE SPECIAL CIVIL ACTIONS .................. 205

C. GROUNDS FOR DISALLOWING A WILL..... 223

IX. SPECIAL RULES .................................. 207

D. REPROBATE................................................ 224

A. REVISED RULES ON SUMMARY PROCEDURE

.......................................................................... 207

F. EFFECTS OF PROBATE ............................... 224

VI. LETTERS TESTAMENTARY AND OF

ADMINISTRATION ................................... 224

B. KATARUNGANG PAMBARANGAY LAW (PD

1508; RA 7160 AS AMENDED) ........................ 208

A. WHEN AND TO WHOM LETTERS OF

ADMINISTRATION ARE GRANTED ................ 224

C. RULES OF PROCEDURE FOR SMALL CLAIMS

CASES (A.M. NO. 08-8-7-SC) ......................... 209

B. ORDER OF PREFERENCE ........................... 226

D. EFFICIENT USE OF PAPER RULE (A.M. NO. 119-4-SC) .............................................................. 211

C. OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION ................. 226

SPECIAL PROCEEDINGS

D. POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS; RESTRICTIONS ON THE
POWERS .......................................................... 227

I. SPECIAL PROCEEDINGS ........................ 214

D.1. GENERAL POWERS AND DUTIES OF

EXECUTORS AND ADMINISTRATORS ........... 228

A. SUBJECT MATTER AND APPLICABILITY OF

GENERAL RULES ............................................. 214

D.2. RESTRICTIONS ON POWERS OF

EXECUTORS AND ADMINISTRATORS ........... 228

A. MODES OF SETTLEMENT OF ESTATE ........ 215

B. JURISDICTION .............................................. 215

E.
APPOINTMENT
OF
SPECIAL
ADMINISTRATOR ............................................ 230

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TABLE OF CONTENTS
F. REVOCATION, DEATH, RESIGNATION AND
REMOVAL
OF
EXECUTORS
AND
ADMINISTRATORS .......................................... 231

D. GROUDS FOR REMOVAL AND RESIGNATION

OF A TRUSTEE................................................. 245
E. EXTENT OF AUTHORITY OF TRUSTEE ...... 245

VII. CLAIMS AGAINST THE ESTATE ..........232

XII. GUARDIANSHIP ................................ 245

A. TIME WITHIN WHICH CLAIMS SHALL BE

FILED; EXCEPTIONS ....................................... 232

A.
GUARDIANSHIP
OF
INCOMPETENT
PERSONS NOT MINORS ................................. 246

B. CLAIM OF EXECUTOR OR ADMINISTRATOR

AGAINST AN ESTATE ...................................... 234

B. RULE IN GUARDIANSHIP OVER MINOR (A.M.

NO. 03-02-05-SC) ........................................... 248

C. PAYMENT OF DEBTS .................................. 234

XIII. ADOPTION........................................ 252

VIII.
ACTIONS
BY
AND
AGAINST
EXECUTORS AND ADMINISTRATORS ..... 237

A. DISTINGUISH DOMESTIC ADOPTION FROM

INTER-COUNTRY ADOPTION......................... 252

A. ACTIONS BY AND AGAINST EXECUTORS .. 237

B. DOMESTIC ADOPTION ACT ....................... 256

B. RECOVERY OF PROPERTY CONCELEAD,

EMBEZZLED OR FRADULENTLY CONVEYED 238

C. INTER-COUNTRY ADOPTION .................... 257

XIV. WRIT OF HABEAS CORPUS .............. 258

WHEN RECOVERY BY CREDITOR OF PROPERTY

FRAUDULENTLY CONVEYED MAY BE DONE 238

A. CONTENTS OF THE PETITION ................... 260

B. CONTENTS OF THE RETURN ..................... 260

C. SALES, MORTGAGES, AND OTHER

ENCUMBRANCES ........................................... 239

C. DISTINGUISH PEREMPTORY WRIT FROM

PRELIMINARY CITATION ................................. 261

WHEN PERSONAL ESTATE IS NOT SUFFICIENT

TO
PAY
DEBTS,
EXPENSES
OF
ADMINISTRATION AND LEGACIES; OR......... 239

D. WHEN NOT PROPER OR APPLICABLE ...... 261

E. WHEN WRIT DISALLOWED OR DISCHARGED
........................................................................... 261

IX. DISTRIBUTION AND PARTITION ........ 240

A. LIQUIDATION .............................................. 240

F. DISTINGUISHED FROM WRIT OF AMPARO

AND HABEAS DATA ........................................ 262

B. PROJECT OF PARTITION ............................. 241

G. RULES ON CUSTODY OF MINORS AND WRIT

OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
.......................................................................... 262

C. REMEDY OF AN HEIR ENTITLED TO RESIDUE

BUT NOT GIVEN HIS SHARE ........................... 241
D. INSTANCES WHEN PROBATE COURT MAY
ISSUE WRIT OF EXECUTION ........................... 241

XV. WRIT OF AMPARO (A.M. 07-9-12-SC) 266

X. ESCHEAT ............................................. 242

A. COVERAGE .................................................. 266

A. WHEN TO FILE ............................................ 242

B. REQUISITES FOR FILING OF PETITION ..... 242

B. DISTINGUISH FROM HABEAS CORPUS AND

HABEAS DATA ................................................. 267

C. REMEDY OF RESPONDENT AGAINST

PETITION; PERIOD FOR FILING A CLAIM. ..... 243

C. AMPARO VS SEARCH WARRANT .............. 267

D. WHO MAY FILE ........................................... 267

XI. TRUSTEES .......................................... 243

E. CONTENTS OF RETURN ............................. 268

A.
DISTINGUISHED
FROM
EXECUTOR/ADMINISTRATOR ....................... 243

F. EFFECTS OF FAILURE TO FILE RETURN ... 269

G. OMNIBUS WAIVER RULE ........................... 269

B. CONDITIONS OF THE BOND ...................... 244

H. PROCEDURE FOR HEARING ..................... 269

C. REQUISITES FOR THER REMOVAL AND

RESIGNATION OF A TRUSTEE ....................... 245

I. INSTITUTION OF SEPARATE ACTION ......... 270

J. EFFECT OF FILING A CRIMINAL ACTION ... 270

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TABLE OF CONTENTS

CRIMINAL PROCEDURE

K. CONSOLIDATION ........................................ 270

L.
INTERIM
RELIEFS
AVAILABLE
TO
PETITIONER AND RESPONDENT .................. 270

I. GENERAL MATTERS ............................. 296

M. QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT OF AMPARO ................... 271

A. JURISDICTION OVER SUBJECT MATTER AND

JURISDICTION OVER PERSON OF THE
ACCUSED DISTINGUISHED ............................ 296

XVI. WRIT OF HABEAS DATA (A.M. NO. 08-116-SC) ....................................................... 272

A. SCOPE OF THE WRIT ...................................272

B. REQUISITES FOR EXERCISE OF CRIMINAL

JURISDICTION ................................................. 297

B. AVAILABILITY OF WRIT ...............................272

C. JURISDICTION OF CRIMINAL COURTS ..... 297

C. DISTINGUISHED FROM HABEAS CORPUS

AND AMPARO .................................................. 273

D. WHEN INJUNCTION MAY BE ISSUED TO

RESTRAIN CRIMINAL PROSECUTION ........... 299

D. CONTENTS OF THE PETITION .................... 273

II. PROSECUTION OF OFFENSES ............. 299

E. CONTENTS OF THE RETURN ...................... 273

A. CRIMINAL ACTIONS; HOW INSTITUTED ... 299

F. INSTANCES WHEN PETITION MAY BE HEARD

IN CHAMBERS ..................................................274

B. WHO MAY FILE; CRIMES THAT CANNOT BE

PROSECUTED DE OFICIO ............................... 300

G. CONSOLIDATION ........................................274

C. CRIMINAL ACTIONS; WHEN ENJOINED .... 302

H. EFFECT OF FILING CRIMINAL ACTION ......274

D. CONTROL OF PROSECUTION .................... 302

I. INSTITUTION OF SEPARATE ACTION ..........274

XVII. CHANGE OF NAME ...........................274

E.
SUFFICIENCY
OF
COMPLAINT
OR
INFORMATION ................................................ 303

XVIII. CANCELLATION OR CORRECTION OF

ENTRIES IN THE CIVIL REGISTRY .............276

F. DUPLICITY OF THE OFFENSE; EXCEPTION

.......................................................................... 306

A. ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION IN RELATION TO R.A. 9048 ....276

G. AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION .................... 306

RA 9048, AS AMENDED BY RA 10172 ............. 277

H. VENUE OF CRIMINAL ACTIONS................. 308

XIX. ABSENTEES....................................... 277

I. INTERVENTION OF OFFENDED PARTY ...... 309

III. PROSECUTION OF CIVIL ACTION ....... 309

A. PURPOSE OF THE RULE ............................. 277

A. RULE ON IMPLIED INSTITUTION OF CIVIL

ACTION WITH CRIMINAL ACTION .................. 309

B. WHO MAY FILE; WHEN TO FILE .................. 277

XX. APPEALS IN SPECIAL PROCEEDINGS 278

B. WHEN CIVIL ACTION MAY PROCEED

INDEPENDENTLY ............................................ 309

A. JUDGMENTS AND ORDERS FOR WHICH

APPEAL MAY BE TAKEN ................................. 278

C. WHEN SEPARATE CIVIL ACTION IS

SUSPENDED ..................................................... 310

B. WHEN TO APPEAL .......................................279

C. MODES OF APPEAL .....................................279

D. EFFECT OF DEATH OF THE ACCUSED OR

CONVICT ON CIVIL ACTION ............................. 310

D. RULE ON ADVANCE DISTRIBUTION ..........279

E. PREJUDICIAL QUESTION ............................ 310

WRIT MATRIX (COMPARISON OF THE

WRITS) .................................................... 280

F. RULE ON FILING FEES IN CIVIL ACTION

DEEMED INSTITUTED WITH THE CRIMINAL
ACTION .............................................................. 311

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TABLE OF CONTENTS
IV. PRELIMINARY INVESTIGATION .......... 312

I. APPLICATION NOT A BAR TO OBJECTIONS

ON ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION ..................... 326

A. NATURE OF RIGHT ...................................... 312

B.
PURPOSES
OF
PRELIMINARY
INVESTIGATION ............................................... 312

J. HOLD/ALLOW DEPARTURE ORDER AND

BUREAU OF IMMIGRATION WATCHLIST .......327

C. WHO MAY CONDUCT DETERMINATION OF

EXISTENCE OF PROBABLE CAUSE ................. 313

VII. RIGHTS OF THE ACCUSED ................ 328

D. RESOLUTION OF THE INVESTIGATING

PROSECUTOR .................................................. 314

A. RIGHT TO BE PRESUMED INNOCENT UNTIL

THE CONTRARY IS PROVED BEYOND
REASONABLE DOUBT .................................... 328

E. REVIEW ......................................................... 314

B. RIGHT TO BE INFORMED OF THE NATURE

AND CAUSE OF THE ACCUSATION AGAINST
HIM ................................................................... 328

F. WHEN WARRANT OF ARREST MAY ISSUE 315

G. CASES NOT REQUIRING PRELIMINARY
INVESTIGATION NOR COVERED BY THE RULE
ON SUMMARY PROCEDURE ........................... 315

C. RIGHT TO BE PRESENT AND DEFEND IN

PERSON AND BY COUNSEL AT EVERY STATE
OF THE PROCEEDINGS................................... 329

H. REMEDIES OF ACCUSED IF THERE WAS NO

PRELIMINARY INVESTIGATION ...................... 316

C.1. RIGHT TO BE PRESENT ............................ 329

I. INQUEST ........................................................ 316

V. ARREST ................................................ 317

D. RIGHT TO TESTIFY AS WITNESS IN HIS

BEHALF ............................................................ 330

A. IMMUNITY .................................................... 317

E. RIGHT AGAINST SELF-INCRIMINATION .... 330

B. HOW MADE .................................................. 317

F. RIGHT TO CONFRONTATION ..................... 330

D. METHOD OF ARREST ................................. 320

G. RIGHT TO COMPULSORY PROCESS .......... 331

E. REQUISITES OF A VALID WARRANT OF

ARREST ............................................................ 321

H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC

TRIAL................................................................. 331

F. DETERMINATION OF PROBABLE CAUSE FOR

ISSUANCE OF WARRANT OF ARREST ........... 321

I. RIGHT TO APPEAL ........................................ 331

J. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATIONS ............................................. 331

G. PROBABLE CAUSE OF FISCAL AND JUDGE

DISTINGUISHED ............................................... 321

VIII. ARRAIGNMENT AND PLEA ...............333

VI. BAIL .....................................................322

A. ARRAIGNMENT AND PLEA; HOW MADE ...333

A. NATURE ...................................................... 322

A.2.A. HOW MADE........................................... 334

B. WHEN A MATTER OF RIGHT; EXCEPTIONS

.......................................................................... 322

B. WHEN A PLEA OF NOT GUILTY SHOULD BE

ENTERED ......................................................... 335

C. WHEN A MATTER OF DISCRETION ............323

C. WHEN ACCUSED MAY ENTER A PLEA OF

GUILTY TO A LESSER OFFENSE ..................... 335

D. HEARING OF APPLICATION FOR BAIL IN

CAPITAL OFFENSES ....................................... 324
E. GUIDELINES IN FIXING AMOUNT OF BAIL 325

D. ACCUSED PLEADS GUILTY TO CAPITAL

OFFENSE; DUTY OF THE COURT ................... 336

F. WHEN BAIL NOT REQUIRED ...................... 325

E. SEARCHING INQUIRY ................................. 336

G. INCREASE OR REDUCTION OF BAIL ......... 325

F. IMPROVIDENT PLEA OF GUILTY TO A

CAPITAL OFFENSE ........................................... 337

H. FORFEITURE AND CANCELLATION OF BAIL

.......................................................................... 326

G.
GROUNDS
FOR
SUSPENSION
OF
ARRAIGNMENT ................................................ 337

TABLE OF CONTENTS
IX. MOTION TO QUASH ............................338

D. JUDICIAL NOTICE OF FOREIGN LAWS, LAW

OF NATIONS AND MUNICIPAL ORDINANCE 389

A. WHEN FILED ............................................... 338

III. OBJECT (REAL) EVIDENCE.................. 390

B. GROUNDS ................................................... 339

X. PRE-TRIAL........................................... 345
XI. TRIAL.................................................. 348
XII. JUDGMENT ........................................ 352
XIII. NEW TRIAL OR RECONSIDERATION 356

A.

NATURE OF OBJECT EVIDENCE........... 390

B.

REQUISITES FOR ADMISSIBILITY ........ 390

C.

CATEGORIES OF OBJECT EVIDENCE .... 391

D.

DEMONSTRATIVE EVIDENCE ................ 391

E. VIEW OF AN OBJECT OR SCENE ................. 391

XIV. APPEAL ............................................ 358

F. CHAIN OF CUSTODY IN RELATION TO SEC. 21

OF THE COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002 ...................................... 392

XV. SEARCH AND SEIZURE ..................... 365

XIV. PROVISIONAL REMEDIES ................. 375

G. RULE ON DNA EVIDENCE .......................... 392

(A.M. NO. 06-11-5-SC) ...................................... 392

EVIDENCE

IV. DOCUMENTARY EVIDENCE................ 394

A. MEANING OF DOCUMENTARY EVIDENCE 394
B. REQUISITES FOR ADMISSIBILITY .............. 394

I. GENERAL PRINCIPLES ..........................378

C. BEST EVIDENCE RULE ................................ 394

A. CONCEPT OF EVIDENCE .............................378

D. RULES ON ELECTRONIC EVIDENCE ......... 395

B. SCOPE OF THE RULES OF EVIDENCE [SEC. 2,

RULE 128] .........................................................378

(A.M. NO. 01-7-01- SC) ..................................... 395

E. PAROL EVIDENCE RULE ............................. 398

C. EVIDENCE IN CIVIL CASES VERSUS

EVIDENCE IN CRIMINAL CASES ......................378

F. AUTHENTICATION AND PROOF OF

DOCUMENTS ................................................... 399

D. PROOF VERSUS EVIDENCE ........................379

V. TESTIMONIAL EVIDENCE .................... 402

E. FACTUM PROBANS VERSUS FACTUM

PROBANDUM ...................................................379

A. QUALIFICATIONS OF A WITNESS .............. 402

F. ADMISSIBILITY OF EVIDENCE .....................379

B. COMPETENCY VERSUS CREDIBILITY ........ 402

G. BURDEN OF PROOF AND BURDEN OF

EVIDENCE ......................................................... 381

C. DISQUALIFICATIONS OF WITNESSES ....... 403

D. EXAMINATION OF A WITNESS .................. 409

H. PRESUMPTIONS ......................................... 382

E. ADMISSIONS AND CONFESSIONS ............. 414

I. LIBERAL CONSTRUCTION OF THE RULES OF

EVIDENCE ........................................................ 385

F. HEARSAY RULE ............................................ 417

J. QUANTUM OF EVIDENCE (WEIGHT AND

SUFFICIENCY OF EVIDENCE) ......................... 385

H. OPINION RULE ........................................... 424

II. JUDICIAL NOTICE AND JUDICIAL

ADMISSIONS ........................................... 386

J. RULE ON EXAMINATION OF A CHILD

WITNESS (A.M. NO. 004-07-SC) .................... 426

A. WHAT NEED NOT BE PROVED .................. 386

VI. OFFER AND OBJECTION ..................... 430

B. MATTERS OF JUDICIAL NOTICE ................ 386

A. OFFER OF EVIDENCE ................................. 430

C. JUDICIAL ADMISSIONS .............................. 388

B. WHEN TO MAKE AN OFFER [SEC. 35, RULE

132] .................................................................... 431

I. CHARACTER EVIDENCE .............................. 425

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TABLE OF CONTENTS
C. OBJECTION [SEC. 36, RULE 132] ................. 431

E. WRIT OF CONTINUING MANDAMUS ......... 440

D. REPETITION OF AN OBJECTION [SEC. 37,

RULE 132]......................................................... 432

IV. CRIMINAL PROCEDURE ..................... 442

A. WHO MAY FILE ............................................ 442

E. RULING ON THE OBJECTION [SEC. 38, RULE

132] ................................................................... 432

B. INSTITUTION OF CRIMINAL AND CIVIL

ACTION ............................................................ 442

F. STRIKING OUT AN ANSWER [SEC. 39, RULE

132] ................................................................... 432

C. ARREST WITHOUT WARRANT, WHEN VALID

.......................................................................... 442

G. TENDER OF EXCLUDED EVIDENCE [SEC. 40,

RULE 132]......................................................... 433

RULES OF PROCEDURE
ENVIRONMENTAL CASES

D. STRATEGIC LAWSUIT AGAINST PUBLIC

PARTICIPATION [SLAPP] ................................ 442
E. PROCEDURE IN THE CUSTODY AND
DISPOSITION OF SEIZED ITEMS .................... 442

FOR

F. BAIL .............................................................. 443

G. ARRAIGNMENT AND PLEA ........................ 443

I. SCOPE AND APPLICABILITY OF THE RULE

................................................................. 435

H. PRE-TRIAL .................................................. 443

II. CIVIL PROCEDURE .............................. 436

V. EVIDENCE ............................................ 444

A. PROHIBITION AGAINST TEMPORARY

RESTRAINING ORDER AND PRELIMINARY
INJUNCTION .................................................... 436

A. PRECAUTIONARY PRINCIPLE.................... 444

I. SUBSIDIARY LIABILITIES ............................. 444

B. DOCUMENTARY EVIDENCE ....................... 444

B.
TEMPORARY
ENVIRONMENTAL
PROTECTION ORDER (TEPO) .........................437
C. DECLARATION OF DEFAULT MOTU PROPRIO
...........................................................................437
D. PRE-TRIAL CONFERENCE; CONSENT
DECREE ............................................................437
E. PROHIBITED PLEADINGS AND MOTIONS .437
F. PERIOD TO TRY AND DECIDE .....................437
G. JUDGMENT AND EXECUTION; RELIEFS IN A
CITIZEN SUIT ................................................... 438
H.
PERMANENT
ENVIRONMENTAL
PROTECTION ORDER; WRIT OF CONTINUING
MANDAMUS .................................................... 438
I. STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION (SLAPP) ................................ 438

III. SPECIAL CIVIL ACTIONS ..................... 439

A. WRIT OF KALIKASAN ................................. 439
B. PROHIBITED PLEADINGS AND MOTIONS 440
C. DISCOVERY MEASURES............................. 440
D. APPEAL ....................................................... 440

vii

UP LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

REMEDIAL LAW

CIVIL PROCEDURE

UP LAW BOC

CIVIL PROCEDURE

I. General Concepts

REMEDIAL LAW

(5) Insolvency proceedings

(6) Other cases not provided for in the Rules of
Court

A. CONCEPT OF REMEDIAL LAW

Except by analogy or in a suppletory character

and whenever practicable and convenient
[Rule 1, Sec. 4]

Remedial law traditional term given to the

rules which prescribe the procedure for the
protection and enforcement of all claims
arising from the rights and duties created by
law [Riano]

A.3 PROSPECTIVITY/ RETROACTIVITY

The Rules of Court are not penal statutes and
cannot be given retroactive effect. [Bermejo v
Barrios (1970)].

That branch of law which prescribes the

method of enforcing rights or obtaining redress
for their invasion (Bustos v. Lucero, 81 Phil. 640).

However, they may be made applicable to

actions pending and undetermined at the time
of their passage, and are deemed retroactive in
that sense and to that extent. [In the Matter to
Declare in Contempt of Court Hon. Simeon
Datumanong (2006)].

A.1 SOURCE
Remedial law is basically contained in the
Rules of Court. Circulars of the Supreme Court
implementing the Rules of Court (e.g. Rules on
Summary Procedure) also contain remedial
law.

The reason for this is because there are no

vested rights in the rules of procedure. [Go v.
Sunbanon]

The Rules of Court, do not originate from the

legislature and cannot be called laws in the
strict sense. However, since they are
promulgated by authority of law, they have the
force and effect of law, if not in conflict with
positive law. The rule is subordinate to the
statute, and in case of conflict, the statute will
prevail. [Riano citing Alvero v. Dela Rosa; Shioji
v Harvey (1922)]

Procedural rules do not apply to pending

actions:
(1) where the statute itself or by necessary
implication provides that pending actions
are excepted from its application;
(2) if applying the rule to pending actions
would impair vested rights;
(3) when to do so would not be feasible or
would work injustice;
(4) if doing so would involve intricate
problems of due process or impair the
independence of the courts. [Riano citing
Tan v. CA]

A.2 APPLICABILITY
The Rules of Court shall apply in all the courts,
except as otherwise provided by the SC. [Rule 1,
Sec. 2]
It shall govern the procedure to be observed in
civil or criminal actions, and special
proceedings. [Rule 1, Sec. 3]

B. SUBSTANTIVE
REMEDIAL LAW

It does not apply to the following cases:

(1) Election cases,
(2) Land registration cases,
(3) Cadastral cases
(4) Naturalization cases,

LAW

VIS--VIS

Substantive Law - creates, defines and

regulates rights and duties regarding life,
liberty or property which when violated gives
rise to a cause of action (Bustos v. Lucero, 81
Phil. 640)
2

UP LAW BOC

CIVIL PROCEDURE

SUBSTANTIVE LAW

REMEDIAL LAW

Creates, defines, or
regulates
rights,
concerning life, liberty
or property or the
powers of agencies or
instrumentalities for the
administration of public
affairs
It makes vested rights
possible

Legislation
providing
means or methods
whereby
causes
of
action
may
be
effectuated,
wrongs
redressed, and relief
obtained; also called
Adjective Law

Prospective
application

in

Cannot be enacted by
the SC

REMEDIAL LAW

shared by the Court with Congress, more so

with the executive. [Echegaray v. Secretary of
Justice]

C.1 POWER OF THE SC TO AMEND

PROCEDURAL RULES
The SC has the sole prerogative to amend,
repeal, or even establish new rules for a more
simplified and inexpensive process, and the
speedy disposition of cases. [Neypes v. CA
(2005)]

It has no vested rights

Governs
acts
and
transactions which took
place (retroactive)
SC
is
expressly
empowered
to
promulgate procedural
rules

The constitutional faculty of the Court to

promulgate rules necessarily carries with it the
power to overturn judicial precedents on points
of remedial law through the amendment of the
Rules of Court. [Pinga v. Heirs of Santiago
(2006)].

C. RULE MAKING POWER OF THE

SUPREME COURT

C.2 POWER OF SC TO SUSPEND

Sec. 5(5), Art. VIII, of the 1987 CONST provides

that that the Supreme Court shall have the
power to promulgate rules concerning:
(1) the protection and enforcement of
constitutional rights,
(2) pleading, practice, and procedure in all
courts;
(3) admission to the practice of law;
(4) the Integrated Bar;
(5) and legal assistance to the underprivileged

The Rules of Court shall be liberally construed

in order to promote their objective of securing
a just, speedy and inexpensive disposition of
every action and proceeding. [Rule 1.6]
The courts have the power to relax or suspend
procedural rules, or to except a case from their
operation when compelling reasons so warrant
or when the purpose of justice requires it. What
constitutes good and sufficient cause that
would merit suspension of the rules is
discretionary upon the courts. [Commr of
Internal Revenue v. Mirant Pagbilao Corp.]

The same section sets forth the limitations to

the power:
(1) The rules shall provide a simplified and
inexpensive
procedure
for
speedy
disposition of cases;
(2) The rules shall be uniform for courts of the
same grade; and
(3) The rules shall not diminish, increase or
modify substantive rights.

Procedural rules were conceived to aid the

attainment of justice. If a stringent application
of the rules would hinder rather than serve the
demands of substantial justice, the former
must yield to the latter. [City of Dumaguete v.
Phil. Ports Authority]

The 1987 Constitution took away the power of

Congress to repeal, alter or supplement rules
concerning pleading, practice and procedure.
The power to promulgate rules is no longer

However, compliance with the procedural rules

is the general rule, and abandonment thereof
should only be done in the most exceptional
circumstances. [Pilapil v. Heirs of Briones]
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REMEDIAL LAW

as Distinguished from a Judge

A court is an organ of government with a
personality separate and distinct from the
judge who sits on it. [People v. Carlos]

Save for the most persuasive reasons, strict

compliance with the rules is enjoined to
facilitate the orderly administration of justice.
[Novateknika v. PNB]

Court
Tribunal officially
assembled under
authority of law
Comparable to
corporation

Concomitant to a procedure adopting a liberal

application of the rules should be an effort on
the part of the party invoking liberality to
explain his failure to abide by the rules.
[Abrenica v. Abrenica]

Judge
Officer
tribunal

of

such

a A physical or natural
person

Jurisdiction does not attach to the judge but to

the court. The continuity of a court and the
efficacy of its proceedings are not affected by
the death, resignation, or cessation from the
service of the judge presiding over it. [ABC
Davao Auto Supply v. CA (1998)].

They must be able to hurdle that heavy burden

of proving that they deserve an exceptional
treatment. The Court did not intend to forge a
bastion for erring litigants to violate the rules
with impunity. [Prieto v. Alpadi Development
Corp. (2013)]

D.2 CLASSIFICATION OF PHIL. COURTS

The reasons which would warrant suspension

of the Rules are:
(1) The existence of special and compelling
circumstances;
(2) The merits of the case;
(3) A cause not entirely attributable to the
fault or negligence of the party favored by
the suspension;
(4) A lack of any showing that the reviw
sought is merely frivolous or dilatory; and
(5) The rights of the other party will not be
unjustly prejudiced thereby. [Sarmiento v.
Zaratan]

i. Courts of original and appellate jurisdiction

Courts of original jurisdiction Those courts in
which, under the law, actions or proceedings
may be originally commenced.
Courts of appellate jurisdiction Courts which
have the power to review on appeal the
decisions or orders of a lower court. [Rule
egalado]
ii. Courts of general and special jurisdiction
Courts of general jurisdiction Those
competent to decide their own jurisdiction and
to take cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.

D. NATURE OF PHILIPPINE COURTS

D.1 MEANING OF A COURT
Court an organ of government belonging to
the judicial department, the function of which
is the application of the laws to controversies
brought before it as well as the public
administration of justice.

Courts of special or limited jurisdiction Those

which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Rule egalado]

It is also the place where justice is

administered. [Riano citing Blacks Law
Dictionary, Am. Jur. and C. J. S.]

iii. Constitutional and statutory courts

Constitutional courts Those which owe their
creation and existence to the Constitution and,
therefore cannot be legislated out of existence
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CIVIL PROCEDURE

or deprived by law of the jurisdiction and

powers unqualifiedly vested in them by the
Constitution.
e.g.
Supreme
Court;
Sandiganbayan is a constitutionally-mandated
court but created by statute.

REMEDIAL LAW

Courts not of record Courts which are not

required to keep a written record or transcript
of proceedings held therein.
All Philippine courts, including inferior courts,
are now courts of record. [Riano]

Statutory courts Those created, organized

and with jurisdiction exclusively determined by
law. [Rule Regalado]

D.3 PRINCIPLE OF JUDICIAL HIERARCHY

Doctrine of hierarchy of courts Where courts
have concurrent jurisdiction over a subject
matter, a case must be filed before the lowest
court possible having the appropriate
jurisdiction, except if one can advance a special
reason which would allow direct recourse to a
higher court.

iv. Courts of law and equity

Courts of Law- Those courts which administer
the law of the land. They settle cases according
to law.
Courts of Equity- Those courts which rules
according to the precepts of equity or justice.
They settle cases according to the principles of
equity referring to principles of justice, fairness
and fair play.
Philippine courts are both courts of law and
equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same
tribunal. [US v. Tamparong (1998)]

The rationale is two-fold:

(1) It would be an imposition upon the limited
time of the Court; and
(2) It would inevitably result in a delay, in the
adjudication of cases, which are remanded
or referred to the lower court as the proper
forum, or a trier of facts. [People v.
Azarraga]

v. Superior and Inferior Courts

Superior courts Courts which have the power
of review or supervision over another and lower
court.

The SC may disregard the doctrine if warranted

by the nature and importance of the issues
raised in the interest of speedy justice and to
avoid future litigations.

Inferior courts Those which, in relation to

another court, are lower in rank and subject to
review and supervision by the latter. [Rule
egalado]

Direct resort to the SC has been allowed in the

following cases:
(1) where there are special and important
reasons clearly stated in the petition;
(2) When dictated by public welfare and the
advancement of public policy;
(3) When demanded by the broader interest of
justice;
(4) When the challenged orders were patent
nullities;
(5) When
analogous
exceptional
and
compelling circumstances called for and
justified the immediate and direct handling

vi. Courts of record and not of record

Courts of record Those whose proceedings
are enrolled and which are bound to keep a
written record of all trials and proceedings
handled by them. [Rule egalado]
There exists a strong presumption as to the
veracity of its records that cannot be
collaterally attacked except for fraud.
5

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CIVIL PROCEDURE

by the Court. [Rule epublic v. Caguioa

(2013)]

REMEDIAL LAW

(2) to determine WON there has been grave

abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch or instrumentality of Government.
[Sec. 1, Art. VIII, 1987 Constitution]

D.4 DOCTRINE OF NON-INTERFERENCE

Also known as the doctrine of judicial stability

Judicial review -- the power of the Court to

declare a law, treaty, international or executive
agreement, presidential decree, proclamation,
order, instruction, ordinance, or regulation
unconstitutional.

Courts of equal and coordinate jurisdiction

cannot interfere with each others orders
[Lapu-lapu Development and Housing Corp. v.
Group Management Corp. (2002)]
The principle also bars a court from reviewing
or interfering with the judgment of a co-equal
court over which it has no appellate jurisdiction
or power of review. [Villamor v. Salas (1991)]

A. ASPECTS OF JURISDICTION
[Boston Equity Resources, Inc. v. CA (2013)]

The doctrine applies with equal force to

administrative bodies. When the law provides
for an appeal from the decision of an
administrative body to the SC or CA, it means
that such body is co-equal with the RTC in
terms of rank and stature, and logically beyond
the control of the latter [Phil Sinter Corp. v.
Cagayan Electric Power (2002)].

A.1 JURISDICTION OVER THE PARTIES

The manner by which the court acquires
jurisdiction over the parties depends on
whether the party is the plaintiff or the
defendant.
Jurisdiction over the plaintiff is acquired by his
filing of the complaint or petition. By doing so,
he submits himself to the jurisdiction of the
court. [Davao Light & Power Co., Inc. v CA
(1991)]

General Rule: 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

Jurisdiction over the person of the defendant is

acquired:
(1) by his voluntary appearance In court and his
submission to its authority; or
(2) by service of summons. [Rule 14.20;
Macasaet v. Co (2013)]

Exception: The doctrine of judicial stability

does not apply where a third party claimant is
involved

II. Jurisdiction

Jurisdiction over the person of the defendant is

necessary for the court to validly try and decide
a case only in an action in personam. It is not a
prerequisite in an action in rem or quasi in rem,
provided that the court acquires jurisdiction
over the res. [Alba v. CA (2005)]

Jurisdiction the authority to try, hear and

decide a case. [Tolentino v. Leviste (2004)]
Judicial Power includes the duty of the courts
of justice:
(1) to settle actual controversies involving
rights, which are legally demandable and
enforceable; and

An objection to jurisdiction over the person of

the defendant may be raised as a ground in a

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Motion to Dismiss [Rule .16.1(a)] or as an

affirmative defense in an Answer [Rule 16.6].

Renders a judgment void

or voidable.

However, if not raised in such Motion or

Answer, it is deemed waived. It is not one of
those defenses not deemed waived under
Section 1, Rule 9. [Boston Equity Resources, Inc.
v. CA (2013)]

Ground for reversal only

if it is shown that
prejudice has been
caused.

iii. How Conferred and Determined

[Medical Plaza Makati Condominium v. Cullen]
Jurisdiction over subject matter is conferred by
law, which may be either the Constitution or
statute. [City of Dumaguete v. PPA]

A.2 JURISDICTION OVER THE SUBJECT

MATTER
Jurisdiction over the subject matter the power
of a particular court to hear the type of case
that is then before it [Riano citing Blacks Law
Dictionary]

Since jurisdiction over the subject matter is

conferred by law, it cannot be:
(1) granted by agreement of the parties;
(2) acquired, waived, enlarged, or diminished
by any act or omission of the parties; or
(3) conferred by the acquiescence of the courts.
[De la Rosa v. Roldan]
(4) subject to compromise [Article 2035, Civil
Code]

It is the power to hear and determine cases of

the general class to which the proceedings in
question belong. [Rule eyes v. Diaz (1941)]
i. Jurisdiction Versus the Exercise of Jurisdiction
Jurisdiction refers to the power or authority of
the court. [Arranza v. BF Homes (2000)] while
the exercise of this power or authority is the
exercise of jurisdiction.

The statute in force at the time of the

commencement of the action determines the
jusridiction of the courts. [Baritua v. Mercader]
Jurisdiction over the subject matter is
determined by the allegations in the complaint,
which comprise a concise statement of the
ultimate facts constituting the plaintiffs cause
of action.

Jurisdiction is the authority to decide a case

and not the decision rendered therein. When
there is jurisdiction over the person and the
subject matter, the decision on all other
questions arising in the case is but an exercise
of jurisdiction. [Republic v. G Holdings, Inc.]

It does not depend on whether the plaintiff is

entitled to recover on some or all the claims
asserted, as the averments in the complaint
and the character of the relief sought are the
ones to be consulted. [City of Dumaguete v.
PPA]

ii. Error of Jurisdiction as Distinguished from

Error of Judgment
Error of jurisdiction
One where the act
complained of was (1)
without jurisdiction, in
excess of jurisdiction, or
with grave abuse of
discretion amounting to
lack of jurisdiction.
Correctible only by the
extraordinary writ of
certiorari.

REMEDIAL LAW

Error of judgment
One which the court
may commit in the
exercise
of
its
jurisdiction. It includes
errors of procedure or
mistakes in the courts
findings.

It also does not depend upon defenses set up

in the answer or upon the motion to dismiss;
otherwise, the question would depend almost
entirely on the defendant.
Note: The MTC does not lost jurisdiction over
ejectment cases by mere allegation of a

Correctible by appeal.

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CIVIL PROCEDURE

tenancy relationship. However, if after hearing,

tenancy had in fact been shown to be the real
issue, the court should dismiss the case for lack
of jurisdiction. [Hilado v. Chavez]

REMEDIAL LAW

(9) when the issue of non-exhaustion of

administrative remedies has been rendered
moot;
(10) when there is no other plain, speedy,
adequate remedy;
(11) when strong public interest is involved; and
(12) in quo warranto proceedings. [Province of
Aklan v. Jody King Construction and
Development Corp. (2013)]

iv. Doctrine of Primary Jurisdiction

Courts cannot and 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, experience
and services of the administrative tribunal to
determine technical and intricate matters of
fact [Paloma v. Mora (2005)].

v. Doctrine of Adherence of Jurisdiction

Also known as doctrine of continuity of
jurisdiction
Once jurisdiction has attached, cannot be
ousted by subsequent happenings or events,
although of a character which would have
prevented jurisdiction from attaching in the
first instance. The court retains that jurisdiction
until it finally disposes of the case. [Bantua v.
Mercader (2001)]

The objective is to guide a court in determining

whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court [Riano citing Omictin v. CA
(2007)]

As a consequence, jurisdiction is not affected

by a new law placing a proceeding under the
jurisdiction of another tribunal, except:
(1) Where there is an express provision in the
statute
(2) The statute is clearly intended to apply to
actions pending before its enactment.
[People v. Cawaling (1998)]

The exceptions to the Doctrine of Primary

Jurisdiction are:
(1) where there is estoppel on the part of the
party invoking the doctrine;
(2) where the challenged administrative act is
patently illegal, amounting to lack of
jurisdiction;
(3) where there is unreasonable delay or
official inaction that will irretrievably
prejudice the complainant;
(4) where the amount involved is relatively
small;
(5) where the question involved is purely legal
and will ultimately have to be decided by
the courts;
(6) where judicial intervention is urgent;
(7) when its application may cause great and
irreparable damange;
(8) where the controverted acts violate due
process;

vi. Objections to Jurisdiction over the Subject

Matter
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. [Rule 9, Sec. 1]
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 [Fabian v.
Desierto (1998)].

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REMEDIAL LAW

A.3 JURISDICTION OVER THE ISSUES

The earliest opportunity of a party to raise the

issue of jurisdiction is in a motion to dismiss
filed before the filing or service of an answer.
Lack of jurisdiction over subject matter is a
ground for a motion to dismiss. [Rule 16, Sec.
1(b)]

It is the power of the court to try and decide

issues raised in the pleadings of the parties.
[Rule eyes v. Diaz]
An issue is a disputed point or question to
which parties to an action have narrowed down
their several allegations and upon which they
are desirous of obtaining a decision.

If no motion is filed, the defense of lack of

jurisdiction may be raised as an affirmative
defense in the answer. [Rule 16.6].

Generally, jurisdiction over the issues is

conferred and determined:
(1) by the pleadings of the parties, which
present the issues to be tried and
determine whether or not the issues are of
fact or law [Rule eyes v. Diaz];
(2) by stipulation of the parties as when, in the
pre-trial, the parties enter into stipulations
of facts or enter into agreement simplifying
the issues of the case [Rule .18.2];
(3) by waiver or failure to object to evidence on
a matter not raised in the pleadings. Here
the parties try with their express or implied
consent or issues not raised by the
pleadings. [Rule 10.5]

Jurisdiction over the subject matter may be

raised at any stage of the proceedings, even for
the first time on appeal. The reason for this is
that jurisdiction is conferred by law, and lack of
it affects the very authority of the court to take
cognizance of the action. [Asiatrust
Development Bank v First Aikka Development,
Inc.]
When the court dismisses the complaint for
lack of jurisdiction over subject matter, it is
submitted that the court should not remand
the case to another court with the proper
jurisdiction. Its only has authority to dismiss
and not to make any other order. [Riano]

A.4 JURISDICTION OVER THE RES OR

PROPERTY IN LITIGATION

vi. Effect of Estoppel on Objections to

Jurisdiction
General Rule: Estoppel does not apply to
confer jurisdiction to a tribunal that has none
over a cause of action. Jurisdiction is conferred
by law. Where there is none, no agreement of
the parties can provide one. Settled is the rule
that the decision of a tribunal not vested with
appropriate jurisdiction is null and void.
[SEAFDEC-AQD v. NLRC (1992)]

Res, in civil law is a thing or object. It is

everything that may form an object of rights as
opposed to a persona, which is the subject of
rights. It includes object, subject matter or
status. [Riano citing Blacks Law Dictionary]
Jurisdiction over the res refers to the courts
jurisdiction over the thing or the property which
is the subject of the action.

Exception: Participation in all stages of the

case before the trial court, that included
invoking its authority in asking for affirmative
relief, effectively barred petitioner by estoppel
from challenging the courts jurisdiction.
[Soliven v. Fastforms (2004)]

Jurisdiction over the res may be acquired:

(1) By placing the property under its custody
(custodia legis), or by seizure of the thing
under legal process whereby it is brought
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(2) By statutory authority conferring upon the

court the power to deal with certain
property within the territorial jurisdiction.

REMEDIAL LAW

By way of petition for review on certiorari

(appeal by certiorari under Rule 45) against:
(1) CA
(2) Sandiganbayan
(3) RTC on pure questions of law and CTA in
its decisions rendered en banc.

This is called potential jurisdiction over the

res and results from institution of a legal
proceedings under such statute by which
the power of the court is recognized and
made effective.

This appellate jurisdiction applies:

(1) In cases involving the constitutionality or
validity of a law or treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty,
jurisdiction of a lower court; and
(2) All cases in which the jurisdiction of any
court is in issue;
(3) All cases in which an error or question of
law is involved

B. JURISDICTION OF COURTS
B.1 SUPREME COURT
Exclusive Original Jurisdiction
Petitions for certiorari, prohibition and
mandamus against the CA, COMELEC, COA,
CTA, Sandiganbayan.
Concurrent Original Jurisdiction
(1) With CA
(a) Petitions for certiorari, prohibition, and
mandamus against:
(i) Regional Trial Courts;
(ii) Civil Service Commission;
(iii) Central Board of Assessment
Appeals;
(iv) NLRC, and other Quasi-judicial
agencies.
(b) Petitions for writ of kalikasan

The SC may resolve factual issues in certain

exceptional circumstances [Josefa v. Zhandong,
(2003)]
(1) The
conclusion
is
grounded
on
speculations/ surmises /conjectures
(2) The
inference
is
manifestly
mistaken/absurd/impossible;
(3) There is grave abuse of discretion;
(4) The
judgment
is
based
on
a
misapprehension of facts;
(5) The findings of fact are conflicting;
(6) There is no citation of specific evidence on
which the factual findings are based;
(7) The finding of absence of facts is
contradicted by the presence of evidence
on record;
(8) The findings of the CA are contrary to those
of the trial court;
(9) The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a
different conclusion;
(10) The findings of the CA are beyond the
issues of the case;

(2) With RTC in cases affecting ambassadors,

public ministers and consuls.
(3) With CA and RTC
(a) petitions for certiorari, prohibition and
mandamus against lower courts and
bodies;
(b) petitions for quo warranto;
(c) petitions for writs of habeas corpus.
(4) With CA, RTC and Sandiganbayan
(a) Petitions for writ of amparo and habeas
data.
Appellate Jurisdiction
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(11) Such findings are contrary
admissions of both parties.

CIVIL PROCEDURE
to

the

REMEDIAL LAW

(c) from decisions of the Office of the

Ombudsman
in
administrative
disciplinary cases.

B.2 COURT OF APPEALS

B.3 COURT OF TAX APPEALS

Exclusive Original Jurisdiction in actions for

annulment of judgments of the RTC

UNDER RA 9282 and RULE 5, AM 05-11-07

CTA

Concurrent Original Jurisdiction

(1) With SC
(a) Petitions for certiorari, prohibition, and
mandamus against:
(i) Regional Trial Courts;
(ii) Civil Service Commission;
(iii) Central Board of Assessment
Appeals;
(iv) NLRC, and other Quasi-judicial
agencies.
(b) Petitions for writ of kalikasan

Exclusive Appellate Jurisdiction:

(1) Decisions of Commissioner of Internal
Revenue 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 the above-mentioned
cases, where the NIRC or other applicable
law provides a specific period of action, in
which case the inaction shall be deemed
an implied denial;
(3) Decisions, orders or resolutions of the
RTCs in local taxes originally decided or
resolved by them in the exercise of their
original or appellate jurisdiction;
(4) Decisions of the Commissioner of Customs
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 other matters arising
under the Customs law or other laws
administered by BOC;
(5) Decisions of the Central Board of
Assessment Appeals 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;
(6) Decision of the Secretary of Finance on
customs
cases
elevated
to
him
automatically for review from decisions of
the Commissioner of Customs which are

(2) With SC and RTC

(a) petitions for certiorari, prohibition and
mandamus against lower courts and
bodies;
(b) petitions for quo warranto;
(c) petitions for writs of habeas corpus.
(3) With SC, RTC and Sandiganbayan
(a) Petitions for writ of amparo and habeas
data.
Exclusive Appellate Jurisdiction
(1) By ordinary appeal:
(a) from the RTC and the Family Courts
(b) over decisions of the MTCs in cadastral
or land registration cases pursuant to
its delegated jurisdiction
(2) By petition for review:
(a) from judgments of the RTC rendered in
its appellate jurisdiction.
(b) from decisions, resolutions, orders or
awards of the Civil Service Commission
and other bodies mentioned in R43;
and

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adverse to the government under Sec. 2315

of the Tariff and Customs Code;
(7) Decisions of Secretary of Trade and
Industry in the case of non-agricultural
articles, and the Secretary of Agriculture in
the case of agricultural articles, involving
dumping duties and countervailing 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.

REMEDIAL LAW

(2) In tax collection cases

(a) Over appeals from the judgments,
resolutions or orders of the RTC in tax
collection cases originally decided by
them in their respective territorial
jurisdiction; and
(b) Over petitions for review of the
judgments, resolutions or orders of the
RTC in the exercise of their appellate
jurisdiction over tax collection cases
originally decided by the MeTCs, MTCs
and MCTCs in their respective
jurisdiction.

Exclusive Original Jurisdiction

(1) In tax collection cases involving final and
executory assessments for taxes, fees,
charges and penalties, where the principal
amount of taxes and fees claimed,
exclusive of charges and penalties, at least
P1M.
(2) Over all criminal cases arising from
violation of the NIRC and the TCC and
other laws, part of laws, or special laws
administered by the BIR or the BOC where
the principal amount of taxes and fees,
exclusive of charges and penalties claimed
is less than P1M or where there is no
specified amount claimed (the offenses or
penalties shall be tried by the regular
courts and the jurisdiction of the CTA shall
be appellate);

B.4 SANDIGANBAYAN
Original Jurisdiction:
(1) Violations of RA 3019, or the Anti-Graft
and Corrupt Practices Act
(2) Violations of RA 1379, or the Anti-Ill-Gotten
Wealth Act
(3) Sequestration cases, under Executive
Order Nos. 1, 2, 14, and 14-A
(4) Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC) where one or more of the principal
accused are occupying the following
positions in the government, whether in
permanent, acting or interim capacity, at
the time of the commission of the offense:
(a) Officials of the executive branch
occupying the positions of regional
director
and
higher,
otherwise
classified as Grade 27 and higher, of
the Compensation and Position
Classification Act of 1989 (RA 6758)
(b) Members of Congress and officials
thereof classified as G-27 and up under
RA 6758
(c) Members of the Judiciary without
prejudice to the provisions of the
Constitution
(d) Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution

Exclusive Appellate Jurisdiction

(1) In criminal offenses
(a) Over appeals from the judgment,
resolutions or orders of the RTC in tax
cases originally decided by them, in
their respective territorial jurisdiction,
and
(b) Over petitions for review of the
judgments, 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.
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(e) All other national and local officials

classified as Grade 27 and higher
under RA 6758
(f) Other offenses or felonies committed
by the public officials and employees
mentioned in Sec. 4(a) of RA 7975 as
amended by RA 8249 in relation to
their office
(g) Civil and criminal cases filed pursuant
to and in connection with EO Nos. 1, 2,
14-A (Sec. 4, RA 8249)

REMEDIAL LAW

If the basic issue is something other than the

right to recover a sum of money, such that the
money claim is purely incidental to, or a
consequence of, the principal relief sought, the
action is one where the subject of the litigation
may not be estimated in terms of money.
[Soliven v. Fastforms (1992)]
(2) Civil actions involving title to, or possession
of real property, or any interest therein,
where assessed value exceeds P20,000
outside Metro Manila, or exceeds P50,000
in Metro Manila

NOTE: Without the office, the crime cannot be

committed.

Exception: Forcible entry and unlawful

detainer cases

Appellate Jurisdiction over final judgments,

resolutions or orders of the RTC whether in the
exercise of their original or appellate
jurisdiction over crimes and civil cases falling
within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.

(3) If the amount involved exceeds P300,000

outside Metro Manila or exceeds
P400,000 in Metro Manila in the following
cases:
(a) Actions in admiralty and maritime
jurisdiction, where the amount refers to
the demand or claim
(b) Matters of probate (testate or
intestate), where the amount refers to
the gross value of the estate
(c) Other actions involving personal
property, where the amount refers to
the value of the property
(d) Demand for money, where the amount
refers to the demand exclusive of
interest, damages of whatever kind,
attorneys fees, litigation expenses and
costs.

Concurrent Original Jurisdiction with SC, CA,

and RTC for petitions for writs of habeas data
and amparo
NOTE: The requisites that the offender the
offender occupies salary Grade 27 and the
offense must be intimately connected with the
official function must concur for the SB to have
jurisdiction

B.5 REGIONAL TRIAL COURTS

Exclusive Original Jurisdiction
(1) The action is incapable of pecuniary
estimation

The exclusion of damages of whatever kind

applies to cases where the damages are merely
incidental to or a consequence of the main
cause of action.

If the action is primarily for the recovery of a

sum of money, the claim is considered capable
of pecuniary estimation, and jurisdiction will
depend on the amount of the claim. [Rule CPI v.
CA (2002)]

However, if the claim for damages is the main

cause of action, or one of the causes of action,
the amount of such claim shall be considered
[Admin Circ. No. 09-94]
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officers or managers of such

corporations,
partnerships
or
associations
(d) Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases
where
the
corporation,
partnership of association possesses
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 of association
has no sufficient assets to cover its
liabilities,
but
is
under
the
management of a Rehabilitation
Receiver or Management Committee.

(4) All actions involving the contract of

marriage and family relations, and all civil
actions falling within the exclusive original
jurisdiction of the Juvenile and Domestic
Relations Court and of the Court of
Agrarian Reform
See Jurisdiction of Family Courts, infra.
In areas where there are no Family Courts, the
cases within their jurisdiction shall be
adjudicated by the RTC (Sec. 17, RA 8369)
(5) All cases not within the exclusive
jurisdiction of any court, tribunal, person,
or body exercising judicial or quasi-judicial
functions (General Original Jurisdiction)

Concurrent Original Jurisdiction

(1) With SC in cases affecting ambassadors,
public ministers and consuls.
(2) With SC and CA
(a) petitions for certiorari, prohibition and
mandamus against lower courts and
bodies;
(b) petitions for quo warranto;
(c) petitions for writs of habeas corpus.
(3) With SC, CA and Sandiganbayan
(a) Petitions for writ of amparo and habeas
data.
(4) With Insurance Commissioner for claims
not exceeding P100,000

(6) Jurisdiction to Hear and Decide IntraCorporate

Controversies
(Sec.
52,
Securities and Regulations Code)
(a) Cases involving devises or schemes
employed by or any acts, of the board
of directors, business associates, its
officers or partnership, amounting to
fraud and misrepresentation which
may be detrimental to the interest of
the public and/or of the stockholders,
partners, members of associations or
organizations registered with the SEC
(b) Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates; between any or
all of them and the corporation,
partnership or association of which
they are stockholders, members or
associates, respectively; and between
such corporation , partnership or
association and the state insofar as it
concerns their individual franchise or
right to exist as such entity
(c) Controversies in the election or
appointments of directors, trustees,

Appellate Jurisdiction over cases decided by

lower courts in their respective territorial
jurisdictions, except those made in the exercise
of delegated jurisdiction, which are appealable
to the CA.
Special Jurisdiction - 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-

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judicial body and other special cases in the

interest of justice.

B.6 FAMILY COURTS

(RA 8369)
(1) Petitions for guardianship, custody of
children and habeas corpus involving
children;
(2) Petitions for adoption of children and the
revocation thereof;
(3) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to status and property relations of
husband and wife or those living together
under different status and agreements,
and petitions for dissolution of conjugal
partnership of gains;
(4) Petitions
for
support
and/or
acknowledgment;
(5) Summary judicial proceedings brought
under the provisions of the Family Code;
(6) Petitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for voluntary
or involuntary commitment of children, the
suspension, termination or restoration of
parental authority and other cases
cognizable under PD 603, EO 56, s. 1986,
and other related laws;
(7) Petitions for the constitution of the family
home;
(8) Cases against minors cognizable under the
Dangerous Drugs Act, as amended;
(9) Violations of RA 7610, or the Special
Protection of Children Against Child Abuse,
Exploitation and Discrimination Act; and
(10) Cases of domestic violence against Women
and Children

(2)

(3)
(4)
(5)
(6)

(7)
(8)
(9)

REMEDIAL LAW

not exceed P400,000 in Metro Manila in

the following cases:
(a) Actions in admiralty and maritime
jurisdiction;
(b) Matters of probate (testate or
intestate);
(c) Other actions involving personal
property;
(d) Demand for money;
Actions involving title to, or possession of,
real property, or any interest therein where
the assessed value of the property or
interest therein does not exceed P20,000
outside Metro Manila or does not exceed
P50,000 in Metro Manila
Inclusion and exclusion of voters
Those governed by the Rules on Summary
Procedure
Forcible entry and unlawful detainer
(FEUD)
With jurisdiction to resolve issue of
ownership to determine ONLY issue of
possession (provisional only)
Irrespective of the amount of damages or
unpaid rentals sought to be recover
Where attorneys fees are awarded, the
same shall not exceed P20,000
Other civil cases, except probate
proceeding, where the total amount of the
plaintiffs claim does not exceed P200,000
in MM, exclusive of interests and costs.

Special Jurisdiction over petition for writ of

habeas corpus OR application for bail in
criminal cases in the absence of all RTC judges
in the province or city
Delegated Jurisdiction to hear and decide
cadastral and land registration cases where:
(1) There is no controversy over the land
(2) In case of contested lands, the value does
not exceed P100, 000:
(a) The value is to be ascertained:
(i) By the claimants affidavit

B.7 METROPOLITAN TRIAL COURTS/

MUNICIPAL TRIAL COURTS
Exclusive Original Jurisdiction
(1) If the amount involved does not exceed
P300,000 outside Metro Manila or does

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(ii) By agreement of the respective

claimants, if there are more than
one
(iii) From the corresponding tax
declaration of the real property

REMEDIAL LAW

Concurrent Jurisdiction of Sharia District Courts

The Sharia courts shall have original
jurisdiction concurrently with existing civil
courts for:
(1) Petitions of Muslim for the constitution of
the family home, change of name and
commitment of an insane person to an
asylum;
(2) All other personal and legal actions not
mentioned in par. (d) of the immediately
preceding topic, wherein the parties
involved are Muslims
Exception: those for forcible entry and
unlawful detainer, which shall fall under
the exclusive jurisdiction of the MTC.
(3) All special civil actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims

NOTE: MTC decisions in cadastral and land

registration cases are appealable in the same
maner as RTC decisions
1st level courts:
(a) Metropolitan Trial Court Metro
Manila;
(b) Municipal Trial Courts in Cities
situated in cities
(c) Municipal Circuit Trial Court
composed of multi-sala
(d) Municipal Trial Courts in one
municipality

B.8 SHARIA COURTS

Exclusive Original Jurisdiction of Sharia District
Courts
(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 of appointment
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 and
correction of entries in the Muslim
Registries;
(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

Appellate Jurisdiction of Sharia District Courts

Such courts have appellate jurisdiction over all
cases tried in the Sharia Circuit Courts within
their territorial jurisdiction.
Exclusive Original Jurisdiction of Sharia Circuit
Courts
(1) Offenses defined and punished under PD
1083
(2) Disputes relating to:
(a) Marriage;
(b) Divorce under PD 1083;
(c) Betrothal or breach of contract to
marry;
(d) Customary dowry (mahr);
(e) Disposition and distribution of property
upon divorce;
(f) Maintenance
and support
and
consolatory gifts (muta); and
(g) Restitution of marital rights
(3) Disputes relative to communal properties

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The Sharia District Court or the Sharia Circuit

Court may constitute an Agama Arbitration
Council to settle certain cases amicably and
without formal trial. The Council is composed
of the Clerk of Court as Chairperson and a
representative of each of the conflicting parties.

C. JURISDICTION
CLAIMS

OVER

REMEDIAL LAW

amount of damages or unpaid rentals

sought to be recovered; and
(2) All
other
cases,
except
probate
proceedings where the total amount of the
plaintiffs claim does not exceed P100,000
(outside Metro Manila) or P200,000 (in
Metro Manila), exclusive of interest and
costs.

SMALL

Probate proceedings are not covered by the

Rule on Summary Procedure even if the gross
value of the estate does not exceed the abovementioned amounts.

MTCs, MeTCs and MCTCs shall have

jurisdiction over actions for payment of money
where the value of the claim does not exceed
P100,000 exclusive of interest and costs (Sec.
2, AM 08-8-7-SC, Oct. 27, 2009).

Prohibited Pleadings
[Sec. 19, 1991 Revised Rule on Summary
Procedure]
(1) Motion to dismiss the compliant except on
the ground of
(a) failure to comply with barangay
conciliation proceedings; or
(b) lack of jurisdiction over the subject
matter
(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; and
(12) Interventions.

Applicability [Sec. 4, AM 08-8-7-SC, as

amended]
(1) All actions 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, and
(2) The civil aspect of criminal actions, either
filed before the institution of the criminal
action, or reserved upon the filing of the
criminal action in court, pursuant to Rule
111.
These claims may be:
(1) For money owed under the contracts of
lease, loan, services, sale, or mortgage;
(2) For damages arising from fault or
negligence, quasi-contract, or contract;
and
(3) The enforcement of a barangay amicable
settlement or an arbitration award
involving a money claim pursuant to Sec.
417 of RA 7160 (LGC).

E. CASES COVERED BY BARANGAY

CONCILIATION

D. CASES COVERED BY RULES ON

SUMMARY PROCEDURE

The Lupon of each barangay shall have the

authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes

Civil Cases subject to Summary Procedure

(1) All cases of forcible entry and unlawful
detainer (FEUD), irrespective of the
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injunction, attachment, replevin and

support pendente lite
(d) Where the action may be barred by
statute of limitation
(10) Labor disputes or controversies arising
from employer-employee relationship
(11) Where the dispute arises from the CARL
(12) Actions to annul judgment upon a
compromise which can be directly filed in
court.

EXCEPT:
(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 one (1) year or a fine exceeding
P5,000
(4) Offenses where there is no private offended
party
(5) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon
(6) Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
except
where
such
barangay units adjoin each other and the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
(7) Such other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice
(8) Any complaint by or against corporations,
partnerships, or juridical entities. The
reason is that only individuals shall be
parties
to
barangay
conciliation
proceedings either as complainants or
respondents
(9) Disputes where urgent legal action is
necessary to prevent injustice from being
committed
or
further
continued,
specifically:
(a) A criminal case where the accused is
under police custody or detention
(b) A petition for habeas corpus by a
person illegally detained or deprived of
his liberty or one acting in his behalf
(c) Actions coupled with provisional
remedies,
such
as
preliminary

NOTE: It is a condition precedent under Rule

16; can be dismissed but without prejudice

F. TOTALITY RULE
Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the claims
in all the claims of action, irrespective of
whether the causes of action arose out of the
same or different transactions (Sec. 33[1], BP
129).

III. Commencement of
Actions to Trial
A. ACTIONS
An ordinary suit in a court of justice by which
one party prosecutes another for the
enforcement or protection of a right or the
prevention or redress of a wrong [Santos v. Vda.
De Caparas, (1959)]
An action is the legal and formal demand of
ones right from another person made and
insisted upon in a court of justice. The
determinative operative act, which converts a
claim into an action is its filing with a court of
justice. [Riano]

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This is distinguished from the cause of action,

which is the fact or combination of facts which
affords a party a right to judicial interference in
his behalf [Into v. Valle (2005)] and which is the
basis of ordinary civil actions. [Rule 2, Sec.1]

REMEDIAL LAW

Special Proceeding remedy by which a party

seeks to establish a status, a right, or a
particular fact. [Rule 1.3(c)]
Action

Special Proceeding
As to Parties
Involves at least 1
Involves at least 2 party or 2 or more
parties
parties in proper
cases
As to cause of action
Involves a right and a
violation of such right May involve a right,
by the defendant, but there need not
which causes some be a violation of this
damage or prejudice right
upon the plaintiff
As to formalities
Requires
the Requires no such
application of legal formalities, as it
remedies
in may be granted
accordance with the upon application
prescribed rules
As to governing rules
Ordinary
rules
of Special rules of
procedure
procedure

A.1 KINDS OF ACTIONS

Civil action -- one by which a party sues
another for the enforcement or protection of a
right, or the prevention or redress of a wrong
[Rule .1.3(a), par.1]
Ordinary civil action civil action that is
governed by the rules for ordinary civil
actions
Special civil action civil that is subject to
the specific rules prescribed for a special
civil action but also governed by the rules
for ordinary civil actions [Rule 1.3(a), par. 2]
Criminal action one by which the State
prosecutes a person for an act or omission
punishable by law [Rule 1, Sec. 3(b)]
Kinds of Ordinary Civil Actions
(1) As to place
(a) Transitory action founded on privity
of contract between parties; brought in
the place where the party resides
(b) Local - action founded on privity of
estate only and there is no privity of
contract; brought in a particular place
(2) As to object
(a) Action in rem
(b) Action quasi in rem
(c) Action in personam
(3) As to foundation
(a) Real
(b) Personal

As to appeal from an Interlocutory Order

Cannot be directly and
immediately appealed
to the appellate court
until
after
final
judgment
on
the
merits

Can be immediately
and
directly
appealed to the
appellate court

A.3 PERSONAL ACTIONS AND REAL

ACTIONS
The distinction is importation for purposes of
determining venue [Riano]
Real Action an action affecting title to or
possession of real property, or interest therein.
[Rule 4, Sec.1]

A.2 CIVIL ACTIONS VERSUS SPECIAL

PROCEEDINGS

A real action is local, i.e. its venue depends

upon the location of the property involved in
the litigation

Civil Action one by which a party sues

another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
[Rule 1.3(a), par.1]
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Not every action involving real property is a

real action because the realty may only be
incidental to the subject matter of the suit.
[Riano]

REMEDIAL LAW

Action in rem one which seeks to determine

the state or condition of a thing. Its
Action quasi in rem one whick seeks to
directly subject the property or interest of
named defendants to the obligation or lien of
the plaintiff.

Personal Action All other actions [Rule 4.2]

A personal action is transitory, i.e. its venue
depends upon the residence of the plaintiff or
the defendant.

Action in personam one which seeks to

enforce personal rights and obligations
brought against the person. Its purpose is to
impose, through the judgment of the court,
some liability directly upon the person of the
defendant.

A.4 LOCAL AND TRANSITORY ACTIONS

Local action
One that could be
instituted
in
one
specific place [Manila
Railroad v. AttorneyGeneral (1911)]

Transitory action
One that could be
prosecuted in any one
of several places
[Manila Railroad v.
Attorney-General
(1911)]
Its venue depends
Venue depends upon upon the residence of
the location of the the plaintiff or the
property involved in defendant at the
the litigation (Riano)
option of the plaintiff
(Riano)

A.6 INDEPENDENT CIVIL ACTIONS

[Rule 111, Sec 3]
An independent civil action may be brought in
the cases provided by:
(1) Article 32 of the Civil Code (Violation of
Constitutional rights by a public officer or
employee, or a private individual)
(2) Article 33 (defamation, fraud, or physical
injuries)
(3) Article 34 (refusal or failure to render aid or
protection by a member of the police
force); and
(4) Article 2176 (quasi-delict)

E.g. Action to recover E.g. Action to recover

real property
sum of money
If action is founded on privity of contract
between parties, then the action is transitory

Physical injuries under Article 33 is used in

the generic sense, and not in reference to the
offense (?) defined in the Revised Penal Code.
It also includes consummated, frustrated, and
attempted homicide and death arising from
delict. [Lanuza v. Ping (1980)]

But if there is no privity of contract and the

action is founded on privity of estate only, such
as a covenant that runs with the land in the
hands of remote grantees, then the action is
local and must be brought in the place where
the land lies

A.5 ACTIONS IN REM, IN PERSONAM, OR

QUASI IN REM
The distinction is important to determine
whether or not jurisdiction over the person of
the defendant is required, and the type of
summons to be employed. [Riano]

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Table: Actions in rem, in personam, and quasi in rem

Action in rem

Action in personam
Action quasi in rem
Directed against particular Directed against particular
Directed against the thing itself
persons
persons
Jurisdiction over the person of
Jurisdiction over the person of Jurisdiction over the person of defendant is not required as
the defendant not required
defendant required
long as jurisdiction over the res
is required
Proceeding to subject the
Action
to
impose
a
Proceeding to determine the
interest of a named defendant
responsibility or liability upon a
state or condition of a thing
over a particular property to an
person directly
obligation or lien burdening it
Judgment is binging only upon
Judgment is binding on the
Judgment
binging
upon
impleaded parties or their
whole world
particular persons
successors in interest
E.g. Action for partition;
E.g.
Probate
proceeding, E.g. Specific performance,
foreclosure of real estate
cadastral proceeding
action for breach of contract
mortgage

B. CAUSE OF ACTION

B.1 RIGHT OF ACTION VERSUS CAUSE OF

ACTION

Cause of action the act or omission by which

a party violates a right of another. [Rule 2.2]

Right of action
The 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
Right to sue as a
consequence of the
delict

Every ordinary civil action must be based on a

cause of action [Rule 2.1]
A cause of action stems from the sources of
obligations under Art. 1156 of the Civil Code:
(1) Law,
(2) Contract,
(3) Quasi-contract,
(4) Acts and omissions punishable by law and
(5) Quasi-delict. [Sagrada Orden etc v.
NACOCO (1952)]

Cause of action
The delict or wrongful
act
or
omission
committed by
the
defendant in violation
of the primary rights
of the plaintiff
The delict or wrong

Determined by the
Whether such acts
averments in the
give him right of
pleading
regarding
action determined by
the acts committed by
substantive law
the defendant

Elements of a Cause of Action:

(1) Plaintiffs legal right;
(2) Defendants correlative obligation to
respect plaintiffs right;
(3) Defendants act/omission in violation of
plaintiffs right [Ma-ao Sugar Central v.
Barrios (1947)]

There can be no right of action without a cause

of action being first established [Regalado
citing Espaol v. The Chairman of PVA (1985)]

B.2 FAILURE TO STATE A CAUSE OF

ACTION

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B.3 SPLITTING A SINGLE CAUSE OF

ACTION; EFFECTS

Even if in reality, he plaintiff has a cause of

action against the the defendant, the
complaint may be dismissed if the complaint of
pleading asserting the claim states no cause
of action. [Rule .16.1(g)]

Splitting a Cause of Action The act of

instituting two or more suits on the basis of the
same cause of action. [Rule 2, Sec.4]

The cause of action must unmistakably be

stated or alleged in the complaint. All the
elements required by substantive law must
clearly appear from a mere reading of the
complaint. [Riano]

The pleader divides a single cause of action,

claim, or demand into two or more parts and
brings suit for one of such parts with the intent
to reserve the rest for another separate action.
[Quadra v. CA]

The complaint must contain a concise

statement of the ultimate or essential facts
constituting the plaintiffs cause of action. The
focus is on sufficiency, not veracity, of the
material allegations. [Anchor Savings Bank v.
Furigay]

The test of singleness of cause of action lies in

the singleness of the delict or wrong violating
the rights of one person.
The tests to ascertain whether two suits relate
to a single or common cause of action are:
(1) Whether the same evidence would support
and sustain both causes of action
(2) Whether the defenses in one case may be
used to substantiate the complaint in the
other
(3) Whether the cause of action in the second
case existed at the time of filing of the first
complaint [Umale v. Canoga Park
Development Corp.]

Test of Sufficiency
The existence of the round to dismiss can be
determined only from the facts alleged in the
complaint and from no other, and the court
cannot consider other matters aliunde.
The test is whether, assuming the facts alleged
to be true, the court could render a valid verdict
in accordance with the prayer of the complaint.
[Manaloto v. Veloso III]

For a single cause of action or violation of a

right, the plaintiff may be entitled to several
reliefs. It is the filing of separate complaints for
these several reliefs that constitutes splitting
up of the cause of action which is proscribed by
Rule 2, Sec. 3 and 4. [City of Bacolod v. SM
Brewery (1969)]

However, the Court has considered other

matters aside from the facts alleged in the
complaint, such as:
documents attached to the complaint
[Agrarian Reform Beneficiaries Association v.
Nicolas]
appended annexes, other pleadings, and
admissions on record [Zepeda v. China
Banking Corp.]

Effects:
The filing of one or a judgment upon the merits
in any one is available as a ground for the
dismissal of the others. [Rule 2.4] The remedy
is for the defendant to file a Motion to Dismiss
under Rule 16.

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(1) Filing of the first complaint may be

pleaded in abatement of the second
complaint, on the ground of litis pendentia
[Rule 16.1.(e)]; or

There is no sanction against non-joinder of

separate causes of action since a plaintiff
needs only a single cause of action to maintain
an action (Regalado).

(2) A judgment upon the merits in any of the

complaints is available as ground for
dismissal of the others based on res
judicata [Rule 16.1(f)]

Requisites [Rule 2.5]

(1) The party joining the causes of action shall
comply with the rules on joinder of parties;
(2) The joinder shall not include special civil
actions or actions governed by special
rules;
(3) Where causes of action are between the
same parties but pertain to different
venues or jurisdictions, the joinder may be
allowed in the RTC provided one of the
causes of action are within that courts
jurisdiction and venue lies therein;
(4) Where the claims in all the causes of action
are principally for recovery of money, the
aggregate amount claimed shall be the
test of jurisdiction (totality rule)

Rationale
A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3] The
rationale is:
(1) To prevent repeated litigation between the
same parties in regard to the same subject
or controversy;
(2) To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et
eadem causa (No man shall be twice vexed
for one and the same cause);
(3) To avoid the costs and expenses incident to
numerous suits. [City of Bacolod v. SM
Brewery (1969)]

B.4 JOINER AND

CAUSES OF ACTION

MISJOINDER

Misjoinder of Causes of Action

Misjoinder is not a ground for dismissal of an
action [Rule 2.6]

OF

An erroneously joined cause of action may, on

motion of a party or on the initiative of the
court, be severed and proceeded with
separately.

Joinder of Causes of Action the assertion of as

many causes of action as a party may have
against another in one pleading alone.
[Rule .2.5]

If there is no objection to the improper joinder

or the court did not motu proprio direct a
severance, then there exists no bar in the
simultaneous adjudication of all the
erroneously joined causes of action, as long as
the court trying the case has jurisdiction over
all of the causes of action therein
notwithstanding the misjoinder.

It is also the process of uniting two or more

demands or rights of action in one action.
[Riano]
Ratio
To avoid a multiplicity of suits and to expedite
disposition of litigation at minimum cost [Ada v.
Baylon (2012)]

If the court has no jurisdiction to try the

misjoined action, then it must be severed.
Otherwise, adjudication rendered by the court
with respect to it would be a nullity. [Ada v.
Baylon (2012)]C. Parties

The rule however is purely permissive as the

plaintiff can always file separate actions for
each cause of action. [Baldovi v. Sarte (1917)]
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Plaintiff one having an interest in the matter

of the action or in obtaining the relief
demanded.

REMEDIAL LAW

partnership to third persons [Arts. 1768,

1772, Civil Code]
(3) The estate of a deceased person is a
juridical entity that has a personality of its
own [Nazareno v. CA]
(4) The Roman Catholic Church may be a
party; as to its properties, the Archbishop
or diocese to which they belong may be a
party. [Ponce v. Roman Catholic]
(5) A legitimate labor union may sue and be
sued in its registered name [Art. 242(e),
Labor Code]

The term may either refer to the claiming party,

counter-claimant, cross-claimant, or thirdparty plaintiff. [R3.1]
Defendant one claiming an interest in the
controversy or the subject thereof adverse to
the plaintiff.
Term may refer to the original defending party,
the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party
defendant. [R3.1] It also includes an unwilling
co-plaintiff, or one who should be joined as
plaintiff but refuses to give his consent thereto.
[R3.10]

Legal Capacity to Sue

Legal capacity to sue or be sued means that
the party is free from general disability (e.g.
minority or insanity) or, in case of juridical
entities, that it must be duly registered in
accordance with law

Who may be Parties

(1) natural persons;
(2) juridical persons;
(3) entities authorized by law. [R3.1]

Facts showing the capacity of a party to sue or

be sued, or the authority of a party to sue or be
sued in a representative capacity, or the legal
existence of an organized association of
persons that is made a party, must be averred.
[Rule 8, Sec.4]

Juridical persons [Art. 44, Civil Code]

(1) The State and its political subdivisions;
(2) Other corporations, institutions and
entities for public interest or public
purpose, created by law; and
(3) Corporations,
partnerships,
and
associations for private interest or purpose
to which the law grants a judicial
personality, separate and distinct from that
of each shareholder, partner, or member.

Legal capacity to sue

Plaintiffs general
disability to sue, on
account of minority,
insanity,
incompetence, etc.
Ground for a Motion
to Dismiss is lack of
capacity to sue [Rule
16, Sec. 1(d)]

Examples of Entities Authorized by Law [Riano]

(1) A corporation by estoppel is precluded
from denying its existence, and the
members are liable as general partners
[Sec. 21, Corporation Code]
(2) A partnership with capital of at least
P3,000 which fails to comply with the
registration requirements is liable as a

Legal personality to
sue
Plaintiff is not the real
party in interest
Ground is failure of
complaint to state a
cause of action. [Rule
16, Sec. 1(g)]

C.1 REAL PARTY-IN-INTEREST

Real Party-in-Interest 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. [Rule 3, Sec.2]

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Interest means material interest or an

interest in issue to be affected by the decree or
judgment of the case, as distinguished from
mere curiosity about the question involved.
[Ang v. Sps. Ang (2012)]
The interest must be real, which a present and
substantial interest as distinguished from a
mere expectancy or a future, contingent,
subordinate, or consequential interest. [Rayo v.
Metrobank] It should be material and direct, as
distinguished from a mere incidental interest.
[Mayor Rhustam Dagadag v. Tongnawa]

Minors (represented by their parents) are real

parties in interest under the principle of
intergenerational responsibility. [Oposa v.
Factoran (1993)]

Unless authorized by law or the Rules, every

action must be prosecuted or defended in the
name of the real party in interest. [Rule 3, Sec.
2]

Remedies:
(1) Amendment of pleadings (Alonso v.
Villamor, 1910); or
(2) Complaint may be deemed amended to
include the real party-in-interest (Balquidra
v. CFI Capiz, 1977)

Failure to Name a Real Party-in-Interest

If the suit is not brought in the name of or
against the real party-in-inteerest, a Motion to
Dismiss may be filed on the ground that the
complaint states no cause of action.
[Balagtas v. CA]

Husband and wife shall sue and be sued jointly,

except as provided by law. [Rule 3, Sec. 4]

As an exception, the real litigant may be held

bound as a party even if not formally
impleaded provided he had his day in court.
[Albert v. University Publishing Co., (1958)]

Representatives as Parties
A representative is one acting in fiduciary
capacity, such as a trustee of an express trust,
a guardian, an executor or administrator, or a
party authorized by law or the Rules of Court.
[Rule 3, Sec. 3]

C.2. INDISPENSABLE AND NECESSARY

PARTIES
Indispensable Party a real party-in-interest
without whom no final determination can be
had of an action. [Rule 3, Sec. 7]

Where the action is allowed to be prosecuted

or defended by a representative party, the
beneficiary shall be included in the title of the
case and shall be deemed to be the real party
in interest.

Necessary Party not an indispensable party

but ought to be joined as a 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
[Rule 3, Sec. 8]

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 if
the contract involves things belonging to the
principal.

Although joinder of parties is generally

permissive [Rule 3, Sec. 6] the joinder of a party
becomes compulsory when the one involved is
an indispensable party. [Rule 3, Sec. 7]

A minor or a person alleged to be incompetent

may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a
guardian ad litem. [Rule 3, Sec. 5]

A person is not an indispensable party if his

interest in the controversy or subject matter is
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C.5 COMPULSORY AND PERMISSIVE

JOINDER OF PARTIES

separable from the interest of the other parties,

so that it will not necessarily be directly or
injuriously affected by a decree which does not
complete justice between them. [Riano]
Indispensable parties

Necessary parties

Must be joined under

any and all conditions

Should
be
joined
whenever possible

Presence is a condition
sine qua non for
exercise of judicial
power

Action can proceed even

in their absence; interest
is separable from that of
the indispensable party

No valid judgment if
not joined.

The case may be

determined
but
the
judgment will not resolve
the entire controversy

Interest
in
the
controversy such that a
final decree would
necessarily affect their
rights..

REMEDIAL LAW

Compulsory Joinder [Rule 3, Sec. 7]

Parties in interest without whom no final
determination can be had of an action (i.e.
indispensable parties) shall be joined either as
plaintiffs or defendants
The absence of an indispensable parties
renders all subsequent actions of the trial court
null and void for want of authority to act, not
only as to the absent parties but even as to
those present. [Go v. Distinction Properties
Development, Inc. (2012)]
Non-Joinder of Necessary Parties [Rule 3, Sec.
9]
When a pleading asserting a claim, omits to
join a necessary party, the pleader must:
(1) Set forth the name of the necessary party,
if known, and
(2) State the reason why the necessary party is
omitted. [Rule 3, Sec. 9, par. 1]

Interests are so far

separable that a final
decree can be made in
their absence without
affecting them.

C.3 INDIGENT PARTIES

Indigent Party one who has no money or
property sufficient and available for food,
shelter, and basic necessities [Rule 3, Sec. 21]

Non-joinder of a necessary party does not

prevent the court from proceeding in the action.
The judgment rendered therein shall not
prejudice the rights of such necessary party
[Rule 3, Sec. 9 par 3]

Authority to litigate as such shall include

exemption from payment of docket fees, other
lawful fees, and fees for TSN but these
amounts shall be a lien on any judgment
favorable to such indigent party, unless the
court provides otherwise.

Permissive Joinder [Rule 3, Sec. 6] - Parties can

be joined, as plaintiffs or defendants, in one
single complaint or may themselves maintain
or be sued in separate suits.

This authority may be granted upon an ex parte

application and hearing but the adverse party
may contest such grant at any time before
judgment is rendered by the trial court.

Requisites:
(1) Right to relief arises out of the same
transaction or series of transactions
Transaction not only a stipulation or
agreement but any event resulting in
wrong, whether the wrong was done by
violence, neglect, or breach of contract
Series of transactions transactions
connected with the same subject of the
action

C.4 ALTERNATIVE DEFENDANTS

Where the plaintiff is uncertain against whom
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. [Rule 3, Sec. 13]
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(2) A question of law or fact common to all the

plaintiffs or defendants
(3) Such joinder is not otherwise proscribed by
the rules on jurisdiction and venue

Objections should be made at the earliest

opportunity. At the moment such defect
becomes apparent, a motion to strike the
names of the parties must be made.

NOTE: Compare to Joinder of Causes of Action

where it is enough if the causes of action arises
out of the same contract, as there is no need
for a common question of fact or law.

Objections to misjoinder cannot be raised for

the first time on appeal [Lapanday Agricultural
& Development Corporation v. Estita (2005)]

C.7 CLASS SUIT

C.6 MISJOINDER AND NON-JOINDER OF
PARTIES

Requisites [Rule 3, Sec. 12]

(1) Subject matter of the controversy is one of
common or general interest to many
persons;
(2) The persons are so numerous that it is
impracticable to join them all as parties,
and to bring them all before the court;
(3) Parties actually before the court are
sufficiently numerous and representative of
the class as to fully protect the interests of
all concerned;
(4) The representative sues or defends for the
benefit of all.

Misjoinder when one is made a party to the

action although he should not be impleaded.
Non-joinder when one is not joined when he
is supposed to be joined but is not impleaded
in the action. [Riano]
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of an action. parties
may be [Rule 3, Sec. 11]

Non-joinder of an indispensable party is not

a ground for outright dismissal of the
action. If he plaintiff refused to implead an
indispensable party despite order of the
court, that court may dismiss the complaint
for the plaintiffs failure to comply with the
order. [Pamplona Platation v. Tinghil].

In a class suit, any party in interest shall have

the right to intervene to protect his individual
interest. [Rule 3, Sec. 12]
If a class suit is improperly brought, the action
is subject to dismissal regardless of the cause
of action. [Rule 16, Sec 1 (d)]

If the court finds the reason for the nonjoinder of a necessary party unmeritorious,
it may order the inclusion of such necessary
party, if jurisdiction over his person may be
obtained. Failure to comply with such
order without justifiable cause is deemed a
waiver of the claim against such party. [Rule
3, Sec. 9, pars. 1-2]

However, no class suit may be dismissed upon

the instance of the plaintiff or compromised,
without the approval of the court. [Rule 17, Sec.
2]
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]

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. [Rule 3, Sec.11]
Objections to defects in parties

A derivative suit is action brought by minority

shareholders in the name of the corporation to
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redress wrongs committed against it, for which

the directors refuse to sue. It is a remedy
designed by equity and has been the principal
defense of the minority shareholders against
abuses by the majority.

The service of summons may be effected upon

all the defendants by serving upon any of them,
or upon the person in charge of the office or
place of business maintained under such name.
[Rule 14, Sec. 8]

In a derivative action, the real party in interest

is the corporation itself, not the shareholders
who actually instituted it [Lim v. Lim Yu (2001))

C.9 EFFECT OF DEATH OF A PARTYLITIGANT

Duty of Counsel upon Death of Client [Rule 3,
Sec. 16]
(1) Inform court of such fact within 30 days
after the death;
(2) Give the name and address of the legal
representatives.

There is no class suit in an action filed by

associations of sugar planters to recover
damages in behalf of individual planters for an
allegedly libelous article in an international
magazine. There is no common or general
interest in reputation of a specific individual.
Each of the sugar planters has a separate and
distinct reputation in the community not
shared by the others. [Newsweek, Inc. v.
Intermediate Appellate court (1986)]

Failure to comply is a ground for disciplinary

action.
Action of Court upon Notice of Death
Upon receipt of notice, shall determine if claim
is extinguished by such death.
(1) Claim does not survive: the proper action
would be to dismiss the case. Substitution
would not be required.

A class suit does not require a commonality of

interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Mathay v. Consolidated Bank &Trust
Company (1974)]

(2) Claim survives: the court shall order the

legal representative of the deceased to
appear and be substituted for him within
30 days, or within such time as may be
granted.

C.8 SUITS AGAINST ENTITIES WITHOUT

JURIDICAL PERSONALITY
Requisites [Rule 3, Sec. 15]
(1) There are 2 or more persons not organized
as a juridical entity;
(2) They enter into a transaction;
(3) A wrong is committed against a 3rd person
in the course of such transaction.

Survival of Action
Survival depends on the nature of the action
and the damage sought
(1) Causes of Action that Survive:
(a) The wrong complained of affects
primarily and principally property and
property rights
(b) Injuries to the person are merely
incidental
(c) E.g. Purely personal actions like
support
(2) Causes of Action that do not Survive:
(a) The injury complained of is to the
person

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.
[Rule 3, Sec. 15]

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(b) Property and property rights affected

are incidental
(c) E.g. actions to recover real and
personal property or to enforce liens
thereon

REMEDIAL LAW

(1) The action must primarily be for recovery of

money, debt or interest thereon;
(2) The claim arose from express or implied
contract;
(3) Defendant dies before the entry of final
judgment in the court in which the action
was pending.
(4) The defendants death will not result in the
dismissal of the action.

Court may order the opposing party to procure

the appointment of an administrator or
executor of the estate in the ff. cases:
(1) No legal representative is named; or
(2) The one so named fails to appear within the
specified period. [Rule 3, Sec. 16]

Effect
There shall be substitution in the manner
provided under Rule 3, Sec. 16, and the action
will continue until the entry of final judgment.
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.

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. [Ferreria v Vda de Gonzales (1986)]
i. Death or Separation of a Party who is a Public
Officer
Requisites [Rule 3, Sec. 17]
(1) That the public officer is a party to an
action in his official capacity;
(2) That during the pendency of the action, he
either dies/resigns or otherwise ceases to
hold office;
(3) That any party shows to the satisfaction of
the court, within 30 days after the
successor takes office, that there is a
substantial need to continue or maintain
the action;
(4) That the successor adopts or continues his
predecessors action, or threatens to do so;
and
(5) The party or officer affected:
(a) Assented to the substitution, or
(b) Was given reasonable notice of the
application, and opportunity to be
heard

iii. Incompetency or Incapacity of a Party During

the Pendency of the Action
The Court, upon motion with notice, may allow
the action to be continued by or against the
incapacitated person, assisted by his legal
guardian or guardian ad litem. [Rule 3, Sec. 18]
iV. Transfer of Interest During Pendency of
Action
General rule: The rule does not consider the
transferee an indispensable party. Hence, the
action may proceed without the need to
implead him.
Exception: When the substitution by or joinder
of the transferee is ordered by court. [Rule 3,
Sec. 19]
The case is dismissed if the plaintiffs interest is
transferred to defendant unless there are
several plaintiffs, in which case the remaining
plaintiffs can proceed with their own cause of
action.

ii. Action on Contractual Money Claims

Requisites [Rule 3, Sec. 20]
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D.VENUE

Exception in cases of
Summary
Procedure
[Rule 4, Rule on
Summary Procedure]

Venue is the place, or the geographical area

where an action is to be filed and tried. In
civil cases, it relates only to the place of the
suit and not to the jurisdiction of the court.
[Riano citing Manila Railroad Company v.
Attorney General (1911)]

Shall be commenced and tried in the proper

court which has jurisdiction over the area
wherein the real property involved, or a
portion thereof is situated. [Rule 4, Sec. 1(1)]
Forcible entry and detainer actions shall be
commenced and tried in the municipal court
of the municipality or city wherein the real
property involved, or a portion thereof, is
situated. [Rule 4, Sec. 1(2)]

A motu propio dismissal based on improper

venue is patently incorrect. [Dolot v. Paje]
Unless and until the defendant objects to the
venue in a motion to dismiss, the venue
cannot truly be said to have been improperly
laid because the venue, although technically
wrong, may be acceptable to the parties for
whose convenience the rules of venue had
been laid. [Dacuycoy v. IAC]

If the property is located at the boundaries of

2 places, file the case in either place (at the
plaintiffs option).
If the case involves 2 properties located in 2
different places:
(1) objects of the same transaction file it in
any of the 2 places;
(2) objects of distinct transactions
separate actions should be filed in each
place unless properly joined.

However, the court may effect a motu propio

dismissal for improper venue in actions
covered by the Rules on Summary Procedure,
in Small Claims cases, and in ejectment
cases.

D.3 VENUE OF PERSONAL ACTIONS

D.1 VENUE VERSUS JURISDICTION

Jurisdiction

Place where the action

is instituted

Power of the court to

hear and decide a case
Jurisdiction over the
subject matter and
over the nature of the
action is conferred by
law and cannot-be
waived
Substantive
Is fixed by law and
cannot be the subject
of the agreement of
the parties

May be waived

Procedural
May be changed by the
written agreement of
the parties
Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent
Not a ground for a
motu propio dismissal

proprio dismissal.

D.2 VENUE OF REAL ACTIONS

Choosing the venue of an action is not left to

a plaintiffs caprice; the matter is regulated
by the Rules of Court. [Ang v. Sps. Ang
(2012)]

Venue

REMEDIAL LAW

At the plaintiffs election [Rule 4, Sec. 2]

(1) Where the plaintiff or any of the principal
plaintiffs resides;
(2) Where the defendant or any of the
principal defendants resides;
(3) In case of a non-resident defendant,
where he may be found.
The plaintiff or the defendant must be
residents of the place where the action has
been instituted at the time the action is
commenced. [Ang v. Sps. Ang (2012)]

Establishes a relation
between the court and
the subject matter

The residence of a person is his personal,

actual or physical habitation or his actual
residence or place of abode, which may not
necessarily be his legal residence or domicile

Lack of jurisdiction
over the subject matter
is a ground for a motu

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provided he resides therein with continuity

and consistency. [Boleyley v. Villanueva]

REMEDIAL LAW

prospective action between them. The

agreement of parties must be restrictive and
not permissive. [Regalado]

A corporation cannot be allowed to file

personal actions in a place other than its
principal place of business unless such place
is also the residence of a co-plaintiff or
defendant. [Clavecilla Radio v. Antillon]

In the absence of qualifying restrictive words

(e.g. only/solely/exclusively in such court),
venue stipulation is merely permissive; that is,
the stipulated venue is in addition to the
venue provided for in the rules. [Polytrade
Corp. v. Blanco (1969)]

D.4 VENUE OF ACTIONS AGAINST

NON-RESIDENTS

The court may declare agreements on venue

as contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to
file suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres
(1978)].

Non-resident found in the Philippines

(1) For personal actions
(a) Where the plaintiff, or any of the
principal plaintiffs, resides; or
(b) Where the non-resident defendant
may be found
(2) For real actions -- where the property is
located

E. PLEADINGS
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate
judgment [Rule 6, Sec. 1]

Non-resident not found in the Philippines

(1) Involves personal status of plaintiff
where plaintiff resides
(2) Involves property of defendant in the
Philippines where the property, or any
portion thereof, is situated or found

Pleadings versus Motions

Pleading
Purpose is to submit a
claim or defense for
appropriate judgment

When there is more than one defendant or

plaintiff, the residences of the principal
parties should be the basis for determining
proper venue (Herrera)

May be initiatory
Always filed before
judgment
Only 9 kinds of
pleading are allowed
by the rules

D.5 WHEN THE RULES ON VENUE DO

NOT APPLY
(1) If a specific rule or law provides otherwise
(e.g. action for damages arising from
libel);
(2) If there is a stipulation as to venue which
is permitted if the agreement:
(a) is in writing;
(b) was made before the filing of the
action; and
(c) is exclusive the exclusive venue.

Must be written

Motion

Purpose is to apply for

an order not included in
the judgment
Cannot be initiatory;
Always made in a case
already filed in court
May be filed even after
judgment
Any application for
relief not by a pleading
is a motion
May be oral when made
in open court or in the
course of a hearing or
trial

E.1 KINDS OF PLEADINGS

Kinds of Pleadings Allowed [Rule 6, Sec. 2]
(1) Complaint
(2) Answer
(3) Counterclaim
(4) Cross-claim
(5) 3rd-party Complaint
(6) Complaint-in-intervention
(7) Reply

D.6 EFFECTS OF STIPULATION ON

VENUE
To be binding, the parties must have agreed
on the exclusive nature of the venue of any
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i. Complaint
The pleading alleging the plaintiffs cause/s
of action. [Rule 6, Sec. 3]

REMEDIAL LAW

Kinds of Defenses [Rule 6, Sec. 5]

(1) Negative Defenses - Specific denials of
the material facts alleged in the pleading
of the claimant essential to his cause of
action.
(2) Affirmative Defenses - Allegations of new
matters which, while hypothetically
admitting the material allegations in the
claimants pleading, would nevertheless
prevent or bar recovery, by way of
confession and avoidance.

The complaint should contain a statement of

ultimate facts on which the plaintiff relies for
his claim, which is:
(1) in a methodical and logical form;
(2) plain, concise, and direct; and
(3) omits statement of mere evidentiary facts
[Rule 8, Sec. 1]
Function
(1) Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared
to meet the issues at trial.
(2) It should inform the defendant of all
material facts on which the plaintiff relies
to support his demand.
(3) It should state the theory of a cause of
action which forms the bases of plaintiffs
claim of liability. [Tantuico v. Republic
(1991)]

A denial is not specific just because it is so

qualified. [Agton v. CA] A general denial will
be deemed an admission of the averments in
the complaint; it has to be specific.
Modes of Specific Denial [Rule 8,Sec. 10]
(1) Defendant must specify each material
allegation of fact the truth of which he
does not admit
(2) If pleader decides to deny only a part or a
qualification of an averment, he shall
specify so much of it as true and deny the
remainder
(3) If pleader is without knowledge or
information sufficient to form a belief as
to the truth of a material averment, he
shall so state

Ultimate Facts - Essential facts constituting

the plaintiffs cause of action. A fact is
essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient. [Remitere v. Montinola (1966)]

Negative Pregnant - a denial pregnant with

the admission of the substantial facts in the
pleading responded to which are not
squarely denied. It is in effect an admission of
the averment it is directed to. [Philamgen v.
Sweet Lines (1993)]

Not Ultimate Facts:

(1) Evidentiary or immaterial facts;
(2) Legal conclusions, conclusions or
inferences of facts from facts not stated,
or incorrect inferences or conclusions
from facts stated;
(3) Conclusions of law alleged in the
complaint are not binding on the court.
(4) The details of probative matter or
particulars of evidence, statements of
law, inferences and arguments.

While it is a denial in form, its substance

actually has the effect of an admission
because of a too literal denial of the
allegation sought to be denied. This arises
when the pleader merely repeats the
allegations in a negative form.

ii. Answer
The pleading where the defendant sets forth
his affirmative/negative defenses. It may also
be the response to a counterclaim or a crossclaim. [Rule 6, Sec. 4]

iii. Counterclaim
Any claim which a defending party may have
against an opposing party.

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How Raised
(1) By including it in the Answer
A compulsory counterclaim or a crossclaim that a defending party has at the
time he files his answer shall be
contained therein. [Rule 11, Sec. 8]
(2) By filing after the Answer
(a) A counterclaim may be set up, by
leave of court, by amendment before
judgment, when:
(i)
it is not set up due to oversight,
inadvertence,
or
excusable
neglect, or
(ii)
when justice requires [Rule 11, Sec.
10]

jurisdiction.
Barred if not set up in
the action.
Need not be answered;
no default.
Not
an
initiatory
pleading; does not
require CNFS

Initiatory pleading

Compulsory Counterclaim
Requisites
(1) It arises out of, or is necessarily
connected with the transaction or
occurrence, which is the subject matter of
the opposing party's claim;
(2) It does not require for its adjudication the
presence of third parties of whom the
court cannot acquire jurisdiction;
(3) It must be cognizable by the regular
courts of justice, and within the courts
jurisdiction both as to the amount and
the nature. [Rule 6, Sec. 7]

In an original action before the RTC, the

counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7]
If a counterclaim is filed in the MTC is in
excess of its jurisdictional amount, the
excess is considered waived. [Agustin v.
Bacalan (1985)]
However, in another case, the remedy
where a counterclaim is beyond the
jurisdictional amount of the MTC is to set
off the claims and file a separate action
to collect the balance. [Calo v. Ajax
(1968)]

Arises out of or is
necessarily connected
with the transaction or
occurrence that is the
subject matter of the
opposing party's claim.
Does not require for its
adjudication
the
presence
of
third
parties of whom the
court cannot acquire

Not barred even if not

set up in the action.
Must be answered,
otherwise,
the
defendant
can
be
declared in default.

NOTE: compulsory counterclaims are not

initiatory pleadings but docket fees are now
required under A.M. No. 04-2-04-SC, which
required docket fees for compulsory
counterclaims, third (fourth, etc.)-party
complaints and complaints-in-intervention.

(b) A counterclaim, which either

matured or was acquired by a party
after serving his pleading, with
permission of the court, be set up in a
supplemental
pleading
before
judgment. [Rule 11, Sec. 9]

Kinds of Counterclaims
Compulsory
counterclaim

REMEDIAL LAW

A plaintiff who fails or 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 in the
complaint. [Gojo v. Goyala (1970)]
The filing of a motion to dismiss and the
setting up of a compulsory counterclaim are
incompatible remedies. If he files a motion to
dismiss, he will lose his counterclaim. But if
he opts to set up his counterclaim, he may
still plead his ground for dismissal as an
affirmative defense in his answer. [Financial
Building Corp. v. Forbes Park Association]

Permissive
counterclaim
Neither arises out of
nor
is
necessarily
connected with such
subject matter
May
require
the
presence
of
third
parties over whom the
court cannot acquire
jurisdiction.

Permissive Counterclaim
A counterclaim is permissive if it does not
arise out of, nor is necessarily connected with,
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the subject matter of the opposing partys

claim This is not barred even if not set up in
the action

REMEDIAL LAW

case, after the defendant had filed a

responsive pleading
(3) Dismissal under Rule 17, Sec. 3 where
the complaint is dismissed due to the
fault of the plaintiff

Must have independent jurisdictional ground

(Herrera). Hence, the filing of a separate
docket fee.

In all these cases, the rules expressly provide

that the dismissal shall be without prejudice
to the right of the defendant to pursue his
counterclaim in the same or in a separate
action.

Determining
whether
Compulsory
or
Permissive
(also known as logical relationship test)
A positive answer on all four the following
tests would indicate that the counterclaim is
compulsory:
(1) Are the issues of fact and law raised by
the claim and counterclaim largely the
same?
(2) Would res judicata bar a subsequent suit
on defendants claims, absent the
compulsory counterclaim rule?
(3) Will substantially the same evidence
support or refute plaintiffs claim as well
as the counterclaim?
(4) Is there any logical relation between the
claim and counterclaim? [GSIS v. Heirs of
Caballero]

iv. Cross-claim
Requisites
(1) A claim by one party against a co-party;
(2) It must arise out of the subject matter of
the complaint or of the counterclaim;
(3) The cross-claimant is prejudiced by the
claim against him by the opposing party.
A cross-claim is generally compulsory. A
cross-claim not set up shall be barred. [Rule
9, Sec. 2] Exceptions (permissive crossclaims) are when:
(1) The claim is outside the courts
jurisdiction;
(2) The court cannot acquire jurisdiction over
3rd parties whose presence is necessary
for the adjudication of said cross-claim.
(3) The Cross-claim that matured or was
acquired after service of Answer

There is a logical relationship where

conducting separate trials of the respective
claims would entail substantial duplication
of effort and time and involves many of the
same factual and legal issues. [Meliton v. CA
(1992)]

The dismissal of the complaint carries with it

the dismissal of a cross-claim, which is purely
defensive; but not a cross-claim seeking an
affirmative relief. [Torres v. CA (1973)]

NOTE: If the counterclaim matures after the

Answer, it is merely permissive.

Improper Cross-Claims
(1) Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
(2) The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and
executory (Ruiz, Jr. v. CA, 1993)
(3) A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of

Effect on Counterclaim when Complaint is

dismissed
The case may be dismissed, with a
counterclaim set up under any of the
following circumstances:
(1) Dismissal under Rule 16, Sec. 6 where
the defendant does not file motion to
dismiss but raises the ground as an
affirmative defense
(2) Dismissal under Rule 17, Sec. 2 where
the plaintiff files a motion to dismiss the
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default because then the cross-claimant

would re-obtain a standing in court as
party litigant

REMEDIAL LAW

3rd-party complaint

Counterclaim

Counter-Counterclaim - A claim asserted

against an original counter-claimant.

Need not be within the

jurisdiction of the court
trying the main case
Diminishes/defeats the
recovery sought by the
opposing party

Counter-Cross-claim - A claim filed against

an original cross-claimant.

Cannot exceed the

amount stated in the
original complaint

Must be within the

jurisdiction of the court
trying the main case
Need
not
diminish/defeat
the
recovery sought by the
opposing party
May exceed in amount
or be different in kind
from that sought in the
original complaint

v. Third(Fourth, etc.)-Party Complaints

It is a claim that a defending party may, with
leave of court, file against a person not a
party to the action, for contribution,
indemnity, subrogation, or any other relief, in
respect of his opponent's claim. [Rule 6, Sec.
11]

Under this Rule, a person not party to an

action may be impleaded by the defendant
either:
(1) On allegation of liability to the latter,
covered by the phrase contribution,
indemnity, or subrogation
(2) On the ground of direct liability to the
plaintiff; or both, as covered by the
phrase any other relief. [Samala v.
Victor (1989)]
Tests to Determine Whether the 3rd-Party
Complaint is in Respect of Plaintiffs Claim
(Capayas v. CFI, 1946)
(1) WON it arises out of the same
transaction on which the plaintiff's claim
is based, or although arising out of
another/different
transaction,
is
connected with the plaintiffs claim;
(2) WON the 3rd-party defendant would be
liable to the plaintiff or to the defendant
for all/part of the plaintiffs claim against
the original defendant;
(3) WON the 3rd-party defendant may assert
any defenses which the 3rd-party plaintiff
has or may have to the plaintiffs claim.

There could also be a 4th/etc.-party

complaint with the same purpose and
function.
Counterclaim

3rd Party
complaint

Against
an
opposing party

Against
a
person not a
party to the
action

Must arise
out of the
transaction
that is the
subject
matter of the
original
action or of a
counterclaim
therein

May arise out of

or be necessarily
connected with
the transaction
or the subject
matter of the
opposing partys
claim
(compulsory
counterclaim), or
it
may
not
(permissive
counterclaim)

Must be in
respect of the
opponents
(plaintiffs)
claim

No need for
a leave of
court

No need for leave

of court

Leave of court
is needed

Cross-claim
Against
co-party

3rd-party complaint
Brings into the action a
3rd person who was not
originally a party
Initiative is with the
person already a party
to the action

Additional Rules
Leave of court to file a 3rd-party complaint
may be obtained by motion filed under Rule
15.

Complaint in
intervention

Summons on third (fourth, etc.)-party

defendants must be served for the court to
obtain jurisdiction over his person, since he is
not an original party.

Same
Initiative is with a nonparty who seeks to join
the action

Where the trial court has jurisdiction over the

main case, it also has jurisdiction over the
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third-party complaint, regardless of the

amount involved as a 3rd-party complaint is
merely auxiliary to and is a continuation of
the main action. [Republic v. Central Surety
(1968)]

REMEDIAL LAW

The Court has full discretion in permitting or

disallowing intervention, which must be
exercised judiciously and only after
consideration of all the circumstances
obtaining in the case. [Mago v. CA (1999)]

A third-party complaint is not proper in an

action for declaratory relief.

It is not an absolute right as it can be secured

only in accordance with the terms of
applicable statute or rule. [Office of
Ombudsman v. Samaniego (2010)]

vi. Complaint-in-Intervention
Pleadings-in-Intervention (Rule 19, Sec. 3)
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.

Legal Interest
Interest must be of a direct and immediate
character so that the intervenor will either
gain or lose by the direct legal operation of
the judgment. The interest must be actual
and material, a concern which is more than
mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent,
indirect
and
remote,
conjectural,
consequential or collateral. [Virra Mall
Tenants v. Virra Mall (2011)]

Intervention a remedy by which a third

party, not originally impleaded in a
proceeding, becomes a litigant therein to
enable him to protect or preserve a right or
interest which may be affected by such
proceeding.

Requisites for Valid Intervention

(1) There must be a motion for intervention
filed before rendition of judgment by the
trial court.
(2) Movant must show in his motion:
(a) That he has a legal interest:
(i)
in the matter of litigation,
(ii)
in the success of either party in
the action, or
(iii)
against both parties.
(b) That the movant is so situated as to
be adversely affected by a
distribution or other disposition of
property in the custody of the court or
an officer thereof
(c) That the intervention must not
unduly delay or prejudice the
adjudication of the rights of the
original parties; and
(d) That the intervenors rights may not
be fully protected in a separate
proceeding.

Intervention is never an independent action,

but is ancillary and supplemental to an
existing litigation, and in subordination to
the main proceeding. [Saw v. CA]
Its purpose is "to settle in one action and by a
single judgment the whole controversy
(among) the persons involved." [First
Philippine Holdings v. Sandiganbayan (1996);
Rule 19]
When Allowed
Intervention shall be allowed when a person
has:
(1) A legal interest in the matter in litigation;
or
(2) A legal interest in the success of any of
the parties;
(3) An interest against the parties; or
(4) When he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or of
an officer thereof. [Fernandez v. CA
(2013)]
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How to Intervene
(1) With leave of court, the court shall
consider the 2 factors
(2) Motion to intervene may be filed at any
time before rendition of judgment by trial
court
(3) Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties

REMEDIAL LAW

Exception: When a Reply is necessary

(a) To set up affirmative defenses on the
counterclaim [Rosario v. Martinez]
(b) 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
[Rule 8, Sec. 8; Sun Bros. v. Caluntad]
(c) Where the defense in the answer is
based on an actionable document, a
reply under oath must be made;
otherwise, the genuineness and due
execution of the document shall be
deemed admitted. [Rule 8, Sec. 11;
Toribio v. Bidin]

Time to Intervene [Rule 19, Sec. 2]

General Rule: The motion to intervene must
be filed at any time before the rendition of
judgment by the trial court
Exceptions:
(1) With respect to indispensable parties,
intervention may be allowed even on
appeal (Falcasantos v. Falcasantos)
(2) When the intervenor is the Republic (Lim
v. Pacquing)
(3) Intervention may be allowed after
judgment 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)

E.2 PLEADINGS ALLOWED IN SPECIAL

RULES
Revised Rules on Summary Procedure
The only pleadings allowed to be filed are:
(1) Complaints
(2) Compulsory counterclaims pleaded in
the Answer
(3) Cross-claims pleaded in the Answer; and
(4) Answers thereto [Sec. 3[A], II]

Remedy for Denial of Motion for Intervention

(1) The movant may file a motion for
reconsideration since the denial of a
motion for intervention is an interlocutory
order.
(2) Alleging grave abuse of discretion,
movant can also file a certiorari case.

Prohibited Pleadings, Motions, or Petitions

(Sec. 19)
(1) Motion to dismiss the complaint or to
quash the complaint or information
except on the ground of lack of
jurisdiction over the subject matter, or
failure to comply with required barangay
conciliation proceedings;
(2) Motion for a bill of particulars;
(3) Motion
for new trial, or for
reconsideration of a judgment, or for
opening 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;

vii. Reply
The plaintiffs response to the defendant's
answer. The function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Rule 6, Sec. 10]
Effect of Failure to Reply
General Rule: Filing a reply is merely optional.
New facts that were alleged in the answer
are deemed controverted should a party fail
to reply thereto.
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(8) Motion to declare the defendant in

default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third party complaints; and
(12) Interventions.

REMEDIAL LAW

(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; and
(12) Interventions.

Forms under the Rule of Procedure for Small

Claims Cases
(1) Instead of filing a Complaint, a
Statement of Claim using Form 1-SCC
shall be filed [Sec. 5]
(2) Answer shall be filed by way of a
Response using Form 3-SCC [Sec. 10]
(3) Defendant may file counterclaim if he
possesses a claim against the plaintiff
that
(a) Is within the coverage of this Rule,
exclusive of interest and costs;
(b) Arises out of the same transaction or
event that is the subject matter of the
plaintiffs claim;
(c) Does not require for its adjudication
the joinder of third parties; and
(d) Is not the subject of another pending
action, the claim shall be filed as a
counterclaim in the Response;
otherwise, the defendant shall be
barred from suit on the counterclaim.

E.3 PARTS OF A PLEADING

Caption that part of the pleading which
sets forth the:
(1) the name of the court;
(2) the title of the action (i.e. the names of
the parties); and
(3) the docket number, if assigned. [Rule 7,
Sec. 1]
Body that part of the pleading which sets
forth its designation, the allegations of
party's claims or defenses, the relief prayed
for, and its date.
(1) Paragraphs must be numbered, and each
paragraph number must contain a single
set of circumstances
(2) Headings should be used if there is more
than one cause of action in the
Complaint, and if paragraphs in the
Answer address one or more causes of
action from the Complaint.
(3) Should specify relief sought, but it may
add a general prayer for such further or
other relief as may be deemed just or
equitable; also called the prayer
(4) Every pleading shall be dated. [Rule 7,
Sec. 2]

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.
NOTE: Courts decision shall be contained in
Form 13-SCC
Prohibited Pleadings and Motions in Small
Claims
(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;

I. SIGNATURE AND ADDRESS

Every pleading must be signed by the party
or counsel representing him. The address
must be stated and such address must not
be a post office box. [Rule 7, Sec. 3]

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An unsigned pleading produces no legal

effect. However, the court may allow such
deficiency to be remedied if it appears that:
(1) It was due to mere inadvertence; and
(2) It was not intended for delay [Rule 7, Sec.
3]

REMEDIAL LAW

(12) Petition for certiorari (Sec. 1, Rule 65)

(13) Petition for prohibition (Sec. 2, Rule 65)
(14) Petition for mandamus (Sec. 3, Rule 65)
(15) Petition for quo warranto (Sec. 1, Rule
66)
(16) Complaint for expropriation (Sec. 1, Rule
67)
(17) Complaint for forcible entry or unlawful
detainer (Sec. 4, Rule 70)
(18) Petition for indirect contempt (Sec. 4,
Rule 71)
(19) Petition for appointment of a general
guardian (Sec. 2, Rule 93)
(20)
Petition for leave to sell or encumber
property of the ward by a guardian (Sec. 1,
Rule 95)
(21) Petition for declaration of competency of
a ward (Sec. 1, Rule 97)
(22)
Petition for habeas corpus (Sec. 3,
Rule 102)
(23)Petition for change of name (Sec. 2, Rule
103)
(24)
Petition for voluntary judicial
dissolution of a corporation (Sec. 1, Rule
104)
(25)
Petition for cancellation or correction
of entries in the civil registry (Sec. 1, Rule
108)

Effect of Signature of Counsel

This constitutes a certificate by him that:
(1) He has read the pleading
(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 [Rule 7,
Sec. 3]

II. VERIFICATION
A pleading need not be under oath, verified
or accompanied by affidavit, unless
otherwise provided by law or rules.
Verification is required in the following
instances:
(1) Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure are all required to be verified
(2) Petition for relief from judgment or order
(Sec. 3, Rule 38)
(3) Petition for review from RTC to the CA
(Sec. 1, Rule 42)
(4) Petition for review from quasi-judicial
agencies to the CA (Sec. 5, Rule 43)
(5) Appeal by certiorari from the CTA to the
SC (Sec. 12, RA 9282 amending Sec. 19,
RA 1125)
(6) Appeal by certiorari from CA to the SC
(Sec. 1, Rule 45)
(7) Petition for annulment of judgments or
final orders and resolutions (Sec. 1, Rule
47)
(8) Complaint for injunction (Sec. 4, Rule 58)
(9) Application for appointment of receiver
(Sec. 1, Rule 59)
(10) Application for support pendente lite (Sec.
1, Rule 69)
(11) Petition for certiorari against judgments,
final
orders,
or
resolutions
of
constitutional commissions (Sec. 2, Rule
64)

How verified [Rule 7, Sec. 4]

By an affidavit declaring that
(1) That the affiant has read the pleading;
and
(2) That the allegations therein are true and
correct of his personal knowledge or
based on authentic documents.

III. FORUM SHOPPING

The repeated availment of several judicial
remedies in different courts, simultaneously
or successively, all substantially founded on
the same transactions and the same
essential facts and circumstances, and all
raising substantially the same issues, either
pending in or already resolved adversely by
some other court. [Asia United Bank v.
Goodland Company, Inc. ]

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Test to determine existence of Forum

Shopping
Whether in the 2 or more cases pending,
there is identity of:
(1) Parties
(2) Rights or causes of action
(3) Relief sought [Huibonhoa v. Concepcion
(2005)]

REMEDIAL LAW

If, for justifiable reasons, the party-pleader is

unable to sign, he must execute a Special
Power of Attorney designating his counsel of
record to sign on his behalf. [Vda. de Formoso
v. PNB (2011)]
Verification/CNFS for Corporation
The certification must be executed by an
officer, or member of the board of directors,
or by one who is duly authorized by a board
resolution; otherwise, the complaint will have
to be dismissed. [Cosco Philippines Shipping,
Inc. v. Kemper Insurance, Co. (2012)]

Certificate of Non-Forum Shopping (CNFS)

A sworn statement in which the plaintiff or
principal party certifies in a complaint or
initiatory pleading:
(1) That he has not commenced any action
or filed any claim involving the same
issues in any court or tribunal, and to the
best of his knowledge, no such other
action is pending;

However, the Court has ruled that a

President of a corporation can sign the
verification and CNFS, without the benefit of
a board resolution. It also allowed the
following to sign:
(1) the Chairperson of the Board;
(2) the General Manager or acting GM;
(3) a personnel officer; and
(4) an employment specialist in a labor case.

(2) That if there is such other pending action

or claim, a complete statement of the
present status thereof; and
(3) That if he should learn that the same or a
similar action has been filed or is
pending, he shall report such fact within
5 days to the court receiving his initiatory
pleading. [Rule 7, Sec. 5]

However, the bettwe procedure would be to

append a board resolution to obviate
questions regarding the authority of the
signatory. [South Cotabato Communications
Corp. v. Sto. Tomas ]

CNFS is not required in a compulsory

counterclaim, as this is not an initiatory
pleading. [UST Hospital v. Surla (1998)]
However, a certification is needed in
permissive counterclaims [Korea Exchange
Bank v. Gonzales ]

Belated submission of written authority has

been found to be substantial compliance
with the rule, especially when the acts were
also ratified by the Board. [Swedish Match
Philippines v. Treasurer of the City of Manila
(2013)]

Who Executes the CNFS

It is the plaintiff or principal party who
executes the certification under oath. [Rule 7,
Sec. 5]

E.4 ALLEGATIONS IN A PLEADING

i. In General
Every pleading shall contain a statement of
the ultimate facts on which the party
pleading relies for his claim or defense
(1) In a methodical and logical form
(2) A plain, concise and direct statement
(3) Statement of mere evidentiary facts
omitted [Rule 8, Sec. 1]

The rationale is that the plaintiff, not the

counsel, is in the best position to know
whether he or it has actually filed or caused
the filing of a petition. Certification signed by
counsel is defective, and a valid cause for
dismissal. [Anderson v. Ho (2013)]

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If a defense relief is based on law, state in a

clear and concise manner:
(1) Pertinent provisions of the law
(2) Applicability of the law to him

REMEDIAL LAW

Failure to comply with a condition precedent

is a ground for a motion to dismiss (Rule 16,
Sec. 1(j))

Facts that must be averred particularly

Circumstances showing fraud or mistake
when averred [Rule 8, Sec. 5]

Examples of Conditions Precedent:

(1) Exhaustion of administrative remedies
(2) Investigation by a fiscal is a prerequisite
to annulment of marriage when
defendant
defaults
(Tolentino
v.
Villanueva)
(3) No suit shall be filed or maintained
between members of the same family
unless it should appear that earnest
efforts at compromise have been made
but that the same have failed. (Art. 222;
Versoza v. Versoza)
(4) Arbitration; Barangay Conciliation

Facts that may be averred generally

(1) Conditions precedent but there must
still be an allegation that the specific
condition precedent has been complied
with; [Rule 8, Sec. 3]
(2) Capacity to sue or be sued;
(3) Capacity to sue or be sued in a
representative capacity; [Rule 8, Sec. 4]
(4) Legal existence of an organization A
party desiring to raise an issue as to the
legal existence or capacity of any party to
sue or be sued in a representative
capacity shall do so by specific denial
which
shall
include
supporting
particulars
within
the
pleader's
knowledge. [Rule 8, Sec 4]
(5) Malice/intent/knowledge
or
other
condition of the mind; [Rule 8, Sec. 5]
(6) Judgments of domestic/foreign courts,
tribunals, boards or officers (without
need to show jurisdiction); [Rule 8, Sec.
6]
(7) Official documents/acts. [Rule 8, Sec. 9]

Capacity
The following must be averred:
(1) Facts showing the capacity of a party to
sue or be sued; or
(2) The authority to sue or be sued in a
representative capacity;
(3) Or the legal existence of an organized
association of persons that is made a
party [Rule 8, Sec. 4]
Fraud or Mistake Circumstances
constituting these must be stated with
particularity [Rule 8, Sec.5]

Condition Precedent If the cause of action

depends upon a condition precedent, its
fulfillment or legal excuse for non-fulfillment
must be averred.

Malice, Intent, Knowledge and other

Conditions of the Mind May be averred
generally [Rule 8, Sec. 5]
Judgment - In pleading a judgment or
decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the
judgment or decision without setting forth
matter showing jurisdiction to render it. [Rule
8, Sec. 6]

A general averment of the performance or

occurrence of all conditions precedent shall
be sufficient [Rule 8, Sec. 3]
All valid conditions precedent to the
institution of a particular action, whether
prescribed by statute, fixed by agreement of
the parties, or implied by law must be
performed or complied with before
commencing the action. Such fact must be
pleaded.

Official documents or acts sufficient to aver

that the document was issued, or the act
done, in compliance with law. [Rule 8, Sec. 9]

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II.
PLEADING
DOCUMENT

CIVIL PROCEDURE

AN

ACTIONABLE

REMEDIAL LAW

as seal, acknowledgement, or revenue

stamps, which it lacks, are waived by him

Actionable Document the written

instrument upon which the action or defense
is based. Where a pleader relies upon a
document, its substance must be set out in
the pleading either by its terms or by its legal
effects

Genuineness - That the party whose

signature it bears admits that, at the
time it was signed it, was in words and
figures exactly as set out. [Hibberd v.
Phde and Mcmillian ]

iii. Specific Denials

Pleading the document

(1) The substance of such document shall be
set forth in the pleading; and the original
or a copy shall be attached as an exhibit;
or
(2) Said copy may be set forth in the
pleading [Rule 8, Sec. 7]

The purpose of requiring the defendant to

make a specific denial is to make him
disclose the matters alleged in the complaint
which he succinctly intends to disprove at the
trial, together with matters which he relied
upon to support the denial. The parties are
compelled to lay their cards on the table.
[Philippine Bank of Communications v. Go
(2011)]

A variance in the substance of the document

set forth in the pleading and the document
annexed thereto does not warrant dismissal
of the action (Convets Inc. v. National Dev.
Co.)
How to Contest [Rule 8, Sec. 8]
(1) By specific denial under oath; and
(2) By setting forth what is claimed to be the
facts

Modes of Denial
(1) Specific Absolute Denial - Defendant
must specify each material allegation of
fact the truth of which he does not admit,
and, whenever applicable, set forth the
substance of matters relied upon to
support the denial

Denial need not be under oath when:

(1) The adverse party does not appear to be
a party to the instrument, or
(2) Compliance with the an order for
inspection of the document has been
refused.

(2) Partial Specific Denial - If pleader decides

to deny only a part or a qualification of an
averment:
(a) He shall specify so much of it as is
true and material
(b) He shall deny the remainder

Effect of Failure to Deny Under Oath

(1) The genuineness and due execution is
deemed admitted
(2) The document need not be formally
offered in evidence

(3) Denial by Disavowal of Knowledge The

defendant states that he is without
knowledge or information sufficient to
form a belief as to the truth of a material
averment; has the effect of a denial

Due Execution - That the party whose

signature it bears admits that he
voluntarily signed it; or that it was signed
by another for him with his authority;
that the document was delivered; and
that any formalities required by law, such

Effect of Failure to make Specific Denials

Allegations not specifically denied are
deemed admitted [Rule 8, Sec. 11] except:
(1) Allegations as to the amount of
unliquidated damages;
(2) Allegations immaterial to the cause of
action
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(3) Allegations of merely evidentiary or

immaterial facts may be expunged from
the pleading or may be stricken out on
motion. [Rule 8, Sec. 12]
(4) Conclusion of law.

REMEDIAL LAW

Failure of the defendant to answer within the

proper period. It is not his failure to appear
nor his failure to present evidence
Dual stages of default
(1) Declaration of Order of Default when
defendant fails to answer within the time
specified in the rules, the court shall,
upon motion of the plaintiff and proof of
such failure, declare defendant in default

Specific Denial requires an oath in the

following cases:
(1) Denial of the genuineness and due
execution of an actionable document;
[Rule 8, Sec. 8] and
(2) Denial of allegations of usury. [Rule 8,
Sec. 11]

(2) Rendition of Judgment by Default

thereafter, on the basis of the allegation
of the complaint or after receiving
plaintiffs evidence, the court shall render
judgment granting him such relief as the
complaint and the facts proven may
warrant

E.5 EFFECT OF FAILURE TO PLEAD

I. FAILURE TO PLEAD DEFENSES AND
OBJECTIONS
General Rule: Defenses and objections not
pleaded in answer or motion to dismiss are
deemed waived.[Omnibus Motion Rule,
Rule 9, Sec. 1]

Order of default
Issued by the court
on plaintiffs motion,
for failure of the
defendant to
seasonably file his
responsive pleading
Interlocutory
unappealable

Exceptions:
(1) Lack of jurisdiction over the subject
matter;
(2) Litis pendentia
(3) Res judicata
(4) Action barred by statute of limitations.

Judgment by default
Rendered by the
court following a
default order or after
it received ex parte
plaintiffs evidence
Final Appealable

When Declaration of Default is Proper

There is only one instance when a party
defendant can properly be declared in
default and that is when he fails to file his
answer within the reglementary period, or
within such extended time as he is allowed
by the court, under Sec. 1, Rule 18

II. FAILURE TO PLEAD COMPULSORY

COUNTERCLAIMS AND CROSS-CLAIMS
General Rule: A compulsory counterclaim not
set up is considered barred. [Rule 9, Sec. 2]
Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set
up by amendment before judgment. [Rule 11,
Sec. 10]

Requisites before a Declaration of Default

(1) The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons
or voluntary appearance
(2) The defendant failed to file his answer
within the time allowed therefor
(3) There must be a motion to declare the
defendant in default with notice to the
latter

For Cross-Claims: A cross-claim is always

compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]

E.6 DEFAULT
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(4) There must be notice to the defendant by

serving upon him a copy of such motion
(5) There must be proof of such failure to
answer
(6) There must be a hearing to declare
defendant in default

REMEDIAL LAW

Relief from an Order of Default

[Lina v. CA]
(1) After notice of the Order and before
Judgment file a motion under oath to
set aside the Order; must show:
(a) Failure to file Answer was due to
fraud, accident, mistake, excusable
negligence; and
(b) That he has a meritorious defense (i.e.
through an affidavit of merit)

Effect of Order of Default

(1) The party declared in default loses his
standing in court, meaning he cannot
take part in the trial. However, he may
still participate as a witness [Cavil v.
Florendo (1987)] and is entitled to notices
of subsequent proceedings.

(2) After rendition of Judgment, before it

becomes final and executory may file:
(a) a motion for new trial under Rule 37;
or
(b) appeal from the judgment for being
contrary to the evidence or law

In all, the defendant should receive the

following notices:
(a) Motion to declare him in default;
(b) Order declaring him in default;
(c) Subsequent proceedings;
(d) Service of final orders and judgments.

(3) After Judgment becomes final and

executory may file a petition for relief
under Rue 38

(2) The court may either:

(a) Proceed to render judgment granting
the claimant such relief as his
pleading may warrant; or
(b) Require the claimant to submit
evidence, which need not be received
by the court personally but may be
received by the clerk of court

These remedies presuppose that there was a

valid order of default but the defendant may
also file a petition for certiorari when he is
improperly declared in default. [Riano]
Partial Default
When the complaint states a common cause
of action against several defendants, only
some of whom answer, the court should
declare defaulting defendants in default, and
proceed to trial on answers of others

A declaration of default is not

tantamount to an admission of the truth
or validity of the plaintiffs claims.
[Monarch Insurance v. CA ]

If the defense is personal to the one who

answered, it will not benefit those who did
not answer.

(3) A defending party declared in default

retains the right to appeal from the
judgment by default. However, the
grounds that may be raised in such an
appeal are restricted to any of the
following:
(a) The failure of the plaintiff to prove
the material allegations of the
complaint;
(b) The decision is contrary to law; and
(c) The amount of judgment is excessive
or different in kind from that prayed
for. [Ortero v. Tan (2012)]

Extent of Relief to be Awarded

(1) A judgment rendered against a party in
default shall not exceed the amount or
be different in kind from that prayed for
nor award unliquidated damages
(2) If the claim is not proved, the case should
be dismissed
As held in Datu Samad Mangelen v. CA
(1992):
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(1) In a judgment based on evidence

presented ex parte, judgment should
neither exceed the amount, nor be
different in kind from that prayed for.
(2) On the other hand, in a judgment where
an answer was filed but defendant did
not appear at the hearing, the award may
exceed the amount or be different in kind
from that prayed for.
Default is not allowed, in the following cases:
(1) An action for annulment or declaration of
nullity of marriage
(2) For legal separation
(3) Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed
(4) Summary procedure

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DEFAULT IN ORDINARY PROCEDURE

After the lapse of time to file an
answer, the plaintiff may move to
declare the defendant in default

If motion denied:
Defendant allowed to file an answer

If motion granted:
Court issues order of default and
renders judgment or require plaintiff
to submit evidence ex parte

Before judgment by default is

rendered, defendant may:
(1) Move to set aside order of default
upon showing of FAME and that he
has a meritorious defense;
(2) Avail of Rule 65 in proper cases

Court maintains order of default

Court sets aside order of default and

defendant is allowed to file an
answer
Presentation of plaintiffs evidence
ex-parte
Case set for pre-trial

If plaintiff proves his allegations:

Judgment by default

If plaintiff fails
allegations:
Case is dismissed

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(3) Further modification, Heirs of Hinog v.

Melicor (2005)
Fees as lien
Where the trial court acquires jurisdiction
over a claim by the filing of the pleading
and the payment of the prescribed filing
fee, BUT SUBSEQUENTLY, the judgment
awards a claim not specified in the
pleading, or cannot then be estimated, or a
claim left for determination by the court,
then the additional filing fee shall
constitute a lien on the judgment

E.7 FILING AND SERVICE OF PLEADINGS

I. PAYMENT OF DOCKET FEES
As a rule, the court acquires jurisdiction over
the case only upon payment of prescribed fees
General rule: Without payment, case is
considered not filed. Payment of docket fees is
mandatory and jurisdictional.

(4) Exception to the Sun Insurance doctrine,

Gochan v. Gochan
The Sun Insurance rule allowing payment
of deficiency does not apply where plaintiff
never demonstrated any willingness to
abide by the rules to pay the docket fee but
stubbornly insisted that the case filed was
one for specific performance and damages.

It is not simply the filing of the complaint or

appropriate initiatory pleading but the
payment of the prescribed docket fee that
vests a trial court with jurisdiction over the
subject matter or nature of the action [Proton
Pilipinas v. Banque National de Paris (2005)]

II. FILING
PLEADINGS

Effect of Failure to Pay Docket Fees at Filing

VERSUS

SERVICE

OF

Filing - The act of presenting the pleading or

other paper to the clerk of court. [Rule 13, Sec.
2]

(1) The Manchester Rule: Manchester v. CA

(1987)
Automatic Dismissal
Any defect in the original pleading
resulting in underpayment of the docket
fees cannot be cured by amendment, such
as by the reduction of the claim as, for all
legal purposes, there is no original
complaint over which the court has
acquired jurisdiction

Service - The act of providing a party or his

counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
Papers required to be filed and served: (Rule 13,
Sec. 4)
(1) Pleading subsequent to the complaint;
(2) Appearance;
(3) Written Motion;
(4) Notice;
(5) Order;
(6) Judgment;
(7) Demand;
(8) Offer of Judgment;
(9) Resolution;
(10) Similar papers.

(2) Relaxation of the Manchester Rule, Sun

Insurance v. Asuncion (1989)
NOT automatic dismissal
Court may allow payment of fees within
reasonable period of time. Note that
payment should always be within the
prescriptive period of the action filed.

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different period
fixed by the court

III. PERIODS OF FILING PLEADINGS

Period
Reckoning Point
Answer to the Complaint
Service of summons,
General rule: Within unless a different
15 days
period is fixed by the
court (Rule 11, Sec. 1
Foreign
private
juridical
entity
defendant, summons Receipt of summons
through government (Rule 11, Sec. 2)
official: Within 30
days
Non-resident
defendant,
with
Service
of
extraterritorial service
extrajudicial
of
summon:
summons [Rule 14,
reasonable time not
Sec. 15]
less than 60 days set
by oourt
Answer to amended Complaint
Amendment
was
Service of a copy of
matter of right: Within
the
amended
15 days
complaint

is

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. [Rule 11, Sec. 11]

IV. MANNER OF FILING

Personal
By personally presenting the original copy of
the pleading, notice, appearance, motion,
order, or judgment to the clerk of court. [Rule
13, Sec. 3]
Deemed filed upon the receipt of the same by
the clerk of court who shall endorse on it the
date and hour of filing.
If a party avails of a private carrier, the date of
the courts actual receipt of the pleading (not
the date of delivery to the private carrier) is
deemed to be the date of the filing of that
pleading. [Benguet Electric Cooperative v.
NLRC (1992)]

Amendment
not Notice of the order
matter of right: Within admitting the same
10 days
(Rule 11, Sec. 3)
Answer to Counterclaim or Cross-Claim
From service (Rule 11,
Within 10 days
Sec. 4)
Answer to third (fourth, etc)-party complaint
Same rule as answer
Within 15 days
to the complaint (Rule
11, Sec. 5)
Reply
From service of the
Within 10 days
pleading responded
to (Rule 11, Sec. 6)
Answer to supplemental complaint
From notice of the
Within 10 days
order admitting the
same,
unless
a

Registered Mail [Rule 13, Sec.3]

Filing by mail should be through the registry
service (i.e. by depositing the pleading in the
post office).
Deemed filed on the date it was deposited with
the post office.
Note: Filing a pleading by facsimile is not
sanctioned. But fax was allowed in an
extradition case (Justice Cuevas v. Juan Antonio
Munoz)

V. MODES OF SERVICE
Personal Service (Rule 13, Sec. 6)

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(1) Delivering personally a copy to the party,

who is not represented by a counsel, or to
his counsel; or
(2) Leaving a copy in counsels office with his
clerk or with a person having charge
thereof; or
(3) Leaving the copy between 8am and 6pm at
the partys or counsels residence, if known,
with a person of sufficient age and
discretion then residing thereon if not
person is found in his office, or if his office
is unknown, or if he has no office

REMEDIAL LAW

Done by delivery of the copy to the clerk of

court with proof of failure of both personal and
service by mail
Proper only when:
(1) Service cannot be made personally or by
mail
(2) Office and place of residence of the party of
his counsel being unknown
Service is complete at the time of such delivery
Service of Judgments, Final Orders, or
Resolutions
Service is done either:
(1) Personally
(2) By registered mail
(3) By publication, if:
(a) A party is summoned by publication;
and
(b) Such party failed to appear in the
action

Service by Mail (Rule 13, Sec. 7)

(1) Ordinary Mail - it does not constitute filing
until the papers are actually delivered into
the custody of clerk or judge
(a) Service may be done by ordinary mail if
no registry service is available in the
locality of either sender or addressee
(2) Registered Mail - The date of mailing is the
date of filing
(a) Date of filing is determinable from 2
sources:
(i)
From the post office stamp on the
envelope
(ii)
From the registry receipt

NOTE: There is NO substituted service of

judgments and final orders

VI. PRIORITIES IN MODES OF SERVICE

AND FILING
General rule: Personal filing and service is
preferred. (Rule 13, Sec. 11)

(b) It is done by depositing in the post

office:
(c) In a sealed envelope
(d) Plainly addressed to the party or his
counsel
(i)
At his office if known
(ii)
Otherwise, at his residence if
known
(e) Postage fully pre-paid
(f) With instructions to the postmaster to
return the mail to the sender after 10
days if undelivered

Resort to other modes of filing and service

must be accompanied by an explanation why
the service/filing was not done personally. If
there is no written explanation, the paper is
considered not filed.
Exception: Papers emanating from the court.

VII. COMPLETENESS AND PROOF OF

SERVICE
Completeness of
Proof of service
service [Rule 13 Sec.
[Rule 13 Sec. 13]
10]
Personal service

Substituted Service (Rule 13, Sec. 8)

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(1) Written admission

of the party served;
or
(2) Official return of
the server; or
Upon actual delivery (3) Affidavit of the
party serving, with
a full statement of
the
date/place/manner
of service.
Service by ordinary mail
10
days
after Affidavit of person
mailing,
unless mailing
of
facts
otherwise provided showing
compliance
by the court
with Sec. 7 of Rule 13.
Service by registered mail
Whichever is earlier
of:
(1) Affidavit of person
(1) Actual receipt by
mailing
showing
the addressee;
compliance
as
or
above; and
(2) 5 days after
(2) Registry
receipt
addressee
issued by the post
received
office
postmaster's
notice

(1) When it is doubtful who the attorney for

such party is; or
(2) When the lawyer cannot be located; or
(3) When the party is directed to do something
personally, as when he is ordered to show
cause. [Retoni, Jr. v. CA]

Substituted Service

Completeness of
Proof of filing
Filing
[Rule 13, Sec. 12]
[Rule 13, Sec. 3]
Personal filing
Written
or
stamped
Upon receipt by
acknowledgment by the
the clerk of court
clerk of court
Filing by registered mail
On the date the (1) Registry receipt, and
pleading
was (2) Affidavit
of
the
deposited with the
person who did the
post office
mailing

Notice to the lawyer who appears to have been

unconscionably irresponsible cannot be
considered as notice to his client, as it would
then be easy for the lawyer to prejudice the
interests of his client by just alleging that he
just forgot every process of the court affecting
his clients, because he was so busy. [Bayog v.
Natino]

VII. COMPLETENESS AND PROOF OF

FILING
General Rule: The filing of a pleading or paper
is proved by its existence in the record of the
case [Rule 13, Sec. 12]
Exception: When the pleading or paper is not in
the record, its filing may be proved as shown in
the table below

At the time of delivery of the copy to the clerk

of court together with proof of failure of both
personal service and service by mail
When service is effected by registered mail:
(1) The registry return card which shall be filed
immediately upon its receipt by the sender;
or
(2) The unclaimed letter together with the
certified or sworn copy of the notice given
by the postmaster to the addressee. [Rule
13, Sec. 13]

In the case of filing by registered mail, when

the paper does not appear in the record, the
affidavit of the person who did the mailing
must contain:

Service to the lawyer binds the party. But

service to the party does not bind the lawyer,
unless ordered by the court in the following
circumstances:
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I. AMENDMENTS AS A MATTER OF
RIGHT

(1) A full statement of the date and place of

depositing the mail in the post office
(2) The fact that the paper was in a sealed
envelope addressed to the court
(3) The fact that postage was fully paid
(4) The fact that there were instructions to the
postmaster to return the mail to the sender
after 10 days if undelivered

A party may amend his pleading once as a

matter of right, at any time before a responsive
pleading is served, thus:
(1) Amendment of complaint is before an
answer is served.
(2) Amendment of answer is before a reply is
filed, or before the period for filing a reply
expires, and
(3) Amendment of reply any time within 10
days after it is served

E.8 AMENDMENT AND SUPPLEMENTAL

PLEADINGS
How to Amend Pleadings [Rule 10, Sec. 1]
(1) Adding an allegation of a party;
(2) Adding the name of a party;
(3) Striking out an allegation of a party;
(4) Striking out the name of a party;
(5) Correcting a mistake in the name of a
party; and
(6) Correcting a mistaken or inadequate
allegation or description in any other
respect

A motion to dismiss is not a responsive

pleading and does not preclude the exercise of
the planitffs right to amend his complaint/
[Remington Industrial Sales v. CA ]

II. AMENDMENTS BY LEAVE OF COURT

Leave of court is necessary in the following
instances:
(1) Further amendments after the party has
already amended his pleading as a matter
of right; and
(2) When a responsive pleading has already
been served.

A new copy of the entire pleading,

incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed.
(Rule 10, Sec. 7)

Requisites
(1) A motion for leave of court to amend
pleading is filed

Purpose: That the actual merits of the

controversy may speedily be determined,
without regard to technicalities, and in the
most expeditious and inexpensive manner.
[Rule 10, Sec. 1]

Amended pleading should be attached to

the motion [Rule 15, Sec. 9]

As a general policy, liberality in allowing

amendments is greatest in the early stages of a
law suit, decreases as it progresses and
changes at times to a strictness amounting to
a prohibition. This is further restricted by the
condition that the amendment should not
prejudice the adverse party or place him at a
disadvantage. [Barfel Development v. CA
(1993)]

(2) Notice is given to the adverse party

(3) Parties are given opportunity to be heard
When amendment may not be allowed
(1) If the cause of action, defense or theory of
the case is changed.
(2) If amendment is intended to confer
jurisdiction to the court.
If the court has no jurisdiction in the
subject matter of the case, the amendment
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of the complaint cannot be allowed so as

to confer jurisdiction on the court over the
property. [PNB v. Florendo (1992)]

REMEDIAL LAW

(2) Also allows admission of evidence on a

defense not raised in a motion or answer:
(a) if no objection is made thereto; or
(b) in the event of such objection, upon
amendment of the answer with leave
of court

(3) If amendment is for curing a premature

cause of action.
(4) If amendment is for purposes of delay.

However, where the plaintiff has no cause of

action at the time of the filing of the complaint,
this defect cannot be cured or remedied in this
manner by the acquisition or accrual of one
while the action is pending

III. FORMAL AMENDMENTS

Instances:
(1) Mere defect in the designation of the
parties;
(2) Other clearly clerical or typographical
errors

Two Scenarios
(1) No objection to the evidence is raised
Issues not raised in pleadings are tried by
express or implied consent of the parties;
they are treated in all respects as if they
had been raised.
Such amendments as may be necessary to
cause the pleadings to conform to the
evidence may be made upon motion of any
party at any time, even after judgment
Failure to amend does not affect the result
of the trial of those issues

The formal amendment must not cause

prejudice to the adverse party.
How formal amendments are effected
(1) May be summarily corrected by the court at
any stage of the action
(2) A party may, by motion, call for the formal
amendment

IV. AMENDMENTS TO CONFORM TO OR

AUTHORIZE
PRESENTATION
OF
EVIDENCE

(2) Objection to the evidence is raised

Objection on the ground that it is not
within the issues made by the pleadings
Court may allow the pleadings to be
amended and shall do so freely when the
presentation of the merits of the action will
be subserved
As safeguard, the court may grant a
continuance to enable the objecting party
to meet such evidence

[Rule 10, Sec. 5]

This is an instance wherein the court acquires
jurisdiction over the issues even if the same are
not alleged in the original pleadings, where the
trial of said issues is with the express or
implied consent of the parties

What Sec. 5 contemplates

(1) Allows a complaint which states no cause
of action to be cured either by:
(a) Evidence presented without objection
or
(b) In the event of an objection sustained
by the court, by an amendment of the
complaint with leave of court

V. SUPPLEMENTAL PLEADINGS
A pleading which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
Purpose: To bring into the records new facts
which will enlarge or change the kind of relief
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to which the plaintiff is entitled [Ada v. Baylon

(2012)]

F. SUMMONS

How Made: Upon motion of a party, with

reasonable notice and upon terms as are just.

The writ by which the defendant is notified of

the action brought against him [Republic v.
Domingo ]

The admission or non-admission of a

supplemental pleading is not a matter of right
but is discretionary on the court

Upon the filing of the complaint and the

payment of legal fees, the clerk of court shall
issue the corresponding summons to the
defendants. [Rule 14, Sec. 1]

Amended versus Supplemental Pleadings

Supplemental
Amendments
pleadings
Grounds
for
Reason
for
supplemental
amendment
is
pleading arose after
available at time of
the filing of the first
the first pleading
pleading
Either as a matter of
Always by leave of
right or by leave of
court
court
Merely supplements,
Supersedes
the
and exists side-byoriginal
side with the original
A new copy of the Does not require a
entire pleading must new copy of the entire
be filed
pleading

Contents
(1) Summons shall be:
(a) Directed to the defendant
(b) Signed by clerk of court under seal
(2) Summons shall contain:
(a) The name of the court, and the names
of the parties to the action;
(b) A direction that the defendant answer
within the time fixed by the Rules; and
(c) A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
(3) The following shall be attached to the
original and each copy of the summons:
(a) A copy of the complaint; and
(b) An order for appointment of guardian
ad litem (if any)

Supplemental pleadings are not allowed on

separate and distinct causes of action but a
supplemental pleading may raise a new cause
of action as long as it has some relation to the
original cause of action set forth in the original
complaint. [Ada v. Baylon (2012)]

Who may Serve Summons

(1) The sheriff
(2) His deputy
(3) Other proper court officer
(4) Any suitable person authorized by the
court, for justifiable reasons. [Rule 14, Sec.
3]

VI. EFFECT OF AMENDED PLEADING

(1) An amended pleading supersedes the
pleading that it amends
(2) Admissions in the superseded pleading can
still be received in evidence against the
pleader
(3) Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived [Rule 10, Sec.
8]

The enumeration of persons who may validly

serve summons is exclusive. [Herrera]

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F.1 NATURE AND PURPOSE OF

SUMMONS IN RELATION TO ACTIONS IN
PERSONAM, IN REM, AND QUASI IN REM

REMEDIAL LAW

defendants person, is not deemed a voluntary

appearance. [Rule 14, Sec. 20]

F.3 MODES OF SERVICE OF SUMMONS

For Actions in Personam

To acquire jurisdiction over the person of
the defendant in a civil case;
To give notice to the defendant that an
action has been commenced against him.

Modes
(1) Personal Service [Rule 14, Sec. 6]
(2) Substituted Service [Rule 14, Sec. 7]
(3) Service by Publication [Rule 14, Sec. 14-16]
Summons cannot be served by mail
Where service is made by publication, a copy of
the summons and order of the court shall be
sent by registered mail to last known address
of defendant. [Rule 14, Sec. 15]

Where the action is in personam, that is, one

brought against a person on the basis of his
personal liability, jurisdiction over the person
of the defendant is necessary for the court to
validly try and decide the case. [Velayo-Fong v.
Velayo ]

Resort
to
registered
mail
is
only
complementary to service by publication but
does not mean that service by registered mail
alone would suffice.

For Actions in Rem and Quasi in Rem

Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due process
Jurisdiction over the defendant is not
required and the court acquires jurisdiction
over an action as long as it acquires
jurisdiction over the res

I. PERSONAL SERVICE
How Done [Rule 14, Sec. 6]
(1) By handing a copy of summons to him; or
(2) If he refuses to receive it, by tendering it to
him
Personal Service of
Pleadings
Rule 13, Sec. 6
Personal
service
includes:
1. Service on the
party or his
counsel; or
2. By leaving a
copy with the
clerk or person
having charge
of his office; or
3. Leaving it with
a person of
sufficient age
and discretion
at the partys or
counsels

F.2 VOLUNTARY APPEARANCE

Any form of appearance in court, by the
defendant, by his agent authorized to do so, or
by attorney, is equivalent to service except
where such appearance is precisely to object
the jurisdiction of the court over the person of
the defendant [Carballo v. Encarnacion ]
General
Rule:
Defendant's
voluntary
appearance in the action shall be equivalent to
service of summons. [Rule 14, Sec. 20]
Exception: Special appearance to file a motion
to dismiss.
Inclusion in the motion to dismiss of grounds
other than lack of jurisdiction over the

54

Personal Service of
Summons
Rule 14, Sec. 6
Service is only made
on
defendant
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REMEDIAL LAW

Office or Regular Place of Business office or

place of business of defendant at the time of
service
Reasonable Time

residence

II. SUBSTITUTED SERVICE OF SUMMONS

It is only when the defendant cannot be served
personally within a reasonable time and for
justifiable reasons that a substituted service
may be made. [Rule 14, Sec. 7]

Person of Sufficient Age and Discretion

Person in Charge

III.
SERVICE
BY
PUBLICATION
(CONSTRUCTIVE SERVICE)

How Done
(1) By leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion residing
therein; or
(2) By leaving the copies at defendants office
or regular place of business with some
competent person in charge thereof

(1) Service upon Unknown Defendant [Rule 14,

Sec. 14]
(2) Extraterritorial Service of Summons [Rule
14, Sec. 15]
(3) Service upon a Resident temporarily out of
the Philippines [Rule 14, Sec. 16]
Service upon Unknown Defendant [Rule 14, Sec.
14]
Applicable in cases where:
(1) Defendant is sued as an unknown owner;
or
(2) His whereabouts are unknown and cannot
be ascertained with diligent inquiry

Requisites
It is necessary to establish the following:
(1) Indicate the impossibility of service of
summons within a reasonable time;
(2) Specify the efforts exerted to locate the
defendant; and
(3) State that the summons was served upon:
(a) a person of sufficient age and
discretion who is residing in the
address, or
(b) a person in charge of the office or
regular place of business, of the
defendant.
(4) It is likewise required that the pertinent
facts proving these circumstances be
stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar (2012)]

Service of summons may be effected by

publication in a newspaper of general
circulation and in such places and for such
time as the court may order
The Section applies to any action, making no
distinction between actions in rem, in
personam and quasi in rem.
Extraterritorial Service of Summons [Rule 14,
Sec. 15]
Applicable in cases where:
(1) Defendant is a nonresident;
(2) He is not found in the Philippines; and
(3) The action is either in rem. or quasi in rem
[Jose v. Boyon ]

Residence -- the place where the person

named in the summons is living at the time of
when the service is made, even though he may
be temporarily out of the country at that time
(Venturanza v. CA)

The actions in rem or quasi in rem, which would

justify extraterritorial service of summons are:
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(1) Those which affect the personal status of

the plaintiff,
(2) Those which relate to, or the subject of
which is, property within the Philippines in
which defendant claims a lien or interest,
actual or contingent;
(3) Those in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest in property
located in the Philippines, or
(4) Those wherein property of defendant
within the Philippines has been attached

REMEDIAL LAW

Even without such Section, as the defendant

has a residence in the Philippines, summons
may also be served through substituted service
under Rule 14, Sec. 7.
Summons may be effected to a resident
defendant, temporarily outside the Philippines,
by:
(1) Substituted service [Rule 14, Sec. 7]
(2) Service by publication [Rule 14, Sec. 15]

IV. SPECIAL CLASSES OF DEFENDANTS

Upon an Entity without Juridical Personality
[Sec. 8]
Applicable in cases where:
(1) Persons are associated in an entity without
juridical personality; and
(2) They are sued under the name by which
they are generally or commonly known

Service of summons is effecedt, by leave of

court, in the following modes:
(1) By personal service, as under Rule 14, Sec.
6;
(2) By publication in a newspaper of general
circulation in such places and for such time
as court may order; in which case, a copy of
the summons and order of the court shall
be sent by registered mail to the last
known address of defendant; or
(3) In any other manner the court may deem
sufficient.

Service is effected upon all of them by:

(1) Serving summons upon any of them; or
(2) Serving summons upon the person in
charge of their office or place of business
Upon Prisoners [Sec. 9]
Where the defendant is a prisoner confined in a
jail or institution, service shall be by the
management of such institution, who is
deemed deputized as a special sheriff.

Any order granting such leave shall specify a

reasonable time within which defendant must
answer, which shall not be less than 60 days
after notice.
Service upon a Resident temporarily out of the
Philippines [Rule 14, Sec. 16]
Applicable in cases where:
(1) Defendant is a resident of the Philippines;
and
(2) Is temporarily out of the country

Upon Minors and Incompetents [Sec. 10]

Service upon minors is effected upon:
(1) The minor defendant; and
(2) His legal guardian, or any of his parents
Service upon incompetents is effected upon:
(1) The defendant personally; and
(2) His legal guardian

Summons may, by leave of court, be effected

as in the case of extraterritorial service but
unlike in Rule 14, Sec. 15, it may be effected in
this manner for any action, not
distinguishing between actions in rem, in
personam, and quasi in rem.

In either case, if there be no legal guardian, the

plaintiff shall apply for the appointment of a
guardian ad litem, whom he shall also serve
upon.

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Upon Domestic Private Juridical Entity [Sec. 11]

Service is effected upon:
(1) The president,
(2) Managing partner,
(3) General manager,
(4) Corporate secretary,
(5) Treasurer, or
(6) In- house counsel

REMEDIAL LAW

(2) Upon provinces, cities, municipalities, and

like public corporations through the
executive head, or on such officers as law
or the court may direct.

F.4 RETURN AND PROOF OF SERVICE

Return [Rule 14, Sec. 4]
When service has been completed, the server
shall:
(1) Serve a copy of the return to the plaintiffs
counsel, personally or by registered mail,
within 5 days from service of summons;
and
(2) The server shall return the summons,
accompanied by proof of service, to the
clerk who issued it.

Upon a Foreign Private Juridical Entity [Sec. 12]

Service is effected:
(1) When the defendant is transacting
business in the Philippines:
(a) Upon the resident agent; or (if there be
none)
(b) Upon
the
government
agent
designated by law; or
(c) Any officer or agent of the corporation.

It is required to be given to the plaintiffs

counsel in order to enable him:
1. To move for a default order should the
defendant fail to answer on time, or
2. In case of non-service, so that alias
summons may be sought

Note that service in the cases of (b) and (c)

require that there is no resident agent
(2) When the defendant is not registered in the
Philippines, or has no agent, with leave of
court:
(a) By personal service coursed through
the appropriate foreign court, with the
assistance of the DFA;
(b) By publication in a newspaper of
general circulation in the country
where the defendant may be found;
and by serving a copy of the summons
and court order by registered mail at
the defendants last known address;
(c) By facsimile or any recognized
electronic means, which can generate
proof of service;
(d) By such other means directed by the
court/

In either of the 2 cases, server must serve a

copy of the return on plaintiffs counsel within
5 days from completion or failure of service
Alias Summons [Rule 14, Sec. 5]
Upon plaintiffs demand, the clerk may issue
an alias summons if either:
1. Summons is returned without being
served on any/all of the defendants.
2. Summons was lost.
The server shall also serve a copy of the return
on the plaintiff's counsel within 5 days
therefrom, stating the reasons for the failure of
service

Upon Public Corporations [Sec. 13]

Service is effected:
(1) Upon the Republic of the Philippines to
the Solicitor General;

Proof of Service [Rule 14, Sec. 18]

Proof service shall be made in writing, and
shall state
(1) the manner, place, date of service;

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(2) any papers which served with the process;

and
(3) the name of the person who received the
same.

REMEDIAL LAW

does not extinguish extinguishes

the
the
action action (final relief)
(interlocutory relief)
Generally in writing Always in writing
(with
some
exceptions)

Proof of service shall be sworn to when made

by a person, other than the sheriff or his deputy.

General Rule: A motion does not pray for

judgment

If effected by publication, proof of service shall

be by:
(1) The affidavit of the printer, his foreman, or
principal clerk; or of the editor, business or
advertising manager
(2) A copy of the publication; and
(3) An affidavit showing the deposit in the post
office, with postage prepaid, directed for
registered mail to the last known address
of the defendant of:
(a) A copy of the summons; and
(b) The order of publication.

Exceptions:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to
evidence.

G.1. CONTENTS AND FORM OF MOTION

Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained
(2) Grounds upon which it is based
(3) With supporting affidavits and other papers
if:
(a) Required by the Rules, or
(b) Necessary to prove facts alleged
therein

Effect of Defect of Proof of Service

(1) Where sheriffs return is defective,
presumption of regularity in the
performance of official functions will not lie
(2) Defective return is insufficient and
incompetent to prove that summons was
indeed served
(3) Party alleging valid summons will now
prove that summons was indeed served
(4) If there is no valid summons, court did not
acquire jurisdiction which renders null and
void all subsequent proceedings and
issuances

Form [Rule 15, Sec. 2]

Generally, in writing, except:
(1) Motions for continuance made in the
presence of the adverse party or those
made in the course of the hearing or trial
(2) Those made in open court even in the
absence of the adverse party or those
made in the course of a hearing or trial

G. MOTIONS IN GENERAL
Motion an application for relief other than by
a pleading

G.2 KINDS OF MOTIONS

Motions versus Pleadings
Motion
Pleading
Contains allegations Contains allegations
of facts
of the ultimate facts
Prays for a relief
Prays for a relief
Grant of the relief Grant
of
relief

(1) Litigated Motions -- one which requires the

parties to be heard before a ruling on the
motion is made by the court; written
motions are generally litigated motions
(2) Ex Parte Motions one which does not
require such ruling, and upon which the
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court may act without prejudicing the

rights of the other party

REMEDIAL LAW

Notice must be addressed to the counsels. A

notice of hearing addressed to the clerk of
court, and not to the parties, is no notice at all.
Accordingly, a motion that does not contain a
notice of hearing to the adverse party is
nothing but a mere scrap of paper, as if it were
not filed. [Provident International Resources v.
CA (1996)]

(3) Motion of Course - one for a relief or

remedy, to which the movant is entitled as
a matter of right; factual allegations
contained therein do not require
verification or investigation
(4) Special Motions one involving discretion
of the court and requiring investigation on
the facts alleged

Exceptions to the rule on Notice of Hearing

(1) Ex parte motions;
(2) Urgent motions;
(3) Motions agreed upon by the parties to be
heard on shorter notice, or jointly
submitted by the parties;
(4) Motions for summary judgment which
must be served at least 10 days before its
hearing.

(5) Pro Forma Motions one which fails to

indicate the time and place of the hearing

G.3 NOTICE OF HEARING AND HEARING

OF MOTIONS
Litigated written motions shall be set for
hearing by the movant or applicant. [Rule 15,
Sec. 4]

Proof of Service [Rule 15, Sec. 6]

A written motion set for hearing will not be
acted upon by the court if there is no proof of
service thereof.

General Rule: Motions shall be scheduled for

hearing on Motion Day
(1) On Friday afternoons; or
(2) Afternoon of the next working day, if Friday
is a non-working day. [Rule 15, Sec. 7]

Exceptions:
(1) If the motion is one which the court can
hear ex parte.
(2) If the court is satisfied that the rights of the
adverse parties are not affected by the
motion.
(3) If the party is in default; such a party is not
entitled to notice.

Exception: Motions which require immediate

action
Notice of Hearing
Notice shall be addressed to all parties, and
shall specify the time and date of the hearing
which shall not be later than 10 days from the
filing of the motion. [Rule 15, Sec. 5]

G.4. OMNIBUS MOTION RULE

A motion attacking a pleading, order,
judgment, or proceeding must include all
objections then available. All objections not
included in the motion are deemed waived.

Motion and notice of hearing must be served at

least 3 days before the date of hearing; [Rule 15,
Sec. 4]

Purpose: To require the movant to raise all

available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided

Purpose: To prevent surprise upon the adverse

party and to enable the latter to study and
meet the arguments of the motion.

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Exception:
(1) Lack of jurisdiction over subject matter
(2) Litis pendentia
(3) Res judicata
(4) Prescription

REMEDIAL LAW

definiteness or particularity to enable the

movant to properly prepare his responsive
pleading and to prepare for trial. [Tantuico, Jr.
v. Republic (1991)]
What cannot be done in a Bill of Particulars:
(1) To supply material allegations necessary to
the validity of a pleading
(2) To change a cause of action or defense
stated in the pleading
(3) To state a cause of action or defense other
than that one stated
(4) To set forth the pleaders theory of his
cause of action or a rule of evidence on
which he intends to reply
(5) To furnish evidentiary information

I. MOTION FOR BILL OF

PARTICULARS
Bill of Particulars a detailed explanation
respecting any matter which is not averred with
sufficient definiteness or particularity in the
complaint as to enable a party to properly
prepare his responsive pleading [Rule 12, Sec. 1]
An action cannot be dismissed on the ground
that the complaint is vague or indefinite. The
remedy of the defendant is to move for a Bill of
Particulars, or avail of the proper mode of
discovery. [Galeon v. Galeon (1973)]

I.2 ACTION OF THE COURT

Upon filing of the motion, the clerk must
immediately bring it to the attention of the
court. [Rule 14, Sec. 2]

I.1. PURPOSE AND WHEN APPLIED FOR

The purpose of the motion is to seek an order
from the court directing the pleader to submit
a bill of particulars, which avers matters with
sufficient definiteness or particularity to enable
the movant to prepare his responsive pleading.

The court may either:

(1) Deny
(2) Grant the motion outright
(3) Allow the parties the opportunity to be
heard

It is not to enable the movant to prepare for

trial. When this is the purpose, the appropriate
remedy is to avail of Discovery Procedures
under Rules 23 to 29. [Riano]

I.3 COMPLIANCE WITH THE ORDER

When Applied For

(1) Before responding to a pleading
(2) If sought to clarify a reply, within 10 days
from service thereof

If motion is granted, either in whole or in part,

the pleader must file a Bill of Particulars or a
more definite statement, within 10 days from
notice of order, unless the court fixes a
different period.

Compliance with Order [Rule 12, Sec. 3]

The motion should point out:

(1) The defects complained of;
(2) The paragraph wherein they are contained;
(3) The details desired. [Rule 12, Sec. 1]

Bill of Particulars or definite statement filed

either as a separate pleading or as an
amended pleading, a copy of which must be
served on the adverse party.

The only question to be resolved in such

motion is whether the allegations in the
complaint are averred with sufficient
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A Bill of Particulars becomes part of the

pleading for which it was intended. [Rule 12,
Sec. 6]

REMEDIAL LAW

J. MOTION TO DISMISS
A remedy of the defendant, which attacks the
entire pleading and seeks its dismissal based
on:
(1) Grounds which are patent on the face of
the complaint;
(2) Defenses available to the defendant at the
time of the filing of the complaint

Effect of Non-Compliance [Rule 12, Sec. 4]

(1) In case of non-compliance or insufficient
compliance with the order for Bill of
Particulars, the court may:
(a) Order the striking out of the pleading
(or portion thereof) to which the order
is directed; or
(b) Make such order as it may deem just.

The Motion hypothetically admits the truth of

the factual allegations stated in the complaint.
It is not a responsive pleading. It is not a
pleading at all.

(2) If the plaintiff fails to obey, his complaint

may be dismissed with prejudice unless
otherwise ordered by the court. [Rule 12,
Sec. 4; Rule 17, Sec. 3]

It is subject to the omnibus motion rule since it

is a motion that attacks a pleading. Hence, it
must raise all objections available at the time
of the filing thereof.

(3) If defendant fails to obey, his answer will

be stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintiff. [Rule
9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

Types of Dismissal of Action:

(1) Upon Motion to Dismiss under Rule 16;
(2) Dismissal under Rule 17:
(a) Upon notice by plaintiff;
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff.
(3) Upon Demurrer to Evidence after plaintiff
has presented his evidence under Rule 33;
(4) Dismissal of an appeal.

I.4 EFFECT ON THE PERIOD TO FILE

RESPONSIVE PLEADING
Provided that the Motion for Bill of Particulars
is sufficient in form and substance, it stays the
period for the movant to file his responsive
pleading.

Period to File
General Rule: Within the time for, but before
filing of, the answer to the complaint or
pleading asserting a claim

The movant may file his responsive pleading:

(1) within the period he was entitled at the
time the motion was filed; or
(2) within 5 days, whichever is higher.

Exceptions:
(1) For special reasons which may be allowed
even after trial has begun, a motion to
dismiss may be filed
(2) The court has allowed the filing of a motion
to dismiss where the evidence that would
constitute a ground for dismissal was
discovered during trial

Such period shall be reckoned from:

(1) Service of the Bill of Particulars or more
definite pleading; or
(2) Notice of denial of his Motion for Bill of
Particulars.

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General Rule: A court may not dismiss a case

motu propio, unless a motion to that effect is
filed by a party.

REMEDIAL LAW

Sec. 20, Rule 14 makes a categorical statement

that the inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction
over the person of the defendant shall not be
deemed voluntary appearance on his part.

Exceptions:
(1) Upon the grounds stated in Rule 9, Sec. 1;
(2) Due to fault of the plaintiff, under Rule 17,
Sec. 3;
(3) Pursuant to Sec. 4, Revised Rule on
Summary Procedure.

II. LACK OF JURISDICTION OVER THE

SUBJECT MATTER
If the complaint shows lack of jurisdiction over
subject matter on its face, the court may
dismiss the case outright even without a
motion to dismiss. [Rule 9, Sec. 1]

J.1. GROUNDS
(1) Lack of jurisdiction over the defendants
person
(2) Lack of jurisdiction over the subject matter
of the claim
(3) Improper venue
(4) Plaintiffs lack of legal capacity to sue
(5) Litis pendentia
(6) Res judicata
(7) Prescription
(8) Failure to state a cause of action
(9) Extinguished claim
(10) Unenforceable claim under the Statute of
Frauds
(11) Non-compliance
with
a
condition
precedent for filing claim

A motion to dismiss on this ground may also

be raised
1. Before answer;
2. After answer is filed;
3. After hearing had commenced;
4. At any stage of the proceeding, even
for the first time on appeal and even if
no such defense is raised in the answer.
NOTE: The rule refers to the subject matter of
each particular claim and not only to that of
the suit. Hence. other initiatory pleadings
included.

NOTE: Complaints cannot be dismissed on

ground not alleged in a motion to dismiss. The
motion may be based on only one of the
grounds enumerated in Sec. 1, Rule 16

Where a party invokes the jurisdiction of a

court to obtain affirmative relief and fails, he
cannot thereafter repudiate such jurisdiction.
While the issue of jurisdiction may be raised at
any time, he is estopped as it is tantamount to
speculating on the fortunes of litigation
(Crisostomo, et al. v. CA)

I. LACK OF JURISDICTION OVER THE

PERSON OF THE DEFENDANT
This objection must be raised:
(1) At the very first opportunity;
(2) Before any voluntary appearance is made.

III. IMPROPER VENUE

Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
improperly laid. [Diaz v. Adiong (1993)]

In La Naval Drug Corp. v. CA, et al. the Court

held that while lack of jurisdiction over the
person of defendant may be duly and
seasonably raised, his voluntary appearance in
court without qualification is a waiver of such
defense.

Where a motion to dismiss for improper venue

is erroneously denied, the remedy is prohibition
[Enriquez v. Macadaeg ]
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REMEDIAL LAW

prove the pendency of another case, even if

same had been brought later.

IV. PLAINTIFF HAS NO LEGAL CAPACITY

TO SUE

It is not required that the later case be

dismissed in favor of the earlier case. To
determine which case should be abated, apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into
account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court
to the parties;
(c) Other similar factors.

The plaintiff lacks legal capacity to sue:

(1) When he does not possess the necessary
qualification to appear at the trial (e.g.
when he plaintiff is not in the full exercise
of his civil rights);
(2) When he does not have the character
which he claims, which is a matter of
evidence (e.g. when he is not really a duly
appointed administrator of an estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real
party in interest, in which case the ground for
dismissal would be that the complaint states
no cause of action.

In both tests, the parties good faith shall be

taken into consideration.
The 1st case shall be abated if it is merely an
anticipatory action or defense against an
expected suit. The 2nd case will not be abated
if it is not brought to harass. [Vitrionics
Computers v. RTC (1993)]

The issue of 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 proceedings below
[Univ. of Pangasinan Faculty Union v. Univ. of
Pangasinan ]

VI. RES JUDICATA

Two concepts of res judicata [Topacio v. Banco
Savings and Mortgage Bank (2010)]
(1) Bar by prior judgment [Rule 39, Sec. 47(b)]
Judgment on the merits in the first case
constitutes an absolute bar to the subsequent
action not only as to every matter which was
offered and received to sustain or defeat the
claim or demand, but also to any other
admissible matter which might have been
offered for that purpose and to all matters that
could have been adjudged in that case.

V. LITIS PENDENTIA
Requisites
(1) Identity of parties, or at least such as
representing the same interest in both
actions;
(2) Identity of rights asserted and relief prayed
for, the relief being founded on the same
facts; and
(3) Identity of the two cases such that
judgment in one would amount to res
judicata on the action under consideration
[Film Development Council of the
Philippines v. SM Prime Holdings, Inc.
(2013)]

(2) Conclusiveness of judgment [Rule 39, Sec.

47(c)]
The second action is upon a different claim or
demand, the judgment in the first case
operates as an estoppel only with regard to
those issues directly controverted, upon the
determination of which the judgment was
rendered.

It is not required to allege that there be a prior

pending case. It is sufficient to allege and

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Requisites for Bar by Prior Judgment

(1) former judgment or order must be final;
(2) the judgment or order must be on the
merits;
(3) the decision must have been rendered by a
court having jurisdiction over the subject
matter and the parties;
(4) there must be, between the two actions,
identity:
(a) of parties;
(b) of subject matter; and
(c) of causes of action [Topacio v. Banco
Filipino Savings and Mortgage Bank
(2010)]

A matter of time
Statutory
Applies in law
Based on fixed time

REMEDIAL LAW
A matter of equity
Not statutory
Applies in equity
Not based on fixed
time

Defense of prescription is waived and cannot

be considered on appeal if not raised in the
trial court (Ramos v. Osorio)
However, if the allegations of the complaint, or
evidence presented, clearly indicate that the
action has prescribed, or where there is no
issue in fact as to prescription, defense of
prescription is not deemed waived by failure to
allege the same (Chua Lamko v. Dioso)

The test of identity of cause of action lies not in

the form of the action but on whether or not
the same evidence would support and
establish the former and the present causes of
action. [DBP v. Pundogar (1993)]

Estoppel and prescription cannot be invoked

against the State (Republic v. CA)
A motion to dismiss on the ground of
prescription will be given due course only if the
complaint shows on its face that the action has
already prescribed (Sison v. McQuaid)

Rationale: The sum and substance of the whole

doctrine is that a matter once judicially decided
is finally decided because of:
(1) Public policy and necessity makes it the
interest of the State that there should be
an end to litigation;
(2) The hardship on the individual that he
should be vexed twice for the same cause.
[Nabus v. CA (1991)]

If it is not apparent on its face, take note that

Sec. 3 prohibits deferment of the resolution of
the motion. Thus:
1. Evidence may be received in support of
the motion under Sec. 2, Rule 16; or
2. The motion to dismiss should be
denied without prejudice to the
complaints dismissal if evidence
disclose that the action had already
prescribed (Sec. 1, Rule 9)

VII. STATUTE OF LIMITATIONS

Prescription applies only when the complaint
on its face shows that indeed the action has
already prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be
brought out later, the court must defer
decision on the motion until such time as proof
may be presented on such fact of prescription.

VIII. COMPLAINT STATES NO CAUSE OF

ACTION
Failure to state a cause of action (not lack of
cause of action) is the ground for a MTD. The
former means there is insufficiency in the
allegations in the pleading. The latter means
that there is insufficiency in the factual basis of
the action.

Prescription
Laches
Concerned with the Concerned with the
fact of delay
effect of delay
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The failure to state a cause of action must be

evident on the face of the complaint itself.

admissions
or
evidence presented
and with prejudice

Test: Assuming the allegations and statements

to be true, does the plaintiff have a valid cause
of action?

IX. EXTINGUISHED CLAIM

That the claim/demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished.

A MTD based upon the ground of failure to

state a cause of action imports a hypothetical
admission by the defendant of the facts
alleged in the complaint.

X. UNENFORCEABLE CLAIM UNDER THE

STATUTE OF FRAUDS
Article 1403(2) of the Civil Code requires
certain contracts to be evidenced by some note
or memorandum in order to be enforceable, to
wit:
(1) An agreement that by its terms is not to be
performed within a year from the making
thereof;
(2) A special promise to answer for the debt,
default, or miscarriage of another;
(3) An agreement made in consideration of
marriage, other than a mutual promise to
marry;
(4) An agreement for the sale of goods,
chattels or things in action, at a price not
less than five hundred pesos, unless the
buyer accept and receive part of such
goods and chattels, or the evidences, or
some of them, of such things in action, or
pay at the time some part of the purchase
money; but when a sale is made by auction
and entry is made by the auctioneer in his
sales book, at the time of the sale, of the
amount and kind of property sold, terms of
sale, price, names of the purchasers and
person on whose account the sale is made,
it is a sufficient memorandum;
(5) An agreement for the leasing for a longer
period than one year, or for the sale of real
property or of an interest therein;
(6) A representation as to the credit of a third
person.

If the court finds the allegations of the

complaint to be sufficient but doubts their
veracity, it must deny the MTD and require the
defendant to answer and then proceed to try
the case on its merits.
A complaint containing a premature cause of
action may be dismissed for failure to state a
cause of action.
If the suit is not brought against the real partyin-interest, a motion to dismiss may be filed on
the ground that the complaint states no cause
of action. [Tanpinco v. IAC (1992)]
Complaint states no
cause of action
Insufficiency
of
allegations in the
pleading
May be raised in a
Motion to Dismiss at
any time but before
the filing the answer
to the complaint or
pleading asserting a
claim
Dismissal due to
failure to state a
cause of action can be
made at the earliest
stages of an action
and without prejudice

REMEDIAL LAW

No cause of action
Insufficiency of factual
basis for the action

May be raised at any

time

Dismissal due to lack

of cause of action is
made after questions
of fact have been
resolved on the basis
of
stipulations,

Unlike a motion to dismiss on the ground that

the complaint states no cause of action, a
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motion invoking the Statute of Frauds may be

filed even if the absence of a cause of action
does not appear on the face of the complaint.
Such absence may be proved during the
hearing of the motion to dismiss on said
ground. (Yuviengco et al. v. Dacuycuy, etc., et
al.)

REMEDIAL LAW

Evidence need not be presented when the

ground relied upon is failure to state a cause
of action, which must generally be
determined on the basis of the facts alleged in
the complaint.
Lack of formal hearing is not fatal when the
issues raised were fully discussed in the motion
and opposition. [Castillo v. CA ]

XI. NON-COMPLIANCE WITH CONDITION

PRECEDENT
Where the plaintiff has not exhausted all
administrative remedies, the complaint not
having alleged the fact of such exhaustion, the
same may be dismissed for lack of cause of
action (Pineda v. CFI Davao, et al.)

After hearing, the court may:

(1) Dismiss the action/claim
(2) Deny the MTD
(3) Order amendment of the pleadings [Rule
16, Sec. 3]

Where the complaint does not state that it is

one of the excepted cases, or it does not allege
prior availment of conciliation process, or it
does not have a certification that no
conciliation or settlement had been reached
under P 1508, case should be dismissed on
motion (Morata v. Go, et al.)

The court cannot defer the resolution of the

motion for the reason that the ground relied
upon is not indubitable, and must clearly and
distinctly state the reasons for its resolution.

Where the defendant had participated in the

trial court without any invocation of PD 1508,
and the judgment therein had become final
and executory, but said defendant thereafter
sought the annulment of the decision for
alleged lack of jurisdiction, the same was
denied under the doctrine of estoppel and
laches (Royales, et al., v. IAC)

Exception: The action cannot be re-filed

(although subject to appeal) if it was dismissed
on any of the following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/demand;
(4) Unenforceability under the Statute of
Frauds. [Rule 16, Sec. 1 (f),(h),(i)]

J.3. BAR BY DISMISSAL

General rule: The action/claim may be re-filed.

J.2. RESOLUTION OF MOTION

J.4. REMEDIES OF PLAINTIFF WHEN THE

COMPLAINT IS DISMISSED

A motion to dismiss is a litigated motion and

should be heard. During the hearing, parties
shall submit:
(1) Arguments on questions of law
(2) Evidence on questions of fact, except those
not available at that time

If the motion is granted, the complaint is

dismissed. Such dismissal is final, and not
interlocutory.
The plaintiff has several options:
(1) Where dismissal for certain grounds are
not tantamount to adjudication on the
merits (e.g. improper venue), the plaintiff
may refile the complaint.

If the case should later go to trial, evidence

presented in the hearing shall automatically be
part of the evidence of the party presenting the
same.

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(2) Where it is for a ground which bars re-filing,

the plaintiff may appeal from the order of
dismissal;
(3) Where the dismissal was tainted with grave
abuse of discretion, the plaintiff may also
avail of a petition for certiorari. [Riano]

A defendant with a counterclaim should plead

these grounds as affirmative defenses as
dismissal of the complaint under this section
shall be without prejudice to the prosecution of
the counterclaim in the same or separate
action.

J.5. REMEDIES OF DEFENDANT WHEN

THE MOTION IS DENIED

J.7. DISTINGUISHED FROM DEMURRER

TO EVIDENCE [RULE 33]

If the motion is denied, the denial is

interlocutory.

A motion to dismiss under this Rule differs

from a motion to dismiss under Rule 33 on
demurrer to evidence:

General Rule: The filing of an answer and

going through the usual trial process, and later,
the filing of a timely appeal from the adverse
judgment are the proper remedies against a
denial of a motion to dismiss.

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
of
the
defending party to
the
pleading
asserting the claim
against him
If denied, defendant
must file an answer,
or else he may be
declared in default

If the motion is denied, the movant shall file his

answer:
(1) within the balance of the period prescribed
under Rule 11 to which he was entitled at the
time of serving his motion; or
(2) within 5 days, whichever is higher. [Rule 16,
Sec. 4]
If the pleading is ordered to be amended, the
movant shall file his answer within the period
prescribed by Rule 11, counted from service of
amended pleading, unless a longer period is
prescribed by the court.
Exception: The denial may be assailed by
certiorari, prohibition or mandamus, if there is a
showing that the denial was tainted by with
grave abuse of discretion amounting to lack of
jurisdiction.

If granted, plaintiff
may appeal or if
subsequent case is
not barred, he may
re-file the case

J.6. WHEN GROUNDS PLEADED AS

AFFIRMATIVE DEFENSES
If no motion to dismiss had been filed, any of
the grounds for dismissal may be pleaded as
affirmative defenses and a preliminary hearing
may be had at courts discretion. [Rule 16, Sec.
6]
67

Demurrer to Evidence
Based on insufficiency
of evidence
May be filed only by
the defendant against
the complaint of the
plaintiff
May be filed for the
dismissal of the case
only after the plaintiff
has completed the
presentation of his
evidence

If denied, defendant
may present evidence
If granted, plaintiff
appeals and the order
of
dismissal
is
reversed, defendant
loses his right to
present evidence

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(2) both actions based on , or including, the

same claims;
(3) in a court of competent jurisdiction.

K. DISMISSAL OF ACTIONS
K.1. DISMISSAL
PLAINTIFF

UPON

NOTICE

REMEDIAL LAW

BY

The second dismissal operates

adjudication on the merits.

Dismissal by plaintiff as a matter of right

Dismissal is effected by mere notice of
dismissal, which is a matter of right, before
service of:
1. The answer; or
2. A motion for summary judgment

as

an

K.2. DISMISSAL UPON MOTION OF

PLAINTIFF
Under this section, dismissal of the complaint
is subject to the discretion of the court and
upon such terms and conditions as may be just.

The dismissal as a matter of right ceases when

an answer or a motion for summary judgment
is served on the plaintiff, not when the answer
or the motion is filed with the court.

General Rule: Dismissal is without prejudice

Exceptions:
(1) When otherwise stated in the motion to
dismiss; or
(2) When stated to be with prejudice in the
order of the court

Withdrawal is not automatic but requires an

order by the court confirming the dismissal.
Until confirmed, the withdrawal does not take
effect. The requirement is in keeping with the
respect due the court. [Herrera]

Effect on Counterclaim:
If counterclaim has been pleaded by defendant
prior to service upon him of plaintiffs motion
for dismissal, dismissal shall be limited to the
complaint

However, it is not the order which operates to

dismiss the complaint. As stated by the rule, it
merely confirms the dismissal already effected
by the filing of the notice. [Riano]

The defendant either:

(1) Prosecute his counterclaim in a separate
action; or
The court should render the
corresponding order granting the
plaintiffs motion and reserving his
right to prosecute his claim in a
separate complaint

General Rule: Dismissal is without prejudice

Exceptions:
(1) Where the notice of dismissal so provides;
or
(2) Where the plaintiff has previously
dismissed the same case in a court of
competent jurisdiction (Two Dismissal
Rule)
(3) Where the notice of dismissal is premised
on a reason which would prevent refiling of
the complaint (e.g. extinguishment or res
judicata) [Riano]

(2) Have the same resolved in the same action

Defendant must manifest such
preference to the trial court within 15
days from notice of the plaintiffs
motion to dismiss
These alternative remedies of the defendant
are available to him regardless of whether his
counterclaim is compulsory or permissive.

Two Dismissal Rule

Applies when the following are met:
(1) plantiff had twice dismissed actions;
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K.3. DISMISSAL DUE TO FAULT OF THE

PLAINTIFF

REMEDIAL LAW

(3) Fails to comply with the Rules or any court

order.
(a) The order must be valid
(b) Failure to comply with order:
(c) Dismissal for failure to comply with
order to amend complaint to make
claims asserted more definite is ground
for dismissal (Santos v. General Wood
Craft)
(d) Failure to comply with an order to
include indispensable parties is ground
for dismissal (Aranico-Rubino v.
Aquino)
(e) The failure to comply with order of new
judge to recall witness so he may
observe demeanor is sufficient ground
for dismissal (Castillo v. Torres)

The case may be dismissed motu proprio or

upon the defendants motion if, without
justifiable cause, plaintiff:
(1) Fails to appear on the date of the
presentation of his evidence-in-chief on the
complaint;
(a) 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 crossexamine and to object to the
admissibility of evidence. [Jalover v.
Ytoriaga (1977)]
(b) Since plaintiffs presence is now
required only during the presentation
of his evidence in chief, his absence
during the presentation of defendant
or other parties evidence, or even at
rebuttal or subsequent stages, is not a
ground for dismissal.

(4) Failure to comply with rules

(a) The failure of the parties to submit a
compromise agreement within period
granted to them by court is not a
ground for dismissal (Goldloop
Properties Inc. v. CA)
(b) Dismissal is improper where a 3rd
party complaint has been admitted
and the 3rd party defendant had not
yet been summoned (Sotto v.
Valenzuela)
(c) A case may be dismissed for failure to
answer written interrogatories under
Rule 25 even without an order from the
court to answer. (Arellano v. CFISorsogon)

(2) Fails to prosecute his action for an

unreasonable length of time (nolle
prosequi);
(a) The test for dismissal of a case due to
failure to prosecute is WON, under the
circumstances,
the
plaintiff
is
chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
(b) The dismissal of an action pursuant to
this rule rests upon the sound
discretion of the court ( Smith Bell and
Co. v. American President Lines Ltd.)
(c) The action should never be dismissed
on a non-suit for want of prosecution
when the delay was caused by the
parties looking towards a settlement.
(Goldloop Properties Inc. v. CA)

General Rule: Dismissal is with prejudice, and

operates as an adjudication on the merits
Exceptions:
(1) The court declares otherwise, without
prejudice to the right of the defendant to
prosecute his counter-claim in the same or
separate action
(2) If court has not yet acquired jurisdiction
over the person of the defendant
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Effect on Counterclaim:
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action

REMEDIAL LAW

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
settlement 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 in the case, such as:
1. Number of witnesses
2. Tenor or character of their testimonies
3. Documentary evidence; nature and
purpose of each
4. Number of trial dates [Herrera]

Defendant is not required to manifest his

preference within a 15-day period as in Sec. 2.
The motions to dismiss in this section and in
Rule 16, Sec. 6 are filed by a defendant who
has already deliberated on the course of action
he intends to take on his counterclaim and
which he may even manifest right in his motion
to dismiss.
The dismissal in Sec. 2 is at the instance of
plaintiff, hence, defendant is granted the time
and duty to manifest preference within 15 days
from notice, after an opportunity to study the
situation.

L.1. NATURE AND PURPOSE

Purpose of pre-trial is to consider: [Rule 18, Sec.
2]
(1) Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution;
(2) Simplification of the issues;
(3) Necessity/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 therefor be found to exist;
(8) Advisability/necessity of suspending the
proceedings; and
(9) Other matters that may aid in the prompt
disposition of the action.

K.4. DISMISSAL OF COUNTERCLAIM,

CROSS-CLAIM,
OR
THIRD-PARTY
COMPLAINT
Provisions of Rule 17 shall apply to the
dismissal of any counterclaim, cross-claim, or
third-party complaint
Voluntary dismissal by claimant by notice as in
Sec. 1, shall be made:
(1) Before a responsive pleading or motion for
summary judgment is served; or
(2) If there is none, before introduction of
evidence at trial or hearing

L. PRE-TRIAL
Pre-Trial is a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel, called by the court after the joinder of
issues in a case or after the last pleading has
been filed and before trial, for the purpose of
settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice.

Pre-trial is Mandatory
Mandatory nature is addressed to both court
and parties:

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counsel and the parties actually knew of the

pre-trial (Bembo v. CA)

Court must set the case for pre-trial and

notify the parties as well as counsel to
appear
Parties with their counsel are obliged to
obey the order of the court to that effect

L.3. APPEARANCE OF PARTIES

It is the duty of both the parties and their
counsel to appear at the pre-trial. [Rule 18, Sec.
4]

Primary Objective
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.

When non-appearance is excused [Rule 18, Sec.

4]
Non-appearance of a party may be excused
only if either:
(1) Valid cause is shown for it;
(2) A representative appears in his behalf, fully
authorized in writing:
(a) To enter into an amicable settlement;
(b) To submit to alternative modes of
dispute resolution; and
(c) To enter into stipulations/admissions
of facts and of documents.

Thus, to obviate the element of surprise,

parties are expected to disclose at a pre-trial
conference all issues of law and fact which they
intend to raise at the trial, except such as may
involve privileged or impeaching matters. The
determination of issues at a pre-trial
conference bars the consideration of other
questions on appeal. [Caltex v. CA (1992)]

L.2. NOTICE OF PRE-TRIAL

The written special authority must be in the

form of a special power of attorney as authority
to enter into amicable settlement must be in
such form. [Rule 138, Sec. 23; Article 1878(3),
Civil Code]

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. [Rule 18, Sec. 1]
Within 5 days from date of filing of the
reply, plaintiff must promptly move ex
parte that the case be set for pre-trial
conference.
If the plaintiff fails to file said motion
within the given period, the branch clerk
shall issue a Notice of Pre-Trial [AM No. 031-09-SC]

Effect of Failure to Appear; Order of Non-suit

(1) Of the plaintiff the case shall be
dismissed with prejudice, unless the court
orders
(2) Of the defendant the plaintiff shall be
allowed to present evidence ex parte, and
judgment shall be rendered based thereon
[Rule 18, Sec. 5]

The last pleading need not be literally

construed as the actual filing of the last
pleading. For purpose of pre-trial, the
expiration of the period for filing the last
pleading is sufficient [Sarmiento v. Juan ]

The non-appearance of defendant in pre-trial

is not a ground to declare him in default. Thus,
we distinguish:
Failure to appear by
Default by defendant
defendant (Rule 18,
(Rule 9, Sec. 3)
Sec. 5)
Upon motion and
Not required
notice to defendant.
Requires proof of Not required

The notice shall be served on counsel, or on the

party if he has no counsel. [Rule 18, Sec. 3]
The sufficiency of the written notice of pre-trial
is irrelevant where evidence shows that
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(1) Statement of their willingness to enter into

amicable settlement or alternative modes
of dispute resolution, indicating the
desired terms thereof;
(2) Summary of admitted facts and proposed
stipulation of facts;
(3) Issues to be tried/resolved;
(4) Documents/exhibits to be presented,
stating the purpose thereof;
(5) Manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners;
(6) Number and names of the witnesses, and
the substance of their respective
testimonies. [AM No. 03-1-09-SC]

failure to answer
Court
renders
Court may render
judgment based on
judgment
without
the
evidence
receiving evidence
presented ex parte
Judgment by Default
Judgment Ex Parte
Relief awarded must Relief awarded may
be the same in nature be of different nature
and amount as prayed and amount from the
for in the complaint
relief prayed for
When we say that a defendant is in default it
speaks of his failure to file responsive pleading
and not his non-appearance at pre-trial.
Remedies of Non-suited Party
(1) For a non-suited plaintiff:
Since the dismissal is with prejudice, it
has the effect of an adjudication on the
merits.
The proper remedy of the plaintiff is
appeal, not certiorari [Chingkoe v.
Republic (2013)]

Remedy of defendant is to file a motion for

reconsideration, showing that his failure to file
a trial brief was due to fraud, accident, mistake,
or excusable negligence. The filing of pre-trial
brief is mandatory, and is not excused simply
because the defendant was not represented by
counsel. [Saguid v. CA (2003)]

(2) For a non-suited defendant:

Since the order allowing presentation
of the evidence ex parte does not
dispose of the case, it is interlocutory.
The remedy of the defendant is to file a
motion for reconsideration, and if
denial is with grave abuse of discretion,
file a petition for certiorari [Riano]

No evidence shall be allowed to be presented

and offered during the trial in support of a
partys evidence-in-chief other than those
identified and pre-marked during the pre-trial,
except if allowed by the court for good cause
shown. [A.M. No. 03-1-09-SC]

L.5. PROCEEDINGS DURING AND AFTER

PRE-TRIAL

L.4. PRE-TRIAL BRIEF

Record of Pre-Trial
The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the
court shall issue the pre-trial order. [Rule 18,
Sec. 7]

Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
It is mandatory for parties to file their pre-trial
briefs as failure shall have the same effect as
failure to appear at the pre-trial. [Rule 18,
Sec.6]

One Day Examination of Witness Rule

The court shall ask the parties to agree on
specific dates for continuous trial, adhere to
the case flow chart determined by the court,

Contents
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and use the time frame for each stage in

setting the trial dates.

Civil Case [Rule 18]

Set when the plaintiff
moves ex parte to set
the case for pre-trial
[Sec. 1]
Made after the last
pleading has been
served and filed [Sec.
1]

Adherence to the One Day Examination of

Witness Rule shall be required where the
witness shall be fully examined in one day only,
subject to the courts discretion during the trial
on whether or not to extend the examination
for justifiable reasons. [A.M. No. 03-1-09-SC]
Most Important Witness Rule
The court shall determine the most important
witnesses, limit the number of such witnesses
and require the parties and/or counsels to
submit to the branch clerk of court the names,
addresses and contact numbers of the
witnesses to be summoned by subpoena. The
court may also refer the case to trial by
commissioner under Rule 32. [A.M. 03-1-09-SC]

Possibility
of
an
amicable settlement
as
an
important
objective [Sec. 2(a)]
The sanctions for nonappearance
are
imposed upon the
plaintiff
and
the
defendant [Sec. 4]
A pre-trial brief is
specifically required
to be submitted [Sec.
6]

Contents of Pre-Trial Order

(1) Matters taken up in the conference;
(2) Action taken thereon;
(3) Amendments allowed on the pleadings;
(4) Agreements/admissions made by the
parties as to any matters considered;
(5) Should the action proceed to trial, the
explicit definition and limit of the issues to
be tried.

REMEDIAL LAW
Criminal Case [Rule
118]
Ordered by the court
and no motion is
required from either
party [Sec. 1]
Ordered by the court
after
arraignment,
and within 30 days
from the date the
court
acquired
jurisdiction over the
person of the accused
Sec. 1]
Possibility of amicable
settlement of criminal
liability not among its
purposes [ Sec. 1]
Sanctions
are
imposed upon the
counsel
for
the
accused
or
the
prosecutor [Sec. 3]
A pre-trial brief is not
specifically required.

Pre-trial under Criminal Cases require stricter

procedure:
Civil Case: The arrangements and
admissions are not required to be signed
by both parties and their counsels; instead
contained in the record of pre-trial and
pre-trial order [Rule 18, Sec. 7]

Effect of Pre-Trial Order

The contents of the order shall control the
subsequent course of the action; unless:
(1) Modified before trial to prevent manifest
injustice [Rule 18, Sec. 7]
(2) Issues impliedly included therein or may be
inferable
therefrom
by
necessary
implication [Philippine Export and Foreign
Loan Giuarantee Corp. v. Amalgated
Management and Development Corp. ]
(3) Amendment to conform to evidence [Rule
10, Sec. 5]

Recently, the proceedings during the

preliminary conference are recorded in the
Minutes of Preliminary Conference to be
signed by both parties and/or counsel.
Note that either the party or his counsel
may sign. [A.M. No. 03-1-09-SC]

L.6. DISTINCTION BETWEEN PRE-TRIAL

IN CIVIL CASE AND IN CRIMINAL CASE

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conference are reduced in writing and

signed by both the accused and counsel;
otherwise, they cannot be used against the
accused. [Rule 118, Sec. 2]

L.7.
ALTERNATIVE
RESOLUTION

REMEDIAL LAW

Policy: To actively promote party autonomy in

the resolution of disputes or the freedom of the
party to make their own arrangements to
resolve their disputes [RA 9285, Sec. 2]

DISPUTE

Exception to the Application of RA 9285 [Sec.

6]
(1) labor disputes covered by the Labor Code;
(2) the civil status of persons;
(3) validity of a marriage;
(4) any ground for legal separation;
(5) the jurisdiction of courts;
(6) future legitime;
(7) criminal liability; and
(8) those which by law cannot be
compromised.

One the purposes of pre-trial is the

consideration of the possibility of amicable
settlement, or of a submission to alternative
modes of dispute resolution. [Rule 18, Sec. 2(a)]
The pre-trial briefs of parties must include the
parties statement of their willingness to enter
into an amicable settlement indicating the
desired terms thereof or to submit the case to
any of the alternative modes of dispute
resolution [Rule 18, Sec. 6; A.M. No. 03-1-09SC]

Modes of Alternative Dispute Resolution [Sec. 3,

RA 9285]
(1) Arbitration -- 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 this Act, resolve
a dispute by rendering an award

At the start of the pre-trial conference, the

judge shall immediately refer the parties
and/or their counsel if authorized by their
clients to the Philippine Mediation Center
mediation unit for purposes of mediation if
available. IF mediation fails, the judge will
schedule the continuance of the preliminary
conference. [AM No. 03-1-09-SC]

Different Kinds:
(1) Domestic Arbitration an arbitration that
is not international; governed by RA 876
(Arbitration Law) [RA 9285, Sec. 32]
(2) International Arbitration An arbitration is
international if:
The parties to an arbitration
agreement have, at the time of the
conclusion of that agreement, their
places of business in different States; or
One of the following places is situated
outside the State in which the parties
have their places of business [Article 3,
Model Law on International Commercial
Arbritration]

The judge should not allow the termination of

pre-trial siply because of the manifestation of
the parties that they cannot settle the case. He
should expose the parties to the advantages of
pre-trial [A.M. No 03-1-09-SC]

I. ALTERNATIVE DISPUTE RESOLUTION

SYSTEM
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, as defined
in the Act, in which a neutral third party
participates to assist in the resolution of issue
[RA 9285, Sec. 3(a)]

(2) Mediation a voluntary process in which a

mediator, selected by the disputing parties,
facilitates communication and negotiation,
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and assist the parties in reaching a

voluntary agreement regarding a dispute;
includes conciliation [Sec. 7, RA 9285]

REMEDIAL LAW

(10) Recognition and Enforcement of a Foreign

Arbitral Award;
(11) Confidentiality/Protective Orders; and
(12) Deposit and Enforcement of Mediated
Settlement Agreements.

(3) Mini-Trial a structured dispute resolution

method in which the merits of a case are
argued before a panel comprising senior
decision makers with or without the
presence of a neutral third person after
which the parties seek a negotiated
settlement

Service and Filing of Petition

The petitioner shall serve, either by personal
service or courier, a copy of the petition upon
the respondent before the filing thereof. Proof
of service shall be attached to the petition filed
in court.

(4) Early Neutral Evaluation 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 nonbinding assessment by an
experienced, neutral person, with expertise
in the subject in the substance of the
dispute

Notice is served once the court finds petition

sufficient in form and substance, directing the
parties to appear at a particular time and date
for hearing and allowing him to file a comment
or opposition to petition within 15 days from
receipt of notice.
Hearing shall not be set no later than 5 days
from lapse of period for filing opposition or
comment.

(5) Combinations of alternative dispute

resolution processes: Med-Arb - step
dispute resolution process involving both
mediation and arbitration

Summary Hearing - In all cases, as far as

practicable, the summary hearing shall be
conducted in one (1) day and only for purposes
of clarifying facts.

Special Rules of Court on ADR [A.M. No. 07-1108-SC]

The Special ADR Rules shall apply to and
govern the following cases (Rule 1.1)
(1) Relief on the issue of Existence, Validity, or
Enforceability
of
the
Arbitration
Agreement;
(2) Referral ADR
(3) Interim Measures of Protection;
(4) Appointment of Arbitrator;
(5) Challenge to Appointment of Arbitrator;
(6) Termination of Mandate of Arbitrator;
(7) Assistance in Taking Evidence;
(8) Confirmation, Correction or Vacation of
Award in Domestic Arbitration;
(9) Recognition and Enforcement or Setting
Aside of an Award in International
Commercial Arbitration;

Prohibited Submissions (Rule 1.6)

(1) Motion to dismiss;
(2) Motion for bill of particulars;
(3) Motion for new trial or for reopening of
trial;
(4) Petition for relief from judgment;
(5) Motion for extension, except in cases where
an ex-parte temporary order of protection
has been issued;
(6) Rejoinder to reply;
(7) Motion to declare a party in default; and
(8) Any other pleading specifically disallowed
under any provision of the Special ADR
Rules.

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No summons (Rule 1.9)

In cases covered by the Special ADR Rules, a
court acquires authority to act on the petition
or motion upon proof of jurisdictional facts, i.e.,
that the respondent was furnished a copy of
the petition and the notice of hearing.

PRE TRIAL

NO SETTLEMENT

Agreements
made by parties;
Amendments to
pleading;
Schedule of Trial

FAILURE
APPEAR

TO

AMICABLE
SETTLEMENT

If defendant is
absent, court may
hear evidence of
plaintiff ex parte

If
plaintiff
is
absent when so
required
to
attend, court may
dismiss the case

TRIAL

If evidence is
insufficient
to
prove plaintiffs
cause of action or
defendants
counterclaim,
court rules in
favor of either
one or dismisses
the case
COURT
RENDERS
DECISION

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REMEDIAL LAW

and remote, conjectural, consequential or

collateral. [Virra Mall Tenants v. Virra Mall
[2011]]

M. INTERVENTION
A proceeding in a suit or an action by which a
third person is permitted by the court to make
himself a party, either:
(1) Joining plaintiff in claiming what is sought
by the complaint;
(2) Joining with defendant in resisting the
claims of the plaintiff; or
(3) demanding something adverse to both of
them. [Herrera]

Notwithstanding the presence of a legal

interest, permission to intervene is subject to
the sound discretion of the court, the exercise
of which is limited by considering "whether or
not the intervention will unduly delay or
prejudice the adjudication of the rights of the
original parties and whether or not the
intervenors rights may be fully protected in a
separate proceeding. [Virra Mall Tenants v.
Virra Mall (2011)]

Intervention is never an independent action,

but is ancillary and supplemental to the
existing litigation. Its purpose is to afford one
not an original party, yet having a certain
right/interest in the pending case, the
opportunity to appear and be joined so he
could assert or protect such right/interest.
[Carino v. Ofilada, 1993]

M.2. TIME TO INTERVENE

The motion to intervene may be filed at any
time before rendition of judgment by the trial
court.

M.1. REQUISITES FOR INTERVENTION

EFFECTED BY:

(1) The legal interest:

(a) In the matter in controversy; or
(b) In the success of either of the parties;
or
(c) Against both; or
(d) So situated as to be adversely affected
by a distribution or other disposition of
property in the custody of the court or
of an office thereof;
(2) Intervention will not unduly delay or
prejudice the adjudication of rights of
original parties
(3) Intervenors rights may not be fully
protected in a separate proceeding
[Lorenza Ortega v. CA, 1998]

(1) A motion to intervene

(2) Attaching the pleading-in-intervention;
and
(3) Also erving the motion and pleading-inintervention on the original parties [Rule 19,
Sec. 2]
General Rule: Allowance of intervention is
discretionary with the court
Exception: When the
indispensable party

intervenor

is

an

PLEADINGS-IN-INTERVENTION
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in resisting
a claim against the latter.
(3) Answer to complaint-in-intervention [Rule
19, Sec. 4] - It must be filed within 15 days
from notice of the order admitting the

MEANING OF LEGAL INTEREST

Interest must be of a direct and immediate
character so that the intervenor will either gain
or lose by the direct legal operation of the
judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
must not be indirect and contingent, indirect
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complaint-in-intervention,
unless
different period is fixed by the court.

(3) Officer or body authorized by law to do so

in
connection
with
investigations
conducted by said officer or body; or
(4) Any justice of the SC or of the CA, in any
case or investigation pending within the
Philippines

M.3. REMEDIES OF THE PARTIES

(1) If intervention is denied
(a) Aggrieved party may appeal
(b) Mandamus will not lie except in case of
grave abuse of discretion
(2) If intervention is granted
(a) A grant of a motion to intervene is
interlocutory
(b) Hence, anyone who objects can file a
petition for certiorari for improper
granting of intervention

All processes issued by the MTC and MCTC in

cases falling within their jurisdiction may be
served anywhere in the Philippines without the
necessity of certification by the judge of the
RTC [Sec. 38(2), BP 129]

FORM AND CONTENTS

[Rule 21, Sec. 3]
(1) Shall state the name of the court and the
title of the action or investigation
(2) Shall be directed to the person whose
attendance is required
(3) for subpoena duces tecum, shall also
contain a reasonable description of the
books, or things demanded which must
appear to the court to be prima facie
relevant

N. SUBPOENA
A process directed to a person requiring him:
(1) To attend and to testify at the hearing or
the trial of an action, or at any
investigation conducted by competent
authority, or for the taking of his
deposition; or
(2) To bring with him any books, documents,
or other things under his control [Rule 21,
Sec. 1]
Subpoena
An order to appear
and testify or to
produce books and
documents
May be served to a
non-party
Needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee

REMEDIAL LAW

N.1. SUBPOENA DUCES TECUM

A process directed to a person requiring him to
bring with him books, documents, or other
things under his control [Rule 21, Sec. 1]

Summons
An order to answer
complaint

Does not need tender

of kilometrage and
other fees

The subpoena duces tecum is, in all respects,

like the ordinary subpoena ad testificandum,
with the exception that it concludes with an
injunction that the witness shall bring with him
and produce at the examination the books,
documents, or things described in the
subpoena.

[Rule 21, Sec. 2]

(1) Court before whom the witness is required
to attend
(2) Court of the place where the deposition is
to be taken

Before this subpoena may issue, the court

must first be satisfied that the following tests
are met:
(1) Test of relevancy the books, documents,
or other things requested must appear
prima facie relevant to the issue subject of
the controversy;

Served
on
defendant

the

WHO MAY ISSUE

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REMEDIAL LAW

(2) Test of definiteness such books must be

reasonably described by the parties to be
readily identified

The refusal to obey a subpoena without

adequate cause shall be deemed contempt of
the court issuing it. [Rule 21, Sec. 9]

N.2. SUBPOENA AD TESTIFICANDUM

Exception:
Provisions regarding the compelling of
attendance [Sec. 8] and contempt [Sec. 9] do
not apply where:
(1) Witness resides more than 100km from his
residence to the place where he is to testify
by the ordinary course of travel [viatory
right]; or
(2) Permission of the court in which the
detention prisoners case is pending was
not obtained

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
by competent authority or for the taking of his
deposition [Rule 21, Sec. 1]

N.3. SERVICE OF SUBPOENA

Service of subpoena shall be made in the same
manner as personal or substituted service of
summons. [Rule 21, Sec. 6]

Note: Viatory right applies only in civil cases,

not criminal cases. [Genorga v. Quitain (1977)]

Formalities
(1) The original is exhibited to the person
served;
(2) A copy is delivered to him; and
(3) Tender is made to him of the following:
(a) fees for one days attendance;
(b) kilometrage allowed by the Rules; and
(c) in the case of subpoena duces tecum,
the reasonable cost of producing the
books,
documents
and
things
demanded.

N.5. QUASHING OF SUBPOENA

Quashing of subpoena is done by the court,
upon motion promptly made at or before the
time specified in the subpoena. [Rule 21, Sec. 4]

GROUNDS
(1) For quashing subpoena duces tecum:
(a) That the subpoena is unreasonable
and oppressive;
(b) That the articles sought do not appear
prima facie relevant to the issues;
(c) That the applicant does not advance
the cost for the production of the
articles desired; or
(d) That there was no tender of witness
fees and kilometrage.
(2) For quashing subpoena ad testificandum
(a) That the witness is not bound thereby,
or
(b) That there was no tender of witness
fees and kilometrage.

Note: Tender of these amounts need not be

made if subpoena is issued by or on behalf of
the Republic, or an officer or agency thereof
When made: must be such as to allow the
witness reasonable time for preparation and
travel to the place of attendance

N.4. COMPELLING ATTENDANCE OF

WITNESS
The court which issued the subpoena may,
upon proof of service and failure of witness to
attend, 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 [Rule 21, Sec. 8]
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(2) Without leave
been served
Note: The taking
confined in prison
whether before or
[Rule 23, Sec. 1]

O. MODES OF DISCOVERY
Discovery a device employed by a party to
obtain information about relevant matters on
the case from the adverse party in the
preparation for trial [Riano]
Purpose: to permit mutual knowledge before
trial of all relevant facts gathered by both
parties so that either party may compel the
other to disgorge facts whatever he has in his
possession [RIano citing C.J.S.]

REMEDIAL LAW
of court after answer has
of deposition of a person
is always by leave of court,
after service of the answer.

Before whom Depositions are taken

[Rule 23, Sec. 10-11]
(1) Within the Philippines:
(a) Judge
(b) Notary Public, or
(c) Any person authorized to administer
oaths, as stipulated by the parties in
writing
(2) 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 under
letter rogatory or
(c) Any person authorized to administer
oaths as stipulated by parties in writing

Modes of Discovery
(1) Depositions pending actions [Rule 23]
(2) Depositions before action or pending
appeal [Rule 24]
(3) Interrogatories to parties [Rule 25]
(4) Admission by adverse party [Rule 26]
(5) Production or inspection of documents or
thing [Rule 27]
(6) Physical and mental examination of
persons [Rule 28]

O.1 DEPOSITIONS
[Rules 23-24]
Deposition taking of testimony out of court of
any person, whether party to the action or not
but at the instance of a party to the action
[Riano]

Disqualification by interest
[Rule 23, Sec. 13]
No deposition shall be taken before the
following:
(1) A relative by affinity or consanguinity
within the 6th degree of any party;
(2) An employee or counsel of any of the
parties
(3) A relative within the same degree or
employee of such counsel;
(4) Any person financially interested in the
action

Kinds of Depositions
(1) Depositions pending action [Rule 23]
called deposition de bene esse
(2) Depositions before action or pending
appeal [Rule 24] called depositions in
perpetuam rei memoriam

I. TAKING OF DEPOSITION
When Depositions Pending Action Taken [Rule
23, Sec. 1]
(1) With leave of court
(a) after jurisdiction has been obtained
over any defendant or over the property
which is the subject of the action, but
(b) before an answer has been served

Taking Depositions upon Oral Examination

(1) A party desiring to take the deposition
shall give reasonable notice in writing to
every party stating the time and place for
taking the deposition and the name and

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address of each person to be examined.

[Sec. 15]
(2) After notice is served, the court may make
any order for protection of the parties and
the deponent. [Sec. 16]

REMEDIAL LAW

(3) Under such limitations as the court may

order under Secs. 16 and 18.
These may relate to:
(1) any claim or defense of any other party;
(2) the existence, description, nature, custody,
condition, and location of books,
documents and other tangible things; or
(3) the identity or location of persons having
knowledge of relevant facts.

(3) The attendance of the witnesses may be

compelled by the use of subpoena. [Sec. 1]
(4) The deponent may be examined following
the procedures for witnesses in a trial, and
may be asked questions on direct, cross,
re-direct or re-cross. He has the same
rights as a witness and may be impeached
like a court witness. [Sec. 3]
(5) The officer before whom the deposition is
being taken has no authority to rule on
objections interposed during the course of
the deposition but any objections shall be
noted by him upon the deposition. Any
evidence that is objected to shall be taken
subject to the objection. [Sec. 17]

Specific Uses of Depositions [Rule 23, Sec. 4]

The use of depositions depends on whether
deponent is a party or not.
(1) For contradicting or impeaching the
testimony of the former deponent, now
testifying as a witness
Only used to contradict, not as proof of
specific facts
Cannot be used for this person if
deponent does not testify

Effect of Taking Depositions

[Rule 23, Sec. 7]
A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition because depositions are taken for
discovery and not for use as evidence.

(2) For any purpose, if the deponent was an

adverse party
May be used as an admission
Cannot, however, be used in the trial of
a case against a defendant who was
not a party to the action when the
deposition was taken

II. USES AND SCOPE OF DEPOSITION

General Uses of Deposition:
(1) Intended as a means to compel disclosure
of facts resting in the knowledge of a party
or other person, which are relevant in a suit
or proceeding
(2) Dual functions:
(a) A method of discovery
(b) A method of presenting testimony in
lieu of oral open court testimony

(3) Deposition of a witness or party may be

used for any purpose under the following
circumstances:
(a) Witness-deponent is dead there must
be proof or presumption of death, and
proof that the deposition was lawfully
taken
(b) Witness resides more than 100 km
from the place of trial or hearing, or is
out of the country -- unless absence
was procured by the proponent of the
deposition
(c) Disability of a witness due to age,
sickness, infirmity, or imprisonment

Scope of Examination [Rule 23, Sec. 2]

Deponent may be examined as to any matter:
(1) Not privileged;
(2) Relevant to the subject of the pending
action; and
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proven by certificate of attending

physician
(d) Inability to procure attendance of
witness by subpoena
(e) Exceptional circumstances

REMEDIAL LAW

When done: At any time during the taking of

deposition
Grounds:
That the examination is being conducted:
(1) In bad faith, or
(2) In such manner as unreasonably to annoy,
embarrass or oppress the deponent or
party

General rule: A deposition is not a substitute

for the actual testimony in open court of a
party or witness. If the witness is available to
testify, he should be presented in court to
testify. If available to testify, a partys or
witness deposition is inadmissible in evidence
for being hearsay. [Dasmarinas Garments Inc. v.
Reyes, 1993].

Effect of Errors and Irregularities in Depositions

[Rule 23, Sec. 29]
Error and
Effect
Irregularities
Waived
As to notice for
Unless written objection is
taking
promptly served upon
depositions
party giving notice
Waived
Objection
to Unless made:
taking
(1) Before
taking
of
deposition
deposition begins or
because
of (2) As soon thereafter as
disqualification
disqualification
of
officer
becomes known or
before whom it
could be discovered
is to be taken
with
reasonable
diligence
Not waived by failure to
Objection
to
make them before or
the
during the taking of
competency of
deposition
a witness or
Unless the ground of the
competency or
objection is one which
relevancy
or
might have been obviated
materiality of
or removed if presented at
testimony
that time
In the manner of taking, in
Occurring at
the form of questions or
oral
answers, in the oath or
examination
affirmation, or in conduct
and
other
of parties and errors of
particulars
any kind which might be

Exception: Depositions may be used as

evidence under the circumstances in Sec. 4.
Effect of Using Deposition [Rule 23, Sec. 8]
General Rule: If a party offers the deposition in
evidence, then he is deemed to have made the
deponent his witness.
Exceptions:
(1) The deposition is that of an opposing party,
or
(2) The deposition is used to impeach or
contradict opponent.

III. OBJECTIONS TO ADMISSIBILITY

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. [Rule 23, Sec. 6]

IV. TERMINATION OF TAKING OF

DEPOSITION OR LIMITATION OF SCOPE
How done
(1) A motion or petition for termination or limit
examination is filed by any party or of the
deponent
(2) Filed in the court where the action is
pending OR the RTC of the place where
deposition is being taken
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Objections to
the form of
written
interrogatories
under Sec. 25
and 26

In the manner
in
which
testimony
is
transcribed or
in
the
preparation
under Sec. 17,
19, 20, and 26

CIVIL PROCEDURE
obviated or removed if
promptly prosecuted are
waived
Unless
reasonable
objection thereto is made
at the time of taking the
deposition
Waived
Unless served in writing
upon
the
party
propounding them within
the time allowed for
serving succeeding cross
or other interrogatories
and within 3 days after
service
of
last
interrogatories authorized
Waived
Unless
motion
to
suppress depositions or
some part thereof is made
with
reasonable
promptness after such
defect is ascertained, or
with due diligence might
have been ascertained

REMEDIAL LAW

enclosed in sealed envelopes to be opened

as directed by the court;

V. DEPOSITIONS BEFORE ACTION OR

PENDING APPEAL
[Rule 24]
Referred to as perpetuation of testimony
(depositions in perpetuam rei memoriam)
because their objective is to perpetuate the
testimony of a witness for future use, in the
event of further proceedings in said court.
Who may avail:
Any person:
(1) Who wants to perpetuate his own
testimony; or
(2) Who wants to perpetuate the testimony of
another person
Procedure for Deposition before Action
(1) File a verified petition in the court of the
place of the residence of any expected
adverse party, entitled in the name of the
petitioner and stating:
(a) That the petitioner expects to be a
party to an action in a court of the
Philippines but is unable to bring it or
cause it to be brought;
(b) The subject matter of the expected
action and his interest therein;
(c) The facts which he desires to establish
by the proposed testimony and his
reasons for desiring to perpetuate it;
(d) The names or a description of the
persons he expects will be adverse
parties and their addresses so far as
known; and
(e) The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit, and
(f) Asking for an order authorizing the
taking of the depositions of the persons
sought to be examined named in the

Orders of the court regarding deposition taking

(1) That the deposition shall not be taken;
(2) That it may be taken at some designated
place other than that stated in the notice;
(3) That it may be taken only on written
interrogatories;
(4) That certain matters shall not be inquired
into
(5) That the scope of the examination shall be
held with no one present except the parties
to the action and their officers or counsel;
(6) That after being sealed, the deposition
shall be opened only by order of the court;
(7) That secret processes, developments, or
research need not be disclosed;
(8) That the parties shall simultaneously file
specified documents or information

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petition
for
the
purpose
of
perpetuating their testimony.
(2) Notice and service to 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.
(a) At least 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.

as if the action was pending therein. The

motion shall state:
(a) The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each, and
(b) The reason for perpetuating their
testimony.
(3) Order allowing the deposition: 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 deposition to be taken.

(3) Order and Examination: If the court is

satisfied that the perpetuation of the
testimony may prevent a failure or delay of
justice, it shall make an order designating
or describing the persons whose deposition
may be taken and specifying the subject
matter of the examination and whether the
depositions shall be taken upon oral
examination or written interrogatories.

O.2. WRITTEN INTERROGATORIES OF

ADVERSE PARTIES [RULE 25]
[Rule 25]
Purpose: This mode of discovery is availed of by
the party to the action for the purpose of
eliciting material and relevant facts from any of
the adverse party. [Rule 25, Sec. 1]
Scope and Use: Interrogatories have the may
relate to the same matter as may be inquired
into under Depositions Pending Action and
may also be used for the same purposes
provided. [Rule 24, Sec. 5]

Use of Deposition
If a deposition to perpetuate testimony is taken
under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be
used in any action involving the same subject
matter subsequently brought in accordance
with the provisions of sections 4 and 5 of Rule
23. [Rule 24, Sec. 6]

Written Interrogatories v. Interrogatories to

Parties
Interrogatories to
Written Interrogatories
Parties
Taken
before
a
No deposition officer.
deposition officer
Questions
are
prepared beforehand,
The questioning is
and submitted to the
direct.
deposition officer who
will ask the deponent
The deposition of any
Interrogatories
are
person may be taken,
served on parties to
whether he is a party
the action
or not.

Procedure for Deposition Pending Appeal:

(1) During the pendency of an appeal, the
court in which the judgment was rendered
may allow the taking of depositions of
witnesses to perpetuate their testimony in
the event of further proceedings in the said
court.
(2) The party who desires to perpetuate the
testimony may make a motion in the said
court for leave to take the depositions,
upon the same notice and service thereof

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I. SERVICE OF INTERROGATORIES TO
PARTIES

REMEDIAL LAW

Grounds
(1) The interrogatories require:
(a) statements of conclusions of law;
(b) answers to hypothetical questions or
opinion;
(c) mere hearsay; or
(d) matters not within the personal
knowledge of the interrogated party
(2) Frivolous interrogatories need not be
answered. [Herrera]

Any party desiring to elicit material and

relevant facts from any adverse party shall file
and serve upon the adverse party written
interrogatories to be answered by the party
served.
Manner of Service
(1) Without leave of court After answer has
been served; and for the first set of
interrogatories
(2) With leave of court before the answer has
been served; and for subsequent sets of
interrogatories
Note: No party may, without leave of court,
serve more than one set of interrogatories to
be answered by the same party. [Rule 25, Sec.
4]

IV. CONSEQUENCES OF FAILURE TO

ANSWER
On failure to answer of a party served with
interrogatories, the court, on motion and
notice, may:
(1) strike out all or any part of any pleading of
that party;
(2) dismiss the action;
(3) render judgment by default against the
party; and
(4) order payment by such party of reasonable
expenses including attorneys fees. [Rule
29, Sec. 5]

II. ANSWERS
Written interrogatories and the answers
thereto must both be filed and served. [Rule 25,
Sec. 2] Hence, the answers may constitute as
judicial admissions [Rule 129, Sec. 4]

V. EFFECT OF FAILURE TO SERVE

Form: The answer must be fully in writing,

signed and sworn to by the person making
them.

A party not served with written interrogatories

may not be compelled by adverse party to:
(1) Give testimony in open court; or
(2) Give deposition pending appeal [Rule 25,
Sec. 6]

Service and Filing

Shall be filed and served on the party
submitting interrogatories within 15 days after
service of interrogatories, unless the court
extends or shortens period on motion and for
good cause.

Exception: Allowed by the court for good cause

shown and to prevent a failure of justice

O.3. REQUEST FOR ADMISSION

III. OBJECTIONS TO INTERROGATORIES

[Rule 26]
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegation in a
pleading.

Objections may be presented to the court

within 10 days after service of the
interrogatories, with notice as in case of a
motion. [Rule 25, Sec. 3]
Effect: Answers shall be deferred until
objections are resolved
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Purposes:
(1) To allow one party to request the adverse
in writing to admit certain material and
relevant matters which most likely will not
be disputed during the trial.
(2) To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the
other to:
(a) Admit the genuineness of any material
and relevant document described in
and exhibited with the request; or
(b) Admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]

Period: Such party must file and serve such

statement:
(1) Within a period not less than 15 days
designated in the request; or
(2) Within such further time as the court may
allow on motion

How made:
(1) A party files and serves upon any other
party a written request
(2) Copies of the documents shall be served
with the request unless already furnished

The proponent may apply to the proper court

for an order to compel an answer. [Rule 29, Sec.
1]

Objections shall be submitted to the court by

the party requested within the period for and
prior to filing of his sworn statement.
Compliance with the sworn statement shall be
deferred until objections are resolved. [Rule 26,
Sec. 2]

II. CONSEQUENCES FOR FAILURE TO

ANSWER REQUEST

If application is granted, the court:

(1) shall require the refusing party to answer;
and
(2) may require the refusing party or counsel
to pay reasonable expenses for obtaining
the order, the refusal to answer was
without substantial justification.

The request for admission must be served on

the party, not the counsel. This is an exception
to the general rule that notices shall be served
upon counsel and not upon the party. [Duque v.
CA, (2002)]
When made: At any time after issues have been
joined, which is to say,

If application is denied and it was filed without

substantial justification, the court may require
the refusing party or counsel to pay reasonable
expenses for opposing the application.

I. IMPLIED ADMISSION BY ADVERSE

PARTY
Each of the matters which an admission is
requested shall be deemed admitted unless
the party to whom request is directed files and
serves upon the party requesting admission a
sworn statement [Rule 26, Sec. 2]

Refusal to answer after being directed by the

court would constitute contempt of court.
Refusal to obey would also allow the court to
make such orders regarding the refusal as are
just, such as:
(1) that the matters regarding which questions
were asked be taken as established for the
purposes of the action in accordance with
the claim of the party obtaining the order;

Contents
(1) Denying specifically the matters of which
an admission is requested, or
(2) Setting forth in detail the reasons why he
cannot truthfully either admit or deny
those matters
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I. PROCEDURE

(2) that the disobedient party be disallowed

from supporting or opposing designated
claims or defenses;
(3) that pleadings or parts thereof be stricken
out; or that further proceedings be stayed
until compliance; or that actions or any
parts thereof be dismissed or that
judgment be rendered by default against
the disobedient party; or
(4) that that the disobedient party be arrested.
[Rule 29, Sec. 3]

[Rule 27, Sec. 1]

A motion is filed by the party seeking
production or inspection, showing good cause
therefor.
The court may issue an order:
(1) for the party to produce and permit
inspection, copying or photographing, by
or on behalf of the moving party, of any
designated documents or tangible things,
(a) not privileged,
(b) constituting or containing material
evidence, and
(c) in the partys in his possession, custody
or control
(2) for the party to permit entry upon
designated land or other property, in his
possession or control, for inspection,
measuring, surveying, or photographing
property or any designated relevant object
or operation.

III. EFFECT OF ADMISSION

Any admission made by a party pursuant to
such request is for the purpose of the pending
action only [Rule 26, Sec. 3]
It shall not:
(1) Constitute an admission by him for any
other purpose; nor
(2) Be used against him in any other
proceeding

iv. Effect of Failure to File and Serve Request

for Admission

The order shall state:

(1) The time, place, and manner of making the
inspection and taking copies and
photographs, and
(2) Such terms and conditions as are just

Applicability: The party fails to file and serve a

request for admission on the adverse party for
facts at issue, which are:
[1] material and relevant fact at issue, and
[2] are, or ought to be, within the personal
knowledge of the adverse party

II. PRODUCTION OF DOCUMENTS V.

SUBPOENA DUCES TECUM
Production or
Inspection of
Documents

Effect: The party shall not be permitted to

present evidence on such facts, unless allowed
by the court for good cause and to prevent a
failure of justice [Rule 29, Sec. 5]

Subpoena Duces
Tecum

A
means
of
compelling
A mode of discovery
production
of
evidence
Limited to the parties May be directed to
of the action
non-party
Issued upon motion
May be issued upon ex
with notice to the
parte application
adverse party
May be asked before May be asked only
and/or during trial
during trial

O.4. PRODUCTION OR INSPECTION OF

DOCUMENTS OR THINGS
[Rule 27]
Applicable only to a pending action and the
things subject of the motion must be within the
possession, control, or custody of a party.

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Must
cause

CIVIL PROCEDURE

show

good Need not show good

cause
Grounds for quashal:
(1) Unreasonable,
May be quashed for
oppressive,
lack of good cause
irrelevant
shown
(2) Failure to advance
reasonable costs
of production
Disobedience would
allow court to issue Disobedience
orders as in the case constitutes contempt
of refusal to answer of court
request for admission

O.5.
PHYSICAL
OR
EXAMINATION OF PERSONS

REMEDIAL LAW

a like report of any examination, previously or

thereafter made, of the same mental or
physical condition.
If such report is not delivered
(a) due to refusal of the party examined, the
court may make an order requiring delivery
on such terms as are just;
(b) due to failure or refusal of the physician,
the court may exclude his testimony when
offered at trial.

III. WAIVER OF PRIVILEGE

[Rule 28, Sec. 4]
Where the party examined requests and
obtains a report on the results of the
examination, the consequences are:
(1) He has to furnish the other party a copy of
the report of any previous or subsequent
examination of the same physical and
mental condition; and
(2) He waives any privilege he may have in
that action or any other involving the same
controversy regarding the testimony of any
other person who has so examined him or
may thereafter examine him

MENTAL

[Rule 28]
Applicable in an action in which the mental or
physical condition of a party is in controversy.
[Rule 28, Sec. 1]

I. PROCEDURE
[Rule 28, Sec. 2]
A motion for the examination is filed in the
court where the action is pending:
(1) showing good cause for the examination;
(2) with notice to the party to be examined,
and all other parties; and
(3) specifying the time, place, manner,
conditions, scope, and person conducting
the examination.

O.6. CONSEQUENCES OF REFUSAL TO

COMPLY
[Rule 29]
Form of
Refusal

Sanctions

The court may, upon proper

application,
compel
a
refusing deponent to answer
[Sec. 1]
(1) If granted, and refusal to
Refusal
to
answer
is
without
answer
any
substantial justification,
question
court may require the
[Sec. 1 and 2]
refusing party to pay
proponent the reasonable
expenses incurred in
obtaining the order
(2) If denied, and filed

Since the results of the examination are

intended to be made public, the same are not
covered by physician-patient privilege [Rule
130, Sec. 24(b)]

II. REPORT OF FINDINGS

[Rule 28, Sec. 3]
The party examined may request delivery of a
copy of the detailed written report, with the
findings of the examining physician. Upon such
request and delivery, the party causing the
examination is entitled upon request to receive
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Form of
Refusal

CIVIL PROCEDURE

Form of
Sanctions
Refusal
admit under application, issue an order
Rule 26
requiring the other party to
[Sec. 4]
pay him reasonable expenses
incurred, including attorneys
fees
PROVIDED
that
party
requesting
proves
genuineness
of
such
document or truth
UNLESS court finds:
(1) There were good reasons
for denial
(2) Admissions sought were
of no importance
The court on motion and
notice may:
(1) Strike out all or any part
of any pleading of
Failure
of
disobedient party
party
to (2) Dismiss the action or
attend
or
proceeding or any part
serve answers
thereof
to
written (3) Enter a judgment by
interrogatories
default
against
[Sec. 5]
disobedient party
(4) Order
payment
of
reasonable
expenses
incurred by the other
including attorneys fees

Sanctions
without
substantial
justification, court may
require proponent to pay
refusing
party
the
reasonable
expenses
incurred in obtaining the
order

Refusal to be
Sworn [Sec. 2]

Refusal
to
answer
designated
questions or
refusal
to
produce
documents or
to submit to
physical
or
mental
examination
[Sec. 3]

Refusal

to

REMEDIAL LAW

A refusal to answer after

being directed by court to do
so may be constituted as
contempt of court
Cite
the
disobedient
deponent in contempt of
court
The court may make the
following orders:
(1) Prohibit the disobedient
party
to
introduce
evidence of physical or
mental condition
(2) Refuse to allow the
disobedient party to
support or oppose claims
or defenses
(3) Strike out pleadings or
parts thereof
(4) Stay further proceedings
(5) Dismiss the action or
proceeding or any part
thereof
(6) Render a judgment by
default
against
disobedient party
(7) Direct the arrest of any
party disobeying any of
such orders except an
order to submit to a
physical
or
mental
examination
(8) Other orders as may be
just
The court, upon proper

Note: Expenses and attorneys fees are not to

be imposed upon the Republic of the
Philippines. [Rule 29, Sec. 6]

P. TRIAL
Trial is the judicial process of investigating
and determining the legal controversies,
starting with the production of evidence by the
plaintiff and ending with his closing arguments
[Acosta v. People [1962]].
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
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I.
ADJOURNMENTS
POSTPONEMENTS

because it actually embraces several stages in

the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
[Trocio v. Labayo [1973]]

AND

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

General rule: When an issue exists, trial is

necessary. Decision should not be made
without trial.

Limitations
The court has no power to adjourn a trial for:
(1) A period longer than one month for each
adjournment; or
(2) More than 3 months in all

Exceptions
A civil case may be adjudicated upon without
the need for trial in any of the following cases:
(1) Where the pleadings tender no issue at all,
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, Civil Code]
(4) Where the complaint has been dismissed
with prejudice, or when the dismissal has
the effect of an adjudication on the merits
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec.
5]
(5) Where the case falls under the Rules on
Summary Procedure, and
(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. [Rule 30, Sec. 6] [Riano]

Exception: The court may go beyond these

limitations, if authorized in writing by the Court
Administrator.
Postponement
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. A party asking for postponement has
no absolute right to expect that his motion
would be granted. [Republic v. Sandiganbayan]
Requisites of Motion to Postpone Trial
(1) For absence of evidence [Rule 30, Sec. 3]
Motion accompanied by affidavit showing:
(a) That the materiality or relevancy of the
evidence; and
(b) That diligent efforts had been exerted
to procure the evidence
(2) For illness of party or counsel [Rule 30, Sec.
4] -- Motion accompanied by affidavit or
sworn certification showing:
(a) The presence of such party or counsel
at the trial is indispensable; and
(b) That the character of his illness is such
as to render his non-attendance
excusable

Notice of Trial
Upon entry of a case in the trial calendar, the
clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date. [Rule 30, Sec. 1]

II. AGREED STATEMENT OF FACTS

The parties may agree, in writing, upon the
facts involved in the litigation and submit the

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case for judgment in the facts agreed upon,

without the introduction of evidence

(6) Parties may then respectively adduce

rebutting evidence only, unless the court
permits them to adduce evidence upon
original case
(7) Upon admission of evidence, case
submitted for decision, unless court directs
parties to argue or to submit respective
memoranda or any further pleading [Rule
30, Sec. 5]

If the parties agree only on some of the facts in

issue, trial shall be held as to the disputed
facts in such order as the court shall prescribe.
[Rule 30, Sec. 6]
Stipulation in Civil
Cases
May be signed alone
by the counsel, who
has an SPA
May be made verbally
or in writing

REMEDIAL LAW

Stipulation in Criminal
Cases
Must be signed by
both counsel and
accused
Strict; it must always
be in writing

Reverse Order
The defendant presents evidence ahead of the
plaintiff, when the defendant relies in his
Answer only upon an affirmative defense.
Where the answer of the defendant admitted
the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come forward with evidence
to support his special defenses. [Yu v. Mapayo]

An agreed statement of facts is conclusive on

the parties, as well as on the court. Neither of
the parties may withdraw from the agreement,
nor may the court ignore the same. [McGuire v.
Manufactures Life]

The reasoning behind this is that the plaintiff

need not present evidence since judicial
admissions do not require proof [Sec. 2, Rule
129]

III. ORDER OF TRIAL

Trial shall be limited to the issues stated in the
pre-trial order, except in the following cases:
(1) the court orders separate trial under Rule
31, Sec. 2, in the furtherance of convenience
or to avoid prejudice; or
(2) when for special reasons the court directs
otherwise

IV. CONSOLIDATION OR SEVERANCE OF

HEARING OR TRIAL
Consolidation a procedural device, gratned to
the court as an aid in deciding how case in its
docket are to be tried, so that the business of
the court may be dispatched expeditiously
while providing justice to the parties. [Republic
v. Heirs of Oribello (2013)]

General Order of Trial

(1) Plaintiffs evidence in chief
(2) Defendants evidence in chief and evidence
in support of his counterclaim, cross-claim
and 3rd-party complaint
(3) 3rd-party defendant shall adduce evidence
of his defense, counterclaim, cross-claim,
and 4th party complaint
(4) 4th-party defendant shall adduce evidence,
and so forth
(5) Parties against whom any counterclaim or
cross-claim has been pleaded shall adduce
evidence in support of their defense, in the
order to be prescribed by court

When proper: When actions involving a

common question of fact or law are pending
before the court [Rule 31, Sec. 1]
Court action: The court may:
(1) Order a joint hearing or trial of any or all
matters in issue in the actions
(2) Order all actions consolidated; or

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(3) Make such orders concerning proceedings

therein as may tend to avoid unnecessary
costs or delay

REMEDIAL LAW

Severance definition
When proper: A single action has a number of
claims, counterclaims, cross-claims, thirdparty complaints or issues which may be
separately tried for convenience, or to avoid
prejudice.

Purpose: To avoid multiplicity of suits, guard

against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unnecessary costs and
expenses

When separate trial of claims is conducted by

the court under this section, it may render
separate judgments on each claim [see Sec. 5,
Rule 36]

Where a case has been partially tried before

one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v.
Sandiganbayan (1992)]

This provision permitting separate trials

presupposes that the claims involved are
within the jurisdiction of the court
When one of the claims is not within its
jurisdiction, the same should be dismissed,
so that it may be filed in the proper court

It has been held that the rules do not

distinguish between cases filed before the
same branch or judge and those that are
pending in different branches or before
different judges of the same court, in order that
consolidation may be proper, as long as the
cases involve the resolution of questions of law
or facts in common with each other [Active
Woods Products Co. Inc. v. CA]

V. DELEGATION OF RECEPTION OF
EVIDENCE
General Rule: The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties. [Rule 30,
Sec. 9]
Exception: The court may delegate the
reception of evidence to its clerk of court who is
a member of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.

Kinds of Consolidation [Republic v. Heirs of

Oribello (2013)]
(1) Quasi-consolidation where all, except
one, of several actions are stayed until one
is tried, in which case, the judgment in the
one trial is conclusive as to others; not
actually consolidation but referred to as
such
(2) Actual consolidation where several
actions are combined into one, lose their
separate identity, and become one single
action in which judgment is rendered
(3) Consolidation for Trial where several
actions are ordered to be tried together,
but each retains its separate character, and
requires the entry of separate judgment

The clerk of court has no power to rule on

objections to any question or the admission of
exhibits. Objections shall be resolved by the
court upon submission of the clerks report and
TSN within 10 days from termination of the
hearing.
The rule requires that, where the reception of
evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither

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agreement by parties nor their acquiescence

can justify its violation. [Umali-Paco v. Quilala]

REMEDIAL LAW

in any stage, or for carrying a judgment

into effect [Rule 32, Sec. 2]

VI. TRIAL BY COMMISSIONERS

Order of Reference: [Rule 32, Sec. 3]

When a reference is made, the clerk shall
furnish the commissioner with a copy of the
order of reference, which may contain the
following:
(1) specifications or limitations of the powers
of the commissioner;
(2) a direction to report only upon particular
issues, to do or perform particular acts, or
to receive and report evidence only
(3) the date for beginning and closing the
hearings, and that for the filing of his
report

Commissioner - 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
General rule: Trial by commissioner depends
largely upon the discretion of the court
Exception: In the following instances,
appointment of a commissioner is necessary:
(1) Expropriation [Rule 67]
(2) Partition [Rule 69]
(3) Settlement of Estate of a Deceased Person
in case of contested claims; and
(4) Submission of Accounting by executors or
administrators

Powers of Commissioner
(1) Exercise power to regulate the proceeding
before him
(2) Do all acts and take all measures
necessary or proper for the efficient
performance of his duties
(3) Issue subpoena and subpoenas duces
tecum
(4) Swear witnesses
(5) Rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference

Kinds of Trial by Commissioners

(1) Reference by consent of both parties.
(2) Reference ordered on motion when:
Reference by Consent
The court may order any or all of the issues in a
case to be referred to a commissioner by
written consent of both parties. [Rule 32, Sec. 1]
Commissioners are to be:
(1) Agreed upon by the parties; or
(2) Appointed by the court

Note: Refusal of a witness to obey such

subpoena or to give evidence before him is
deemed contempt of the court which
appointed the commissioner. [Rule 32, Sec. 7]

Reference Ordered on Motion

The court may direct reference to a
commissioner, upon application of a party or
upon its own motion, in the ff. cases:
(1) When trial of an issue of fact requires
examination of long account;
(2) When taking of an account is necessary;
(3) When question of fact, other than upon
pleadings, arises upon motion or otherwise,

Proceedings before the Commissioner

[Rule 32, Sec. 5]
(1) Upon receipt of the order of reference, the
commissioner shall set a time and place for
the first meeting of parties or their counsel
(2) Notices shall be sent to parties or counsel
(3) Hearing is to be held within 10 days after
date of order of reference

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(4) If a party fails to appear, the commissioner

may: [Sec. 6]
(a) Proceed ex parte; or
(b) Adjourn the proceedings to a future
date giving notice to the absent party
or his counsel

REMEDIAL LAW

(3) Requiring the parties to present further

evidence before the commissioner or the
court

Q. DEMURRER TO EVIDENCE
A species of motion to dismiss that may be
invoked based on insufficiency of evidence [i.e.
upon the facts and the law the plaintiff has
shown no right to relief]. [Rule 33, Sec. 1]

Report of the Commissioner

[Rule 32, Sec. 9]
The report is filed with the court upon
completion of the trial, hearing or proceeding
before the commissioner.

It is invoked after the plaintiff has presented all

the evidence available to him

Contents:
(1) Report in writing upon the matters
submitted to him by the order of reference
(2) When his powers are not specified or
limited, he shall set forth his findings of
fact and conclusions of law
(3) He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if any,
of testimonial evidence presented before
him

Judgment on Demurrer to Evidence judgment

rendered by the court dismissing a case upon
motion of defendant, made after plaintiff has
rested his case, on the ground that upon the
facts presented and the law on the matter,
plaintiff has not shown any right to relief.
Demurrer of Evidence v. Motion to Dismiss
Demurrer to Evidence
Motion to Dismiss
Presented after the Presented
before
plaintiff has rested his filing of a responsive
case
pleading
Based
on
the Based
on
those
insufficiency
of grounds enumerated
evidence
in Rule 16
If
denied,
the If
denied,
the
defendant
may defendant may file his
present his evidence
responsive pleading
If
granted,
the
If
granted,
the complaint
is
complaint
is dismissed;
plaintiff
dismissed; plaintiffs may appeal or re-file,
remedy is to appeal
depending on the
ground for dismissal.

Notice and Hearing on the Report

[Rule 32, Secs 10-11]
Upon filing of the report of the commissioner:
(1) Parties shall be notified by the clerk
(2) Parties shall be allowed 10 days within
which to object to the findings of the report
Note: Objections based upon grounds which
were available to the parties during the
proceedings before the commissioner shall not
be considered by the court, unless they were
made before the commissioner
Upon expiration of the 10-day period to file
objections, the report shall be set for hearing.
After such hearing, the court shall issue an
order:
(1) Adopting, modifying, or rejecting the
report, in whole or in part
(2) Recommitting it with instructions; or

Q.1. EFFECT OF DENIAL

If the demurrer is denied, the plaintiff shall
have the right to present his evidence.
The court should not proceed to grant the relief
demanded by the plaintiff but should set the
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date for reception of the defendants evidence.

[Northwest Airlines v. CA (1998)]

Civil Cases
Criminal Cases
demurrer, defendant demurrer
will
present
his (1) filed with leave,
evidence
accused
may
present evidence.
(2) filed
without
leave,
accused
can no longer
present evidence.
If
prosecutions
If plaintiffs evidence
evidence insufficient,
insufficient, court will
court
will
grant
grant demurrer by
demurrer
by
dismissing
the
rendering judgment
complaint
of acquittal.
The judgment of
dismissal
is Judgment of acquittal
appealable;
If is not appealable;
reversed, court will Double jeopardy sets
decide
based
on in.
plaintiffs evidence.

An order denying the demurrer is interlocutory,

and not subject to appeal. It can be subject to a
petition for certiorari, in case of grave abuse of
discretion or oppressive exercise of judicial
authority. [Katigbak v. Sandiganbayan]

Q.2. EFFECT OF GRANT

If the demurrer is granted, the case shall be
dismissed.
As a final order, the remedy of the plaintiff is to
appeal. If the appeal is granted, the
defendant-movant loses the right to present
evidence.
The appellate court should not remand the
case for further proceedings but should render
judgment on the basis of the evidence
submitted by the plaintiff. [Consolidated Bank
and Trust Corp. v. Del Monte Motor Works, Inc.]

IV. Judgments and Final

Orders

Q.3. WAIVER OF RIGHT TO PRESENT

EVIDENCE

A. JUDGMENTS IN GENERAL

If the order granting the demurrer is reversed

on appeal, the defendant loses his right to
present evidence. [Rule 33, Sec .1; Republic v.
Tuvera (2007)]

The final ruling by a court of competent

jurisdiction regarding the rights and
obligations of the parties, or other matters
submitted to it in an action or proceeding
[Macahilig v. Heirs of Magalit (2000)]

Q.4. DEMURRER IN CIVIL AND CRIMINAL

CASES
Civil Cases
Defendant files
demurrer.

Court cannot motu

propio dismiss the
case for insufficiency
of plaintiffs evidence
Defendant need not
ask for leave of court
If court denies the

REMEDIAL LAW

A.1. REQUISITES OF A VALID JUDGMENT

Criminal Cases
Court may motu
proprio dismiss the
action for insufficiency
of prosecutions
evidence, after it has
rested its case. [Rule
119, Sec. 23]
May be filed with or
without leave of court.
If court denies the

[Riano]
(1) Court or tribunal must be clothed with
authority to hear and determine the matter
before it. [Acosta v. COMELEC (1998)]
(2) Court must have jurisdiction over the
parties and the subject matter.
(3) Parties must have been given an
opportunity to adduce evidence in their
behalf. [Acosta v. COMELEC (1998)]

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(4) Evidence must have been considered by

the tribunal in deciding the case. [Acosta v.
COMELEC (1998)]
(5) Judgment must be in writing, personally
and directly prepared by the judge. A
verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan
(2004)]
(6) Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the clerk
of court. [Rule 36, Sec. 1; Ar. VIII, Sec. 14,
1987 Constitution]

(4)

(5)

(6)

A.2. KINDS OF JUDGMENT

(1) Judgment on Compromise one conferred
on the basis of a compromise agreement
entered into between the parties. It is
immediately executory in the absence of a
motion to set aside on the ground of fraud,
accident, mistake, or excusable negligence.
(2) Judgment upon Confession one rendered
by the court when a party expressly agrees
to the other partys claim or acknowledges
the validity of the claim against him.
(a) Judgment by cognovit actionem after
service [of what?], the defendant,
instead
of
entering
a
plea,
acknowledged and confessed that the
plaintiffs cause of action was just and
rightful.
(b) Judgment by confession relicta
verification after pleading and before
trial, the defendant:
(i)
confessed the plaintiffs cause of
action; and
(ii)
withdrew his plea or other
allegations,
whereupon
judgment was entered against
him without proceeding to trial.
(3) Judgment upon the merits one rendered
after consideration of the evidence
submitted by the parties during the trial of
the case.

(7)

(8)

(9)

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REMEDIAL LAW

A judgment is on the merits when it

amounts to a legal declaration of the
respective rights and duties of the parties,
based upon the disclosed facts
Clarificatory Judgment one rendered to
clarify an ambiguous judgment or one
difficult to comply with.
Judgment Nunc Pro Tunc literally, now
for then. It is a judgment intended to
enter into the record the acts which had
already been done, but which do not
appear in the records. [Lichauco v. Tan Pho
(1923)]
Judgment sin perjuicio refers to a
dismissal of a case without prejudice to it
being re-filed
Conditional Judgment one whose
effectivity depends upon the occurrence or
non-occurrence of an event; generally void
because of the absence of a disposition
[Cu-Unjieng v. Mabalacat Sugar Co. (1940)]
Several Judgment one rendered by a
court against one or more defendants and
not against all of them, leaving the action
to proceed against the others. [Rule 36, Sec.
4]
Proper when the liability of each party is
clearly separate and distinct from his coparties such that:
(a) the claims against each of them could
have been the subject of separate suits,
and
(b) the judgment for or against one of
them will not necessarily affect the
other.
Separate Judgment 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 that is the
subject matter of said claim. [Rule 36, Sec.
5]
Proper when more than one claim for relief
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determination as to the issues material to

the claim has been made.
(10) Memorandum Decision a decision of the
appellate court which adopts the findings
and conclusions of the trial court.

REMEDIAL LAW
Part of the judgment that is subject to
execution,
as
constituting
the
judgment of the court

It is the dispositive part of the judgment

that actually settles and declares the rights
and obligations of the parties, finally,
definitively, and authoritatively [Light Rail
Transit Authority v. CA [2004]]
(3) Signature of the judge

A.3. JUDGMENT WITHOUT TRIAL

Trial is not necessary in the following
instances:
(1) Judgment on the Pleadings [Rule 34]
(2) Summary Judgment [Rule 35]
(3) Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule
18; Art. 2028 Civil Code]
(4) Dismissal with prejudice [Rule 16, Sec. 5;
Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)]
(5) Under the Rules on Summary Procedure
(6) Agreed statement of facts [Rule 30, Sec. 6]

B.3. DISTINCTION BETWEEN JUDGMENT

AND OPINION OF THE COURT
The judgment or fallo must be distinguished
from the Opinion.
The Opinion is the informal expression of the
views of the court and cannot prevail against
its final order or decision. While the two may be
combined in one instrument, the opinion forms
no part of the judgment. So there is a
distinction between the findings and
conclusions of a court and its judgment.

Note: Also enumerated in Part III.P. (Trial)

B. CONTENTS OF A JUDGMENT
B.1. FORM OF JUDGMENT
[Rule 36, Sec. 1]
(1) In writing
(2) Personally and directly prepared by the
judge
(3) Stating clearly & distinctly the facts and
the law on which it is based
(4) Signed by the judged
(5) Filed with the clerk of court.

While they may constitute its decision and

amount to a rendition of a judgment they are
not the judgment itself. They amount to
nothing more than an order for judgment,
which, of course, must be distinguished from
the judgment. [Freeman on Judgments, Vol. I,
5th Edition, page 6, quoted in Casilan v. Salcedo
(1969)]

B.2. PARTS OF A JUDGMENT

B.4. CONFLICT BETWEEN DISPOSITION

AND OPINION OF THE COURT

[Riano, Herrera]
(1) Opinion of the Court
Also called the body, or the ratio
decidendi
Contains the findings of facts and
conclusions of law
(2) Disposition of the case
Also called the dispositive portion, or
the fallo

General Rule: Where there is a conflict between

the fallo and the body of the decision, the fallo
controls.
Basis: The fallo is the final order. The opinion in
the body is merely a statement ordering
nothing [Poland Industrial Limited v. National
Development Company (2005)]

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Exception: This rule applies only when the

dispositive part is definite, clear, and
unequivocal [Union Bank v. Pacific Equipment
Corporation (2008)]

REMEDIAL LAW

Judgment on the Pleadings is not proper in the

ff. cases:
(1) Declaration of Nullity of Marriage
(2) Annulment of marriage; and
(3) Legal Separation
(4) Unliquidated damages; claims for such
damages must be alleged and proved
(5) Admission refers only to allegations of fact
and not conclusions of law
(6) Insufficiency of facts; proper remedy is
amendment

Where the inevitable conclusion from the body

of the decision is that there was a mistake in
the dispositive portion, the body of the decision
will prevail. [So v. Food Fest Land]

C. JUDGMENT ON THE PLEADINGS

Judgment on the Pleadings is a judgment
rendered by the court if the answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse partys
pleading. It is rendered without a trial, or even
without a pre-trial

Note: The concept will not apply when no

answer is filed. It will come into operation
when an answer is served and filed but the
same fails to tender an issue, or admits the
material allegations of the adverse partys
pleading. [Riano]

A motion for a Judgment on the Pleadings,

where the answer admits the material
averments of the complaint, is one that may be
considered ex parte because upon the
particular facts thus presented and laid down
before the court, the plaintiff is entitled to a
judgment [Dino v. Valencia (1989)]

When no answer is filed, the remedy is to move

that the defendant be declared in default.
[Rule 9, Sec. 3]

D. SUMMARY JUDGMENTS

GROUNDS FOR JUDGMENT ON THE

PLEADINGS

A judgment which the court may render before

trial, but after both parties have pleaded, upon
application by one party supported by
affidavits, depositions, or other documents,
with notice upon the adverse party who may
file an opposition supported also by such
documents, should the court find, after
summarily hearing both parties with their
respective proofs, that there exists no genuine
issue between them. [Herrera]

[Rule 34, Sec. 1]

(1) The answer fails to tender an issue because
of:
(a) General denial of the material
allegations of the complaint;
(b) Insufficient denial of the material
allegations of the complaint; or
(2) The answer otherwise admits material
allegations of the adverse partys pleading

The trial court cannot motu propio decide that

summary judgment on an action is in order.
The defending party or claimant, as the case
may be, must invoke the rule by filing a motion.
The adverse party must then be notified of the
motion and furnished with supporting
documents before hearing is conducted.
[Pineda v. Heirs of Eliseo Guevara (2013)]

A Judgment on the Pleadings cannot be

rendered by the court motu propio. It can only
be done where there is a prior motion to that
effect by the appropriate party. [Riano; see
Luzon Development Bank v. Conquilla]

Proper when it appears to the court that:

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(1) there exists no genuine issue as to any

material fact, except as to the amount of
damages; and
(2) the party presenting the motion must be
entitled to judgment as a matter of law

REMEDIAL LAW

(5) Court renders summary judgment

Note: Damages must still be proven even if not
denied.
Bases for Summary Judgment
(1) Affidavits made on personal knowledge;
(2) Depositions of the adverse or a 3rd party
[Rule 23]
(3) Answers to interrogatorie [Rule 25]
(4) Admissions of the adverse party [Rule 26]

Genuine Issue - an issue of fact which calls for

the presentation of evidence as distinguished
from a sham, fictitious, contrived, or false claim.
[Philippine Bank of Communications v. Go
[year]]
The test is whether or not the pleadings,
affidavits and exhibits in support of the motion
are sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, that there is no defense to the action, or
the claim is clearly meritorious. [Estrada v.
Consolocion (1976)]

D.1 WHEN THE CASE IS NOT FULLY

ADJUDICATED
Partial Summary Judgment applies when for
some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
Duty of the Court [Rule 35, Sec. 4]
(1) Ascertain which material facts exist
without substantial controversy, and which
are actually and in good faith controverted,
by:
(a) Examining the pleadings and evidence
before it; and
(b) Interrogating counsel
(2) Make an order, which:
(a) specifies the facts without substantial
controversy and deemed established,
including extent of damages
(b) directs further proceedings as are just
(3) Conduct trial on the controverted facts

When Filed
(1) If sought by the claimant only after the
answer is served; [Rule 35, Sec. 1]
(2) If sought by the defendant at any time
[Rule 35, Sec. 2]
Note: Filing of a motion for summary judgment
does not interrupt the running of the period for
filing an answer. Hence, the movant must also
file a Motion for Extension of Time to File
Answer.
Procedure [Rule 35, Sec. 3]
(1) Movant files a motion for summary
judgment with supporting affidavits,
depositions or admission
(2) Service to the adverse party at least 10
days the hearing
(3) Adverse party may serve opposing
affidavits, depositions or admissions at
least 3 days before the hearing
(4) Hearing Court shall determine if a
genuine issue as to any material fact exists,
and if the movant is entitled to a summary
judgment as a matter of law

Effect: A partial summary judgment is not a

final judgment, but merely a pre-trial
adjudication that said issues in the case shall
be deemed established for the trial of the case.
[Guevarra v. CA([1983)]

D.2 AFFIDAVITS AND ATTACHMENTS

Form [Rule 35, Sec. 5]
(1) Made on personal knowledge
(2) Setting forth such facts as would be
admissible in evidence
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(3) Showing affirmatively that the affiant is

competent to testify to the matters stated
therein.
(4) Certified true copies of all papers or parts
thereof referenced in the affidavit shall be
attached or served with the affidavit.

REMEDIAL LAW

Effect: The court:

(1) shall order the offending party or counsel
to pay the other party the amount of
reasonable expenses which the filing of the
affidavits caused him to incur; and
(2) may, after hearing, adjudge the offending
party or counsel guilty of contempt [Rule
35, Sec. 6]

Affidavits in bad faith those presented under

this Rule which appear to the court at any time
as presented in bad faith or solely for the
purpose of delay

SUMMARY JUDGMENT V. JUDGMENT ON THE PLEADINGS V. JUDGMENT BY DEFAULT

SUMMARY
JUDGMENT ON
JUDGMENT
THE PLEADINGS
Based on the pleadings,
depositions, admissions, and Based solely on the pleadings
affidavits
Generally available only to the
Available to both plaintiff and
plaintiff, unless the defendant
defendant
presents a counterclaim
There is no genuine issue
The answer fails to tender an
between the parties
issue or there is an admission of
i.e. There may be issues but
material allegations
these are irrelevant
10-day notice required
3-day notice required
May be interlocutory or on the
On the merits
merits
Available only in actions to
Available in any action except
recover a debt, or for a
annulment of marriage, or legal
liquidated sum of money or for
separation cases
declaratory relief
If sought by plaintiff, it must be
filed at any time after an
answer is served.
There is already an answer filed
If sought by defendant, may be
filed at any time even before
there is answer

100

JUDGMENT BY
DEFAULT
Based on the complaint and
evidence, if presentation is
required
Available to plaintiff

No issue as no answer is filed by

the defending party
3-day notice rule applies
On the merits
Available in any action except
annulment of marriage, or legal
separation cases

There is no answer filed

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REMEDIAL LAW

to gross inefficiency o the part of the judge.

[Arap v Mustafa (2002)]

E. RENDITION OF JUDGMENTS AND

FINAL ORDERS

F. ENTRY OF JUDGMENT AND FINAL

ORDER

Rendition of Judgment
Pronouncement of the judgment in open court
does not constitute rendition of judgment. It is
the filing of the signed decision with the clerk of
court that constitutes 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. [Ago v.
CA]

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 after the same has
become final and executory. [Riano]
When entered: 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 [Rule 36, Sec.
2]

This includes an amended decision because an

amended decision is a distinct and separate
judgment and must follow the established
procedural rule. [Herrera]

Contents of Record in the Book of Entries

(1) Dispositive part of the judgment or final
order
(2) Signature of the clerk; and
(3) Certification that such judgment or final
order has become final and executory.

Promulgation refers to the process by which a

decision is published, officially announced,
made known to the public, or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel
Period for Rendition
[Art. VIII, Sec. 15, 1987 Constitution]
(1) All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
(2) Unless reduced by the SC, within 12 months
for lower collegiate courts and within 3
months for all other lower courts.

Note: The date of finality is deemed the date of

entry.
A judgment becomes final and executory when
the period for appeal has elapsed without a
party having perfected an appeal, or if there has
been an appeal, it has been resolved by the
highest tribunal.
This is the date of entry of judgment even if the
physical act of entering the judgment in the
book of entries is done later. [Riano]

A case is deemed submitted for resolution upon

the filing of the last pleading, brief or
memorandum required by the Rules of Court or
by the court.

G. AMENDMENTS TO JUDGMENT
General Rule: Once a judgment becomes final
and executory, such judgment can no longer be
disturbed, altered, or modified

An extension of the period may be set by the SC

upon request by the judge concerned on
account of heavy caseload or by other
reasonable excuse. Without an extension, a
delay in the disposition of cases is tantamount

Under the Doctrine of Immutability of

Judgments, a judgment that has attained
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V. Post-Judgment
Remedies

finality can no longer be disturbed. The reason

of two-fold:
(1) to avoid delay in the administration of
justice, and to make orderly the discharge of
judicial business; and
(2) to put an end to judicial controversies at the
expense of occasional errors. [Riano]

Remedies before Finality of Judgment

(1) Motion for reconsideration [Rule 37]
(2) Motion for new trial [Rule 37]
(3) Appeal [Rules 40-45]

Exceptions:
(1) Correction of clerical errors [Filipinas
Palmoil Processing, Inc. v. Dejapa]
(2) Nunc Pro Tunc entries [Filipinas Palmoil
Processing, Inc. v. Dejapa]
(3) Whenever circumstances transpire after
finality of the decision, rendering its
execution unjust and inequitable. [Apo
Fruits Corp. v. Land Bank of the Phils.]
(4) In cases of special and exceptional nature,
when it is necessary in the interest of justice
to direct modification in order to harmonize
the disposition with the prevailing
circumstances [Industrial Timber Corp. v.
Ababon]
(5) In case of void judgments [Panlilio v. Garcia]
(6) Where there is a strong showing that a
grave injustice would result from an
application of the Rules [Almuete v. People]
(7) When there are grounds for annulment of
judgment or petition for relief [Gochan v.
Mancao]
Amended/clarified
judgment
An
entirely
new
decision
and
supersedes
the
original judgment
Court
makes
a
thorough study of the
original judgment and
renders the amended
and clarified judgment
only after considering
all the factual and
legal issues

REMEDIAL LAW

A. MOTION FOR NEW TRIAL OR

RECONSIDERATION
Note: The motion for reconsideration under Rule
37 is directed against a judgment or final order.
It does not refer to one for interlocutory orders,
which often precedes a petition for certiorari
under Rule 65.
These motions are prohibited in cases that fall
under the Rule on Summary Procedure and
those falling under the Rule of Procedure for
Small Claims.

A.1. GROUNDS
I. GROUNDS FOR MOTION FOR NEW
TRIAL
[Rule 37, Sec. 1]
(1) Fraud, accident, mistake, excusable
negligence (FAME) subject to the
following conditions:
(a) Which ordinary prudence could not have
guarded against; and
(b) By reason of which such aggrieved party
has probably been impaired in his rights

Supplemental decision
Does not take the
place of or extinguish
the original judgment

Note: Fraud must be extrinsic fraud which is

any fraudulent scheme executed outside of
the trial by the prevailing party against the
losing party, who because of such fraud is
prevented from presenting his side of the
case.

Serves to add to the

original judgment

(2) Newly discovered evidence subject to the

following requisites:

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A.3. FORM AND CONTENTS

I. FORM

(a) It must have been discovered after the

trial
(b) It could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence;
(c) It must be material and not merely
collateral, cumulative, or corroborative;
and
(d) The evidence is of such weight that if
admitted, would probably alter the
result of the action; and

II. GROUNDS FOR

RECONSIDERATION

MOTION

REMEDIAL LAW

[Rule 37, Sec. 2]

(1) The motion must comply with the provisions
of Rule 15 otherwise it will not be accepted
for filing and/or will not suspend the
running of the reglementary period.
(2) It shall be made in writing, stating the
ground or grounds therefor
(3) Written notice shall be served by movant on
the adverse party

FOR

Non-compliance with the formal requirements

would reduce the motion to a mere pro forma
motion, which shall not toll the period for
appeal.

[Rule 37, Sec. 1]

(1) Damages awarded are excessive
(2) Evidence is insufficient to justify the decision
or final order
(3) The decision or final order is contrary to law

II. CONTENTS OF A MOTION FOR NEW

TRIAL
[Rule 37, Sec. 2]
(1) If based on FAME, it shall be supported by
an affidavit of merits , which:
(a) recites the nature and character of
FAME on which the motion is based
(b) states the movants good and
substantial cause of action or defense;
and
(c) states the evidence he intends to
present if granted.

A.2. WHEN TO FILE

[Riano]
An aggrieved party may file a motion for new
trial or reconsideration within the period for
taking an appeal.
The period depends on whether the appeal is by
mere notice of appeal or by record on appeal. A
record on appeal shall be required only in
special proceedings and in other cases of
multiple or separate appeals.

(2) If based on newly found evidence, it shall be

supported by:
(a) Affidavits of witnesses by whom such
evidence is expected or given; or
(b) Duly authenticated documents which
are proposed to be introduced in
evidence

Where an appeal is one by notice of appeal, the

period for appeal is 15 days. Where a record on
appeal is required, the period is 30 days.
The periods commence upon receipt of notice of
the decision or final order appealed from by the
counsel of record, which is considered notice to
the parties. Service upon the parties themselves
is prohibited and is not considered as official
receipt of judgment.

III. CONTENTS OF A MOTION FOR

RECONSIDERATION
[Rule 37, Sec. 2]
(1) Shall point out specifically the findings or
conclusions of the judgment or final order
which are not supported by evidence or
which are contrary to law; and
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I. GRANT OF MOTION; EFFECT

(2) Make express reference to testimonial or

documentary evidence or provisions of law
alleged to be contrary to such findings or
conclusions

Grant of motion for reconsideration

The court may amend the judgment or final
order accordingly. The amended judgment is in
the nature of a new judgment, which
supersedes the original judgment.

Single-Motion Rule [Rule 37, Sec. 5]

A party shall not be allowed to file a 2nd motion
for reconsideration.

Grant of motion for new trial

The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at
the new trial without retaking them, if they are
material and competent.

While a 2nd motion for reconsideration is not

allowed, a second motion for new trial is
authorized, subject to the following conditions:
(1) it must be based on a ground not existing or
available when the 1st motion was made;
and
(2) it must be made within the period allowed
but excluding the time during which the first
motion had been pending.

Partial grant
The court may order a new trial or grant
reconsideration as to such issues if severable
without interfering with the judgment or final
order upon the rest. [Rule 37, Sec. 7]

A.4 RESOLUTION AND COURT ACTION

II. DENIAL OF MOTION

Court action [Rule 37, Sec. 3]

The court may:
(1) Set aside the judgment or final order and
grant a new trial; or upon such terms as
may be just
(2) Deny the motion
(3) Amend such judgment or final order
accordingly if:
(a) The court finds that excessive damages
have been awarded or that; or
(b) That the judgment or final order is
contrary to the evidence or law

Effect: The judgment or final order shall stand

as is.
Fresh 15-Day Rule: The aggrieved party has a
fresh period of 15 days within which to file his
appeal.
If the motion is denied, the movant has a fresh
period of 15 days from receipt or notice of the
order denying the motion for new trial or motion
for reconsideration within which to file an
appeal. [Neypes v. CA [2005]]

Resolution: The motion shall be resolved within

30 days from submission. [Rule 37, Sec. 4]

Note:
(1) This fresh period becomes significant only
when a party opts to file a motion for new
trial or reconsideration
(2) This 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.

The 30-day period to resolve the motion is held

to be mandatory. [Gonzales v. Bantolo (2006)]

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Remedies if Motion is Denied

(1) To appeal from the judgment or final order
itself
(2) The order denying the motion may itself be
assailed by a petition for certiorari under
Rule 65

REMEDIAL LAW

or final order is
contrary to the
evidence or law
Available even on Available against the
appeal but only on the judgments or final
ground
of
newly orders or both the trial
discovered evidence
and appellate courts
Both are prohibited motions under Summary
Procedure

Note: Rule 37, Sec. 9 says that an order denying

a motion for new trial or reconsideration is not
appealable. However, A.M. No. 07-7-12,
effective December 27, 2007, amended Rule 41,
Sec. 1 by deleting An order denying a motion
for new trial or reconsideration from the nonappealable orders.

B. APPEALS
Nature
(1) Not a natural right nor a part of due process
(2) It is merely a statutory right, and may be
exercised only in the manner and in
accordance with provisions of the law. It
must comply with the requirements; failing
to do so, the right to appeal is lost
(3) Once granted, appeals become part of due
process and should be liberally applied in
favor of the right to appeal

Motion for
Reconsideration
Grounds:
Grounds:
(1) Fraud, accident, (1) Damages awarded
mistake,
or
are excessive
excusable
(2) That evidence is
negligence
insufficient
to
(2) Newly discovered
justify the decision
evidence
or final order
(3) That decision or
final
order
is
contrary to law
Second motion from
the same party is
prohibited.
May be allowed so
long as based on
Prohibition
applies
grounds not existing
only to motions for
or available at the
reconsideration
of
time the first motion
final
orders
or
was made
judgments; allowed
for
interlocutory
orders
The court may amend
If granted, original the judgment or final
judgment or final order, it finds:
order is vacated, and (1) that
excessive
the case stands for
damages
have
trial de novo.
been awarded; or
(2) that the judgment
Motion for New Trial

B.1. JUDGMENTS AND FINALS ORDERS

SUBJECT TO APPEAL; MATTERS NOT
APPEALABLE
[Rule 41, Sec. 1, as amended by A.M. No. 07-7-12SC]
(1) 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
(2) No appeal may be taken from:
(a) An order denying a petition for relief or
any similar motion seeking relief from
judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an
appeal;
(d) An 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;
(e) An order of execution;
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(f) A judgment or final order for or against

one or more of several parties or in
separate claims, counterclaims, crossclaims and third-party complaints,
while the main case is pending, unless
the court allows an appeal therefrom;
and
(g) An order dismissing an action without
prejudice.

Remedy against Matters not Appealable

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. [Rule 41, Sec. 1]

B.2. MODES OF APPEAL

(1) Ordinary appeal Rule 40 and 41
(a) Notice of appeal
(b) Record on appeal
(2) Petition for review Rule 42
(3) Petition for review on certiorari Rule 45

Note: A.M. No. 07-7-12-SC removed from the

original list an order denying a motion for new
trial or reconsideration. However, Rule 37, Sec.
9 states that no appeal can be made from an
order denying MR or MNT.

B.3. ISSUES TO BE RAISED ON APPEAL

Limited to cognizable judgments/issues.

Only final judgments or orders can be appealed

as distinguished from interlocutory judgments
or orders which are not appealable.
Final Order
Disposes of the matter
in its entirety, leaving
nothing more to be
done but to enforce
execution
Appealable

REMEDIAL LAW

The appellate court has no jurisdiction to review

a judgment which is immediately final and
executory by express provision of law. [Republic
v. Bermudez-Lorino (2005)]

Interlocutory Order
Does not dispose of a
case completely but
leaves
something
more to be decided
upon.
Not appealable except
through a petition for
certiorari under Rule
65

Rationale: Appeal is merely a

conferred by law upon the litigants.

privilege

A party cannot change the theory on appeal.

Only issues pleaded in the lower court and
properly raised may be resolved by the
appellate court. [Medina v. CA (1992)]
However, issues which are inferred from or
necessarily connected with the issue properly
raised and pleaded may be resolved by the
appellate court. [Espina v. CA (1992)]

Must clearly and

No need to comply
distinctly state the law
with
such
a
and the facts on which
requirement
it is based
An interlocutory order is one that does not
finally dispose of the case, and does not end the
court's task of adjudicating the parties
contentions and determining their rights and
liabilities as regards each other, but obviously
indicates that other things remain to be done.
[BPI v. Lee [2012]]

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MODES OF APPEAL
Ordinary Appeal
Appeal by writ of error
Case is decided by RTC in its
original jurisdiction
Appealed to the CA
File notice of appeal or
record of appeal with court
of origin and give a copy to
adverse party

Petition for Review

Rule 42
Case decided by RTC in the
exercise of its appellate
jurisdiction
Petition for review with the CA
File a verified petition for
review with CA.
Pay docket and lawful fees and
P500 as deposit for costs with
the CA.
Furnish RTC and adverse party
a copy of such

Petition for Review by Certiorari

Rule 45
Case decided by the RTC, CA,
CTA, and Sandiganbayan
Appealed to the SC
File verified petition for review on
certiorari with the SC.
Pay docket and lawful fees and
P500 for costs.
Submit proof of service of a copy
to the lower court and adverse
party

Within 15 days from notice of

Within 15 days from notice of Within 15 days from notice of
judgment for notice of
decision to be reviewed or from judgment or order of denial of
appeal and 30 days for
denial of a MFR or MFNT
MFR or MFNT
records on appeal

PERIOD OF APPEAL
Period to Appeal

Extensions

Effect of MR or
MNT

MTC to RTC
By notice of appeal; within 15 days from
No extensions allowed
notice of judgment or final order

Fresh period to
appeal
from
denial MR or MNT

By record of appeal;
within 30 days from notice of judgment
or final order
RTC to CA
By notice of appeal;
Within 15 days from notice of judgment No extensions allowed
or final order
By record of appeal;
within 30 days from notice of judgment
or final order
MTC to RTC to CA
The CA may grant a 15 day
extension.
15 days from notice of the judgment or
No further extension shall be
final order OR from denial of MR or
granted except for the most
MNT
compelling reasons and in no case
longer than 15 days.
QJA to CA
15 days from notice of the award, The CA may grant a 15 day
judgment, final order or resolution or extension. No further extension
from date of last publication if required shall be granted except for the
107

Fresh period to
appeal
from
denial MR or MNT

Fresh period to
appeal
from
denial MR or MNT

Fresh period to
appeal
from
denial MR or MNT

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Period to Appeal

REMEDIAL LAW
Effect of MR or
MNT

Extensions

by law OR from denial of MR or MNT

most compelling reasons and in no

case longer than 15 days.
RTC to SC; RTC to CA to SC; CA to SC
15 days from notice of judgment or final
Fresh period to
The SC may grant a 30 day
order OR from denial of petitioners MR
appeal
from
extension for justifiable reasons.
or MNT.
denial MR or MNT

B.6 APPEAL FROM MUNICIPAL TRIAL

COURTS [RULE 40]

The fresh period rule shall apply to:

(1) Rule 40 governing appeals from the
Municipal Trial Courts to the Regional
Trial Courts;
(2) Rule 41 governing appeals from the
Regional Trial Courts to the Court of
Appeals
(3) Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals;
(4) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(5) Rule 45 governing appeals by certiorari
to the Supreme Court.

I. OUTLINE OF PROCEDURE [RULE 40,

SEC. 7]
Appeal decision of MTC by filing notice of appeal
and pay within 15 days from receipt of judgment
15 days from perfection of appeal, MTC clerk
transmits record to RTC
Notice to parties that an appeal is being taken
from the decision of the MTC

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. CA, (2005)]

Within 15 days from notice of appeal:

(1) Appellant submits memorandum to the RTC
(2) Appellee files his own memorandum 15 days
from receipt of appellants memorandum
Court acts on the appeal

Being procedural in nature, Neypes is

deemed to be applicable to actions pending
and undetermined at the time of its
effectivity and is thus retroactive in that
sense and to that extent. [First Aqua Sugar v.
BPI (2007)]

If
uncontested,
judgment is entered
in the book of
entries

Any party may

appeal by filing a
petition for review
with the CA

II. WHERE TAKEN

B.5 PERFECTION OF APPEAL

Perfection of an appeal in the manner and
within the period laid down by law is
mandatory and jurisdictional. [Balgami v. CA
(2004)]

It is taken to the RTC exercising jurisdiction

over the area to which the MTC pertains.
[Rule 40, Sec. 1]

Effect of Failure to Perfect Appeal

(1) Defeats a partys right to appeal.
(2) Precludes appellate court from acquiring
jurisdiction.

[Rule 40, Sec. 2]

(1) If by notice of appeal, within 15 days after
notice to appellant of judgment or final
order appealed from

III. WHEN TAKEN

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(2) If record of appeal is required, within 30

days from notice of judgment or final
order
(3) Period of appeal shall be interrupted by a
timely motion for new trial or
reconsideration

V. PERFECTION OF APPEAL

IV. HOW TAKEN

VI. APPEAL FROM ORDER DISMISSING

A CASE WITHOUT TRIAL; LACK OF
JURISDICTION

Since appeals from inferior courts may now

be either by notice of appeal or record on
appeal, the rules on the perfection and the
effect thereof are the same. See Sec. 9, Rule
41

[Rule 40, Sec. 3]

By Notice of Appeal
(1) File a notice of appeal with the trial court
that rendered the judgment or final order
appealed from
(2) The notice of appeal must indicate the
parties, the judgment or final order or
part thereof appealed from; the material
date showing timeliness of appeal
(3) A copy served on the adverse party; and
(4) Payment in full of docket fees and other
lawful fees

Two Scenarios:
(1) If the MTC dismissed the case without
trial on the merits, the RTC may:
(a) Affirm, if the ground of dismissal is
lack of jurisdiction over the subject
matter; If the RTC has jurisdiction, it
shall try the case on the merits as if
the case was originally filed therein
(b) Reverse, in which case, it shall
remand the case for further
proceedings

By Record on Appeal
(1) Record on appeal is required for the
following cases:
(a) Special proceedings
(b) In such other cases where multiple
appeals are allowed
(2) Form and contents of the record on
appeal: (Rule 41, Sec. 6)
(a) Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall transmit
to the RTC:
(i)
Original record or record on
appeal
(ii)
Together with transcripts and
exhibits
(b) Clerk shall make a certification that
the documents are complete
(c) Clerk shall also furnish the parties a
copy of his letter of transmittal of the
records to the appellate court
(3) Copy is served on the adverse party
(4) Payment in full of docket fees and other
lawful fees

(2) If the case was tried on the merits by the

MTC without jurisdiction over the subject
matter:
(a) The RTC shall not dismiss the case if
it has original jurisdiction but shall
decide the case and admit amended
pleadings or additional evidence in
the interest of justice
APPLICABILITY OF RULE 41 - The other
provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to supplement
the provisions of this Rule.

B. 7. APPEAL FROM THE REGIONAL

TRIAL COURTS
Modes of Appeal There are three modes of
appeal from judgments or final orders of the
RTC:
(1) Ordinary Appeal or appeal by writ of error,
where judgment was rendered in a civil

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or criminal action by the RTC in the

exercise of its original jurisdiction
This mode of appeal, governed by
Rule 41, is taken to the CA on
questions of fact or mixed questions
of fact and law

(4) The material dates

timeliness of the appeal

REMEDIAL LAW
showing

the

Record on Appeal Done in special

proceedings and other cases where multiple
or separate appeals are allowed. This is filed
and served in the same manner as notice of
appeal.

(2) Petition for Review, where judgment was

rendered by the RTC in the exercise of its
appellate jurisdiction
This mode of appeal, covered by Rule
42, is brought to the CA on question
of fact, of law, or mixed questions of
fact and law

Contents of the Record (Rule 41, Sec. 6)

(1) Full names of all the parties to the
proceedings shall be stated in the
caption of the record on appeal
(2) It shall include the judgment or final
order from which the appeal is taken,
(3) In chronological order, copies of only
such pleadings, petitions, motions, and
all interlocutory orders as are related to
the appealed judgment or final order
(4) For the proper understanding of the issue
involved
(5) Together with such data as will show that
the appeal was perfected on time

(3) Petition for Review on Certiorari, or

appeal by certiorari to the SC
This mode of appeal, provided for by
Rule 45, is brought to the SC from
the decision of the RTC in the
exercise of its original jurisdiction
and only on questions of law

B. 8. APPEAL FROM THE REGIONAL

TRIAL COURTS TO THE COURT OF
APPEALS [RULE 41]

Approval of the Record on Appeal (Rule 41,

Sec. 7)
Upon filing of the record for approval and if
no objection is filed by the appellee within 5
days from receipt of a copy thereof, the trial
court may:
(1) Approve it as presented; or
(2) Direct its amendment by the inclusion of
any omitted matters which are deemed
essential

Appeal via Rule 41 presupposes that:

(1) The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its original
jurisdiction; and
(2) That the appeal is taken to the CA on:
(a) Questions of fact or
(b) Mixed questions of fact and law

Joint Record on Appeal (Rule 41, Sec. 8)

Where both parties are appellants, they may
file a joint record on appeal.

Notice of Appeal Filed with the court which

rendered the judgment or final order
appealed from. A copy is served on the
adverse party. (Rule 41, Sec. 5)

I. PERIOD TO APPEAL
[Rule 41, Sec. 2]
(1) 15 days from notice of judgment or final
order appealed from
(2) 30 days from notice of judgment or final
order where a record on appeal is
required
(3) 48 hours from notice of judgment or final
order appealed from in habeas corpus
cases

Contents of the Notice of Appeal:

(1) Parties to the appeal
(2) Judgment or final order or part thereof
appealed from
(3) The court to which the appeal is being
taken; and

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Reckoning point of reglementary period

Period for filing the appeal should be
counted from the date when the partys
counsel received a copy of the judgment or
final order

(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

When a party is represented by a counsel,

service of process must be made on counsel,
not on party [Fajardo v. CA]
Effect of Motions for New Trial and
Reconsideration
Originally, the period to appeal is interrupted
by a timely motion for new trial and
reconsideration. However, with the Neypes
doctrine, a party has a fresh 15-day period
from a denial of the motion to perfect an
appeal.

REMEDIAL LAW

Subject index
Assignment of Errors
Statement of the Case
Statement of Facts
Statement of Issues
Arguments
Relief
Copy of judgment or final order appealed
from

Appellees Brief
Filed within 45 days from receipt of
appellants brief
Manner of filing is similar to that in
appellants brief
Contents:
(1) Subject index
(2) Statement of Facts
Statement of Facts
(3) Arguments

Extension of Period to Appeal

Period to appeal may be extended but such
extension is addressed to the sound
discretion of the court (Socco v. Garcia)

and

Counter-

Appellants Reply Brief

(1) Filed within 20 days from receipt of
appellees brief
(2) This is not mandatory as it is optional on
the part of the appellant

The mere filing and pendency of motion for

extension to perfect appeal does not suspend
the running of the reglementary period (Bello
et al., v. Fernandez)

Extension of Time for Filing Briefs:

General rule: Not allowed
Exception: For good reasons and only if
motion for extension is filed before expiration
of time sought to be extended

II. PLEADINGS FILED

[See Rule 44, Procedure in the CA]
Appellants Brief
Filed within 45 days from receipt of
notice of clerk that all evidence is
attached to record
Follow the Efficient Use of Paper Rule,
one original properly marked and 2
copies with annexes
Attach proof of service to adverse party

III. PERFECTION OF APPEAL

Payment of Docket Fees [Rule 41, Sec. 4]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful fees.
Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.

Grounds for dismissal with respect to

appellants brief:
(1) Failure to file brief on time
(2) Failure to make specific assignment of
errors in his brief
Contents:
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Payment of docket fees in full is mandatory

and is a condition sine qua non for the
perfection of an appeal.

filed before expiration of the period to

appeal)
(5) Allow withdrawal of the appeal

Perfection of Appeal (Rule 41, Sec. 9)

If appeal is by notice of appeal it is
deemed perfected as to him upon the
filing of the notice of appeal in due time
If appeal is by record on appeal it is
perfected as to him with respect to the
subject matter thereof, upon approval of
the record on appeal filed in due time

The concept of residual jurisdiction of the

trial court 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).

Effect of Perfected Appeal

(1) In appeals by notice of appeal:
Court loses jurisdiction over the case
upon perfection of appeal filed in due
time and expiration of the time to
appeal of the other parties
This rule applies individually and to
each of the parties since the
timeliness of their recourse for
appellate remedy depends on when
they respectively received a copy of
the judgment or final order

Duty of Clerk Upon Perfection of Appeal [Rule

41, Sec. 10]
Within 30 days after perfection of all appeals,
the RTC clerk shall:
(1) Verify completeness of original record or
record on appeal and make certification
as to its correctness
(2) Verify completeness of records that will
be transmitted to appellate court
(3) If found to be incomplete:
(a) Take such measures as may be
required to complete records
(b) If efforts to complete records fail:
(i)
Indicate in his letter of
transmittal the exhibits or
transcripts not included
(ii)
Reasons for their transmittal
(iii)
Steps taken or that could be
taken to have them available
(4) Transmit the records to appellate court
and furnish the parties with copies of his
letter of transmittal

(2) In appeals by record on appeal:

Court loses jurisdiction only over the
subject matter thereof upon approval
of the records on appeal filed in due
time and the expiration of the time to
appeal of the other parties
The effect is limited to the subject
matter only. Jurisdiction over the
case is still with the trial court

IV. DISMISSAL OF APPEAL

Residual Powers/Jurisdiction of the RTC

After losing jurisdiction but prior to the
transmittal of the original record on appeal,
the RTC may:
(1) Issue orders for preservation of the rights
of the parties, which do not involve
matters litigated by appeal
(2) Approve compromise
(3) Permit appeal by an indigent
(4) Order execution pending appeal under
Rule 39, Sec. 2 (motion for execution was

[Rule 41, Sec. 13]

When can the RTC dismiss the appeal?
Prior to transmittal of original record to
appellate court; or
Prior to transmittal of record on appeal
to the appellate court
How done: By the court, motu proprio, or on
motion to dismiss appeal by a party

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Grounds
(1) Appeal was taken out of time
(2) Non-payment of docket and other lawful
fees within the reglementary period

REMEDIAL LAW

No further extension may be granted except

for the most compelling reason and in no
case to exceed 15 days.

Note: The dismissal of the appeal in RTC is

limited only to these two grounds

II. FORM AND CONTENTS

B. 9. PETITION FOR REVIEW FROM THE

REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS [RULE 42]

Form of the petition:

(1) Original copy is filed intended for the
court, properly marked and 2 copies with
their annexes (Efficient Use of Paper Rule)
(2) Accompanied by clearly legible duplicate
originals or true copies of judgments or
final orders of both lower courts certified
correct by the RTC clerk
(3) Also with pleadings and other material
portions of record as would support the
allegations of the petition

[Rule 42, Sec. 5]

Appeal via Rule 42 is proper when one

appeals from a decision of the RTC in the
exercise of its appellate jurisdiction. It may be
taken on either questions of fact, questions of
law, or on mixed questions of fact and law.
This mode of appeal is not a matter of right
but is a matter of discretion on the part of the
CA, on whether or not to entertain the appeal.

Contents:
(1) Full names of the parties without
impleading the lower courts or judges
thereof
(2) Specific
material
dates
showing
timeliness of appeal
(3) Concise statement of:
(a) Matters involved
(b) Issues raised
(c) Specification of errors of fact or law,
or both
(d) Reasons or arguments relied upon
(4) A certificate of non-forum shopping must
also be attached

I. HOW TAKEN; PERIOD TO APPEAL

If a party desires to appeal from a decision of
the RTC in its appellate jurisdiction:
(1) File a verified petition for review with the
CA
(a) Within 15 days from notice of decision,
or
(b) Within 15 days from notice of denial
of petitioners motion for new trial or
reconsideration
(2) Pay the corresponding docket fee and
other lawful fees and depositing P500
for costs
(3) Furnish the RTC and adverse party a copy
of the petition

Effect of failure to comply [Rule 42, Sec. 3]

Failure to comply with any of the following
requirements shall be sufficient ground for
dismissal:
(1) Payment of docket and other lawful fees

Extension of period
The CA may grant an additional 15 days
within which to file the petition for review

Note: In petitions for review under Rules

42, 43, and 45, the docket fee is paid in
the appellate courts

Conditions
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees
and other lawful fees as well as deposit
for costs
(3) These two were done within the
reglementary period

(2) Deposit for costs

(3) Proof of service of petition
(4) Contents of the documents, which should
accompany the petition
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(1) An original is filed, properly marked,

together with 2 copies with their annexes
(Efficient Use of Paper Rule)
(2) Accompanied by certified true copies of
such material portions of the record
referred to therein
(3) Together with other supporting papers
(4) Copy of the comment served on
petitioner

III. PERFECTION OF APPEAL

[Rule 42, Sec. 8]
Appeal is deemed perfected as to petitioner
upon:
(1) Timely filing of the petition
(2) Payment of docket and lawful fees
Jurisdiction of the RTC
(1) RTC loses jurisdiction upon:
(a) Perfection of appeals filed in due
time; and
(b) Expiration of the time to appeal of
other parties
(2) RTC may exercise residual jurisdiction
before the CA gives due course to the
petition

Contents The comment shall:

(1) State whether or not he accepts the
statement of matters involved in the
petition
(2) Point out such insufficiencies or
inaccuracies as he believes exist in
petitioners statement of matters but
without repetition
(3) Reasons why the petition should not be
given due course

General rule: Perfected appeal stays the

challenged judgment or final order
Exceptions:
(1) Civil cases decided under the Rule on
Summary Procedure; or
(2) Unless the CA, law, or Rules, provide
otherwise [Rule 42, Sec. 8]

Due Course [Rule 42, Sec. 6]

If the Court of Appeals finds prima facie that
the lower court has committed an error of
fact or law that will warrant a reversal or
modification of the appealed decision, it may
accordingly give due course to the petition.

IV. ACTION ON PETITION

As stated earlier, the Doctrine of Residual

Jurisdiction of the RTC applies as in cases
under Rule 41, except that the RTC must
exercise this jurisdiction before the CA gives
due course to the petition. In contrast, the
RTC must exercise residual jurisdiction in
Rule 41, prior to transmittal of the original
record or the record on appeal.

[Rule 42, Sec. 4]

The CA may:
(1) Require respondent to file a comment on
the petition not a motion to dismiss
within 10 days from notice; or
(2) Dismiss the petition if it finds the same to
be:
(a) Patently without merit
(b) Prosecuted manifestly for delay; or
(c) The questions raised therein are too
unsubstantial
to
require
consideration

V. SUBMISSION FOR DECISION

[Rule 42, Sec. 9]
If the petition is given due course
(1) Case may be set for oral argument, or
(2) The parties may be required to submit
memoranda within 15 days from notice

Under this Rule, appeal is discretionary on

the CA which may give its due course only
when the petition shows prima facie that the
lower court has committed error.
Comment by Respondent [Rule 42, Sec. 5]
Form

Case shall be deemed submitted for decision

upon filing of last pleading or memoranda

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B. 10. APPEALS FROM QUASI-JUDICIAL

BODIES

REMEDIAL LAW

Where to Appeal [Rule 43, Sec. 3]

Appeal is taken to the CA on questions of fact,
of law, or mixed questions of fact and law.

Scope: Appeals from awards, judgments,

final orders or resolution of or authorized by
any quasi-judicial agency (QJA) in the
exercise of its quasi-judicial functions

Period to Appeal [Rule 43, Sec. 4]

Period to appeal is 15 days from:
(1) Notice of award, judgment, final order, or
resolution;
(2) Date of publication, if publication is
required by law for its effectivity; or
(3) Denial of petitioners motion for new trial
or reconsideration.

A quasi-judicial agency or body is an organ of

government other than a court and other
than a legislature, which affects the rights of
private parties though either adjudication or
rule-making

Extension of Period
The CA may grant an additional 15 days
within which to file the petition for review

Note: The CTA is no longer a quasi-judicial

agency under RA 9282, as of April 7, 2004. 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
under Rule 45. [Sec. 11, RA 9282 and A.M. No.
07-7-12-SC]

Conditions:
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees
and other lawful fees as well as deposit
for costs
(3) These two were done within the
reglementary period

QJAs covered by Rule 43:

(1) Civil Service Commission
(2) Securities and Exchange Commission
(3) Office of the President
(4) Land Registration Authority
(5) Social Security Commission
(6) Civil Aeronautics Board
(7) Bureau of Patents, Trademarks and
Technology Transfer
(8) National Electrification Administration
(9) Energy Regulatory Board
(10) National
Telecommunications
Commission
(11) Department of Agrarian Reform under
RA 6657
(12) GSIS
(13) Employees Compensation Commission
(14) Agricultural Inventions Board
(15) Insurance Commission
(16) Philippine Atomic Energy Commission
(17) Board of Investment
(18) Construction
Industry
Arbitration
Commission, and
(19) Voluntary arbitrators authorized by law

No further extension may be granted except

for the most compelling reason and in no
case to exceed 15 days.
Note: Similar to the rule in petition for review
from the RTC to the CA (Rule 42).
How Taken [Rule 43, Sec. 5]
(1) A verified petition for review is filed with
the CA following the Efficient Use of
Paper Rule
(a) Attach proof of service of a copy to
the adverse party and to the court or
agency a quo
(2) Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs
(a) Payment is made to the CA clerk
(b) Exemption from payment may be
granted by the CA by filing a verified
motion for exemption; if denied,
party must pay within 15 days from
notice of denial

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Contents of Petition [Rule 43, Sec. 6]

(1) Statement of full names of parties to the
case without impleading court or
agencies
(2) Concise statement of facts and issues
involved and grounds relied upon for
review
(3) Accompanied by:
(a) Clearly legible duplicate original or a
certified true copy of award,
judgment, final order, or resolution
appealed from
(b) Certified true copies of such material
portions of record referred to in the
petition and other supporting papers
(4) Certificate of non-forum shopping
(5) Statement of specific material dates
showing timeliness of appeal

(b) And
such
other
supporting
documents
(3) Copy of Comment is served on petitioner
with proof of such service filed with the
CA

Effect of Failure to Comply [Rule 43, Sec. 7]

Failure to comply with the following is
sufficient ground for the CA to dismiss the
appeal:
(1) Payment of docket and lawful fees
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of petition
(5) Documents which should accompany the
petition

If not, then the CA may dismiss the same.

Contents of Comment [Rule 43, Sec. 9]

The comment shall:
(1) Point insufficiencies or inaccuracies in
petitioners statement of facts and issues
(2) State reasons why petition should be
denied or dismissed
Due Course [Rule 43, Sec. 10]
CA may give due course if CA finds prima
facie that court or agency has committed
errors of fact or law that would warrant
reversal or modification

Transmittal of Records [Rule 43, Sec. 11]

Within 15 days from notice that petition has
been given due course, the CA may:
(1) Require court or agency concerned to
transmit original or legible certified true
copy of entire record of proceeding under
review
(2) Require or permit subsequent correction
or addition to record

Action on the Petition [Rule 43, Sec. 8]

The CA may:
(1) Require respondent to file Comment
within 10 days from notice
(2) Dismiss the petition if CA finds the same
to be:
(a) Patently without merit
(b) Prosecuted manifestly for delay, or
(c) Questions
raised
are
too
unsubstantial
to
require
consideration

Effect of Appeal [Rule 43, Sec. 12]

General rule: Appeal shall not stay the award,
judgment, final order or resolution sought to
be reviewed
Exception: When the CA shall direct
otherwise upon such terms as it may deem
just
Submission for Decision [Rule 43, Sec. 13]
If petition is given due course, the CA may set
the case for oral argument or require parties
to submit memoranda within 15 days from
notice.

Form of Comment [Rule 43, Sec. 9]

(1) Filed within 10 days from notice following
the Efficient Use of Paper Rule
(2) Accompanied by the following:
(a) Clearly legible certified true copies of
such material portions of the record
referred to therein

Upon filing of last pleading or memorandum

required, case is deemed submitted for
decision.

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B. 11. APPEAL FROM THE CTA

Jurisdiction of the CA
(1) CA has jurisdiction over orders, directives,
and decisions of the Office of
Ombudsman
in
administrative
disciplinary cases only
(2) It cannot review orders, directives,
decisions in criminal and nonadministrative cases

A party adversely affected by a decision or

ruling of the CTA en banc may file with the
Supreme Court a verified petition for review
on certiorari pursuant to Rule 45. (Sec. 19, RA
1125 as amended by RA 9282)

B. 12. APPEAL FROM THE COMELEC

Unless otherwise provided by law, or by any
specific provisions in these Rules, any
decision, order or ruling of the Commission
may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty
(30) days from its promulgation. [Rule 37, Sec.
1, COMELEC Rules of Procedure; Rule 64, Sec.
3, Rules of Court]

Jurisdiction of the SC
(1) In criminal cases, ruling of Ombudsman
shall be elevated to the SC via Rule 65
(2) In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or excess
of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed with
this Court to set aside the Ombudsmans
order or resolution. [Nava v. NBI (2005)]

Decisions in appeals from courts of general

or limited jurisdiction in election cases
relating to the elections, returns, and
qualifications of municipal and barangay
officials are not appealable. (Rule 37, Sec. 2,
COMELEC Rules of Procedure)

B. 14. APPEAL FROM THE NLRC

Appeal from quasi-judicial agencies does not
apply to judgments or final orders issued
under the Labor Code. [Rule 43, Sec. 2]

Decisions in pre-proclamation cases and

petitions to deny due course to or cancel
certificates of candidacy, to declare a
candidate as nuisance candidate or to
disqualify a candidate, and to postpone or
suspend elections shall become final and
executory after the lapse of five (5) days from
their promulgation, unless restrained by the
Supreme Court. (Rule 37, Sec. 3, COMELEC
Rules of Procedure)

B. 13.
APPEAL
OMBUDSMAN

FROM

REMEDIAL LAW

The remedy of a party aggrieved by the

decision of the NLRC is to file a motion for
reconsideration and, if denied, file a special
civil action for certiorari under Rule 65 within
60 days from notice of the decision. In
observance of the doctrine of hierarchy of
courts, this should be filed with the CA. [St.
Martin Funeral Homes v. NLRC (1998)]
From the CA, the remedy of the aggrieved
party is a petition for review by certiorari to
the SC. [Dongon v. Rapid Movers and
Forwarders (2013)]

THE

The following decisions are unappealable

[Admin Order No. 7, Rule III, Sec. 7]
(1) In administrative cases where respondent
is absolved of the charge
(2) In case of conviction, where penalty
imposed is public censure or reprimand,
or suspension of not more than one
month or a fine equivalent to one month
salary

NLRC judgments and final orders or

resolutions are now reviewable, in the first
instance, by the Court of Appeals on
certiorari under Rule 65, but those of the
Employees
Compensation
Commission
should be brought to the Court of Appeals
through a petition for review under this Rule.
[Fabian v. Desierto (1998)]

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B. 15. APPEAL BY CERTIORARI TO THE

SUPREME COURT [RULE 45]

the
exercise
of exercises
original
appellate jurisdiction jurisdiction under its
and power of review
power of control and
supervision
over
proceedings of lower
courts

Certiorari as Mode of Appeal and as Special

Civil Action
[Herrera]
Appeal by Certiorari
[Rule 45]

Based on questions
of law

Involves review of
judgment, award or
final order on merits

Must be made within

the
reglementary
period of appeal

Stays the judgment,

award, or order
appealed from

Petitioner
and
respondent
are
original parties to
the action

Prior filing of MR not

required
Appellate court is in

REMEDIAL LAW

Certiorari as SCA
[Rule 65]
Raises the issue of
whether the lower
court acted without
or in excess of
jurisdiction, or with
grave
abuse
of
discretion
May be directed
against
an
interlocutory order of
the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy, or adequate
remedy
May be filed not later
than 60 days from
notice of judgment,
order or resolution
sought to be assailed
Does not stay the
challenged
proceedings, unless a
writ of preliminary
injunction or TRO is
issued
The parties are the
aggrieved
party
against the lower
court
or
quasijudicial agency as
prevailing parties
A filing of a MR is a
condition precedent,
subject to certain
exceptions
Higher
court

Outline of Procedure
RTC, Sandiganbayan, CTA en banc, or CA renders a
decision

Any 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

Appellant serves copies of petition on adverse

parties
And to the lower court,
And pay the corresponding docket fees

SC may dismiss the petition or require appellee to

comment

If given due
memoranda

course,

parties

may

submit

SC may affirm, reverse, or modify judgment of

lower court

I. PROPRIETY AS A MODE OF APPEAL

Appeals to the SC can be taken from a
judgment or final order or resolution of the
CA, Sandiganbayan, CTA en banc, RTC or
such other courts as may be authorized by
law
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II. APPEAL FROM RTC TO SC UNDER

RULE 45

Only questions of law are allowed. Whether

an appeal involves only questions of law or
both questions of law and fact is best left to
the determination of an appellate court and
not by the court which rendered the decision
appealed from (PNB v. Romillo, etc., et al.)

RTC must have rendered judgment in the

exercise of its original jurisdiction .
If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to the
CA via Rule 42 even if only questions of law
are raised

QUESTIONS
LAW

OF QUESTIONS
OF
FACT
Doubt as to the truth
Doubt as to what the or falsehood of facts,
law is on certain or as to probative
facts
value of the evidence
presented
If the appellate court
can determine the
The
determination
issue
without
involves evaluation or
reviewing
or
review of evidence
evaluating
the
evidence
Query involves the
calibration of the
whole
evidence
considering mainly
Can
involve the credibility of
questions
of witnesses, existence,
interpretation of law and relevancy of
with
respect
to specific surrounding
certain set of facts
circumstances and
relation to each other
and
the
whole
probabilities of the
situation

If the other party had already taken an

appeal to the CA to question the RTC
decision, the property remedy of petitioner is
simply ordinary appeal to the CA as well.
(First Phil. International Bank v. CA)
Grave abuse of discretion is not an allowable
ground under Rule 45. (Martires v. CA).

III. APPEAL FROM CA

Appeal under Rule 45 is the proper review of
decisions of the CA even in special civil
actions.
Any alleged errors committed by it in the
exercise of jurisdiction would be errors of
judgment which are reviewable by timely
appeal and not by special civil action of
certiorari.
Rule 45 is clear that decisions, final orders,
or resolutions of the CA in any case,
regardless of the nature of the action or
proceedings involved, may be appealed to
the SC by filing a petition for review, which
would but be a continuation of the appellate
process over the original case.

The SC is not a trier of facts, and is not to

review or calibrate the evidence on record.
Moreover, findings of facts of trial court, as
affirmed on appeal by the CA, are conclusive
on the court (Boston Bank of the Philippines v.
Manalo)

IV. CONCLUSIVENESS OF FINDINGS OF

FACT
General rule: The findings of fact of the CA
are final and conclusive and cannot be
reviewed on appeal to the SC

It has to be emphasized that it is not the duty

of the SC to review, evaluate, and weigh the
probative value of the evidence adduced
before the lower courts (Frondarina v.
Malazarte)

Exceptions: CAs findings of fact may be

reviewed by the SC on appeal by certiorari
when:

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(1) Conclusion is a finding grounded entirely

on speculations, surmises or conjectures
[Joaquin v. Navarro (1953)].
(2) Inference made is manifestly mistaken,
absurd or impossible [Luna v. Linatok
(1942)].
(3) There is grave abuse of discretion in the
appreciation of facts [Buyco v. People
(1954)].
(4) Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing (1953).
(5) The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].
(6) The Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
(7) The Court of Appeals manifestly
overlooked certain relevant facts not
disputed by the parties and which, if
properly considered, would justify a
different conclusion [Abellana v. Dosdos
(1965)].
(8) The Court of Appeals findings of fact are
contrary to those of the trial court, or are
mere conclusions without citation of
specific evidence, or where the facts set
forth by the petitioner are not disputed
by the respondent, or where the findings
of fact of the Court of Appeals are
premised on absence of evidence but are
contradicted by the evidence of record
[Manlapaz v. CA (1987)].

REMEDIAL LAW

(2) Payment of docket and lawful fees, and

deposit for costs; and
(3) Showing of justifiable reasons.
Note: Both (1) and (2) must be within the
reglementary period.
Form of Petition
The petition must be verified:
(1) Following the Efficient Use of Paper
Rule:
(a) One original, properly marked, and 4
copies
(b) If the case is referred to En Banc, 10
additional copies is filed
(2) Payment of docket and other lawful fees
and deposit of P500 for costs is made
with the SC Clerk at the time of filing
(3) Proof of service of the petition to the
lower court and adverse party are
attached

Contents of Petition [Rule 45, Sec. 4]

(1) State full names of the parties
(a) Appealing party = as Petitioner
(b) Adverse party = as Respondent
(c) Do not implead lower courts or
judges
(2) Indicate material dates showing:
(a) When notice of judgment or final
order or resolution was received
(b) When a motion for new trial or
reconsideration, if any, was filed and
when a denial thereof was received
(3) Concise statement of:
(a) The matters involved
(b) Reasons or arguments relied on
(4) Accompanied by a clearly legible
duplicate original, or a certified true copy
of the judgment or final order or
resolution certified by the clerk of court
and court a quo
(5) Certificate of non-forum shopping

Period of Appeal [Rule 45, Sec. 2]

Time for Filing: 15 days from
(1) Notice of judgment, final order, or
resolution appealed from, or
(2) Notice of denial of motion for new trial or
reconsideration filed in due time after
notice of judgment
Note: The Neypes doctrine is also applicable
in Rule 45.

Grounds for Denial of Petition [Rule 45, Sec.

5]
(1) Failure of petitioner to comply with:

Extension of Period: 30 days upon

(1) Motion duly filed and served;

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B. 16. DISMISSAL OF APPEALS

(a) Payment of docket or other lawful

fees
(b) Deposit for costs
(c) Proof of Service; and
(d) Contents of and documents which
would accompany the petition
(2) Appeal is without merit
(3) Is prosecuted manifestly for delay
(4) That the questions raised are so
unsubstantial as to require consideration

Dismissal by the CA [Rule 50]

An appeal may be dismissed by the CA, on its
own motion, or on that of the appellee on
certain grounds.
Grounds for Dismissal [Rule 50, Sec. 1-2]
(1) Failure of record on appeal to show on its
face that appeal was taken within the
period fixed by Rules
(2) Failure to file notice of appeal or record
on appeal within prescribed period
(3) Failure of appellant to pay docket and
other lawful fees as provided in Sec. 4,
Rule 41
(4) Unauthorized alterations, omissions, or
additions in approved record on appeal
as provided in Sec. 4, Rule 44
(5) Failure of appellant to serve and file
required number of copies of his brief or
memorandum within time provided by
Rules
(6) Absence of specific assignment of errors
in the appellants brief, or of page
references to record as required in Sec. 13,
(a), (c), (d), (f), Rule 44
(7) Failure of appellant to take necessary
steps for correction or completion of
record within time limited by the court in
its order
(8) Failure of appellant to appear at
preliminary conference under Rule 48 or
comply with orders, circulars, directives
of the court without justifiable cause
(9) Fact that the order or judgment appealed
from is not appealable
(10) Appeal under Rule 41 from the RTC,
raising only questions of law;
(11) Appeal by notice of appeal from a
decision rendered by the RTC in its
appellate jurisdiction;
(12) Appeal erroneously taken to the CA

NOTE: SC may dismiss the petition motu

proprio

Review is Discretionary [Rule 45, Sec. 6]

Appeal to the SC is NOT a matter of right. It
will be granted only when there are special
and important reasons therefor.
Some indications of the character of reasons
which will be considered:
(1) When the court a quo has decided the
question of substance, not theretofore
determined by the SC, or has decided it
in a way probably not in accord with law
or with the applicable provisions of the
SC; or
(2) Court a quo has so far departed from
accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for
an exercise of power of supervision
Elevation of Records [Rule 45, Sec. 8]
If the petition is given due course, the
Supreme Court may require the elevation of
the complete record of the case or specified
parts thereof within fifteen (15) days from
notice

Other Grounds
(1) By agreement of the parties (i.e.
amicable settlement)
(2) Where appealed case has become moot
or academic
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(3) Where appeal is frivolous or dilatory

Dismissal by the SC [Rule 56]

The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
(1) Failure to appeal within reglementary
period
(2) Lack of merit of petition
(3) Failure to pay docket and lawful fees and
deposit
(4) Failure to comply with requirements on
proof of service, contents, and
documents accompanying petition
(5) Failure to comply with circular, directive,
or order of SC without justifiable cause
(6) Error in choice of mode of appeal
(7) The case is not appealable to the SC

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REMEDIAL LAW

COMPARATIVE TABLE ON THE MODES OF APPEAL

WHEN PROPER
RULE 40
RULE 41
ORDINARY APPEAL
Matter of Right; Filed with the court of origin
All records are elevated from court of origin
Appeal from a decision of
Appeal from a judgment or
the RTC in the exercise of its
final order of a MTC
original jurisdiction

Rule 41 provisions shall apply to Rule 40 if not consistent with

Rule 40 provisions

WHERE TO FILE
RULE 40
Filed with the MTC
Appeal to the RTC

RULE 41
Filed with the RTC
Appeal to the CA

RULE 42
RULE 43
RULE 45
PETITIONS FOR REVIEW
Discretionary; No records are elevated unless the court decrees it
Filed with the appellate court
Appeals to the SC from a
judgment or final order or
resolution
of
the
CA,
Appeals from awards, Sandiganbayan, CTA en banc,
judgments, final orders RTC (original jurisdiction) or such
Appeal from a decision of
or resolution of or other courts as may be
the RTC rendered in the
authorized by any quasi- authorized by law
exercise of its appellate
judicial agency in the Decisions, final orders, or
jurisdiction
exercise of its quasi- resolutions of the CA in any case,
judicial functions
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
RULE 42
Filed with the CA
Appeal to the CA

RULE 43
Filed with the CA
Appeal to the CA
Questions
of
fact,
Questions of fact or mixed
Questions of fact, Questions
Questions of fact or mixed
Questions of law, or
questions of fact and law
of law, or Mixed questions of
questions of fact and law
Mixed questions of fact
both
and law

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RULE 45
Filed with the SC
Appeal to the SC
Only Questions of Law

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TIME FOR FILING
RULE 40

CIVIL PROCEDURE

RULE 41

RULE 42

RULE 43
Within 15 days from:
(1) Notice of award,
Within 15 days from notice of
BY NOTICE OF APPEAL
judgment,
final
decision, or
Within 15 days after notice of judgment or final order
order, or resolution;
Within 15 days from notice of
(2) Date of publication, if
denial of petitioners motion
BY RECORD ON APPEAL
publication
is
for
new
trial
or
Within 30 days from notice of judgment or final order by filing
required by law for its
reconsideration
a notice of appeal and a record on appeal
effectivity;
(3) Denial of petitioners
MNT or MR

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REMEDIAL LAW

RULE 45
Within 15 days from:
(1) Notice of judgment, final
order, or resolution appealed
from, or
(2) Notice of denial of motion for
new trial or reconsideration
filed in due time after notice
of judgment

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CIVIL PROCEDURE

C. RELIEF FROM JUDGMENTS.

ORDERS,
AND
OTHER
PROCEEDINGS

REMEDIAL LAW

Applies
to
Applies
to
judgments,
final
judgments or final
orders and other
orders only
proceedings
Grounds:
(1) FAME; or
(2) Newly
Ground: FAME
discovered
evidence
Filed:
(1) within 60 days
from knowledge
Filed within the time
of judgment; and
to appeal
(2) within 6 months
from entry of
judgment
If
denied,
order
If denied, order of
denying a petition for
denial
is
not
relief
is
not
appealable; hence,
appealable; remedy
remedy is appeal
is appropriate civil
from judgment
action under Rule 65
Legal remedy
Equitable remedy
Motion need not be Petition must be
verified
verified

Remedies after finality of judgment

(1) Petition for Relief [Rule 38]
(2) Action to Annul Judgment [Rule 47]
(3) Collateral Attack of a Judgment that is
Void on its Face

C. 1. NATURE
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 negligence (FAME). [Quelnan v.
VHF Phils
A petition for relief from judgment is an
equitable remedy allowed only in exceptional
cases when there is no other available or
adequate remedy. When a party has another
remedy available, either motion for new trial
or appeal, and he was not prevented by
FAME from filing such motion or taking such
appeal, he cannot avail himself of this
petition. [Trust International Paper Corp. v.
Pelaez]

A party who has filed a timely motion for new

trial or motion for reconsideration can no
longer file a petition for relief from judgment
after his motion has been denied. These
remedies are mutually exclusive. It is only in
appropriate cases where a party aggrieved by
the judgment has not been able to file a
motion for new trial or motion for
reconsideration that a petition for relief can
be filed. [Francisco v. Puno (1981)]

A petition for relief is not regarded with favor

and judgment will not be disturbed where
the party complaining has or by his
exercising proper diligence would have had
an adequate remedy at law, as where
petitioner could have proceeded by appeal to
vacate or modify the default judgment.
[Manila Electric v. CA (1990)]

C. 3. WHEN PROPER
The petition can be availed of when the
judgment or final order has been entered or
when any other proceeding is thereafter
taken against the petitioner in any court
through FAME. [Rule 38, Section 1]

C. 2. MOTION FOR NEW TRIAL AND

PETITION FOR RELIEF
Motion for New Trial
[Rule 37]

Petition for Relief

[Rule 38]
Available
after
Available
before
judgment
has
judgment becomes
become final and
final and executory
executory

Thus, it was held that a petition for relief is

also applicable to a proceeding taken after
entry of judgment or final order such as an

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order of execution (Cayetano v. Ceguerra) or

an order dismissing an appeal (Medran v. CA)

REMEDIAL LAW

(1) The 60-day period is reckoned from the

time the party acquired knowledge of the
order, judgment or proceeding. Not from
the date he actually read the same (Perez
v. Araneta)
(2) 6-months period is computed from the
date of entry of the order or judgment

C. 4. WHERE FILED
Rule 38 is not an independent action but a
continuation of the old case. Hence, it is filed
with the same court and same branch which
decided the case.

C. 7. FORM OF THE PETITION

The petition must be:
(1) Verified;
(2) Accompanied by an affidavit showing the
FAME relied upon; and
(3) Accompanied by an affidavit of merit,
showing the facts constituting the
petitioners good and substantial cause
of action or defense.

C. 5. GROUNDS
[Rule 38, Sec. 1-2]
(1) When judgment or final order is entered
or any other proceeding is thereafter
taken against petitioner through FAME
(2) When petitioner has been prevented
from taking an appeal by FAME
Note: Extrinsic fraud is that fraud which the
prevailing party caused to prevent the losing
party from being heard on his action or
defense. Such fraud concerns not the
judgment itself but the manner in which it
was obtained. [AFP Mutual Benefit
Association, Inc. v. RTC-Marikina City (2011)]

The absence of an affidavit of merits is a fatal

defect and warrant denial of the petition
(Fernandez v. Tan Tiong Tick)

C. 6. PERIOD FOR FILING

When Affidavit of Merit is not necessary:

(1) When there is lack of jurisdiction over the
defendant;
(2) When there is lack of jurisdiction over the
subject matter;
(3) When judgment was taken by default;
(4) When judgment was entered by mistake
or was obtained by fraud; or
(5) Other similar cases.

However, it is not a fatal defect so long as the

facts required to be set out also appear in the
verified petition (Fabar Inc. v. Rodelas)

[Rule 38, Sec. 3]

(1) Within 60 days after petitioner learns of
the judgment, final order, or other
proceeding to be set aside; AND
(2) Not more than 6 months after such
judgment or final order was entered, or
such proceeding was taken
These two periods must concur, are not
extendible and are never interrupted. Strct
compliance with these periods stems from
the equitable character and nature of the
petition for relief. Such petition is actually the
last chance given by law to litigants to
question a final judgment or order. Failure to
avail of such chance, within the grace period
fixed by the Rules, is fatal. [Quelnan v. VHF
Phils. ]

ORDER TO FILE ANSWER (Rule 38, Sec. 4)

An order to answer shall issue only if petition
is sufficient in form and substance.
If petition is sufficient in form and in
substance, the court shall issue an order
requiring the adverse party to answer within
15 days from receipt thereof.
PROCEEDINGS AFTER ANSWER IS FILED
(Rule 38, Sec. 6)

Reckoning Points

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After filing of answer or expiration of the

period therefor, court shall hear the petition.

REMEDIAL LAW

failed to avail himself of those remedies

through his own fault or negligence.
[Republic v. G Holdings, Inc. ]

If the court finds that the allegations are not

true Petition is dismissed.

It is a condition sine qua non that one must

have failed to avail of those remedies,
through no fault attributable to him.
Otherwise, he would benefit from his own
inaction or negligence. [Republic v. De
Castro ]

If the court finds that allegations are true:

(1) It shall set aside the judgment, final
order, or other proceeding complained of
upon such terms as may be just
(2) Thereafter, case shall stand as if such
had never been rendered, issued, or
taken
(3) The court shall then proceed to hear and
determine the case as if timely motion for
new trial or reconsideration has been
granted by it

Where Filed
Judgment, Final
Order or Resolution
of the RTC
Filed with the CA
CA has exclusive and
original jurisdiction
over said action
under Sec. 9 (2) of
BP 129
The CA may dismiss
the case outright; it
has the discretion on
whether or not to
entertain
the
petition

REMEDY FOR DENIAL OF PETITION FOR

RELIEF.
Appeal from an order denying a petition for
relief is no longer available under the present
rules.
The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper.

Judgment, Final
Order or Resolution
of the MTC, etc.
Filed with the RTC
RTC as a court of
general jurisdiction
under Sec. 19(6) BP
129
The RTC has no such
discretion,
it
is
required to consider it
as an ordinary civil
action

Who Can File

Petitioner need not be a party to the
judgment sought to annulled.

D. ANNULMENT OF JUDGMENTS
OR
FINAL
ORDERS
AND
RESOLUTIONS

A person who is not a party to the judgment

may sue for its annulment provided that he
can prove the same was obtained through
fraud or collusion, and that he would be
adversely affected thereby. [Alaban v. CA ]

D. 1. NATURE
An action for annulment of judgment is a
remedy in law independent of the case where
the judgment sought to be annulled was
rendered. The purpose is to have the final
and executory judgment set aside so that
there will be a renewal of litigation. [Alaban v.
CA ]

D. 2. GROUNDS
[Rule 47, Sec. 2]
(1) Extrinsic Fraud
A fraudulent act committed by the
prevailing party outside of the trial of
the case, whereby the defeated party
was prevented from exhibiting fully
his side of the case by deception

When Proper
The remedy may not be invoked where the
party has availed himself of the remedy of
new trial, appeal, petition for review, or other
appropriate remedy and lost, or where he has
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practiced on him by the prevailing

party [Alba v. CA ]
Extraneous evidence is admitted

(2)
(3)

(2) Lack of Jurisdiction

Either lack of jurisdiction over the
person of the defending party, or over
the subject matter of the claim
Petitioner must show absolute lack of
jurisdiction and not mere abuse of
judicial discretion; a claim of grave
abuse of discretion will support a
petition for certiorari but not an
action for annulment of judgment.
Only evidence found in the record can
justify nullity

(4)

(5)

(b) Petitioners good and substantial

cause of action or defense
Filed following the Efficient Use of Paper
Rule
Certified true copy of the judgment or
final order or resolution shall be attached
to the original copy of the petition
Affidavits of witnesses or documents
supporting the cause of action or
defense; and
Certificate of non-forum shopping

D. 4. PROCEEDINGS
Two stages in the disposition of the petition:
(1) A preliminary evaluation of the petition
for prima facie merit (Sec. 5)
The rule allows the CA to dismiss the
petition outright as in special civil
actions
If prima facie merit is found, petition
is given due course and summons is
served on respondent

(3) Denial of Due Process

Recognized as an additional ground
based on jurisprudence.

D. 3. PERIOD TO FILE ACTION

[Rule 47, Sec. 3]

(2) If prima facie merit is found, petition is

given due course and issuance of
summons as in ordinary civil cases is
made (Sec. 6)
Procedure in ordinary civil cases is
observed

Lack of
Jurisdiction
Before barred
4 years from
by laches or
discovery
estoppel
Extrinsic Fraud

Period
for
Filing

REMEDIAL LAW

There must be a manifest showing with

petition that it was filed within the 4-yr
period.

NOTE: Prima facie determination is not

available in annulment of judgments or final
orders of MTCs before the RTC. (Rule 47, Sec.
10)

The rule does not fix the period to annul

judgment based on lack of jurisdiction but
recognizes the principle of estoppel as first
laid down by Tijam v. Sibanghanoy.

D. 5. EFFECT OF JUDGMENT OF
ANNULMENT
[Rule 47, Sec. 7]

Based on Lack of Jurisdiction

(1) The same shall be set aside, and
considered null and void
(2) Aggrieved party may refile the action in
the proper court

Form and Contents of Petition [Rule 47, Sec.

3]
(1) Verified petition, alleging therein:
(a) With particularity, the facts and the
law relied upon
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(1) By a direct action or proceeding to annul

the same
A direct attack against the order or
judgment because it is not incidental
to, but is the main object of, the
proceeding
To annul and enjoin enforcement of
the judgment, where the alleged
defect is not apparent on its face or
from the recitals contained in the
judgment
See Rule 47

This may involve a different court of

competent jurisdiction
Where the reason was lack of
jurisdiction over the defendant, the
action may be re-filed in the same
original court, provided it has proper
jurisdiction and venue

Based on Extrinsic Fraud

(1) The same shall be set aside and
considered null and void
(2) On motion of the prevailing party on
justifiable grounds, he may be allowed to
no longer refile the action; instead, the
trial court which rendered the questioned
judgment shall be ordered to try the case
anew

(2) By direct action, as certiorari, or by

collateral attack in case of apparent
nullity
The collateral attack must be against
a challenged judgment which is void
upon its face or that the nullity of the
judgment is apparent from its own
recitals

The prescriptive period for the refiling of the

aforesaid original action shall be deemed
suspended from the filing of said original
action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the
original action. [Rule 47, Sec. 8]

E. COLLATERAL
JUDGMENTS

ATTACK

REMEDIAL LAW

(3) By a Petition for Relief under Rule 38

This third manner of attacking must
be taken in the same action or
proceeding in which the judgment or
order was entered

OF

E. 2. VOID JUDGMENT
A void judgment is no judgment at all. It
cannot be the source of any right nor the
creator of any obligation. All acts performed
pursuant to it and all claims emanating from
it have no legal effect. Hence, it can never
become final and any writ of execution based
on it is void. [Polystyrene Manufacturing v.
Privatization Management (2007)]

E. 1. ATTACKING A JUDGMENT
Direct Attack v. Collateral Attack
Direct attack upon a judgment is an
action or proceeding to annul it, this
being the main object of the proceeding
Collateral attack upon a judgment is one
made to obtain relief other than the
setting aside of the judgment, the attack
on the judgment itself being incidental

A void judgment may be likened to a lawless

thing which can be treated as an outlaw and
slain at sight, or ignored wherever and
whenever it rears its head. [Banco EspanolFilipino v. Palanca (1918)]

Collateral attack is proper only when the

judgment on its face is null and void as where
it is patent that the court which rendered
said judgment has no jurisdiction

A judgment may be void for lack of due

process of law. [Spouses Benatiro v. Heirs of
Cuyos (2008))

The validity of a judgment or order of the

court, which has become final and executory,
may be attacked in three ways:
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Attacking a Void Judgment

It may be assailed anytime, collaterally or in
a direct action or by resisting such judgment
or final order in any action or proceeding
whenever it is invoked, unless barred by
laches. [Spouses Benatiro v. Heirs of Cuyos
(2008))

REMEDIAL LAW

exhibits its head. The proper remedy in such

case, after the time for appeal or review has
passed, is for the aggrieved party to bring an
action to enjoin the judgment. (Montinola v.
Judge Gonzales, 1989)
Assuming the judgment to have been void as
alleged by the proponent of this motion, the
proper remedy was by an original proceeding
and not by motion in the cause" [Banco
Espanol v. Palanca (1918)]. A final judgment
may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
[Panlilio v. Garcia (1982)]

Remedies
If the reglementary period for appeal has not
yet lapsed, some remedies are New Trial and
Reconsideration [Rule 37], Appeal [Rules 4045], Petition for Relief [Rule 48], and Other
Appropriate Remedies such as Certiorari may
also be used.

VI. Execution,
Satisfaction and Effect
of Judgments

If the appropriate remedies are no longer

available without the fault of the petitioner,
the equitable and extraordinary remedy of
Petition for Annulment of Judgment [Rule 47]
may be resorted to.

Execution is the legal remedy for the

enforcement of a judgment. It is not an
action but is included in the phrase Process
in an action part of the proceedings
considered as still pending.

When all else fails, there is jurisprudence to

the effect that a patently void judgment may
be dealt with by a Main Action for Injunction.
[See Barrameda v. Moir (1913)]

Writ of Execution a judicial writ issued to an

officer authorizing and requiring him to
execute the judgment of the court.

Jurisprudential Basis
Remedial Law Jurisprudence such as Spouses
Benatiro v. Heirs of Cuyos, (2008) and Agustin
v. Bacalan, (1985) on the matter of void
judgment particularly refer to Rule 47 as a
remedy against a void judgment. This
remedy, however, should be availed of only
when the appropriate remedies are no longer
available without fault on the part of the
petitioner.

A. FINALITY FOR PURPOSES OF

APPEAL AND FOR PURPOSES OF
EXECUTION
A judgment is final if it disposes of the action
as distinguished from an interlocutory order
which leaves something to be done with
respect to the merits of the case, and it is
executory if the period to appeal has expired
and no appeal is taken. [Herrera]

Although Section 2 of Rule 47 of the Rules of

Court provides that annulment of a final
judgment or order of an RTC may be based
"only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence recognizes
denial of due process as additional ground
therefore (Spouses Benatiro Case).

Finality for purposes of appeal refers to the

distinction between final judgments or
orders and interlocutory orders, which
cannot be appealed. [Rule 41, Sec. 1(b)]

A void judgment is like an outlaw which may

be slain at sight wherever or whenever it
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The word interlocutory refers to something

intervening between the commencement and
the end of a suit, which decides some point or
matter but is not a final decision of the whole
controversy. [Ramiscal, Jr. v. Sandiganbayan
(2004)]

REMEDIAL LAW

proceeding upon the expiration of the period

to appeal therefrom if no appeal has been
duly perfected.
If the appeal has been duly perfected and
finally resolved, the execution may forthwith
be applied for in the court of origin, on
motion of the judgment obligee, submitting
therewith certified true copies of the
judgment/s or final order/s sought to be
enforced and of the entry thereof, with notice
to the adverse party.

A final judgment or order is one that finally

disposes of a case, leaving nothing more to
be done by the court in respect thereto.
Examples include:
(1) an adjudication on the merits which, on
the basis of the evidence presented at
the trial, declares categorically what the
rights and obligations of the parties are
and which party is in the right; or
(2) a judgment or order that dismisses an
action on the ground, for instance, of res
judicata or prescription.

Exceptions: Execution may Issue even if

judgment not final in the following cases:
(1) Support pendente lite
(2) Judgments of inferior courts in ejectment
cases
(3) Execution pending appeal
(4) Injunction, accounting, receivership,
support [Rule 39, Sec. 4]
(5) Decision of the RTC in appealed civil
cases under Summary Procedure,
including forcible entry and unlawful
detainer
(6) Decision of the LA reinstating dismissed
employee, insofar as reinstatement
aspect is concerned

Once rendered, the task of the court is ended,

as far as deciding the controversy or
determining the rights and liabilities of the
litigants is concerned. Nothing more remains
to be done by the court except to await the
parties' next move (such as filing of a motion
for new trial or reconsideration, or the taking
of an appeal) and ultimately, to cause the
execution of the judgment once it becomes
'final and executory.

B. 1. EXECUTION AS A MATTER OF
RIGHT
[Rule 39, Sec. 1]

Finality for purposes of execution refers to the

judgment being final and executory upon
the lapse of the appeal period if no appeal is
taken, upon which execution shall issue as a
matter of right. [Rule 39, Sec. 1]

A judgment becomes final and executory by

operation of law, not by judicial declaration.
The prevailing party is entitled as a matter of
right to a writ of execution, and the issuance
thereof is a ministerial duty and compellable
by mandamus. [Herrera]

A judgment becomes final and executory

by operation of law. Finality becomes a fact
upon the lapse of the reglementary period to
appeal if no appeal is perfected.

Execution as a matter of right is available in

two instances:
(1) No appeal has been perfected or period
of appeal has expired
(2) Appeal has been perfected and finally
resolved

B. WHEN EXECUTION SHALL ISSUE

General rule: Execution shall issue as a
matter of right, on motion, upon a judgment
or order that disposes of the action or

How Done

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(1) If no appeal is perfected, prevailing party

applies by motion for a writ of execution
(2) If an appeal has been perfected and
finally resolved
(a) prevailing party files a motion in the
court of origin, submitting:
(i)
certified true copies of the
judgment/s or final order/s
sought to be enforced;
(ii)
certified true copies of the entry
thereof; and
(iii)
with notice to the adverse party.
(b) appellate court may also direct the
court of origin to issue the writ of
execution, upon motion in the same
case, when the interest of justice so
requires.

REMEDIAL LAW

(7) When execution is sought against

property exempt from execution;
(8) When refusal to execute the judgment
has become imperative in the higher
interest of justice. [Riano]
Supervening Event Doctrine
A supervening event can be invoked for the
modification or alteration of a final judgment.
This refers to:
(1) Facts which transpire after judgment has
become final and executory;
(2) New circumstances which developed
after the judgment has acquired finality;
(3) Matters which the parties were not aware
of prior to or during the trial as they were
not yet in existence at that time.
(4) The supervening facts or circumstances
must either bear a direct effect upon the
matters already litigated and settled or
create a substantial change in the rights
or relations of the parties therein which
render execution of the final judgment
unjust or impossible (Lim v. Jabalde)

Note: Execution may only issue upon motion

with notice of hearing.
General rule: Issuance of the writ of execution
is a matter of right on the part of the
prevailing party when the judgment or order
becomes executory. The court cannot refuse
execution.

B. 2. DISCRETIONARY EXECUTION
[Rule 39, Sec. 2]

Exceptions: The issuance of a writ of

execution which issues as a matter of right
can be countered in any of the following
cases:
(1) When the judgment has already been
executed by the voluntary compliance
thereof by the parties;
(2) When a judgment has been novated by
the parties;
(3) When a petition for review is filed and
preliminary injunction is granted; Also,
when execution of the judgment has
been enjoined by a higher court;
(4) When the judgment sought to b executed
is conditional or incomplete;
(5) When facts and circumstances transpire
which
would
render
execution
inequitable or unjust;
(6) When execution is sought more than five
(5) years from its entry without it having
been revived;

Discretionary
Execution
May issue before the
lapse of period to
appeal, and even
during appeal
Discretionary upon
the court
Upon showing of
good reason for
execution

Execution as a
Matter of Right
Period to appeal has
already lapsed and
no
appeal
is
perfected
Ministerial duty of
the court
Provided there are no
supervening events

Under the Rule on Discretionary Execution

(also called execution pending appeal), the
court rendering the judgment, if it still has
jurisdiction, may exercise discretion and
order execution pending appeal.
It is the execution of a judgment or final
order before it attains finality. The court
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which rendered the decision can grant an

execution pending appeal if it still retains
jurisdiction over the case and is in possession
of the records at the time of the filing of the
motion; otherwise, the motion shall be acted
upon by the appellate court.

REMEDIAL LAW

(2) it is in possession of either the original

record or the record on appeal.
After the trial court has lost jurisdiction, the
motion may be filed in the appellate court.
[Bangkok Republic Company, Ltd. v. Lee
(2006)]

To be valid, there should be a good reason to

justify execution pending appeal, stated in
the order which granted it.

Examples of Good Reasons:

(1) Where the goods subject of the judgment
stand to perish or deteriorate during the
pendency of the appeal (Yasuda v. CA)
(2) The award of actual damages is for an
amount fixed and certain (Radio
Communications Inc. v. Lantin). But not
an award for moral and exemplary
damages
(3) Insolvency of a defeated party (Hacienda
Navarro v. Labrador)
(4) The prevailing party is of advanced age
and in a precarious state of health and
the obligation in the judgment is nontransmissible, being for support (De Leon
v. Soriano)
(5) Where defendants were exhausting their
income and have no other property aside
from proceeds of the property subject in
litigation (Lao v. Mencias)

Discretionary Execution is not applicable in

the case of the Court of Appeals:
(1) The Rule on Discretionary Execution
contemplates a situation where a
judgment or final order rendered in the
exercise of its original jurisdiction and the
prevailing party in said decision seeks
immediate
execution
during
the
pendency of an appeal.
(2) The CA has no authority to issue
IMMEDIATE EXECUTION PENDING
APPEAL OF ITS OWN DECISIONS
THEREIN.
(3) Discretionary execution is allowed
pending appeal of judgment or final
order of the trial court upon good
reasons to be stated in a special order.
A judgment of the CA cannot be executed
pending appeal. (Heirs of Justice JBL Reyes v.
CA, 2000)

Stay of Discretionary Execution

Discretionary execution may be stayed upon
approval by the proper court of a sufficient
supersedeas bond filed by the party against
whom it 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 [Rule 39,
Sec. 3]

Requisites for Discretionary Execution:

(1) There must be a motion filed by
prevailing party with notice to adverse
party
(2) There must be a hearing of the motion
for discretionary execution
(3) There must be good reasons to justify the
discretionary execution
(4) These good reasons must be stated in a
special order after due hearing

Bond may be proceeded against on motion

with notice to surety
General rule: The filing of a supersedeas
bond is sufficient to stay the enforcement of
a discretionary execution.

When Filed
The motion for discretionary execution shall
be filed with the trial court while
(1) it has jurisdiction over the case; and

Exception: However, the filing of the

supersedeas bond does not entitle the
judgment debtor to the suspension of
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execution as a matter of right. Where the

needs of the prevailing party are urgent, the
Court can order immediate execution despite
such supersedeas bond. [Regalado]

REMEDIAL LAW

C. HOW JUDGMENT IS EXECUTED

C. 1. EXECUTION BY MOTION OR
INDEPENDENT ACTION
[Rule 39, Sec. 6]

If judgment is reversed totally or partially, or

annulled
The trial court may, on motion, issue such
orders of restitution or reparation of
damages as equity and justice may warrant
under the circumstances

Modes of Enforcement of Execution:

Mode
When Enforced
Within 5 years from date of
By Motion
entry of judgment
After the lapse of 5 years
from date of entry and
By
before it is barred by statute
Independent
of limitations which is 10
Action
years from date of entry (Art.
1144(3))

Remedy against Discretionary Execution

The remedy is certiorari by Rule 65. The fact
that the losing party has also appealed from
the judgment does not bar certiorari
proceedings as the appeal could not be an
adequate remedy from such premature
execution. [Hererra]

Note: The revived judgment may be enforced

by motion within 5 years from date of its
entry and thereafter by action before it is
barred by statute of limitations.
Once the judgment is revived, the 10-year
prescriptive period commences to run from
the date of finality of the revived judgment
and not the original judgment. [PNB v.
Bondoc ]

C. 2. ISSUANCE AND CONTENTS OF A

WRIT OF EXECUTION
[Rule 39, Sec. 8]
Contents of the Writ of Execution
(1) Issued in the name of the Republic from
the court which granted the motion
(2) States the name of the court, case
number and title, dispositive part of
judgment or order
(3) Requiring the sheriff or other proper
officer to whom it is directed to enforce
the writ according to its terms
(a)
(4) In all cases, it shall also specifically state
the amount of interest, cost, damages,
rents, or profits due as well as the
principal obligation
Dispositive Portion as Subject of Execution
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General rule: The dispositive portion of the

decision is that part that becomes the subject
of execution

REMEDIAL LAW

General rule: The execution of final and

executory judgments may no longer be
contested and prevented, and no appeal
should lie therefrom.

Exceptions:
(1) Where there is ambiguity, the body of the
opinion may be referred to for purposes
of construing the judgment because the
dispositive part of a decision must find
support from decisions ratio decidendi
(2) Where extensive and explicit discussion
and settlement of the issue is found in
the body of the decision

Exceptions: Instances where errors may be

committed prejudicial to the rights of a party,
calling for correction by a higher court.
Examples of these instances are:
(1) when the writ varies the judgment;
(2) when there has been a change in the
situation of the parties rendering
execution inequitable;
(3) when execution is sought to be enforced
against 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;
(6) when it appears that the judgment has
already been satisfied;
(7) when it appears the writ has been
improvidently issued;
(8) when it appears that the writ is defective
in substance;
(9) when the writ is issued against the wrong
party;
(10) when the writ was issued without
authority.

Two Whom Issued

General rule: Only real parties in interest in
an action are bound by judgment rendered
therein and by the writs of execution
Exceptions: There are certain cases where the
writ may be issued against non-parties
(1) One who is privy to judgment debtor can
be reached by an order of execution and
writ of demolition (Vda. De Medina v.
Cruz)
(2) Issued against one who not being
originally a party to the case submits his
interest to the court for consideration in
the same case and invites adjudication
regarding said interest (Jose v. Blue)
(3) Where non-parties voluntarily signed the
compromise agreement or voluntarily
appeared before court (Rodriguez v.
Alikpala)
(4) Where the remedy of a person not a party
to the case which he did not avail of, was
to intervene in the case in question
involving rights over the same parcel of
land and said person in another case was
adjudged buyer in bad faith thereof
(Lising v. Plan)
(5) In an ejectment case, where 3rd party
derived his right of possession from
defendant particularly when such right
was acquired only after filing of
ejectment suit (Cordova v. Tornilla)

If motion to quash is denied, appeal from

said denial
An order granting the issuance of the writ is
not appealable, except where:
(1) The order varies the terms of the
judgment, or
(2) Where, being vague, the court renders
what is believed to be a wrong
interpretation

C. 3. RETURN OF WRIT OF EXECUTION

[Rule 39, Sec. 14]
Effectivity

Remedies against a Writ of Execution

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C. 5. EXECUTION OF JUDGMENTS FOR

MONEY

The writ shall continue to be in effect during

the period within which judgment may be
enforced by motion (5 years from entry of
judgment).

If the award is for payment of money,

execution is enforced by:
(1) Immediate payment on demand
(2) Satisfaction by levy
(3) Garnishment of debts and credits [Rule
39, Sec. 9]

Judgment Satisfied within 30 days

Writ of execution is returnable to the court
issuing it immediately after the judgment has
been satisfied in part or in full.
Judgment Not Satisfied within 30 days
Officer shall report to the court stating the
reason for non-satisfaction, and shall
continue to make a report every 30 days until
judgment is satisfied in full or the writ expires.

I. IMMEDIATE PAYMENT ON DEMAND

Procedure
(1) The officer shall demand from judgment
obligor the immediate payment of the
full amount stated in the writ and all
lawful fees

Form of Returns and Reports

The returns or periodic reports made by the
sheriff:
(1) shall set forth the whole of the
proceedings taken;
(2) shall be filed with the court; and
(3) shall have copies thereof furnished to the
parties.

(2) The judgment obligor shall pay the

amount of the judgment debt
(a) Payable in Cash, Certified bank check
payable to judgment obligee, or any
other form of payment acceptable to
judgment obligee
(i)
In no case shall sheriff demand
that any payment by check be
made payable to him
(ii)
Amount of judgment under
proper receipt directly to the
judgment
obligee
or
his
authorized representative if
present at time of payment

C. 4. ENTRY OF SATISFACTION OF
JUDGMENT
Satisfaction of Judgment is entered by the
clerk of court in the court docket and in the
execution book upon:
(1) Return of the writ of execution showing
full satisfaction of the judgment;
(2) Filing of an admission to the satisfaction,
executed and acknowledged in the same
manner as a conveyance of real property
by the judgment creditor or his lawyer; or
(3) Upon indorsement of such admission by
the judgment creditor or his attorney on
the face of the record of the judgment.
[Rule 39, Sec. 45]

(b) If judgment obligee or his

representative is present to receive
payment:
(i)
Judgment obligor shall delver
payment to executing sheriff
(ii)
Sheriff shall turn over the
amounts within the same day to
the clerk which issued the writ or
deposit the amounts to a
fiduciary account in the nearest
government depository bank of
the RTC of the locality
(3) The judgment obligor shall pay the
lawful fees handed over to the sheriff.
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Sheriff shall turn over the said amount

within the same day to the clerk that
issued the writ

REMEDIAL LAW

(a) The officer shall first levy on personal

properties, if any
(b) If personal properties are insufficient,
then on the real properties

(4) If there is any excess it shall be delivered

to the judgment obligor. Lawful fees
shall be retained by the clerk

(3) Sheriff shall sell only sufficient portion of

personal or real property of the judgment
obligor levied upon

II. SATISFACTION BY LEVY

(4) If there is more property than is sufficient
to satisfy judgment and lawful fees, then
sell only so much as is sufficient

Levy is the act whereby a sheriff sets apart or

appropriates for the purpose of satisfying the
command of the writ, a part or the whole of
the judgment debtors property.

III. GARNISHMENT OF DEBTS AND

CREDITS

Levy means the act or acts by which an

officer sets apart or appropriates a part or
the whole of the property of the judgment
debtor for purposes of the prospective
execution sale [Llenares v. Vandevella (1966)].

Garnishment is considered as a species of

attachment for reaching credits belonging to
the judgment debtor and owing to him from
a stranger to the litigation

If susceptible of appropriation, the officer

removes and takes the property for
safekeeping; otherwise the same is placed
under sheriffs guards. Without valid levy
having been made, any sale of the property
thereafter is void.

The Officer may levy on:

(1) Debts due the judgment obligor and
other credits,
(2) Including bank deposits, financial
interests, royalties, commissions,
(3) And other personal property not capable
of manual delivery in possession and
control of third parties

Conditions before resort to Satisfaction by

Levy
(1) If the judgment obligor cannot pay all or
part of the obligation then the officer
shall levy upon the properties of the
judgment obligor

The process of levying shall be called

garnishment if the property involved is
money, stocks, or other incorporeal property
in the hands of third persons. Garnishment
merely sets apart such funds but does not
constitute the creditor as owner of the
garnished property.

(2) Characteristics of properties to be levied

(a) Properties of every kind and nature
whatsoever
(b) Which may be disposed of for value
(c) Not otherwise exempt from execution

Garnishment is not a violation of RA 1405 on

the secrecy of bank deposits. [Chinabank v.
Ortega (1973)]

Procedure
(1) The judgment obligor have the option to
immediately choose which property or
part thereof may be levied upon,
sufficient to satisfy judgment

Notes: Upon service of the writ of

garnishment, the garnishee becomes a
virtual party or forced intervenor to the
case and the trial court thereby acquires
jurisdiction to bind the garnishee to comply
with its orders and processes. [BPI v. Lee
(2012)]

(2) If judgment obligor does not exercise the

option:
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(8) Lawful fees shall be paid directly to court

UPs funds, being government funds, are not
subject to garnishment. Moreover, The
execution of the monetary judgment against
the UP was within the primary jurisdiction of
the COA. [UP v. Dizon (2012)]

C. 6. EXECUTION OF JUDGMENTS FOR

SPECIFIC ACTS
[Rule 39, Sec. 10]
For Conveyance of Real of Land or Personal
Property
Judgment directs a party to:
(a) Execute a conveyance of land or
personal property;
(b) Deliver deeds or other documents; or
(c) Perform any other specific act in
connection therewith

Procedure
(1) Levy shall be made by serving notice
upon:
(a) The person owing such debts, or
(b) Having in his possession or control
such credits to which judgment
obligor is entitled
(2) Garnishment to cover only such amount
as will satisfy judgment and lawful fees

If the party fails to comply within the time

specified:
(1) Court may direct the act to be done at the
cost of the disobedient party by some
other person appointed by the court; or

(3) If there are 2 or more garnishees, holding

deposits or credits sufficient to satisfy
judgment, judgment obligor shall have
the right to indicate the garnishee/s who
shall be required to deliver. Otherwise,
the choice shall be made by judgment
obligee

(2) If the real or personal property directed

to be conveyed is situated in the
Philippines, court may by order divest the
title of any party and vest it in others,
which shall have the force and effect of
conveyance executed in due form.

(4) The garnishee shall make a written

report to the court within 5 days from
service of notice of garnishment. The
report shall state whether:
(a) Judgment obligor has sufficient
funds or credits to satisfy judgment,
OR
(b) Judgment obligor has insufficient
funds or credits to satisfy judgment

For Sale of real or personal property

An order for execution shall be issued
describing the property to be sold, and
directing the sheriff or other proper officer to
sell it, and apply the proceeds in conformity
with the judgment. [Rule 39, Secs. 8(b), 10]
For Delivery or Restitution of Real Property
The officer shall demand of the person
against whom the judgment is rendered and
all persons claiming rights under him to
peaceably vacate the property within three (3)
working days, and restore possession to the
judgment obligee.

(5) Garnish the amount which may be in

cash, or certified bank check issued in
the name of judgment obligee
(6) Garnished amount shall be delivered
directly to judgment obligee within 10
working days from service of notice on
said garnishee requiring such delivery

Otherwise, the officer shall oust all such

persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the

(7) Follow procedure under Immediate

Payment on Demand with respect to
delivery

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judgment obligee in possession of such

property.

(a) The party against whom the

judgment is rendered; or
(b) Any other person required by the
judgment or by the law to obey the
same.

Any costs, damages, rents or profits awarded

by the judgment shall be satisfied in the
same manner as a judgment for money.

(3) Failure of such party to obey is

punishable by contempt.

Removal of improvements on property subject

of execution
When the property subject of the execution
contains improvements constructed or
planted by the judgment obligor or his agent,
the officer shall not destroy, demolish or
remove said improvements except:
(1) upon special order of the court, issued
upon motion of the judgment obligee
after due hearing; and
(2) after the judgment obligor has failed to
remove these within a reasonable time
fixed by the court.

Examples
(1) A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital.
[Vital-Gozon v. CA (1992)]
(2) A judgment directing defendant to
remove a fence from a certain place is a
special judgment. [Marquez v. Marquez,
73 Phil. 74]

C. 8. EFFECT OF LEVY ON THIRD

PERSONS

Delivery of personal property

The officer shall take possession of the same
and forthwith deliver it to the party entitled
to it, and satisfy any judgment for money as
therein provided.

C. 7. EXECUTION
JUDGMENTS

OF

REMEDIAL LAW

The levy on execution shall create 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. [Rule 39, Sec. 12]

SPECIAL

Note: The power of the court in execution

extends only over properties unquestionably
belonging to the judgment debtor.

When Proper [Rule 39, Sec. 11]

A judgment requires performance of any
other act than payment of money or sale or
delivery of property.

D. PROPERTIES EXEMPT FROM

EXECUTION

Such judgment is one which can only be

complied with by the judgment obligor
because of his personal qualifications or
circumstances.

General rule: Except as otherwise expressly

provided by law, the following property, and
no other, shall be exempt from execution
(Rule 39, Sec. 13)
(1) The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;

Procedure
(1) A writ of execution shall be issued, with a
certified true copy of the judgment
attached.

(2) Ordinary
tools
and
implements
personally used by him in his trade,
employment, or livelihood;

(2) Writ shall be served by the officer upon:

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support, or any pension or gratuity from

the Government;

(3) Three horses, or three cows, or three

carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation;

(13) Properties specially exempted by law,

such as:
(a) property mortgaged to the DBP [CA
458, Sec. 26];
(b) savings of national prisoners
deposited with the postal savings
bank [Act 2489];
(c) benefits from private retirement
systems
of
companies
and
establishments with limitations [RA
4917];
(d) laborers wages except for debts
incurred for food, shelter, clothing
and medical attendance [Civil Code,
Art. 1708];
(e) benefit payments from SSS [RA 1161,
as amended; Sec. 16]

(4) His necessary clothing and articles for

ordinary personal use, excluding jewelry;
(5) 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 P 100,000.00;
(6) Provisions for individual or family use
sufficient for four (4) months;
(7) The professional libraries and equipment
of
judges,
lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors, clergymen, teachers, and
other professionals, not exceeding
P300,000.00 in value;

Exception: However, no article or species of

property mentioned in this section shall be
exempt from:
(1) Execution issued upon a judgment
recovered for its price, or
(2) Upon a judgment of foreclosure of a
mortgage thereon.

(8) One fishing boat and accessories not

exceeding the total value of one hundred
thousand pesos owned by a fisherman
and by the lawful use of which he earns
his livelihood;

The exemptions must be claimed, otherwise

they are deemed waived. It is not the duty of
the sheriff to set off the exceptions on his
own initiative. (Herrera v. Mcmicking, 1909)

(9) So much of the salaries, wages, or

earnings of the judgment obligor for his
personal services within the four (4)
months preceding the levy as are
necessary for the support of his family;

(10) Lettered gravestones;

(11) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
(12) The right to receive legal support, or
money or property obtained as such

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(2) If the claim is filed under Sec. 14, Rule 57

(Attachment) or under Sec. 7, Rule 60
(Replevin)
Claimant may vindicate his claim by
intervention as he has a legal interest
in the matter of litigation
Intervention is allowed as these
actions are still pending in court

E.
PROCEEDINGS
WHERE
PROPERTY CLAIMED BY THIRD
PERSONS
Rule 39, Sec. 16, and other provisions
providing a mode for recovering property
alleged to have been wrongfully taken by
sheriff pursuant to a writ of execution or
other process, refer to a stranger to an action.
[Tillson v. CA (1991)]

Effect of Third-Party Claim

When a third-party claim is filed, sheriff is not
bound to proceed with the levy of the
property unless judgment creditor or latters
agent posts an indemnity bond against the
claim.

Remedies of Third-Party Claimant

(1) Summary hearing before the court which
authorized the execution
(2) Terceria or third-party claim filed with
the sheriff (Rule 39, Sec. 16)
(3) Action for damages on the bond posted
by the judgment creditor
(4) Independent reivindicatory action

E. 1. SUMMARY HEARING BEFORE

COURT AUTHORIZING EXECUTION
A third-person whose property was seized by
a sheriff to answer for an obligation of a
judgment debtor may invoke the supervisory
power of the court which authorized such
execution

The aforementioned are cumulative remedies

and may be resorted to by a third-party
claimant independently of or separately from
and without need of availing of the others.
[Sy v. Discaya (1990)]

Procedure
(1) Claimant files application

For a Third-Party Claim to be Sufficient:

(1) Must be filed by a person other than the
defendant or his agent, at any time
before sale
(2) Must be under oath or supported by
affidavit stating the claimants title to, or
right of possession of, the property, and
grounds therefor
(3) Must be served upon the officer making
levy and a copy thereof upon the
judgment creditor

(2) Court conducts summary hearing

(a) The court may command that the
property be released from the
mistaken levy and restored to rightful
owner or possessor
(b) If claimants proofs do not persuade,
the claim will be denied by the court
The court determination is limited only to a
determination of whether the sheriff has
acted rightly or wrongly in performance of his
duties. The court does not and cannot pass
upon the question of title.

The timing of the filing of the claim is

important because it determines the
remedies available to the claimant:
(1) If the claim is filed under Rule 39, Sec. 16:
Claimant may vindicate his claim in a
separate action
Intervention is no longer allowed
since judgment has already been
rendered

E. 2. TERCERIA
Independent of the foregoing, a third-party
claimant may also avail of the remedy of
Terceria. Terceria is provided in Sec. 16, Rule
39.

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E. 3. REINVINDICATORY ACTION

This is an action for damages by claimant

against officer within 120 days from date of
filing of bond for taking or keeping the
property subject of the terceria

The aforesaid remedies are nevertheless

without prejudice to any proper action that
third-party claimant may file to vindicate his
claim over the property. This action is
separate and independent.

Procedure
(1) Claimant serves on the officer making
levy an affidavit of his title and a copy
thereof to judgment creditor

Procedure
(1) He must institute an action, distinct and
separate from that which the judgment is
being enforced, with the court of
competent jurisdiction
(2) No need to file a claim in the court which
issued a writ. The latter is not a condition
sine qua non for the former.
(3) In such proper action, validity and
sufficiency of title of claimant will be
resolved.
(4) A writ of preliminary injunction against
sheriff may be issued

(2) Officer shall not be bound to keep

property
Unless judgment creditor, or his
agent, on demand of officer, posts
indemnity bond not lesser nor
greater than value of property
(3) Where a third-party claim has been filed
in due form:
Prevailing party can compel the
sheriff to proceed by filing of a bond
to answer for damages as a
consequence of the execution
If sheriff proceeds with the sale
without such bond, he will be
personally liable for such damages
as may be sustained by and awarded
to the claimant

F. RULES ON REDEMPTION
When Available
(1) For personal property there is NO right
of redemption as the sale is absolute
(2) For real property right of redemption is
available

(4) Action against Indemnity

Action against indemnity bond must
be filed within 120 days from date of
filing of the bond
After lapse of 120 days, no claim for
damages for taking or keeping of
property may be enforced against the
bond

Who May Redeem

[Rule 39, Sec. 27]
(1) Judgment obligor, or his successor in
interest;
Successors-in-interest
include,
among others, one to whom the
debtor has conveyed his interest in
the property for purposes of
redemption

The right of a third-party claimant to file a

terceria is founded on his title or right of
possession. Corollary thereto, before the
court can exercise its supervisory power to
direct the release of the property mistakenly
levied and the restoration thereof to its
rightful owner, the claimant must first
unmistakably establish his ownership or right
of possession thereon. [Villasi v. Garcia
(2014)]

(2) A creditor having a lien by virtue of an

attachment, judgment or mortgage on
the property sold, subsequent to the lien
under which the property was sold.
Redeeming creditors are called
redemptioner.

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Unlike
a
judgment
obligor,
such
redemptioner must prove his right to redeem
by producing the ff. documents:
(1) The documents necessary to establish his
right to redeem:
(a) A copy of the judgment or final order
under which he claims the right to
redeem, certified by the clerk of the
court wherein judgment or final order
was entered;
(b) If he redeems upon a mortgage or
other lien, a memorandum of the
record thereof, certified by the
Register of Deeds; or
(c) An original or certified copy of any
assignment necessary to establish
his claim; and
(2) An affidavit executed by him or his agent
showing the amount then actually due on
the lien [Sec. 30]

REMEDIAL LAW

of sale to redeem the property. If judgment

debtor redeems, no further redemption is
allowed (Sec. 29).
NOTE: There is no extension or interruption
of redemption period.
Redemption Price
(1) By the Judgment Debtor or First
Redemptioner:
(a) Purchase PRICE
(b) 1% INTEREST thereon up to time of
redemption
(c) Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as
interest on such last named amount
at the same rate
(d) If purchaser is also a creditor having
a PRIOR LIEN to that of
redemptioner, other than the
judgment under which such purchase
was made, the AMOUNT of such
OTHER LIEN, also with interest

If the lien of the creditor is prior to the

judgment under which the property was sold:
(1) He is not a redemptioner
(2) He cannot redeem since his interests in
his lien are fully protected. Any purchaser
at a public auction takes the same
subject to such prior lien which he has to
satisfy

(2) By all Subsequent Redemptioners

(a) AMOUNT paid on last redemption
(b) 2% INTEREST thereon
(c) Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as
interest on such last named amount
at the same rate
(d) Amount of any LIENS held by said
last redemptioner prior to his own,
also with interest

When Redemption Can be Made (Rule 39, Sec.

28)
WHO
WHEN
By
the Within 1 year from date
JUDGMENT
of
registration
of
DEBTOR
certificate of sale
Within 1 year from date
By
FIRST
of
registration
of
REDEMPTIONER
certificate of sale
Within 60 days from
last redemption
BY
ALL
PROVIDED
that
SUBSEQUENT
judgment debtor has
REDEMPTIONERS
not exercised his right of
redemption

If redemption is made by the Judgment

Obligor
(1) No further redemption is allowed
(2) He is restored to his estate [Rule 39, Sec.
29]
When a judgment debtor redeems the
property, what is effected is the elimination
of the lien created by the levy on attachment
or judgment on the registration of mortgage
thereon. Note that he never lost ownership so
there is no recovery of ownership.

In all cases, judgment debtor shall have the

entire 1 year period from date of registration
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If there is no redemption made within

1 year from date of registration of the
certificate of sale
(2) Of Last Redemptioner
If there was redemption, and 60 days
have elapsed and no other
redemption has been made
Notice must have been given, and
the redemption period has elapsed

Payment of redemption price may be made

to the:
(1) Purchaser or redemptioner, or
(2) For him to the officer who made the sale
The person to whom redemption payment is
made must execute and deliver to him a
CERTIFICATE OF REDEMPTION
1. Acknowledged by a notary public or
other officer authorized to take
acknowledgements of conveyances
of real property
2. Filed and recorded in the registry of
deeds of the place which the property
is situated
3. Registrar must note the record on the
margin of the record of the certificate
of sale
4.
Rights Pending Redemption
[Rule 39, Secs. 31 and 32]
Right of Judgment Creditor Pending
Redemption
(1) Apply for injunction to restrain the
commission of waste on the property

Two Documents which the Sheriff Executes in

case of Real Property
(1) CERTIFICATE OF SALE
After auction sale, he will execute in
favor of the purchaser the certificate
of sale under Sec. 25
From registration of said certificate,
the one year redemption period
starts
Certificate of sale after execution sale
is merely a memorial of the fact of
sale and does not operate as
conveyance
(2) DEED OF CONVEYANCE
Issued if after expiration of
redemption period there is no
redemption
Operates to transfer to purchaser
whatever rights the judgment debtor
had in the property
The effect of a final deed of sale
transfers the right as of the time of
the levy

Rights of the Judgment Debtor Pending

Redemption
(1) Remain in possession of the property
(2) Cannot be ejected
(3) Use the property in the same manner it
was previously used
(4) Make necessary repairs to buildings
thereon while he occupies the property
(5) Use it in the ordinary course of husbandry
(Sec. 31); and
(6) Collect rents, earning and income
derived from property until the expiration
of period of redemption

Recovery of Purchase Price if Sale Not

Effective
[Rule 39, Sec. 34]
Purchaser may recover the purchase price
WHEN:
(1) Purchaser or his successor-in-interest
fails to recover possession the property;
or
(2) Evicted due to:
(a) Irregularities in the proceedings
concerning the sale;

Expiration of Redemption Period

[Rule 39, Sec. 33]
Judgment obligor shall have the entire
period of one year from date of registration of
sale to redeem the property.
Entitlement to Conveyance and Possession
(1) Of Purchaser at Auction Sale
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(b) Judgment has been reversed or set

aside;
(c) The property sold was exempt form
execution; or
(d) A third person has vindicated his
claim to the property

REMEDIAL LAW

(2) A judgment obligor may no longer be

examined after the lapse of the five years
within which a judgment may be
enforced by motion. [Umali v. Coquia
(1988)]
Order for payment
Installments
[Rule 39, Sec. 40]

Remedies of the Purchaser

(1) File a motion in the same action or file a
separate action to recover from judgment
creditor the price paid
(2) File a motion for revival of judgment in
his name against judgment debtor; or
(3) Bring an action to recover possession of
property

in

Fixed

Monthly

Upon finding that the earning of the

judgment debtor for his personal services are
more than necessary for the support of his
family, the court may order payment in fixed
monthly installments.
The court may also, upon failure of the
judgment obligor without good excuse to pay
any installment when due, punish him for
indirect contempt.

G. REMEDIES OF JUDGMENT
CREDITOR IF JUDGMENT NOT
SATISFIED
[Rule 39, Secs. 3643]

G.2 EXAMINATION OF OBLIGOR OF

JUDGMENT OBLIGOR

G. 1. EXAMINATION OF JUDGMENT
OBLIGOR

When Available
(1) At any time after return is made, when it
shows that judgment remains unsatisfied
in whole or in part; and
(2) Upon proof to the satisfaction of the
court which issued the writ, that a
natural person or juridical entity has
property of the judgment obligor or is
indebted to him

When Available
At any time after return is made, when it
shows that judgment remains unsatisfied in
whole or in part
Procedure
Judgment Obligee entitled to an order from
the court which rendered the judgment to
appear and be examined concerning his
property and income before the court or a
commissioner assigned by the court.

Procedure
Court may, by an order, require such natural
person, or any officer or member of such
juridical entity, to appear and be examined
before the court or a commissioner
concerning such property or debt.

Attendance may be compelled by order or

subpoena. Failure to obey such order or
subpoena, to answer as a witness, or to
subscribe his deposition may be punished for
contempt. [Rule 39, Sec. 38]

Attendance may be compelled by order or

subpoena. Failure to obey such order or
subpoena, to answer as a witness, or to
subscribe his deposition may be punished for
contempt. [Rule 39, Sec. 38]

Limitations
(1) No judgment obligor shall be required to
appear before a court or commissioner
outside the province or city in which such
obligor resides or is found. [Rule 39, Sec.
36]
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Effect
Service of order shall bind all credits due to
judgment debtor and all money and property
in the possession or control of such person,
from the time of service.

disposition or interference with the property.

[Rule 39, Sec. 41]
If court finds that the judgment obligor has
an interest in real estate in the place where
proceedings are had, and such interest may
be ascertained without controversy, the
receiver may be ordered to sell and convey
such interest in the same manner as in a sale
of real estate upon execution. [Rule 39, Sec.
42]

Note: This is not applicable if there is no issue

concerning the indebtedness of the and there
is no denial of the existence of the deposit
with the bank which is considered a credit in
favor of the depositor against the bank [PCIB
v. CA (year)]

H. EFFECT OF JUDGMENT OR FINAL

ORDERS

When Alleged Obligor Denies Debt or Claims

Property
When such person claims an interest in the
property adverse to the judgment obligor or
denies the debt, the court may issue an order
(1) authorizing the judgment creditor to
institute an action against such person
for the recovery of such interest or debt,
and
(2) forbidding transfer or disposition of such
interest or debt for 120 days.

G.3 OTHER REMEDIES

ORDER
FOR
APPLICATION
PROPERTY OR INCOME

REMEDIAL LAW

Immutability of Judgments
A judgment that has acquired finality
becomes immutable and unalterable, and
may no longer be modified in any respect,
even if the modification is meant to correct
erroneous conclusions of fact and law, and
whether it be made by the court that
rendered it or by the Highest Court of the
land. [PNB v. Spouses Maranon (2013)]
Rationale:
(1) to avoid delay in the administration of
justice, and procedurally to make orderly
the discharge of judicial business
(2) to put an end to judicial controversies at
the risk of occasional errors

OF

Court may order any property of judgment

debtor, or any money due him, nor exempt
from execution, in the hands of either himself
or another person, to be applied to the
satisfaction of judgment. [Rule 39, Sec. 40]

H.1 DUAL ASPECT OF RES JUDICATA

(1) Bar by Former Judgment the

After a writ of execution against property has

been issued, a person indebted to judgment
obligor may pay to the sheriff holding the
writ the amount of his debt, or so much
thereof as may be necessary to satisfy the
judgment. Sheriffs receipt shall be sufficient
discharge for the amount so paid. [Rule 39,
Sec. 39]

judgment or final order is a bar to the

prosecution of ta subsequent action
based on the same claim or cause of
action
o Described by Rule 39, Sec. 47, pars
(a) and (b)
o Also known as Estoppel by Verdict
(2) Conclusiveness of Judgment the
judgment or final order precludes the
relitigation of particular issues or facts on
a different demand or cause of action
o Described by Rule 39, Sec. 47,
paragraph (c)

APPOINTMENT OF RECEIVER
The court may appoint a receiver for the
property of judgment debtor not exempt
from execution, and
may also forbid

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o

CIVIL PROCEDURE

Also known as the Rule of Auter

Action Pendant

BAR BY FORMER
JUDGMENT
Requires identity
of
parties,
subject matter,
and causes of
action
Absolute Bar to:
(a) all matters
directly
adjudged; and
(b) those that
might have been
adjudged
Claim Preclusion

REMEDIAL LAW

otherwise provided by court. [Development

Bank v. CA]

Res Judicata in Judgments in Rem

CONCLUSIVENESS OF
JUDGMENT
There is only identity of
parties and subject
matter
Cause of action are
different

Judgments
order

or

final

Conclusive as to

Against a specific thing

Title of the thing

The
will
or
administration.
However,
the
probate of a will or
Probate of a will or
granting of letters
administration of the
of administration
estate of a deceased
shall only be prima
person
facie evidence of
the death of the
testator
or
intestate;
in respect to the
personal, political, or
Condition, status
legal condition or
or relationship of
status of a particular
the person,
person
or
his
relationship to another

Conclusive
as
to
matters
directly
adjudged and actually
litigated
Issue Preclusion

I. BAR BY FORMER JUDGMENT

The judgment or decree of a court of
competent jurisdiction on the merits
concludes the parties and their privies to the
litigation and constitutes a bar to a new
action or suit involving the same cause of
action either before the same or any other
tribunal. [Machoca v. Cariaga (1989)]

Res Judicata in Judgments in Personam

In other cases, the judgment or final order is,
with respect to the matter directly adjudged
or as to any other matter that could have
been missed in relation thereto, conclusive:
(1) Between the parties and
(2) 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 in the same capacity.

Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
General Rule: For res judicata to apply, trial
must be made on the merits of the case.

II. CONCLUSIVENESS OF JUDGMENT

Any right, fact or matter in issue directly
adjudicated or necessarily involved in the
determination of an action before a
competent court in which a judgment or
decree is rendered on the merits is
conclusively settled by the judgment therein
and cannot again be litigated between the
parties and their privies whether or not the
claim or demand, purpose or subject matter

Exception: Section 3, Rule 17 of ROC: If

plaintiff fails to appear at the time of the trial,
or to prosecute his action for an
unreasonable length of time, or to comply
with these rules or any order of the court, the
action may be dismissed upon motion of the
defendant or upon the court's own motion .
This dismissal shall have the effect of an
adjudication upon the merits, unless
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of the two suits is the same. [Machoca v.

Cariaga (1989)]

as
a
precedent in
subsequent
litigation
between
other parties

Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF ISSUES

Stare Decisis - When the SC has laid down a

principle of law applicable to a certain state
of facts, it will adhere to that principle and
apply to it all future cases where the facts are
substantially the same

PUBLIC POLICY PRINCIPLE

A judgment by a foreign court is enforceable
only within its territorial jurisdiction.
A valid judgment rendered by a foreign
tribunal may be recognized insofar as the
immediate parties the underlying cause of
action are concerned so long as it is
convincingly shown that:
(1) There has been an opportunity for a fair
hearing before a court of competent
jurisdiction
(2) Trial upon registered proceedings has
been conducted
(3) There is nothing to indicate either a
prejudice in court and in the system of
laws under which it is sitting or fraud in
procuring the judgment [Philippine
Aluminum v. Fasgi Enterprises (2000)]

Law of the Case - Whatever is once

irrevocably established as the controlling
legal rule or decision between the same
parties in the case continues to be the law of
the case whether correct on general
principles or not, so long as the facts on
which such decision was predicated continue
to be the facts of the case before the court.
As discussed in Ayala Corp. v. Rosa-Diana
Realty, 2000:
Law of the
Case
Operates only
in
the
particular and
single
case
where
the
ruling arises
and is not
carried into
other cases as
a precedent
The
ruling
adhered to in
the particular
case need not
be followed

will, generally,
be followed by
the same court
and
by
all
courts of lower
rank
in
subsequent
cases where the
same
legal
issue is raised

I. ENFORCEMENT AND EFFECT OF

FOREIGN JUDGMENT OR FINAL
ORDERS

H.2 RES JUDICATA, LAW OF THE CASE

AND STARE DECISIS

Res
Judicata
The ruling
in
one
case
is
carried
over
to
another
case
between
the same
parties

REMEDIAL LAW

Stare Decisis

Such limitation on the review of foreign

judgment is adopted in all legal systems to
avoid repetitive litigation on claims and
issues, prevent harassment of the parties and
avoid undue imposition on the courts.
This policy of preclusion rests on principles of
comity, utility and convenience of nations.

Once a point of
law has been
established by
the court, that
point of law

As a generally accepted principle of

international law, it is part of the law of the
Philippines by virtue of the Incorporation
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REMEDIAL LAW

VII.
PROVISIONAL
REMEDIES

Clause [Section 2, Article II of the 1987

Constitution] [Regalado]
Two Ways of Giving Effect to Foreign
Judgment:
(1) An ordinary action to enforce the foreign
judgment may be filed in court; or
(2) It may be pleaded in an Answer or a
Motion to Dismiss.

Nature of Provisional Remedies

Provisional remedies are writs and processes
available during the pendency of the action
which may be resorted to by a litigant for the
preservation or protection of their rights and
interests therein pending rendition, and for
purposes of the ultimate effects, of a final
judgment in the case; also known as ancillary
or auxiliary remedies.

EFFECT OF FOREIGN JUDGMENTS (Rule 39,

Sec. 48)
NATURE
EFFECT
In judgments
against
a Judgment is CONCLUSIVE
specific thing upon the title to the thing
(in rem)
Judgment is PRESUMPTIVE
In judgments
evidence of a right as
against
a
between parties and their
person
(in
successors-in-interest by a
personam)
subsequent title

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. [Calo v.
Roldan (1946)]
Orders granting or denying provisional
remedies are merely interlocutory and cannot
be the subject of an appeal. They may
however be challenged before a superior
court through a petition for certiorari under
Rule 65.

In both cases, judgment may be repelled by

evidence of:
(1) Want of jurisdiction
(2) Want of notice
(3) Collusion
(4) Fraud
(5) Clear mistake of law or fact

Kinds of Provisional Remedies

1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)

A foreign judgment is presumed to be valid

and binding in the country from which it
comes, until a contrary showing, on the basis
of a presumption of regularity of proceedings
and the giving of due notice in the foreign
forum.

Note: The enumeration above is not exclusive.

The court may invoke its equity jurisdiction
and order the appropriate reliefs during the
pendency of an action

Before our courts can give the effect of res

judicata to a foreign judgment, it must be
shown that the parties opposed to the
judgment had been given ample opportunity
to do so on grounds under Section 48 of Rule
39 of the Rules of Court. [Roehr v. Rodriguez
(2003)]

Jurisdiction over Provisional Remedies

The court which grants or issues a provisional
remedy is the court which has jurisdiction
over the main action.
Inferior courts may also grant all appropriate
provisional remedies in an action pending

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with it and is within its jurisdiction [Sec. 33 (1),

BP 129]

REMEDIAL LAW

(a) A public officer;

(b) An officer of a corporation;
(c) An attorney, factor, broker, agent, or
clerk, in the course of his
employment as such; or
(d) Any other person in a fiduciary
capacity, or for a willful violation of
duty;

A. PRELIMINARY ATTACHMENT
The provisional remedy in virtue of which a
plaintiff or other party may, at the
commencement of the action or at any time
thereafter, have the property of the adverse
party taken into the custody of the court as
security for the satisfaction of any judgment
that may be recovered. [Davao Light v CA
(1991)]

(3) Action to recover the possession of

property unjustly or fraudulently taken,
detained or converted,
(a) 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;

Purposes
(1) To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
(2) To enable the court to acquire jurisdiction
over the action by the actual or
constructive seizure of the property in
those instances where personal service of
summons on the creditor cannot be
effected. [PCIB v. Alejandro (year)]

Note: The rule makes no distinction

between real and personal property
[Riano]
(4) Action against a party who has been
guilty of a fraud in contracting the debt
or incurring the obligation upon which
the action is brought, OR in the
performance thereof;

A.1 GROUNDS FOR ISSUANCE

[Rule 57, Sec. 1]

Note: The delivery of counterfeit money

or knowingly issuing a bounced check are
considered as grounds under this rule
[Riano]

There are only specific situations where

preliminary attachment may issue. The
grounds are EXCLUSIVE:

(5) Action against a party who:

(a) has removed or disposed of his
property, or is about to do so,
(b) with intent to defraud his creditors

(1) Action for recovery of a specified amount

of money or damages, except moral and
exemplary,
(a) On a cause of action arising from law,
contract, quasi-contract, delict, or
quasi-delict
(b) Against a party who is:
(i) about to depart from the
Philippines
(ii) with intent to defraud his
creditors;

(6) Action against a party who:

(a) Does not reside and is not found in
the Philippines; or
(b) On whom summons may be served
by publication.
Note: The persons on whom summons
may be served by publication are:
(a) Residents defendants whose identity
or whose whereabouts are unknown
[Rule 14, Sec. 14]

(2) Action for money or property, embezzled

or fraudulently misapplied or converted
to his own use by either:
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(b) Resident defendants who are

temporarily out of the country [Rule
14, Sec. 16]

REMEDIAL LAW

(2) May be issued pursuant to a separate

motion for attachment whenever the writ
is not prayed for in the original complaint

Three Stages in the Grant

(1) The court issues the order granting the
application
(2) Writ of attachment issues pursuant to the
order granting the writ
(3) The writ is implemented

A.2 REQUISITES FOR ISSUANCE

(1) The case must be any of those where
preliminary attachment is proper (Sec. 1,
Rule 57)
(2) Applicant must file a motion, whether ex
parte or with notice and hearing
(3) Applicant must file an affidavit showing
the required facts
(4) Applicant must post a bond executed to
adverse party

Note: For the initial two stages, it is not

necessary that jurisdiction over person of
defendant be first obtained. However, once
implementation of writ commences, court
must have acquired jurisdiction over the
defendant for without such jurisdiction, the
court has no power or authority to act

A writ of preliminary attachment is too harsh

a provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules
require that for the writ to issue, there must
be a recitation of clear and concrete factual
circumstances manifesting that the debtor
practiced fraud upon the creditor at the time
of the execution of their agreement in that
said debtor had a preconceived plan or
intention not to pay the creditor. [Equitable v.
Special Steel (2012)]

Issuance of the Order

(1) The order may be issued either:
(a) Ex parte (service of summons to
defendant required)
(b) Or upon motion with notice and
hearing
(2) The order is issued by the court in which
the action is pending or the CA, or the SC
Contents of the Order
(1) It must require the sheriff to attach so
much of the property of the party against
whom it is issued as may be sufficient to
satisfy applicants demand
(a) Property must be within the
Philippines
(b) And it must not be exempt from
execution

A.3 ISSUANCE AND CONTENTS OF

ORDER OF ATTACHMENT
When Applied For
A preliminary attachment may be applied for
(1) At the commencement of the action; or
(2) At any time before the entry of judgment.
Who may apply
It may be applied for by the plaintiff or any
proper party (including a defendant who filed
a counterclaim, cross-claim, or a third party
complaint).

(2) It shall contain an amount for the

attachment bond:
(a) The amount sufficient to satisfy the
applicants demand, or
(b) The value of the property to be
attached as stated by applicant

Methods
to
Procure
Preliminary
Attachment
(1) Writ may be prayed for in the complaint
itself
providing
the
allegations
warranting its issuance

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A.3 AFFIDAVIT AND BOND

not be implemented until jurisdiction over

the person is acquired by service of summons.
Otherwise, the implementation is null and
void. [Riano]

[Rule 57, Sec. 3 and 4]

For the writ to issue, the applicant must
submit an affidavit and post bond. The
affidavit and bond required must be duly
filed with the clerk before order issues

Exceptions to Contemporaneous Service of

Summons: [Rule 57, Sec. 5]
(1) Summons could not be served personally
or by substituted service despite diligent
efforts, or
(2) Defendant is a resident of the Philippines
temporarily absent therefrom, or
(3) Defendant is a non-resident, or
(4) The action is in rem or quasi in rem.

Contents of the Affidavit

The affidavit must establish that:
(1) A sufficient cause of action exists;
(2) The case is one of those mentioned in Sec.
1 (Grounds for Issuance);
(3) There is no other sufficient security for
the claim sought to be enforced by
action; and
(4) The amount due to applicant or
possession of which he is entitled to
recover is as much as the sum for which
the order is granted above all legal
counterclaims

A.5
MANNER
PROPERTY

ATTACHING

The sheriff enforcing the writ shall attach

only so much of the property in the
Philippines of the adverse party not exempt
from execution as may be sufficient to satisfy
the applicants demand, unless
(1) Party against whom writ is issued makes
a deposit with the court from which the
writ is issued, or
(2) He gives a counter-bond executed to the
applicant

(2) Conditioned that, if the court shall finally

adjudge that applicant was not entitled
to the writ, the bond will pay:
(a) All costs which may be adjudged to
adverse party and
(b) All damages which he may sustain by
reason of attachment

Attachment of specific kinds of property

[Rule 57, Sec. 7]
(1) Real property, or growing crops thereon,
or any interest therein
(a) File with the Registry of Deeds:
(i) A copy of the order together with
a description of the property; and
(ii) A notice that the property is
attached
(b) The registrar of deeds must index
attachments in the names of the
applicant, adverse party, or person by
whom the property is held or in
whose name it stands in the records
(c) If attachment is not claimed on the
entire area of land, description
sufficiently accurate for identification

The bond shall only be applied to all

damages sustained due to the attachment. It
cannot answer for those that do not arise by
reason of the attachment [Riano].

PRIOR
SERVICE

OF

[Rule 57, Sec. 5]

Applicants Bond
The party applying for the order must give a
bond executed to the adverse party
(1) Amount is fixed by the court in its order
granting the issuance of the writ

A.4
RULE
ON
CONTEMPORANEOUS
SUMMONS

REMEDIAL LAW

OR
OF

General Rule: A writ of attachment may be

issued ex parte even before the summons is
served upon the defendant but a writ may
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of such shall be included in the

registration

REMEDIAL LAW

Attachment of property in custodia legis

These may be attached by:
(1) Filing a copy of the writ of attachment
with the proper court or quasi-judicial
agency
(2) Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec.
7]

(2) Personal property capable of manual

delivery
(a) Sheriff Issues a corresponding receipt
therefor
(b) Sheriff takes it and safely keeps it in
his custody
(3) Stocks or Shares, or an Interest therein,
of any corporation or company
(a) Leave a copy of the writ and a notice
stating that these properties are
attached in pursuance of such writ
(b) Leave these documents with the
president, or managing agent thereof

A previously attached property may also be

subsequently attached. But the first
attachment shall have priority over
subsequent attachments. [Riano]

A.6 PROCEEDINGS WHERE ATTACHED

PROPERTY IS CLAIMED BY THIRD
PERSON

(4) Debts, credits, bank deposits, financial

interest, royalties, commissions and
other personal property not capable of
manual delivery
(a) Leave a copy of the writ and a notice
that the debts owing, credits, and
other personal property are attached
in pursuance of such writ
(b) Leave these documents with:
(i) The person owing such debts, or
(ii) Having in his possession or under
his control, such credits or other
personal property, or
(iii) With his agent

A third person who has a claim to the

property attached may avail of the following
remedies:
(1) File terceria or third-party claim (Rule 57,
Sec. 14)
o A third-party claim may be filed with
the sheriff while he has possession of
the properties levied upon, this being
the only time fixed for the purpose
o The claimant makes an affidavit of
his title or right to possession, stating
the grounds of such right or title. The
affidavit must be served upon the
sheriff
o Substantial identical procedure as in
terceria in Rule 39, Sec. 16

(5) The interest of the party against whom

attachment is issued in property
belonging to the estate of decedent,
whether as heir, legatee, or devisee
(a) By service of a copy of the writ, and
notice that said interest is attached
(b) Service is made to:
(i) The executor, or administrator, or
(ii) Other personal representative of
the decedent
(c) Copy of the writ and notice:
(i) Shall be filed with the clerk in
which said estate is being settled,
and
(ii) Served upon the heir, legatee, or
devisee concerned

(2) File independent

property; or

action

to recover

(3) File motion for intervention

o Available only before judgment is
rendered

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REMEDIAL LAW

Effect of Dissolution on Plaintiffs

Attachment Bond
(1) Dissolution of preliminary attachment
upon security given, or a showing if its
irregular issuance, does not operate to
discharge the sureties on the attachment
bond
(2) That bond is executed to adverse party
conditioned that the applicant will pay
all the costs which may be adjudged to
adverse party and all damages which he
may sustain by reason of the attachment,
if the court shall finally adjudge that
applicant was not entitled thereto (Sec.
4)
(3) Until that determination is made, as to
applicants entitlement to attachment,
his bond must stand and cannot be
withdrawn

A.7 DISCHARGE OF ATTACHMENT AND

COUNTER-BOND
After a writ of attachment has been enforced,
the party whose property has been attached,
or the person appearing on his behalf, may
move for the discharge of the attachment
wholly or in part on the security given.

Ways of Discharging Attachment

(1) Counterbond under Sec. 12
(2) Motion for Discharge under Sec. 13
Grounds for Discharge
(1) Debtor has posted a counterbond or has
made the requisite cash deposit (Sec. 12)
(2) Attachment was improperly or irregularly
issued (Sec. 13)
(a) As where there was no ground for
attachment, or
(b) The affidavit and/or bond filed are
defective or insufficient (Sec. 3)
(3) Judgment is rendered against attaching
creditor (Sec. 19)
(4) Attachment is excessive, but the
discharge shall be limited to the excess
(Sec. 13)
(5) Property attached is exempt from
execution

A.8 SATISFACTION OF JUDGMENT OUT

OF PROPERTY ATTACHED
[Rule 57, Sec. 15]

Procedure
(1) Pay to judgment obligee the proceeds of
sale of perishable property
(2) If there is any balance that remains due,
sell property as may be necessary to
satisfy the balance if enough remains in
the sheriff or those of the clerk
(3) Collection of property of garnishee and
proceeds paid to judgment oblige
without need of prior permission to file
action but may be enforced in the same
action
(4) Return must be made within 10 days
from receipt of writ

Note: There is a difference between the bond

for issuance of writ and bond for lifting the
writ
(1) Bond for issuance of writ (Sec. 4) This is
for damages by reason of the issuance of
the writ
(2) Bond for lifting of writ (Sec. 5 and 12)
This is to secure the payment of the
judgment to be recovered
Only the defendant or party whose property
is attached may move for its lifting. If the
attachment is proper, the discharge should
be by counterbond under Sec. 12 (KO Glass v.
Valenzuela)

B. PRELIMINARY INJUNCTION
B.1 DEFINITIONS AND DIFFERENCES
Injunction is a judicial writ, process, or
proceeding whereby a party is ordered to do
or refrain from doing a particular act

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Preliminary Injunction is an ancillary or

preventive remedy where a court requires a
person, a party or even a court or tribunal
either to refrain from (prohibitory), or to
perform (mandatory), particular acts during
the pendency of an action. It is only a
temporary remedy.
Injunction as Main
Action

REMEDIAL LAW

essential, but the affected party neither

sought such relief nor did the allegations in
his pleading sufficiently make out a case for a
temporary restraining order.
It does NOT direct the doing or undoing of
acts but is an order to maintain the last,
actual, peaceable and uncontested state of
things which preceded the controversy.

Preliminary Injunction

Ancillary; exists only as

part or incident of an
independent action or
proceeding
Seeks a judgment Seeks to preserve the
embodying a final status quo until the
injunction
merits can be heard
Assailed by timely Assailed by petition for
appeal
certiorari

B.2 REQUISITES

Independent
Action

(1) There must be a verified application

(2) The applicant must establish:
(a) The existence of a clear and
unmistakable right that must be
protected;
(b) A material and substantial invasion
of such right; and
(c) An urgent and paramount necessity
for the writ to prevent serious
damage
(3) The applicant must post a bond, unless
otherwise exempted by the court
(4) As to a writ of preliminary injunction,
there must be notice and hearing

Purpose
To prevent future injury and maintain the
status quo (i.e. the last actual, peaceable,
uncontested status which preceded the
pending controversy) for [Knecht v. CA,
(1993)]
The injunction should not establish new
relations between the parties but merely reestablish the pre-existing relationship
between them.

B.3 KINDS OF INJUNCTION

(1) Preliminary Preventive Injunction
Prohibits the performance of a particular
act or acts
(2) Preliminary Mandatory Injunction
Requires the performance of a particular
act or acts. This is an extreme remedy
which will be granted only on showing
that:
(a) The invasion of the right is material
and substantial
(b) Right of complainant is clear and
unmistakable
(c) There is an urgent and paramount
necessity
PRELIMINARY
PRELIMINARY
PROHIBITORY
MANDATORY
INJUNCTION
INJUNCTION
Purpose
is
to
prevent a person Purpose is to require
from
the a person to perform
performance of a a particular act
particular act

Temporary Restraining Order

A TRO is issued in order to preserve the
status quo until the hearing of the
application for preliminary injunction.
[Bacolod City Water v. Labayen (2004)]
An application for a TRO shall be acted upon
only after all parties are heard in a summary
hearing, which shall be conducted within 24
hours after the sheriff's return of service
and/or the records are received by the
branch selected by raffle. [Rule 58, Sec.4]

Status Quo Order

A status quo order is in the nature of a cease
and desist order. It is resorted to when the
projected proceedings in the case made the
conservation of the status quo desirable or
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B.4 ISSUANCE OF WRIT

When: It may be issued at any stage prior to
the judgment or final order

The act has already

The act had not yet been performed and
been performed
this act has violated
the rights of another
Status
Quo
is Status
Quo
is
preserved
restored

By Whom: It may be granted by the court

where the action or proceeding is pending. If
the action or proceeding is pending in the
Court of Appeals or in the Supreme Court, it
may be issued by said court or any member
thereof. [Rule 58, Sec. 2]

When preventive injunction does not lie;

examples:
(1) To restrain collection of taxes [Valley
Trading v. CA](1989), except where there
are special circumstances that bear the
existence of irreparable injury. [Churchill
& Tait v. Rafferty (1915)]
(2) To restrain the sale of conjugal
properties where the claim can be
annotated on the title as a lien, such as
the husbands obligation to give support.
[Saavedra v. Estrada (1931)]
(3) To restrain a mayor proclaimed as duly
elected from assuming his office. [Cereno
v. Dictado (1988)]
(4) To restrain registered owners of the
property from selling, disposing and
encumbering their property just because
the respondents had executed Deeds of
Assignment in favor of petitioner. [Tayag
v. Lacson (2004)]
(5) Against consummated acts. [PNB v. Adi
(1982); Rivera v. Florendo (1986); Ramos,
Sr. v. CA (1989)]

B.5 GROUNDS FOR ISSUANCE OF

PRELIMINARY INJUNCTION
[Rule 58, Sec. 3]
Preliminary injunction may be granted when
it is established:
(1) That applicant is entitled to the relief
demanded, which consists in whole or in
part in restraining commission or
continuance of an act, or in requiring the
performance of an act, either for a
limited time or perpetually;
(2) That commission, continuance, or nonperformance of the act complained of
during the litigation would probably work
injustice to applicant; or
(3) That a party, court, agency or a person is
doing, threatening, or is attempting to do,
or is procuring or suffering to be done,
some act or acts probably in violation of
the rights of the applicant respecting the
subject of the action or proceeding, and
tending to render the judgment
ineffectual

When mandatory injunction does not lie;

examples
(1) To compel cohabitation [Arroyo v.
Vasquez (1921)]
(2) Cancellation of attachment [Levy
Hermanos v. Lacson (1940)]
(3) Release imported goods pending hearing
before the Commissioner of Customs.
[Commissioner of Customs v. Cloribel
(1967)]
(4) To take property out of the possession or
control of one party and place it into that
of another whose title has not clearly
been established [Pio v. Marcos (1974)]

B.6 GROUNDS FOR OBJECTION, OR

MOTION FOR DISSOLUTION
[Rule 58, Sec. 6]
The application for injunction or restraining
order may be denied:
(1) Upon a showing of its insufficiency.
o Application is not verified
o Application is not supported by the
grounds in Sec. 3
o Application does not show facts
entitling the applicant to the relief
demanded
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Procedure for Issuance of TRO

(1) If it appears that great or irreparable
injury would result to the applicant
before the matter can be heard on notice:
(a) Summary hearing on the application
of the TRO within 24 hours after
sheriffs return of service and/or
records are received by the branch
selected by raffle
(b) The court may issue a TRO effective
for 20 days from service on the party
sought to be enjoined

o Application is not supported by the

required bond
(2) On other grounds upon affidavits of the
party enjoined, which may be opposed by
the applicant also by affidavits
(3) If it appears after hearing that, although
applicant is entitled to injunction or TRO,
the issuance or continuance thereof,
would cause irreparable damage to party
enjoined while applicant can be fully
compensated for such damages as he
may suffer. In this case, the party
enjoined shall file a bond
o Amount: Fixed by Court
o Undertaking That he will pay all
damages which the applicant may
suffer by denial or dissolution of the
injunction or TRO

Within the 20 day period:

o The applicant must show cause why
injunction should not be granted
o The court will determine WON the
preliminary injunction shall be
granted. If granted, the court will
issue the corresponding order

If it appears that the extent of the preliminary

injunction or restraining order granted is too
great, it may be modified.

(2) If the matter is of extreme urgency and

the applicant will suffer grave injustice
and irreparable injury
(a) A TRO may be issued ex parte (after
raffling of case) ordered by the
Executive judge of a multiple sala
court or the presiding judge of a
single-sala court
(b) Effective for 72 hours from issuance
(i) The applicant must then
immediately comply with Sec. 4
as to service of summons and
documents
(ii) The Executive Judge shall then
summon the parties to a
conference and raffle the case in
their presence

B.7 TEMPORARY RESTRAINING ORDER

General Rule: Before preliminary injunction
may be granted, there must be prior notice to
person sought to be enjoined and there must
be a hearing
Procedure: When an application for a writ of
preliminary injunction or TRO is included in a
complaint or initiatory pleading, the case, if
filed in a multiple-sala, shall proceed as
follows:
(1) Verified complaint and bond is filed
(2) Determine if there is great or irreparable
injury or extreme urgency, which
warrants the issuance of a TRO
o If yes, go to Procedure for Issuance of
TRO
(3) In both cases, Notice shall then be served
to the party sought to be enjoined. There
must be prior and contemporaneous
service of summons (exceptions also
apply)

Within the 72-hr period

o The Presiding Judge before whom
the case is pending shall conduct a
summary hearing to determine
whether the TRO shall be extended
until application for preliminary
injunction can be heard
o In no case shall the total period of
effectivity of the TRO exceed 20 days,
including the original 72 hours
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Effectivity of TRO
o Effectivity is not extendible. No court
shall have authority to extend or renew
the same on the ground for which it was
issued
o If issued by the CA effective for 60
days from service
o If issued by SC effective until further
orders
TRO ISSUED BY
EXECUTIVE JUDGE
(MULTI-SALA) OR
ORDINARY JUDGE
(SINGLE-SALA)
Matter is of extreme
urgency and that
grave injustice and
irreparable
injury
will arise unless
immediately issued

REMEDIAL LAW

(2) Bidding or awarding of contract/ project

of the national government as defined
under Section 2 hereof;
(3) Commencement prosecution, execution,
implementation, operation of any such
contract or project;
(4) Termination or rescission of any such
contract/project; and
(5) The undertaking or authorization of any
other lawful activity necessary for such
contract/project.

TRO ISSUED BY
ORDINARY JUDGE

This prohibition shall apply in all cases,

disputes or controversies instituted by a
private party, including but not limited to
cases filed by bidders or those claiming to
have rights through such bidders involving
such contract/project.

If it appears that
great or irreparable
injury would result

This prohibition shall not apply when the

matter is of extreme urgency involving a
constitutional issue, such that unless a
temporary restraining order is issued, grave
injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to
be fixed by the court, which bond shall
accrue in favor of the government if the court
should finally decide that the applicant was
not entitled to the relief sought.

A summary hearing
May be issued ex
must be done before
parte
issuance
Good for 20 days
Good for 72 hours
including first 72
hours
Issued
before
Issued after raffling
raffling
Issued
after
Issued ex parte
summary hearing
Upon the expiration of the non-extendible
period, the TRO is automatically terminated.
No judicial declaration necessary.

Any TRO, preliminary injunction, or

preliminary mandatory injunction issued in
violation of Sec. 3 is void and of no force and
effect. [Sec 4]

B.8 IN RELATION TO RA 8975

B.19
RULE
ON
CONTEMPORANEOUS
SUMMONS

Sec. 3, RA 8975: No court, except the

Supreme Court, shall issue any TRO,
preliminary injunction or preliminary
mandatory
injunction
against
the
government, or any of its subdivisions,
officials or any person or entity, whether
public or private acting under the
government direction, to restrain, prohibit or
compel the following acts:
(1) Acquisition, clearance and development
of the right-of-way and/or site or location
of any national government project

PRIOR
SERVICE

OR
OF

When an application for a writ of preliminary

injunction or a temporary restraining order is
included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and
in the presence of the adverse party or the
person to be enjoined. In any event, such
notice
shall
be
preceded,
or
contemporaneously accompanied, by service
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of summons, together with a copy of the

complaint or initiatory pleading and the
applicant's affidavit and bond, upon the
adverse party in the Philippines.

main action, during the pendency of an

appeal or as an aid in the execution of a
judgment when the writ of execution has
been returned unsatisfied.

Exception:
Where the summons could not be served
personally or by substituted service despite
diligent efforts, or the adverse party is a
resident of the Philippines temporarily
absent therefrom or is a nonresident thereof,
the requirement of prior or contemporaneous
service of summons shall not apply. [Rule 58,
Sec.4] The executive judge of a multiple-sala
court or the presiding judge of a single sala
court may issue ex parte a TRO effective for
only 72 hours from issuance if the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury.
However, he shall immediately comply with
the provisions of Rule 38, Sec. 4 as to service
of summons and the documents to be served
therewith. [Rule 38, Sec. 5]

The receivership under Rule 59 is directed to

the property which is the subject of the action
and does not refer to the receivership
authorized under banking laws and other
rules or laws. Rule 59 presupposes that there
is an action and that the property subject of
the action requires its preservation.
Receivership under Rule 59 is ancillary to the
main action. [Riano]

B.10 GRANT OF FINAL INJUNCTION

[Rule 59, Sec. 1]

If after the trial of the action it appears that

the applicant is entitled to have the act or
acts complained of permanently enjoined,
the court shall grant a final injunction
perpetually restraining the party or person
enjoined
from
the
commission
or
continuance of the act or acts or confirming
the preliminary mandatory injunction. (Rule
58, Sec. 9)

(1) When it appears from the verified

application and other proof that the
applicant has an interest in the property
or fund which is the subject of the action
or proceeding, and that such property or
fund is in danger of being lost, removed,
or materially injured unless a receiver be
appointed to administer and preserve it;

The guiding principle is the prevention of

imminent danger to the property. If an action
by its nature, does not require such
protection or preservation, said remedy
cannot be applied for and granted.
(Commodities Storage v. CA, 1997)

C.1 CASES WHEN RECEIVER MAY BE

APPOINTED

Receiver A person appointed by the court

in behalf of all the parties to the action for
the purpose of preserving and conserving the
property in litigation and prevent its possible
destruction or dissipation if it were left in the
possession of any of the parties.

(2) When it appears in an action by the

mortgagee for the foreclosure of a
mortgage that 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 the parties have
so stipulated in the contract of mortgage;

Purpose
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights
of the parties during the pendency of the

(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 the execution

C. RECEIVERSHIP

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C.2 REQUISITES;
BEFORE ISSUANCE
Procedure

has been returned unsatisfied or the

judgment obligor refuses to apply his
property in satisfaction of the judgment,
or otherwise to carry the judgment into
effect;

REMEDIAL LAW

REQUIREMENTS

(1) Verified application filed by the party

requesting for the appointment of the
receiver;
(2) Applicant must have an interest in the
property or funds subject of the action;
(3) Applicant must show that the property or
funds is in danger of being lost, wasted,
or dissipated;
(4) Application must be with notice and
must be set for hearing;
(5) Before appointing a receiver, the court
shall require applicant to post a bond in
favor of the adverse party.
(6) Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully and shall file a bond.

(4) Whenever in other cases it appears that

the appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation.

Specific Cases
(1) If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
spouse may petition the court for
receivership. [Family Code, Article 101]
(2) The court may appoint a receiver of the
property of the judgment obligor; and it
may also forbid a transfer or other
disposition of, or any interference with,
the property of the judgment obligor not
exempt from execution. [Rule 39, Sec. 41]
(3) After the perfection of an appeal, the trial
court retains jurisdiction to appoint a
receiver of the property under litigation
since this matter does not touch upon the
subject of the appeal. [Rule 41, Sec. 9;
Acua v. Caluag (1957)]
(4) After final judgment, a receiver may be
appointed as an aid to the execution of
judgment. [Philippine Trust Company v.
Santamaria (1929)]
(5) Appointment of a receiver over the
property in custodia legis may be allowed
when it is justified by special
circumstances, as when it is reasonably
necessary to secure and protect the
rights of the real owner. [Dolar v.
Sundiam (1971)]

Who Appoints Receiver

(1) Court where the action is pending
(2) CA
(3) SC
(4) During the pendency of an appeal, the
appellate court may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin.
[Rule 59, Sec. 1]
Receivership may be denied or lifted
(1) If the appointment was sought or
granted without sufficient cause (Sec. 3)
(2) Adverse party files a sufficient bond to
answer for damages (Sec. 3)
(3) Bond posted by applicant for grant of
receivership is insufficient (Sec. 5)
(4) Bond of the receiver is insufficient (Sec.
5)

C.3 THE RECEIVER

Who May Be Appointed
The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas,
1963)
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C.4 TWO KINDS OF BOND

Applicants Bond

A clerk of court should not be appointed as a

receiver as he is already burdened with his
official duties. (Arigo v. Kayanan, 1983)

Applicant must file a bond executed to the

party against whom the application is
presented
o Amount: to be fixed by the court
o Undertaking: applicant will pay such party
all damages he may sustain by reason of
the appointment, in case the applicant
shall have procured such without
sufficient cause

Powers of a Receiver
(1) Bring and defend in such capacity actions
in his own name with leave of court
(2) Take and keep possession of the property
in controversy
(3) Receive rents
(4) Collect debts due to himself as receiver
or to the fund, property, estate, person,
or corporation of which he is the receiver
(5) Compound for and compromise the same
(6) Make transfers
(7) Pay outstanding debts
(8) Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
(9) Generally, to do such acts respecting the
property as the court may authorize
(10) Invest funds in his hands, only by order of
the court upon the written consent of all
the parties. [Rule 59, Sec. 6]

The court may require additional bond after

appointment in the exercise of its discretion
as further security for such damages (Rule 59,
Sec. 2)

Receivers Bond
As a precondition before entering into his
duties, receiver must file a bond.
o Executed to the person against whom the
application is presented
o Amount: in such sum as the court may
direct.
o Undertaking: To the effect that he will
faithfully discharge his duties and obey
the orders of the court (Rule 59, Sec. 4)

Liability for refusal or neglect to deliver

property to receiver
(1) May be punished for contempt; and
(2) Shall be liable to the receiver for the
money or the value of the property and
other things so refused or neglected to
be surrendered together with all
damages that may have been sustained
by the party or parties entitled thereto as
a consequence of such refusal or neglect.
[Rule 59, Sec. 7]

DAMAGES
DAMAGES ARISING
RESULTING FROM AFTER
APPOINTMENT
APPOINTMENT
Damages
which
arise
due
to
Damages resulting
receivers
from appointment
negligence
or
mismanagement
The right rests on
The right is statutory general principles of
law
The damages may
Liability rests on the
be caused before the
mismanagement or
receiver qualifies or
negligence
of
takes possession of
receiver
the property
The applicants bond The receivers bond
is responsible
is responsible

Remedies Against the Receiver

(1) No action against receiver can be
maintained without leave of court
(2) An aggrieved party may:
(a) Take the matter into the court which
appointed the receiver and ask either
for an accounting or take some other
proceeding, and ask for consequent
judgment on the acts complained of; or
(b) Ask for leave of court to bring him an
action directly
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C.5 TERMINATION

REPLEVIN

Ground: The necessity for a receiver no

longer exists

The purpose is to
recover personal
property capable
of manual delivery
from
the
defendant

Procedure
(1) The court shall determine that the
necessity for a receiver no longer exists
o Motu proprio, or on motion of either
party
(2) Due notice shall be given to all interested
parties
(3) A hearing shall be conducted
(4) The court shall then settle the accounts
of the receiver
(5) The court directs delivery of the funds
and other property in his possession to
the person adjudged to be entitled to
receive them
(6) The court will then order the discharge of
the receiver

The
property
either belongs to
the plaintiff or one
over which the
plaintiff has a
right of possession
May be sought
only when the
principal action is
for the recovery of
personal property
Can be sought
only
when
defendant is in
actual
or
constructive
possession of the
property
Cannot be availed
of when property
is in custodia legis

Effect
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver
entitled
to
reasonable
compensation to be taxed as costs
against defeated party

REMEDIAL LAW
PRELIMINARY
ATTACHMENT
The purpose is to have
the property put in the
custody of the court to
secure the satisfaction
of the judgment that
may be rendered in
favor of the plaintiff at
some future time
The property does not
belong to the plaintiff
but to the defendant
Available
even
if
recovery of property is
only incidental to the
relief sought
May be resorted to even
if
property
is
in
possession of a third
person

Can be availed of even

if property is in custodia
legis
Available
from
Available before
commencement
but
defendant
before
entry
of
answers
judgment
Bond is double the
Bond is fixed by the
value
of
the
court
property
Extends only to
Extends to all kinds of
personal property
property whether real,
capable of manual
personal, or incorporeal
delivery
Attachment to recover
Available
to possession of personal
recover personal property
unjustly
property even if detained presupposes
the same is not that the same is being
being concealed, concealed, removed, or
removed,
or disposed of to prevent
disposed of
its being found or taken
by the applicant

D. REPLEVIN
Replevin is the provisional remedy seeking
for the possession of the property prior to the
determination of the main action for replevin.
Replevin may also be a main action with the
ultimate goal of recovering personal property
capable of manual delivery wrongfully
detained by a person. In this sense, it is a suit
in itself

Note: There can be no replevin and

preliminary attachment in the same case
because the purposes are different.
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(1) In Rule 57, it is for security

(2) In Rule 60, it is for recovery of possession

(2)
(3)
(4)
(5)

D.1 WHEN WRIT MAY BE ISSUED

The provisional remedy of replevin is
available where the principal purpose of the
action is to recover the possession of
personal property.

When Applied For

A writ of replevin must be applied for:
(1) At the commencement of the action, or
(2) At any time before defendant files his
answer

REMEDIAL LAW

Application must contain an affidavit

Applicant must file a bond
Approval of the bond by the court
Court shall then issue an order and the
writ of replevin:
(a) It must describe the personal
property alleged to be wrongfully
detained
(b) Requiring the sheriff to take such
property into his custody

NOTE: The writ of replevin may be served

anywhere in the Philippines.

Note: There can be no replevin before the

appellate courts

D.3
AFFIDAVIT
REDELIVERY BOND

AND

BOND;

Who May Avail

(1) Plaintiff where the complaint prays for
recovery of possession of personal
property
(2) Defendant where a counterclaim was
set out in the answer for recovery of
personal property

Contents of the Affidavit

The affidavit shall:
(1) Particularly describe the property

It is available to any other party asserting

affirmative allegations praying for the
recovery of personal property unjustly
detained.

(3) State that the property is wrongfully

detained by adverse party, allege the
cause of detention according to his best
knowledge, information, belief

D.2 REQUISITES

(4) State either

(a) That the property has not been :
(i) Distrained,
(ii) Taken for a tax assessment,
(iii) Taken as a fine pursuant to law,
(iv) Seized under a writ of execution
or preliminary attachment, or
(v) otherwise under custodia legis
(b) That, if the property is so taken, it is
exempt from such seizure or custody.

(2) State that the applicant is:

(a) the owner of the property claimed; or
(b) entitled to possession

(1) Applicant is owner of the property

claimed or is entitled to possession
(2) Property is wrongfully detained by the
adverse party
(3) Property is not distrained or taken for tax
assessment or fine pursuant to law, or
seized (if seized, that the property is
exempt)
(4) Principal purpose of the action is to
recover possession of personal property

(5) State the actual value of the property

subject of replevin and not just its
probable value.

Procedure
[Rule 60, Sec. 2 and 3]
(1) An application is filed at the
commencement of the action or at any
time before answer of defendant

Applicants Bond
(1) Executed to the adverse party
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(2) Amount is DOUBLE the value of the

property stated in the affidavit
(3) Conditions of the Bond:
(a) The return to of property to adverse
party, if such return be adjudged, and
(b) The payment to adverse party of such
sum as he may recover from the
applicant in the action

(3) After taking possession:

(a) Keep the property in a secure place
(b) He shall be responsible for delivery to
party entitled
Unlike a preliminary attachment and
preliminary injunction, the rule on prior or
contemporaneous jurisdiction is not provided
for in replevin.

Return of Property [Sec. 5]

If the adverse party does not object to the
sufficiency of the bond, he may require the
return of the property
When: At any time before delivery to
applicant
How: By filing a redelivery bond

However, the rule requires that upon such

order, the sheriff must serve a copy on the
adverse party together with the required
documents.
A sheriffs prerogative does not give him the
liberty to determine who among the parties is
entitled to possession.

Redelivery Bond
This is executed to the applicant and filed
where the action is pending
o Amount: double the value of the property
as stated in the affidavit of the applicant
o Undertaking:
(a) The delivery thereof to the applicant,
if such delivery be adjudged, and
(b) The payment of such sum to him as
may be recovered against the
adverse party

D.4
SHERIFFS
IMPLEMENTATION

DUTY

REMEDIAL LAW

When a writ is placed in the hands of a sheriff,

it is his duty to proceed with reasonable
celerity and promptness to execute it
according to its mandate.

Disposition of Property by Sheriff

The sheriff shall retain the property for 5
days. Within such period, the adverse party:
(1) May object to the sufficiency of the
applicants bond or surety; or
(2) May file a redelivery bond, if he does not
object to the sufficiency of the bond

IN

Duties of the Sheriff (Rule 60, Sec. 4)

(1) Serve a copy of the order, together with
the copies of the application, the affidavit,
and bond to the adverse party

The adverse party is entitled to the return of

the property taken under writ of replevin, if:
(1) He seasonably posts a redelivery bond
(2) The applicants bond is found to be
insufficient or defective and is not
replaced with a proper bond
(3) The property is not delivered to the
plaintiff for any reason

(2) Take the property:

(a) If it be in the possession of the
adverse party or his agent Take the
property into custody
(b) If property is concealed in a building
or enclosure:
(i) Demand delivery of the property
(ii) If not delivered, cause the
building or enclosure to be
broken open and then take the
property into possession

D.5 WHEN PROPERTY CLAIMED BY

THIRD PARTY
Procedure
Third party claiming the property must:
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(1) Make an affidavit of his title to the

property, stating his grounds;
(2) Serve such affidavit upon the sheriff
while the latter has possession of the
property; and
(3) Serve a copy upon the applicant.

Effect
The sheriff shall not be bound to keep
property under replevin or deliver property to
the applicant, unless the applicant files a
bond approved by the court to indemnify the
third person, in an amount not less than the
value stated in the affidavit of the applicant.
No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action is filed
within 120 days from filing of the bond.

Note: The procedure in Rule 60, Sec. 7 is

similar to that in third-party claims in
execution (Sec. 16, Rule 39) and in
attachment (Sec. 14, Rule 57).
Difference in Service of Affidavits:
o Sec. 14, Rule 57 affidavit is served upon
the sheriff while he has possession of the
attached property
o Sec. 7, Rule 60 affidavit is served within
5 days in which sheriff has possession (in
connection with Sec. 6)

D.6 JUDGMENT
[Rule 60, Sec. 9]
After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall
render judgment in the alternative for the
delivery thereof to the party entitled to the
same, or for its value in case delivery cannot
be made, and also for such damages as
either party may prove, with costs.

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REMEDIAL LAW

A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

PURPOSE

SUBJECT
MATTER

Preliminary Attachment
To have the property of adverse
party attached as security for
satisfaction of judgment that
may be recovered in cases
falling under Sec. 1, Rule 57
To enable the court to acquire
jurisdiction over the action by
the actual or constructive
seizure of the property in those
instances
where
personal
service of summons on creditor
cannot be effected

Preliminary Injunction

Personal or real property

Particular act/s

Receivership

Replevin

To require a party or a court, agency, or a

person to reframe from doing a To place the property
particular act/s
subject of an auction or
proceeding under the
control of a third party To recover possession of
for its preservation and personal property
administration pendente
Or to require the performance of
lite or as an aid to
particular act/s
execution

Personal or real property

At any time prior to

At the commencement of
satisfaction of judgment
WHEN APPLIED/
action
At any stage prior to final judgment or It may be availed of even
GRANTED
OR `At any time prior to entry final order
after judgment becomes
of judgment
final under Sec. 41, Rule
39
File verified application and applicants File verified application
bond
and applicants bond
HOW
APPLIED File affidavits and applicants If application is included in initiatory Application may also be
FOR
bond
pleading, adverse party should be served included in initiatory
with summons together with a copy of pleading in actions for
initiatory pleading and applicants bond foreclosure of mortgage
Required
EXCEPT:
REQUIREMENT
Not required
Great or irreparable injury would result Required
OF A HEARING
May be issued ex parte
or Extreme urgency and applicant will
suffer grave injustice and irreparable
166

Personal
capable
delivery

of

property
manual

At the commencement of
the action
BUT before the filing of
answer

File
affidavits
applicants bond

and

Not Required
May be issued ex parte

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REMEDIAL LAW

injury (Sec. 5, Rule 58

WHO MAY GRANT

Courts where the action is

pending, the CA or the SC even
if action is pending in lower
court

1. Sufficient cause of action

2. Case is covered by Sec. 1,
Rule 57
3. No other sufficient security
REQUISITES FOR
for the claim exists
GRANTING
4. Amount due to applicant or
APPLICATION
value of property he is
entitled to recover is equal
to the sum which the order
of attachment is granted

Only the court where the action is

pending
Lower court, CA or SC provided action is
pending in the same court which issues
the injunction
Also with the Sandiganbayan and CTA

1.

Applicant is entitled to relief

demanded
2. Act/s complained of would work
injustice to applicant if not enjoined
3. Acts sought to be enjoined probably
violates applicants rights respecting
the subject of the action or
proceeding
4. Threatened injury incapable of
pecuniary estimation

167

Court where action is

pending
The CA or SC even if
action is pending in the
lower court
Appellate court may
allow application for
receivership
to
be
decided by the court of
origin
1. Applicant has interest
in property or fund,
subject matter of
action
2. Property or fund is in
danger of being lost,
or
removed,
or
material injured
3. Appointment is the
most convenient and
feasible means of
preserving,
administering,
disposing of property
in litigation

Only the court

action is pending

1.

were

Applicant is owner of
the property claimed
or is entitled to
possession
2. Property is wrongfully
detained
by
the
adverse party
3. Property
is
not
distrained or taken for
tax assessment or fine
pursuant to law, or
seized (if seized, that
the
property
is
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VIII.
SPECIAL
ACTIONS

CIVIL

Initiated by complaint

REMEDIAL LAW
Some initiated by
complaint, some by
petition.

The Special Civil Actions (SCA) under the Rules

of Court
(1) SCAs initiated by complaints:
(a) Interpleader
(b) Foreclosure of Real Estate Mortgage
(c) Forcible Entry and Unlawful Detainer
(d) Partition
(e) Expropriation

A. IN GENERAL
B.

A.1 NATURE
o Special civil actions are civil actions primarily
governed by special rules, and secondarily by
rules for ordinary civil actions. [See Rule I, sec.
3]
o Since a civil action in general is one by which
a party sues another for the enforcement of a
right, or the prevention or redress of a wrong,
a special civil action is generally brought or
filed for the same purpose. [RIANO]

(2) SCAs initiated by petitions:

(a) Declaratory Relief
(b) Review
or
Adjudication
COMELEC/COA Decisions
(c) Certiorari
(d) Prohibition
(e) Mandamus
(f) Quo Warranto
(g) Contempt

A.2 ORDINARY CIVIL ACTIONS V. SPECIAL

CIVIL ACTIONS
A special civil action is governed by the rules of
ordinary civil actions but there are certain rules
that are applicable only to special civil actions.

of

A.3 JURISDICTION AND VENUE

o

ORDINARY
ACTION

CIVIL SPECIAL
CIVIL
ACTION
Also governed by
ordinary rules but
Governed by ordinary
subject to specific
rules
rules
prescribed
[Rule 1, sec. 3]
The concept of cause
Must be based on a
of action in an
cause of action which
ordinary action does
means
that
the
not always fit in a
defendant has violated
special civil action
plaintiffs rights
(e.g. interpleader)
Venue is determined by Venue is generally
either the residences of governed by the
the parties when action general rules on
is personal or by the venue, except as
location of the property otherwise indicated
when the action is real. by special rules.
[Rule 4, secs. 1 and 2]
[REGALADO]

Jurisdiction over special civil actions is

determined by the Constitution (art. VIII,
sec. 5, for the Supreme Court) and statutes
(e.g. B.P. Blg. 129).
Venue is a procedural matter and generally
set by the Rules of Court. Hence, the venue
of civil actions is determined by the general
rules on venue, unless otherwise subject to
special rules for special civil actions (e.g.
quo warranto, see Rule 66, sec. 7).

Jurisdiction of inferior courts

Special civil actions that can be filed in or are
within the jurisdiction of the inferior courts (i.e.
MTC, MeTC, MCTC):
(1) Interpleader -- Provided that amount
involved is within its jurisdiction
(2) Ejectment suits Original and exclusive
(3) Contempt

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Application of hierarchy of courts

In the absence of special reasons, the SC will
decline to exercise original jurisdiction in
certiorari, prohibition, and mandamus since it is
not a trier of facts and, that is a function which
can be better done by the trial courts. The same
rule applies for quo warranto wherein the SC
has concurrent jurisdiction with the RTC.
[REGALADO, citing Fisher v. Yangco Steamship Co.
(1915) and Veraguth v. Isabela Sugar Co. (1932)]

REMEDIAL LAW

INTERPLEADER v. INTERVENTION

B. INTERPLEADER
B.1 NATURE
o A remedy whereby a person who has
property in his possession or has an
obligation to render wholly or partially,
without claiming any right in both, comes to
court and asks that the defendants who have
made conflicting claims upon the same
property or who consider themselves entitled
to demand compliance with the obligation
be required to litigate among themselves in
order to determine who is entitled to the
property or payment or the obligation
[Beltran v. PHHC (1969)]
o The peculiar characteristic of an interpleader
is that there is NO CAUSE OF ACTION on the
part of the plaintiff but only a threat of cause
of action.

INTERPLEADER

INTERVENTION

Original action

Ancillary action, i.e.

there is a pending
action

Plaintiff either has

(a) no interest or (b)
an interest in the
subject
matter
undisputed by the
other parties

Intervenor claims an
interest that is adverse
to at least one of the
existing parties, or will
be adversely affected
by judgment in favor of
either of the existing
parties

Defendants
to
a
Defendants are sued complaint-into be impleaded
intervention are parties
to a pending suit

B.2 REQUISITES FOR INTERPLEADER

(1) The plaintiff clams no interest in the
subject matter or his claim thereto is not
disputed
(2) The parties to be interpleaded must make
effective claims
(3) There must be at least two conflicting
claimants with adverse or conflicting
interests to a property in custody or
possession of the plaintiff; and
(4) The subject matter must be one and the
same. [see Lim v. Continental Devt Corp.
(1976)]

PURPOSES
(1) To compel conflicting claimants to
interplead and litigate their several claims
among themselves. [Rule 62, Sec. 1]
(2) To protect a person against double
vexation in respect of one liability [Beltran,
supra]

N.B.
o Interpleader applies regardless of nature of
subject matter. [Wack Wack Golf & Country
Club v. Lee Won (1976), interpreting RULES OF
COURT (1964), Rule 63, sec. 1, which was
virtually unchanged by the now Rule 62, sec.
1]
o Interpleader cannot be availed of to resolve
the issue of breach of undertakings made by
defendants, which should be resolved in an
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ordinary action for specific performance or

other relief [Beltran, supra].

REMEDIAL LAW
5 days in any event from notice of
denial.

B.3 WHEN TO FILE

(5) From service of Answer, the claimants may

file their Reply serving copies to all parties.
Parties may file counterclaims, crossclaims, third-party complaints, responsive
pleadings

When to File: Within a reasonable time. An

action for interpleader should be filed within a
reasonable time after a dispute has arisen
without waiting to be sued by either of the
contending parties. Otherwise, it may be barred
by laches. [Wack-Wack Golf, supra]

EFFECT OF FAILURE TO ANSWER:

Default.
(a) The claimant may be declared, on
motion, in default
(b) Unlike ordinary default, default in
interpleader allows the court to render
judgment barring him from any claim
in respect to the subject matter

Who Files the Complaint: A complaint for

interpleader is filed by the person against whom
the conflicting claims are made
Jurisdiction and Venue: General rules on
jurisdiction and venue apply as in ordinary civil
actions. Hence, first-level courts have
jurisdiction where the amount is within the limit.
[see Makati Devt Corp. v. Tanjuatco (1969)]

(6) Pre-trial is conducted.

(7) After all pleadings have been fled, the
court shall then determine the respective
rights and adjudicate their several claims
(Sec. 6)

PROCEDURE
(1) A complaint is filed.
(2) Upon filing of complaint, the court issues
an Order (Sec. 2) requiring conflicting
claimants to interplead with one another
(3) Summons shall then be served upon the
conflicting claimants with a copy of the
complaint and the order to interplead (Sec.
3).
(4) Each claimant has a 15-day period to file
any of the following (Sec. 5)
(a) Answer, which must also be served
upon the other conflicting claimants.
(b) Motion to dismiss (Sec. 4). If filed,
period to answer is
o Grounds:
(1) Same as in Rule 16, plus
(2) Impropriety of interpleader
action
o If motion is denied, movant may file
his answer within the remaining
period but it shall not be less than

C. DECLARATORY
SIMILAR REMEDIES

RELIEFS

AND

C.1 Nature
o Subject matter: Deed, will, contract, or
other written instrument, statute, executive
order, or regulation, or ordinance
o Issue is the validity or construction of the
subject matter. This is the only question that
may be raised in declaratory relief. [Atlas
Consolidated Mining & Devt Corp. v. CA
(1990)]
o Relief: Declaration of the petitioners rights
and duties
o Purpose: To relieve the litigants of the
common law rule that no declaration of
rights may be judicially adjudged unless a
right has been violated and for the violation
of which relief may be granted.

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CHARACTERISTICS
o The concept of a cause of action does not
strictly apply to declaratory relief since this
SCA presupposes that there has been no
breach or violation of the instruments
involved. However, a breach or violation must
be impending, imminent, or at least
threatened. [Velarde v. Social Justice Society
(2004)]
o Hence, unlike other judgments, judgment in
an action for declaratory relief does not
essentially entail any execution process.
[REGALADO]

REMEDIAL LAW

WHERE TO FILE
Jurisdiction: Exclusive and original jurisdiction is
with the RTC (BP Blg. 129, sec. 19, i.e. incapable
of pecuniary estimation). SC has no original
jurisdiction over declaratory relief petitions, but
has appellate jurisdiction over them. [Liga ng
mga Barangay National v. City Mayor of Manila
(2004)]
Venue: General rule on venue applies.

C.3 Requisites Of Action For Declaratory

Relief
(1) Subject matter of controversy must be a
deed, will, contract, or other written
instrument, statute, executive order or
regulation, or ordinance. The enumeration
is exclusive. [Vda. de Aviles v. CA (1996)
(2) Actual justiciable controversy or ripening
seeds of one between person whose
interests are adverse
(3) No breach of documents in question
(4) Doubtful as to the terms and validity of the
document and require judicial construction
(5) Issue is ripe for judicial determination, as
where all administrative remedies have
been exhausted
(6) Adequate relief is not available through
other means or other forms of action or
proceeding [REGALADO]

C.2 Who May File The Action

[Rule 63, Sec. 1]
(1) Any person interested under a deed, will,
contract or other written instrument, before
a breach thereof.
(2) Any person whose rights are affected by a
statute, executive order or regulation, or
ordinance, or any other governmental
regulation, before a violation thereof.

PARTIES
(1) All persons who have or claim any interest
which would be affected by the declaration
[Rule 63, Sec. 2]
(2) If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor
General shall be notified. [Rule 63, Sec. 3]
(3) If action involves the validity of a local
government
ordinance,
the
prosecutor/attorney of the LGU involved
shall be notified. [Rule 63, Sec. 4]

C.4 When Court May Refuse To Make

Judicial Declaration
Court has discretion to refuse, motu proprio or
on motion, to grant Declaratory Relief when:
1. The decision will not terminate the
controversy or uncertainty giving rise to
the action; or
2. The declaration or constitution is not
necessary and proper under the
circumstances. (Rule 63, Sec. 5)

Non-joinder of interested persons is not a

jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
otherwise provided by the Rules. [Baguio
Citizens Action v. City Council of Baguio (1983)]

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C.5 Conversion To Ordinary Action

REMEDIAL LAW

D. REVIEW OF JUDGMENTS AND

FINAL ORDERS OR RESOLUTION OF
THE COMELEC AND COA

[Rule 63, Sec. 6]

When proper: If before the final termination of
the case, a breach or violation of the instrument
or status occurs. Then, petition is converted into
an ordinary action.

SCOPE (Rule 64, Sec. 1)

o Applicable only to judgments and final
orders of the COMELEC and COA [Rule 64,
Sec. 1]
o This new rule is based on the provisions of
CONST. art. IX-A, sec. 7, which states that
[u]nless otherwise provided by this
Constitution or by law, any decision, order, or
ruling of each Commission may be brought
to the Supreme Court on certiorari within
thirty days from receipt of a copy thereof.
Hence, judgments/orders of the Civil
Service Commission are now reviewable
by the CA under Rule 43, eliminating
recourse to the SC. [R.A. No. 7902; SC
Revised Administrative Circular No. 1-95]

Effect of Conversion: Parties shall be allowed to

file such pleadings as may be necessary or
proper.
N.B. If there has been breach or violation
BEFORE filing of the petition, declaratory relief
cannot be availed of.

C.6 Proceedings Considered As Similar

Remedies
Actions similar to Declaratory Relief and may be
brought under Rule 63: (may be filed with the
MTC)
(1) Action for reformation (See Art. 13591369 Civil Code)
(2) Action to quiet title or remove cloud (See
Art. 476-481 Civil Code)
(3) Action to consolidate ownership (See Art.
1607 Civil Code)

D.1 APPLICATION OF RULE 65 UNDER

RULE 64
The aggrieved party may bring a judgment or
final order or resolution of the COMELEC and
COA to the SC on certiorari under Rule 65 and
not on appeal by certiorari under Rule 45. [Rule
64, sec. 2]
o Note: The petition should be filed
EXCLUSIVELY with the SC.
o Certiorari is the mode of review. Rule 65 is
followed unless it conflicts with particular
rules under Rule 64.

These remedies are considered similar to

declaratory relief because they also result in the
adjudication of the legal rights of the litigants
often without the need of execution to carry the
judgment into effect. [Malana v. Tappa (2009)]
However distinction must be made between:
(1) Cases similar to declaratory relief, where
the court is BOUND to render judgment;
and
(2) Actions for declaratory relief, where the
court MAY REFUSE to exercise the power
to declare rights and to construe
instruments.

SPECIAL RULES UNDER RULE 64

o Reglementary Period: The petition should
be filed within 30 days from notice of
judgment or final order or resolution
sought to be reviewed. This follows the
express provision of the Constitution, and
is different from Rule 65 which provides
for 60 days.

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REMEDIAL LAW

D.2 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

Interruption of the 30-day period: Filing of

MFR or MNT, if allowed under the
procedural rules of the Commission, shall
interrupt the 30-day period. If denied,
aggrieved party may file petition within
the remaining period but it shall not be
less than 5 days in any event from notice
of denial. [Rule 64, sec. 3]
Note: The Fresh Period Rule is NOT
applicable. Its application to Rule 65
cannot be automatically extended
because Rule 64, sec. 3 is a special rule.
In the case of COMELEC decisions, the
Court has chosen not to extend it in view
of the Constitutional policy of prompt
resolution of election cases. [Pates v.
COMELEC (2009)]

RULE 64

RULE 65

Directed only to the

judgments,
final
orders or resolutions
of COMELEC and COA

Directed
to
any
tribunal, board, or
officer
exercising
judicial or quasijudicial functions

Filed within 30 days Filed within 60 days

from notice of the from notice of the
judgment
judgment
Fresh period rule does
not apply. Rule 64, Fresh period rule
sec. 3 (supra) is applies
applicable.

PROCEDURE
(1) A verified petition is filed (Sec. 5) with
payment of docket and lawful fees (Sec. 4)
(2) Service of petition to the Commission and
parties concerned (Sec. 5)
(3) SC shall act on the petition:
(a) It may dismiss the petition:
(i) Due to failure to comply with the
form and content requirements in
Sec. 5;
(ii) If SC finds the petition insufficient
in form and substance (Sec. 6);
(iii) If it was filed manifestly for delay
(Sec. 6); or
(iv) Questions
raised
are
too
unsubstantial
to
warrant
proceedings (Sec. 6).
(b) If sufficient in form and substance, the
SC will require the respondents to file
their Comments (Sec. 6) within 10 days
from notice
(4) SC may also require oral argument or
submission of memoranda (Sec. 9)
(5) The case is then submitted for decision
(Sec. 9)

E.
CERTIORARI,
MANDAMUS

PROHIBITION,

E.1 DEFINITIONS AND DISTINCTIONS

Certiorari is a writ emanating from a superior
court directed against an inferior court, tribunal,
or officer exercising judicial or quasi-judicial
functions, the purpose of which is to correct
errors of jurisdictioni.e. without or in excess of
jurisdiction, or with grave abuse of discretion
amounting to the same. [Rule 65, sec. 1]

Prohibition is a writ issued by a superior court

and directed against an inferior court, board,
officer or other person whether exercising
judicial, quasi-judicial, or ministerial functions
for the purpose of preventing or restraining the
latter from usurping jurisdiction with which it is
not legally vested. [See Rule 65, sec. 2]

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Mandamus is a writ issued in the name of the

State, to an inferior tribunal, corporation, board,
or person, commanding the performance of an

REMEDIAL LAW

act which the law enjoins as a duty resulting

from an office, trust, or station. [Rule 65, sec. 3]

CERTIORARI
PROHIBITION
Directed against an entity or Directed against an entity or person
person exercising judicial or exercising judicial, quasi-judicial, or
quasi-judicial functions
ministerial functions

MANDAMUS
Directed against an entity
or
person
exercising
ministerial functions
Entity or person is alleged
Entity or person is alleged to have acted:
to have:
(1) Without jurisdiction
(1) Neglected a ministerial
(2) In excess of jurisdiction; or
duty; or
(3) With grave abuse of discretion amounting to lack or excess of (2) Excluded another from a
jurisdiction
right or office
PURPOSE:
PURPOSE:
PURPOSE
For respondent to: (1) do the
To have respondent desist from
To annul or nullify a proceeding
act required, and (2) pay
further proceeding
damages
Covers discretionary and ministerial Covers
Covers discretionary acts
acts
ministerial acts
Corrective remedy:
Negative and preventive remedy
May be affirmative, positive,
To correct usurpation of To restrain or prevent the said
or negative
jurisdiction
usurpation

E.1.1 CERTIORARI AS A MODE OF APPEAL AND AS A SPECIAL CIVIL ACTION

CERTIORARI AS A MODE OF APPEAL
CERTIORARI AS A SPECIAL CIVIL ACTION (Rule 65)
(Rule 45)
A continuation of the appellate process
An original action and not a mode of appeal
over the original case
May be directed against an interlocutory order of the
Seeks to review final judgment or final
court or where no appeal or plain or speedy remedy is
orders
available in the ordinary course of law
Raises questions of jurisdiction, i.e. whether a tribunal,
board or officer exercising judicial or quasi-judicial
Raises only questions of law
functions has acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion amounting
to lack of jurisdiction
Filed within 15 days from notice of Filed not later than 60 days from notice of judgment,
judgment or final order appealed from, or order, or resolution sought to be assailed. In case a
of the denial of petitioners motion for motion for reconsideration or new trial is timely filed, the
reconsideration or new trial.
60-day period is counted from notice of said denial.
Extension of 30 days may be granted for Extension granted only under exceptional cases (infra).
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justifiable reasons.
Does not require a prior motion for
reconsideration
Stays the judgment appealed from

REMEDIAL LAW

Motion for reconsideration is a condition precedent,

subject to exceptions
Does not stay the judgment or order subject of the
petition, unless enjoined or restrained

Parties are the original parties with the

appealing party as the petitioner and the The tribunal, board, or officer, exercising judicial or
adverse party as the respondent, without quasi-judicial functions is impleaded as respondent
impleading the lower court or its judge
Filed only with the SC
May be filed with the SC, CA, Sandiganbayan, or RTC
If the order is sufficient in form and substance:
The RTC shall (1) order respondents to comment,
Review by the SC is discretionary and will
and then (2)(a) hear the case or (2)(b) require the
be granted only when there are special or
parties to file memoranda.
important reasons. [Rule 45, sec. 6]
But the SC/CA may require a comment before
giving the petition due course.

E.1.2 PROHIBITION AND MANDAMUS, DISTINGUISHED FROM INJUNCTION

INJUNCTION
Ordinary civil action
Directed only to the party litigants,
without in any manner interfering with the
court

PROHIBITION
Special civil action
Directed to the court itself, commanding it to cease
from the exercise of a jurisdiction to which it has no
legal claim

INJUNCTION

MANDAMUS
Ordinary civil action
Special civil action
Directed against a tribunal, corporation,
Directed against a litigant
board, or officer
Purpose is to either refrain the defendant from Purpose is for the tribunal, corporation,
performing an act or to perform not necessarily a legal board, or officer, to perform a ministerial
and ministerial duty
and legal duty

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E.2 REQUISITES
Requisites of Certiorari:

REMEDIAL LAW

(3) There is no other plain, speedy, and

adequate remedy in the ordinary course
of law.

(1) Respondent is exercising judicial or

quasi-judicial function
(2) Respondent acted without or in excess
of its jurisdiction or acted with grave
abuse of discretion amounting to lack of
jurisdiction; and
(3) There must be no appeal or other plain,
speedy, and adequate remedy [Barbers v.
COMELEC (2005)]
Requisites of Prohibition:
(1) Respondent is exercising judicial, quasijudicial, or ministerial functions
(2) Respondent acted without or in excess
of its jurisdiction or acted with grave
abuse of discretion amounting to lack of
jurisdiction; and
(3) There must be no appeal or other plain,
speedy, and adequate remedy [Barbers,
supra]

Requisites of Mandamus:
(1) There must be a well-defined, clear
legal right or duty. [Valmonte v.
Belmonte (1989)]
o The duty must be enjoined by law;
hence, a contractual duty cannot be
enforced by mandamus. [Province of
Pangasinan
v.
Reparations
Commission (1977)]
(2) Respondent must be exercising a
ministerial duty. [Roble Arrastre, Inc. v.
Villaflor (2006)]
o A duty which is absolute and
imperative and involves merely its
execution
o However, mandamus will lie to
compel the discharge of the
discretionary duty itself but not to
control the discretion to be exercised.
In other words, mandamus can issue
to require action only but not specific
action. [Assoc. of Small Landowners
in the Phils., Inc. v. Sec. of Agrarian
Reform (1989)]

DISCRETIONARY
ACT

MINISTERIAL ACT

One where public

functionaries,
by
virtue of a power or
right conferred upon
them by law, can act
officially
under
certain
circumstances,
uncontrolled by the
judgment
or
conscience of others

One
which
an
officer or tribunal
performs in a given
state of facts, in a
prescribed manner,
in obedience to the
mandate of a legal
authority, without
regard to or the
exercise of his own
judgment upon the
propriety
or
impropriety of the
act done [Roble
Arrastre, Inc. v.
Villaflor (2006)]

E.3 WHEN PETITION FOR CERTIORARI,

PROHIBITION, AND MANDAMUS IS
PROPER
N.B. The common requisite among certiorari,
prohibition, and mandamus is that there is
no other plain, speedy, or adequate remedy in
the ordinary course of law.

WHEN PETITION FOR CERTIORARI IS

PROPER
o Only to correct errors of jurisdiction, not
errors of judgment.
o Questions of fact cannot be raised in an
original action for certiorari. Only
established or admitted facts may be
considered. [Suarez v. NLRC (1998)]
General rule: Where appeal is available,
certiorari will not lie. [Jose v. Zulueta (1961)]
Exceptions:

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(1) Where the appeal does not constitute a

speedy and adequate remedy
(2) Where orders were also issued either in
excess or without jurisdiction
(3) For certain special considerations, as
public welfare or public policy
(4) Where, in criminal actions, the court
rejects the rebuttal evidence for the
prosecution as, in case of acquittal,
there could be no remedy
(5) Where the order is a patent nullity
(6) Where the decision in the certiorari case
will avoid future litigations [Villarica
Pawnshop v. Gernale (2009)

REMEDIAL LAW

ministerial duty, this being its main

objective.
o A writ of mandamus will not issue to
control the exercise of official discretion or
judgment, or to alter or review the action
taken in the proper exercise of the
discretion of judgment, for the writ cannot
be used as a writ of error or other mode of
direct review.
o However, in extreme situations generally
in criminal cases, mandamus lies to
compel the performance of the fiscal of
discretionary
functions
where
his
actuations are tantamount to a wilful
refusal to perform a required duty.
[REGALADO]

WHEN PETITION FOR PROHIBITION IS

PROPER
o Prohibition is a preventive remedy.
However, to prevent the respondent
from performing the act sought to be
prevented during the pendency of the
proceedings for the writ, the petitioner
should obtain a restraining order and/or
writ of preliminary injuction. [REGALADO]
o The office of prohibition is not to correct
errors of judgment but to prevent or
restrain usurpation by inferior tribunals
and to compel them to observe the
limitation
of
their
jurisdictions.
[HERRERA]

Grounds for Mandamus:

(1) 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.
(2) When any tribunal, corporation, board,
officer, or person, UNLAWFULLY
EXCLUDES another from the due and
enjoyment of a right or office to which
the other is entitled. [Rule 65, sec. 3]

E.4 INJUNCTIVE RELIEF

General Rule: Prohibition does NOT
ordinarily lie to restrain an act which is
already fait accompli.

Independent Action
An original action for Certiorari, Prohibition,
or Mandamus is an independent action, and
as such:
(1) Does not interrupt the course of the
principal action;
(2) Does not affect the running of the
reglementary periods involved in the
proceedings;
(3) Does not stay the execution of judgment
unless a TRO or writ of preliminary
injunction has been issued. [see Rule 65,
sec. 7]

Exception: Writ of prohibition will lie to

prevent the unlawful 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 (1986)]
WHEN PETITION FOR MANDAMUS
PROPER
o The purpose of mandamus is to compel
the performance, when refused, of a

Injunctive Relief

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General Rule: The mere elevation of an

interlocutory matter through a petition for
certiorari does not by itself merit a
suspension of the proceedings before a
public respondent, applying Rule 65, sec. 7.
o The public respondent shall proceed
with the principal case WITHIN 10 DAYS
from filing of the petition for certiorari
with the higher court, absent a TRO or
preliminary injunction, or upon its
expiration. Failure may be a ground for
an administrative charge [AM No. 07-712-SC]

(3)

(4)

(5)

Exceptions:
(1) When a writ of preliminary injunction or
TRO is issued: The burden is on
petitioner to show that there are
meritorious grounds, i.e. there is an
urgent necessity in order to prevent
serious damage; or
(2) Judicial courtesy: Even if there is no
injunction issued, lower court should
defer to higher court where there is a
strong probability that the issues before
the higher court would be rendered
moot and moribund as a result of the
continuation of the proceedings in the
court
of
origin.
[Republic
v.
Sandiganbayan (2006)]

(6)

(7)

(8)

(9)

REMEDIAL LAW
passed upon by the lower court, or are
the same as those raised and passed
upon in the lower court
Where there is urgent necessity for the
resolution of the question and any
further delay would prejudice the
interests of the Government
Where under the circumstances, an
MR would be useless, as where the
court had already indicated that it
would
deny
any
motion
for
reconsideration of its questioned order
Where petitioner was deprived of due
process and there is extreme urgency
for relief
Where, in a criminal case, relief from
an order of arrest is urgent and
granting such relief by trial court is
improbable
Where the proceedings in the lower
court are a nullity for lack of due
process
Where the proceeding was ex parte or
in which the petitioner had no
opportunity to object
Where the issue raised is one purely of
law or where public interest is involved

Where the subject matter of the action is

perishable [Ombudsman v. Laja (2006)]

E.6 RELIEFS PETITIONER IS ENTITLED

TO

E.5 EXCEPTIONS TO FILING MOTION

FOR RECONSIDERATION
BEFORE
FILING PETITION

RELIEFS, IN GENERAL
Petitioner may be entitled to:
(1) Injunctive relief Court may 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 [Rule 65, sec. 7]
(2) Incidental reliefs as law and justice may
require [Rule 65, secs. 1 and 2]
(3) Other reliefs prayed for or to which the
petitioner is entitled [Rule 65, sec. 8]

General Rule: An MR is an essential

precondition for the filing of a petition for
certiorari, prohibition, or mandamus. It is a
plain, speedy, and adequate remedy. This is
to enable the lower court, in the first instance,
to pass upon and correct its mistakes without
the intervention of the higher court
Exceptions: MR may be dispensed with in
some cases:
(1) Where the order is a patent nullity
(2) Where questions raised in the certiorari
proceeding have been duly raised and
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PRAYERS
(1) In certiorari
(a) That the judgment be rendered
annulling
or
modifying
the
proceedings of such tribunal, board
or officer; and
(b) Granting such incidental reliefs as
law and justice may require [Rule 65,
sec. 1]
(2) In prohibition
(a) That the judgment be rendered
commanding the respondent to
desist from further proceedings in
the action or matter specified; or
(b) Otherwise granting such incidental
reliefs as law and justice may
require [Rule 65, sec. 2]
(3) In mandamus
(a) That the judgment be rendered
commanding
the
respondent,
immediately or at some other time
to be specified by the court, to do
the act required to be done to
protect the rights of the petitioner;
and
(b) To pay the damages sustained by
the petitioner by reason of the
wrongful acts of the respondent
[Rule 65, sec. 3]

REMEDIAL LAW

(a) Certified true copy of the judgment,

order, resolution subject thereof
(b) Copies of all pleadings and relevant
and pertinent documents
(c) Sworn certification of non-forum
shopping
(2) Contents of the petition
(a) Allegation of facts with certainty
Prayer

ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition,
Mandamus, when does the court acquire
jurisdiction over the person of the
respondent? It depends:
(1) If action is filed with the RTC: Follow
rules on ordinary civil actions.
Jurisdiction is acquired by:
(a) Service of summons to respondent
or
(b) By his voluntary appearance in
court
(2) If the action is filed with the SC/CA: Court
acquires jurisdiction over respondents
by:
(a) Service on them of its orders
indicating its initial action on the
petition or
(b) By their voluntary submission to
such jurisdiction

E.7 ACTS/OMISSIONS OF MTC/RTC IN

ELECTION CASES

PROCEDURE
A petition for certiorari/
prohibition is filed

In election cases involving an act or an

omission of a municipal or regional trial court,
the petition [for certiorari, prohibition, or
mandamus] shall be filed EXCLUSIVELY with
the Commission on Elections, in aid of its
appellate jurisdiction [Rule 65, sec. 4, par. 3
as amended by AM No. 07-7-12-SC (2007)]

mandamus/

When filed:
(a) Not later than 60 days from notice of
judgment/order/resolution
(b) If a motion for reconsideration/new trial
is filed, the 60-day period shall be
counted from notice of denial of motion.

E.8 WHEN AND WHERE TO FILE

PETITION

Rule on Extension of Time for Filing:

General Rule: The sixty (60)-day period
within which to file a petition for
certiorari under Rule 65 is non-extendible.

Petition And Contents

(1) A verified petition is filed in the proper
court accompanied by:

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Exceptions: Under the following exceptional

circumstances, the Court may extend the
period according to its sound discretion:
(1) Most persuasive and weighty reasons;
(2) To relieve a litigant from an injustice not
commensurate with his failure to comply
with the prescribed procedure;
(3) Good faith of the defaulting party by
immediately paying within a reasonable
time from the time of the default;
(4) The existence of special or compelling
circumstances;
(5) The merits of the case;
(6) A cause not entirely attributable to the
fault or negligence of the party favored
by the suspension of the rules;
(7) A lack of any showing that the review
sought is merely frivolous and dilatory;
(8) The other party will not be unjustly
prejudiced thereby;
(9) Fraud, accident, mistake or excusable
negligence without appellant's fault;
(10) Peculiar
legal
and
equitable
circumstances

REMEDIAL LAW

(2) A PUBLIC OFFICER who does or suffers

an act, which, by provision of law,
constitutes a ground for forfeiture of
office; or
(3) An ASSOCIATION which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority to act. [Rule 66,
Sec. 1]

JURISDICTION
(1) Original jurisdiction to issue the writ of
quo warranto is vested in the SC, CA, and
RTC. [CONST. art. VIII, sec. 5(1); B.P. Blg.
129, secs. 9 and 21]
(2) Actions for quo warranto against
corporations (as opposed to associations
without authority) with regard to
franchises and rights granted to them, as
well as the dissolution of corporations
now fall under the jurisdiction of the RTC
[P.D. No. 902-A, in relation to R.A. No.

8799, sec. 5.2. SEC. REG. CODE, sec. 5.2.;

Unilongo v. CA (1999)]
(3) Usurpation of an office in a private
corporation falls under the jurisdiction of
the SEC under P.D. No. 902-A, in relation
to R.A. No. 8799, sec. 5.2.

F. QUO WARRANTO
F.1. NATURE
Literally means by what authority; a
prerogative writ by which the court can call
upon any person to show by what warrant he
holds a public office or exercises a PUBLIC
franchise.

F.3. DISTINGUISHED FROM QUO

WARRANTO
IN
THE
OMNIBUS
ELECTION CODE
ROC Rule 66

When the inquiry is focused on the legal

existence of a body politic, the action is
reserved to the State in a proceeding for quo
warranto or any other direct proceeding.

OEC Sec. 253

Filed by whom
(11) Solicitor General
or
Public
Prosecutor, (a) in
behalf
of
the
Republic [Rule 66,
sec. 2] or (b) upon
the request or Any voter
relation of another
person [sec. 3]; or
(12) Individual
claiming to be
entitled to a public
office or position

Subject Matter: The subject matter of a quo

warranto may be a public office, franchise, or
position.

F.2. AGAINST WHOM MAY THE ACTION

BE BROUGHT
(1) A PERSON who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position, or franchise;
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REMEDIAL LAW

F.4. WHEN GOVERNMENT MAY

COMMENCE AN ACTION AGAINST
INDIVIDUALS

usurped
or
unlawfully held or
exercised
by
another [sec. 5]
Where filed
[Jurisdiction]
(1) If
against
election of a
[Venue]
Member
of
(1) Commenced
by
Congress,
Sol. Gen.: (a) RTC
Regional,
Manila, (b) CA or
Provincial
or
(c) SC;
City
Officer:
(2) Otherwise: (a) RTC
COMELEC
with
jurisdiction
(2) If against a
over
territorial
municipal
or
area
where
barangay
respondent
officer:
resides, (b) CA or
appropriate
(c) SC
RTC or MTC,
respectively.

The Government, through the Solicitor

General or public prosecutor commences the
action for quo warranto.
(1) Mandatory: When to commence:
(a) When directed by the President; OR
(b) When upon complaint or otherwise
he has good reason to believe that
any case in sec. 1 [supra] can be
established by proof. [sec. 2]
(2) Discretionary: When to commence:
(a) Upon permission of the court; AND
(b) At the request and upon the relation
of another person [ex relatione],
provided officer bringing it may
require an indemnity bond.

F.5.
WHEN
INDIVIDUAL
COMMENCE AN ACTION

Period for filing

Within 1 year from
Within 10 days
ouster or from the
after proclamation
time the right to the
of results
position arose. [sec. 11]
Grounds (against occupants of public
offices)
(1) A person, who
usurps, intrudes
into or unlawfully
holds or exercises
a public office,
position
or
franchise;
(1) Ineligibility; or
(2) A public officer, (2) Disloyalty
to
who
does
or
the Republic
suffers an act
which, by provision
of law, constitutes
a
ground
for
forfeiture of office.
[sec. 1]

MAY

An individual may commence the action if he

claims to be entitled to the office or position
usurped or unlawfully held or exercised by
another.
(1) He may institute the action in his own
name. [Sec. 5]
(a) He does not have to secure the
intervention of the Solicitor General
or public prosecutor.
(b) No leave of court necessary.
(2) He must aver and be able to show that he
is entitled to the office in dispute,
otherwise the action may be dismissed at
any stage. [General v. Urro (2011)]

F.6. PERIOD FOR PLEADINGS AND

PROCEEDINGS MAY BE REDUCED
Period to File: The action must be
commenced within 1 year from the date after
the cause of such ouster or the right of the
petitioner to hold such office or position
arose. [sec. 11]

In sum, Rule 66 applies to quo warranto IN

GENERAL while election law governs quo
warranto against SPECIFIED elective officials.

Laches does not attach and failure to file

quo-warranto proceedings does not operate
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adversely against a dismissed government

employee where it was the act of responsible
government official which contributed in the
delay of filing of complaint for reinstatement
[Cristobal v. Melchor (1980)]

REMEDIAL LAW

petitioners right to the office in question

[sec. 11]

G. EXPROPRIATION
G.1. NATURE

Reduction of Period: The court may reduce

the period for filing and for all other
proceedings in the action to secure most
expeditious determination of the matters
involved therein, consistent with the rights of
the parties. [sec. 8]

Eminent Domain is the right and authority of

the State, as sovereign, to take private
property for public use upon observance of
due process and payment of just
compensation.
It is in the nature of a compulsory sale to
the State.

F.7. JUDGMENT IN QUO WARRANTO

ACTION

G.2. REQUISITES FOR THE VALID

EXERCISE OF THE RIGHT

When respondent is found guilty of usurping,

intruding, or unlawfully holding or exercising
a public office, judgment shall be rendered:
(1) That such respondent is ousted and
altogether excluded therefrom; and
(2) That petitioner or relator, as the case
may be, recover his costs; and
(3) (Court may further determine the
respective rights in and to the public
office, position, or franchise of all
parties.) [sec. 9]

(a)
(b)
(c)
(d)
(e)

The property must be private

There must be due process of law
Payment of just compensation
Taking must be for public use
There must be genuine necessity
[Manapat v. CA (2007)]

G.3. MATTERS TO ALLEGE

COMPLAINT FOR EXPROPRIATION

IN

Contents of the Complaint: The complaint

shall
(1) State with certainty the right and
purpose of expropriation
N.B. Where the right of the plaintiff to
expropriate is conferred by law,
complaint does not have to state with
certainty the right of expropriation
[Manila Railroad Co. v. Mitchel (1923)]
(2) Describe the real or personal property
sought to be expropriated
(3) Join defendants
All persons owning or claiming to own, or
occupying, any part thereof or interest
therein, showing separate interest of
each defendant, as far as practicable
(4) Make the following averments, if needed:
(a) If title appears to be in the Republic,
although occupied by private
individuals

F.8. RIGHTS OF A PERSON ADJUDGED

ENTITLED TO PUBLIC OFFICE
Rights of persons adjudged entitled to office
[sec. 10]:
(1) Execution of the office
After taking oath of office and executing
any official bond required by the law
(2) Demand from respondent all the books
and papers appertaining to the office to
which judgment relates
Respondents neglect or refusal to
comply with the demand is punishable by
contempt
(3) Bring an action for damages against
respondent for damages sustained by
him by reason of the usurpation.
Must be commenced within 1 year after
entry
of
judgment
establishing

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Preliminary deposit [Rule 67, sec. 2]:

(b) If title is otherwise obscure or

doubtful so that plaintiff cannot with
accuracy or certainty specify who the
real owners are [Rule 67, sec. 1]

Where to File: RTC where property is located.

MTC has no jurisdiction since an action for
expropriation is incapable of pecuniary
estimation. [Barangay San Roque v. Heirs of
Pastor (2000)]

Purposes

Provide damages if court

finds that the plaintiff has no
right to expropriate
Advance payment for just
compensation, if property is
finally expropriated [Visayan
Refining Co. v. Camus (1919)]
If Real Property: Equivalent to the
assessed value of the property for
purposes of taxation.
If Personal Property: Value shall
be provisionally ascertained and
fixed by the court.

G.4. TWO STAGES IN EVERY ACTION

FOR EXPROPRIATION

Value

(First Stage) Propriety of Expropriation:

Determination of the authority of the plaintiff
to exercise the power of eminent domain and
the propriety of its exercise in the context of
the facts involved. This ends with either:
(1) An order of dismissal, or
(2) An order of expropriation

Where to depositary. (Amount is to be held

deposit
by such bank subject to the

With the authorized government

orders of the court.)

General Rule: Money.
Exception: In lieu of money, court
Form of authorizes deposit of a certificate
of deposit of a government bank
Deposit
of the Republic, payable on
demand to the authorized
government depositary.

(Second Stage) Just Compensation:

Determination of the just compensation for
the property sought to be taken.
N.B. Multiple appeals are allowed in
expropriation. Aggrieved party may appeal in
each stage separately.

After the deposit, court shall order sheriff or

proper officer to place plaintiff in possession
of the property. Such officer shall promptly
submit a report to the court with service of
copies to parties.

G.5.
WHEN
PLAINTIFF
CAN
IMMEDIATELY
ENTER
INTO
POSSESSION OF THE REAL PROPERTY,
IN RELATION TO R.A. NO. 8974

NOTE: Preliminary deposit is only necessary

if the plaintiff desires entry on the land upon
its institution of the action. Otherwise, he
could always wait until the order of
expropriation is issued before it enters upon
the land.

Plaintiff shall have the right to take or enter

upon possession of the real property upon:
(1) Filing of complaint or at any time
thereafter, and after due notice to
defendant
(2) Making preliminary deposit [Rule 67, sec.
2]

Once the preliminary deposit has been made,

the expropriator is entitled to a writ of
possession as a matter of right, and the
issuance of said writ becomes ministerial on
the part of the trial court. [Biglang-Awa v.
Bacalla (2000)]

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Republic Act No. 8974 (2000):

An Act to Facilitate the Acquisition of Rightof-Way, Site or Location for National
Government Infrastructure Projects and for
Other Purposes

RULE 67,
SEC. 2

Scope

Expropriation
in general,
for both real
and personal
properties

Government
For writ of is required to
possession make
to issue
preliminary
deposit

Equal
to
assessed
Amount of
value of real
payment or
property for
deposit
purposes of
taxation

REMEDIAL LAW

Applicable Special Laws:

(1) R.A. No. 8974 specifically governs
expropriation for national government
infrastructure projects
(2) Local Govt Code, sec. 19 governs the
exercise of the power of eminent domain
by LGUs through an enabling ordinance

RA 8974
Only
when
national
government
expropriates
real property
for
national
government
infrastructure
projects
Government is
required
to
make
immediate
payment
to
owner
upon
filing
of
complaint
Equal to the
market value
of the property
as stated in
the
tax
declaration or
current
relevant zonal
value of BIR,
whichever is
higher,
and
value
of
improvements
and/or
structures
using
replacement
cost method

G.6. NEW SYSTEM OF IMMEDIATE

PAYMENT
OF
INITIAL
JUST
COMPENSATION
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
R.A. 8974, supra [RA 8974, sec. 4]

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G.7. DEFENSES
[RULE 67, SEC. 3]
No Objection to or
Defense against
Taking

CIVIL PROCEDURE

AND

OBJECTIONS

REMEDIAL LAW

Effect of failure to file answer: Failure to file

answer does not produce all consequences of
default as in ordinary civil actions:
(1) There is default as to the first stage of
expropriation, supra; but
(2) Said judgment is without prejudice to the
second stage, i.e. defendant still has the
right to present evidence on the just
compensation and to share in the
distribution of the award. [See Robern

With Objection to or
Defense against
Taking

What to file and serve

Notice
of
Answer
to
the
appearance
and
complaint
manifestation
Period to file
Time stated in the summons
Contents
(1) Specifically
designating/iden
tifying
the
(1) Manifestation to
property in which
the effect that he
he claims to have
has no objection
an interest in;
or defense;
(2) Nature
and
(2) Specifically
extent of the
designating/ide
interest; and
ntifying
the
(3) ALL
his
property
in
objections
and
which he claims
defenses to the
to be interested
complaint or any
allegation
therein
Prohibited
Counterclaim, crossclaim, third party
complaint in any
pleading

Development Corporation v. Quitain

(1999)]

G.8. ORDER OF
[RULE 67, SEC. 4]

EXPROPRIATION

Order of Expropriation: It is the order

declaring that the plaintiff has lawful right to
take the property.
When Issued: It is issued when:
(1) Objections or defenses against the right
of plaintiff to expropriate are overruled;
or
(2) No party appears to defend the case
Contents of the Order: That the plaintiff has a
lawful right to take the property sought to be
expropriated:
(1) For the public use or purpose described
in the complaint; and
(2) Upon payment of just compensation
(a) To be determined as of the date of
taking, or
(b) The filing of the complaint, whichever
came first.

Amended answers: A defendant waives all

defenses and objections not so alleged, but
the court, in the interest of justice, may
permit amendments to the answer not to be
made later than ten (10) days from filing
thereof.

Remedy
of
Defendant:
Order
of
condemnation is final, not interlocutory.
Hence, it is appealable.
N.B. Appeal shall not prevent court a quo
from determining just compensation.

Just compensation may be proven with or

without objections/defense, and whether or
not defendant appeared/answered: In any
case, in the determination of just
compensation, defendant may present
evidence as to the amount of compensation
to be paid.
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Effects of the Order:

(1) Plaintiff not permitted to dismiss or
discontinue the proceeding, except on
such terms as the court deems just and
equitable; and
(2) Order forecloses any further objections to
the right to expropriate, including the
public purpose of the same. [Robern

REMEDIAL LAW

Market Value: Sum of money which a person

desirous but not compelled to buy, and an
owner willing but not compelled to sell,
would agree on as a price to be given and
received therefore. [BPI v. CA (2004)]
Time when market value should be fixed:
(1) When plaintiff takes possession before
institution of proceedings: value fixed as
of TIME OF TAKING; or
(2) When the taking coincides with or
subsequent to the commencement of
proceedings: value fixed as of DATE OF
FILING of the complaint

Development Corporation v. Quitain

(1999)]

G.9. ASCERTAINMENT OF JUST

COMPENSATION [RULE 67, SEC. 5]
Upon rendition of the Order of Expropriation,
the court issues an Order of Appointment.

G.10. APPOINTMENT OF
COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION UPON
REPORT

Order of Appointment:
(1) Court appoints not more than 3
commissioners to ascertain and report to
the court the just compensation for the
property
(2) Contents: Order shall
(a) Designate the time and place of the
first session of hearing to be held by
commissioner
(b) Specify the time within which their
report shall be submitted to court
(3) Procedures:
(a) Copies of the Order shall be served
on the parties
(4) Objections to appointment:
(a) Filed with the court within 10 days
from service
(b) Objections shall be served to all
commissioners
(c) Resolved within 30 days after all
commissioners shall have received
copies

Qualifications of the Commissioners: Must be

(1) Competent; and
(2) Disinterested
Proceedings by Commissioners [Rule 67, Sec.
6]
(1) Oath: Commissioners shall first take and
subscribe an oath that they will faithfully
perform their duties. Oath shall be filed
in court together with other proceedings.
(2) Introduction of evidence: Evidence may
be introduced by either party before the
commissioners who are authorized to
administer oaths on hearings before
them
Duties of Commissioners: Commissioners
shall:
(1) View and examine the property sought to
be expropriated and its surroundings,
and may measure the same.
(a) Parties may agree not to have the
property inspected.
(b) Due notice to parties to attend must
first be given.
(c) After this, each party may argue the
case.

Just Compensation: The full and fair

equivalent of the property taken from its
owner
by
the
expropriator.
Just
compensation means not only (1) the correct
determination of the amount to be paid but
also the (2) payment of the land within a
reasonable time from its taking. [Land Bank
of the Phils. v. Obias (2012)]

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(2) Assess the consequential damages to the

property not taken and deduct from such
the consequential benefits to be derived
by owner.
(a) Consequential benefits are those
proximately resulting from the
improvements consequent to the
expropriation and accruing to the
remaining portion of the land.
[REGALADO]
(b) In no case shall the consequential
benefits assessed exceed the
consequential damages. [Sec. 6]
(c) In no case shall the owner be
deprived of the actual value of his
property taken. [Sec. 6]

REMEDIAL LAW

(b) Recommit to commissioners for

further report of facts, for cause
shown;
(c) Set aside the report and appoint new
commissioners; OR
(d) Accept the report in part and reject in
part; AND
(e) Make such order or render such
judgment as shall secure the plaintiff
(as to its right to expropriate) and the
defendant (as to his right to just
compensation)

G.11. RIGHTS OF PLAINTIFF UPON

JUDGMENT AND PAYMENT [RULE 67,
SEC. 10]

Report by Commissioners [Rule 67, Sec. 7]

(1) Commissioners shall make a full and
accurate report to the court of all their
proceedings.
(2) Such proceeding shall not be effectual
until court has accepted their report and
rendered judgment in accordance with
their recommendations.
(3) Report shall be filed within 60 days from
date commissioners were notified of their
appointment. Time may be extended by
court discretion,
(4) Upon filing, clerk shall serve copies of the
Commissioners Report to all interested
parties. Clerk includes a notice that
parties are allowed to file objections to
the report within 10 days from notice.

Rights: Either:
(1) Right to retain: Applies when plaintiff
immediately entered upon the property
after making the required deposit (and
therefore already has possession of the
property), supra.
(2) Right to enter and appropriate: Applies
when plaintiff does not take immediate
possession of the property.
Appropriation must be for the public use
or purpose defined in the judgment.
Conditions for exercise:
(1) Upon payment by plaintiff to defendant
of compensation fixed by judgment, with
legal interest from taking; or
(2) After tender to defendant of the said
amount and payment of the costs.
N.B. If defendant or counsel absent
themselves from the court or decline the
amount tendered, the amount shall be
deposited in court and shall have the
effect of actual payment.

Action Upon Commissioners Report [Rule 67,

Sec. 8]
(1) When court renders judgment: Upon
(a) Filing of objections to the report or of
the agreement thereon of all
interested parties; OR
(b) Expiration of 10-day period to object
from the report
(2) Court may:
(a) After hearing, accept the report and
render judgment in accordance
therewith;

G.12. EFFECT OF RECORDING

JUDGMENT

OF

Contents of the Judgment

(1) Statement of the particular property or
interest therein expropriated, with
adequate description; and
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(2) Nature of the public use or purpose for

which it is expropriated. [Sec. 13]
When title to property vests:
(1) If personal property, upon payment of
just compensation [Sec. 10]
(2) If real property, upon (i) payment of just
compensation and (ii) registration of
property (by recording of the judgment in
the registry of deeds where the property
is situated.) [Sec. 13]

(2)
(3)

REMEDIAL LAW

(a) Date and due execution of the real

mortgage;
(b) Date of the note or other
documentary evidence of the
obligation secured by the mortgage;
Its assignments, if any;
The following names and residences:
(a) Of the mortgagor and mortgagee
(b) Of all persons having or claiming an
interest in the property subordinate
in the right to that of the holder of
the mortgage
Description of the mortgaged property
Amount claimed to be unpaid

H. FORECLOSURE OF REAL ESTATE

MORTGAGE

(4)
(5)

H.1. NATURE

Defendants in a judicial foreclosure:

(1) Persons obliged to pay the mortgage
debt
(2) Persons who own, occupy, or control the
mortgaged premises or any part thereof
(3) Transferee or grantee of the property
(4) Second
mortgagee
or
junior
encumbrancers or any person claiming a
right or interest in the property
subordinate to the mortgage sought to
be foreclosed to foreclose their equity of
redemption
But if the action is by the junior
encumbrancer, first mortgagee MAY also
be joined as defendant
(5) Mortgagor even if not owner of the
mortgaged property should be included
(to satisfy the deficiency).

Foreclosure of Mortgage is a proceeding by

which the mortgagee or his successors or one
who has by law succeeded to the rights and
liabilities of the mortgagee undertakes to
dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the
mortgagors or those who have succeeded to
the rights and liabilities of the mortgagor.
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
therein.
Foreclosure may be made:
(1) Judicially: governed by Rule 68
(2) Extrajudicially: proper only when so
provided in contracts in accordance with
Act. No. 3135; governed by A.M. No. 9910-05.

H.3. JUDGMENT ON FORECLOSURE

FOR PAYMENT OR SALE [RULE 68, SEC.
2]
Judgment on Foreclosure is the judgment of
the court ordering the debtor to pay within
90-120 days from entry of judgment after
ascertaining the amount due to plaintiff.

H.2. COMPLAINT IN AN ACTION FOR

FORECLOSURE [RULE 68, SEC. 1]
Venue: A foreclosure action must be brought
in the RTC of the province where the land or
any part thereof is situated.

Contents of judgment: If upon trial, the facts

set forth in the complaint are true, the court
shall:
(1) Ascertain the amount due to the plaintiff
upon the mortgage debt or obligation

Contents of the Complaint:

(1) The following dates:
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including interests, other charges

approved, and costs;
(2) Render judgment for the sum so found
due;
(3) Order that the amount be paid to the
court or to judgment obligee within a
period of not less than 90 days but not
more than 120 days from entry of
judgment
In default of such payment, property
shall be sold at public auction to satisfy
judgment

REMEDIAL LAW

operate to divest the rights in the property of

all the parties to the action and to vest their
rights in the purchaser, subject to such rights
of redemption as may be allowed by law.
[Sec. 3]
Confirmation of the sale of mortgaged
real property vests title in the purchaser
including the equity of redemption. It
retroacts to the date of the sale. It cuts
off all the rights or interests of the
mortgagor and of the mortgagee.
[Lozame v. Amores (1985)].
The motion for the confirmation of the
sale requires a hearing to grant an
opportunity to the mortgagor to show
cause why the sale should not be
confirmed [Tiglao v. Botones (1951)] (e.g.
by proof of irregularities therein, gross
inadequacy of the price, lack of notice
vitiates the confirmation of the sale).
[REGALADO]

Multiple appeals: Multiple appeals are

allowed under Rule 68.
(1) Judgment of foreclosure is appealable.
(2) Order confirming foreclosure sale is a
final disposition with respect to the issue
of validity and regularity of the sale.
(3) Deficiency judgment is a disposition on
the merits of the correctness of such
award. [REGALADO]

Writ of Possession: Upon the finality of the

order of confirmation or upon the expiration
of the period of redemption when allowed by
law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property.

H.4. SALE OF MORTGAGED PROPERTY;

EFFECT [RULE 68, SEC. 3]
When proper: When Defendant fails to pay
the amount of judgment within the period
specified, the court shall order the property
to be sold.

Exception: Third party is actually holding the

same adversely to the judgment obligor.

How: By motion and under the provisions of

Rule 39.
It is the ministerial duty of the court to
order the foreclosure of the property
when the debt is not paid within the
period specified.
A motion for such order of sale is nonlitigable and may be made ex parte.
[Govt of the Phil. Islands v. De las
Cajigas (1931)]
Limitation: Such sale shall not affect the
rights of persons holding prior
encumbrances upon the property or a
part thereof.

H.5. DISPOSITION OF PROCEEDS OF

SALE
(1) Amount realized from the foreclosure
sale, less costs of the sale, shall be paid
to the person foreclosing.
(2) When there is a balance or residue after
paying the mortgage debt, the same
shall be paid to junior encumbrancers in
the order of priority as ascertained by the
court.
(3) If there are no junior encumbrancers, the
residue goes to the mortgagor or his
authorized agent, or any other person
entitled to it. [Rule 68, Sec. 4]

Order of Confirmation: When confirmed by an

order of the court, also upon motion, it shall
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H.6.
DEFICIENCY
JUDGMENT;
INSTANCES WHEN COURT CANNOT
RENDER
DEFICIENCY
JUDGMENT
[RULE 68, SEC. 6]

REMEDIAL LAW

(4) If mortgagor is a third party mortgagor

but not solidarily liable with debtor. [Phil.
Trust Co. v. Tan Suisa (1929)]
(a) No deficiency judgment may be
rendered against owner who is not a
mortgagor and has not assumed
personal liability for the debt.
(b) Remedy is ordinary action against
debtor.
(5) In case of a mortgage debt due from the
estate of a deceased mortgagor and the
mortgage creditor availed of the third
remedy which is to rely upon his
mortgage alone and foreclosing the
same within the statute of limitations.
[Rule 86, sec. 7]
(6) When the deficiency arises under an
extrajudicial foreclosure. The mortgagee
can recover by action (not by motion) any
deficiency in the mortgage account which
was not realized in the foreclosure sale.
[PNB v. CA (1999)]

Deficiency Judgment is judgment rendered by

the court holding defendant liable for any
unpaid balance due to the mortgagee if the
proceeds from the foreclosure sale do not
satisfy the entire debt. [See sec. 6]
A motion for deficiency judgment may be
made only after the sale and after it becomes
known that a deficiency exists. [Governor of

the Philippine Islands v. Torralba Vda. de

Santos (1935)]
N.B. If the debtor dies, the deficiency may be
filed as a claim against his estate. [Rule 86,
Sec. 7]
How Done:
(1) Judgment creditor files motion for
deficiency judgment.
(2) Court shall then render judgment against
defendant for any such balance for which
he may personally be liable to plaintiff.
(3) Execution may then issue immediately if
balance is all due at the time of rendition
of judgment.
If not, plaintiff shall be entitled to
execution at such time as the balance
remaining becomes due. [Sec. 6]

H.7. JUDICIAL FORECLOSURE

EXTRAJUDICIAL FORECLOSURE
Judicial Foreclosure
Requires
court
intervention
There is only an
equity
of
redemption
Governed by Rule
68

When deficiency judgment cannot be

rendered:
(1) Under the Recto Law [CIVIL CODE, art.
1484, par. 3].
(2) When mortgagor is a non-resident and is
not found in the Philippines. (Rationale:
The proceeding would be procedurally
infeasible as a deficiency judgment is in
personam, and under this situation,
jurisdiction over the obligor cannot be
had. [RIANO])
(3) When mortgagor dies, mortgagee may
file his claim with the probate court.
[Rule 86, sec. 7]

VS.

Extrajudicial
Foreclosure
No court intervention
necessary
Right of redemption
exists
Governed by Act 3135

No
Deficiency
There could be a
Judgment
because
Deficiency
there is no judicial
Judgment.
proceeding.
Recovery
of
Recovery of deficiency
deficiency can be
is
through
an
done
by
mere
independent action.
motion.

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H.8. EQUITY OF REDEMPTION VS.

RIGHT OF REDEMPTION
Equity of Redemption
defendant mortgagor
mortgage and retain
property by paying the

REMEDIAL LAW

the 90 to 120 day period after entry of

judgment or even after the foreclosure sale
but prior to its confirmation

is the right of the

to extinguish the
ownership of the
secured debt within

Equity Of Redemption
Right of the defendant mortgagor to extinguish
the mortgage and retain ownership of the
property by paying the secured debt within the
90 to 120 day period after entry of judgment or
even after the foreclosure sale but prior to its
confirmation
Period is 90-120 days after entry of judgment
or even after foreclosure sale but prior to
confirmation
Governed by Rule 68

Right Of Redemption
Right of the debtor, his successor in interest, or
any judicial creditor of said debtor or any person
having a lien on the property subsequent to the
mortgage.
Period is 1 year from date of registration of
certificate of sale
Governed by Rule 39, sec. 29-31

Judicial Foreclosure

Extrajudicial Foreclosure

Mortgagor has a right to redeem the property

No right of redemption, only equity of
within one year from registration of the deed of
redemption
sale
Exception:
In case of extrajudicial foreclosure, juridical
Exception: Mortgagor may exercise right of persons shall have the right to redeem until, but
redemption within one year after the sale, when not after, the registration of the certificate of
the loan or credit accommodation is granted by foreclosure sale with the Register of Deeds
a bank. [General Banking Law (2000), sec. 47]
which in no case shall be more than 3 months
after foreclosure, whichever is earlier. [General
Banking Law (2000), sec. 47]
N.B. What Rule 68, secs. 2-3 provide for is the mortgagors EQUITY of redemption.
This may be exercised by him even beyond the period to pay the judgment obligation (i.e. 90120 days) and even after the foreclosure sale itself, provided it be before the order of the
confirmation of sale. [Rosales v. Alfonso (1999)]

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(3) When partition is prohibited by law (e.g.

ACP, party wall); [CIVIL CODE, art. 494]
(4) When the property is not subject to a
physical division and to do so would
render it unserviceable for the use for
which is it intended; [CIVIL CODE, art. 495]
or
(5) When the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled. [CIVIL
CODE, art. 1084]

I. PARTITION
I.1. NATURE
Partition is the process of dividing and
assigning the property owned in common
among the various co-owners thereof in
proportion to their respective interests in said
property.
Partition may be:
(1) Judicial Procedure is Rule 69
(2) Extrajudicial No court intervention
required

I.4. WHO MAY FILE COMPLAINT; WHO

SHOULD BE MADE DEFENDANTS
[RULE 69, SEC. 1]

The partition of property may be made

voluntarily (by agreement) or compulsorily
under the Rules. Even if the parties had
resorted to judicial partition, they may still
make an amicable partition of the property.
[Sec. 12]

Who May File: A person having the right to

compel partition of real estate, or of personal
property, or both real and personal property
[Sec. 1, Sec. 13]

An action for partition and accounting under

Rule 69 is in the nature of an action quasi in
rem. Such an action is essentially for the
purpose of affecting the defendants interest
in a specific property and not to render a
judgment against him.

Venue and Jurisdiction: An action for partition

should be filed in the RTC of the province
where the property or part thereof is situated.
An action for partition is not a conveyance
of property. [Heirs of Urieta, Sr. v. Heirs of
Urieta (2011)] Because the controversy in
partition is whether or not the plaintiff has a
right to partition, the issue is incapable of
pecuniary estimation. [RIANO]

I.2. WHEN CAN PARTITION BE MADE

General Rule: It can be made anytime. The
right to demand partition is imprescriptible.
(Rationale: Prescription does not run against
a co-owner.)
Exception: If a co-owner asserts adverse title
to the property, in which case, period of
prescription runs from such time of assertion
of adverse title. [De Castro v. Echarri (1911)]

Parties
(1) The plaintiff is the person who is
supposed to be a co-owner of the
property. [RIANO]
(2) Defendants are (i) all the co-owners, who
are indispensable parties, and (ii) all
other persons having an interest in the
property [Id., citing MORAN]

I.3. WHEN PARTITION CANNOT BE

MADE:

I.5. MATTERS TO ALLEGE IN THE

COMPLAINT FOR PARTITION

(1) When there is a stipulation against it, not

exceeding 10 years; [CIVIL CODE, art. 494]
(2) When partition is prohibited by the donor
or testator for a period not exceeding 20
years; [CIVIL CODE, arts. 494, 1083]

Contents of the Complaint:

(1) Nature and extent of his title
(2) Adequate description of the real estate
sought to be partitioned

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I.7. ORDER OF PARTITION

PARTITION BY AGREEMENT

(3) Joining of Defendants All other persons

interested in the property [Sec. 1]
(4) Demand for accounting of the rents,
profits, and other income from the
property to which he may be entitled to
as his share. [Sec. 8] Since these cannot
be demanded in another action (because
they are part of the cause of action for
partition), they are barred if not set up.
[RIANO]

AND

Order of Partition: The court issues an order

of partition AFTER the trial and the court
finds that the plaintiff has a right to partition.
The court orders the partition of the property.
The parties may make the partition proper
themselves, by agreement:
(1) After the issuance of the order of
partition, the parties will then be asked if
they agree to make partition of the
property among themselves.
(2) If they agree, proper instruments of
conveyance will be executed to effect the
partition.
(3) After the execution of instruments of
conveyance, the court shall confirm the
partition through a final order.
(4) The final order of partition and the
instruments of conveyance shall be
registered with the Registry of Deeds
where the property is situated. [Rule 69,
Sec. 2]

I.6. TWO STAGES IN EVERY ACTION

FOR PARTITION
First Stage: Determination of the propriety of
partition
This involves a determination of whether
the subject property is owned in common
and whether all the co-owners are made
parties in the case. [See Lacbayan v.
Samoy]
The order may also require an accounting
of rents and profits recovered by the
defendant. This order of partition is
appealable. [Miranda v. Court of Appeals
(1976)]
If not appealed, then the parties may
partition the common property in the way
they want. If they cannot agree, then the
case goes into the second stage.
However, the order of accounting may in
the meantime be executed. [De Mesa v.
CA (1994)]

I.8. PARTITION BY
APPOINTMENT OF
COMMISSIONERS
ACTION
UPON
REPORT

COMMISSIONERS;
COMMISSIONERS;
REPORT; COURT
COMMISSIONERS

When proper: If parties fail to agree on the

manner of partition, commissioners are
appointed to make partition.

Second Stage: Actual partitioning of the

subject property
This is also a complete proceeding and
the order or decision is appealable.
When there was a prior partition, the fact
that the share of each co-heir has not
been technically described and the title
over the whole lot remains uncancelled
does not negate such partition.
There can be no partition again because
there is no more common property.
[Noceda v. CA (1999)]

How Done: The court appoints not more than

3
competent
and
disinterested
commissioners to make the partition. [Sec. 3]
Oath of the Commissioners: Before entering
into their duties, commissioners must first
make an oath that they will faithfully perform
their duties as commissioners. Such oath is
to be filed in court. [Sec. 4]

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Hearing on the Report [Sec. 7]

(1) When Conducted:
(a) Upon expiration of the 10 day period
for filing objections; or
(b) Even before expiration but after the
interested parties have filed their
objections or their statement of
agreement therewith
(2) The court may:
(a) Accept the report and render
judgment in accordance therewith; or
(b) Recommit
the
same
to
commissioners for further report of
facts, for cause shown; or
(c) Set aside the report and appoint new
commissioners; or
(d) Accept the report in part and reject in
part; and
(e) Make such order and render such
judgment as shall effectuate a fair
and just partition of the real estate,
or of its value, if assigned or sold

Duties of the Commissioners:

(1) They shall view and examine real estate,
after due notice to parties to attend at
such view and examination;
(2) They shall hear the parties as to their
preference in the portion to be set apart
to them;
(3) They shall also determine the
comparative value thereof; and
(4) They shall set apart the same to the
parties in lots or parcels as will be most
advantageous and equitable considering
the improvements, situation, and quality
of the parts thereof.
Assignment of Real Estate to One Party
General Rule: If the commissioners should
determine that the real estate cannot be
divided without prejudice to the interests of
the parties, the court may order that the
property be assigned to one of the parties
willing to take the same provided he pays to
the other parties such amounts as the
commissioners deem equitable.

I.9. JUDGMENT AND ITS EFFECTS

[RULE 69, SEC. 11]

Exception: if one of the parties asks that the

property be sold instead of being so assigned,
then the court shall order the commissioners
to sell the real estate at public sale under
such conditions and within such time as the
court may determine [Sec. 5]

Contents of Judgment

Effects of Judgment

If actual partition is properly made

Judgment shall state
definitely, by metes Judgment shall vest
and bounds and in each party to the
adequate description, action in severalty
the particular portion the portion of the
of the real estate real estate assigned
assigned to each to him.
party.
If the whole property Is assigned to one of the
parties after payment
Judgment shall state Judgment shall vest
the fact of such in the party making
payment and of the the payment the
assignment of the whole of the real
real estate to the estate free from any
party making the interest on the part
payment.
of the other parties.

Commissioners Report: Commissioners shall

make a full accurate report to the court on
(1) All proceedings as to the partition, or
(2) The assignment of real estate to one of
the parties, or
(3) The sale of the same.
Upon filing of Commissioners Report:
(1) Clerk shall serve copies on all interested
parties with notice that they are allowed
to file objections
(2) Parties may file objections within 10 days
upon receipt of notice

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J.
FORCIBLE
ENTRY
UNLAWFUL DETAINER

If property is sold and sale is confirmed by

Judgment shall state
Judgment shall vest
the court
the name of the the real estate in the
purchaser
or purchaser(s),
purchasers and a making
the
definite description of payment(s)
free
the parcels of real from the claims of
estate sold to each any parties to the
purchaser
action.
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. [Rule 69, Sec. 11]

I.10. PARTITION
PROPERTY

OF

REMEDIAL LAW

AND

J.1. NATURE
Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession of property.
[Tubiano v. Razo (2000)]
Rationale: The owners of property have no
authority to use force and violence to eject
alleged usurpers who were in prior physical
possession of it. They must file the
appropriate action in court and should not
take the law in their own hands.

PERSONAL

J.2. DEFINITIONS AND DISTINCTIONS

[RIANO]

The provisions of Rule 69 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]

I.11. PRESCRIPTION OF ACTION

The right of action to demand partition does
not prescribe [De Castro v. Echarri (1911)],
except where one of the interested parties
openly and adversely occupies the property
without recognizing the co-ownership
[Cordova v. Cordova (1958)] in which case,
acquisitive prescription may set in.

Forcibly Entry
(Detentacion)

Unlaful Detainer
(Desahucio)

Possession of land
by defendant is
unlawful from the
beginning as he
acquires possession
by
force,
intimidation,
strategy, threat, or
stealth (FISTS).

Possession
is
inceptively
lawful
but
it
becomes
illegal by reason of
the termination of
his
right
to
possession of the
property under his
contract (express or
implied) with the
plaintiff.

No previous demand
for defendant to
vacate the premises
is necessary
Plaintiff must prove
that he was in prior
physical possession
of the premises until
he was deprived
thereof
by
defendant.
The 1-year period is
generally counted
from date of actual
entry on land.

If a co-owner repudiates the co-ownership

and makes known such repudiation to the
other co-owners, then partition is no longer a
proper remedy of the aggrieved co-owner. He
should file an accion reivindicatoria, which is
prescriptible. [Roque v. IAC (1988)]

195

Demand
jurisdictional.

is

Plaintiff need not

have been in prior
physical possession.

Period is counted
from the date of last
letter of demand.

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J.3. DISTINGUISHED FROM ACCION

PUBLICIANA,
ACCION
REINVINDICATORIA, AND ACCION
INTERDICTAL

The issue centers on

The issue centers on
whether
the
who was in prior
defendants right to
possession de facto.
possess has expired
or not.

The Three Kinds of Action for Recovery of Possession

Accion
Interdictal
Summary
action
for
recovery
of
physical
possession
where
the
dispossession has not
lasted for more than 1 year

Accion
Publiciana

Accion
Reinvindicatoria

A plenary action for

recovery of real right of An action for recovery of ownership,
possession
when which necessarily includes the
dispossession has lasted recovery of possession
for more than one year

involves
Issues is possession de Issue
Issue involves ownership
determination
of
who
has
facto
consequently, possession)
better right to possession
Real action
In personam
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.

Real action
In personam

(and

Real action
Quasi in rem

RTC has jurisdiction if value of the property exceeds P20,000

outside Metro Manila or P50,000 within Metro Manila.
MTC has jurisdiction if value of property does not exceed the above
amounts. [B.P. Blg. 129, as amended]

J.4. TO DETERMINE JURISDICTION IN

ACCION
PULICIANA,
ACCION
REINVINDICATORIA, AND ACCION
INTERDICTAL

In
accion
publiciana
and
accion
reinvindicatoria:
(1) RTC has jurisdiction where the assessed
value of the property exceeds P20,000 or,
in Metro Manila, P50,000;
(2) MTC has jurisdiction if the assessed value
does not exceed said amounts. [B.P. 129,
as amended, secs. 19, 33]

In Accion Interdictal: Exclusive original

jurisdiction over forcible entry and unlawful
detainer suits is with the proper Municipal
Trial Court. [B.P. Blg. 129 sec. 33(2)]
Amount of rents and damages claimed
does not affect the jurisdiction of the
MTC because they are only incidental or
accessory to the main action.
However, municipal courts have no
jurisdiction over a forcible entry/unlawful
detainer case involving agricultural
tenants. Jurisdiction is with the HLURB.

J.5. WHO MAY INSTITUTE THE ACTION

AND WHEN; AGAINST WHOM THE
ACTION MAY BE MAINTAINED
Who May Institute Proceedings
(1) In Forcible Entry:
A person deprived of possession of any
land or building by force, intimidation,
strategy, threat, or stealth.
(2) In Unlawful Detainer:
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J.6. PLEADINGS ALLOWED

(a) Lessor, vendor, vendee or other

person against whom any land or
building is unlawfully withheld; or
(b) His legal representatives or assigns.
[Rule 70, sec. 1]

ONLY allowed pleadings:

(1) Complaint
(2) Compulsory Counterclaim pleaded in the
answer
(3) Cross-claim pleaded in the answer
(4) Respective answers. [Rule 70, sec. 4]

Period of Filing: Within ONE (1) year after

such unlawful deprivation or withholding of
possession. [Sec. 1] Reckoning points:
(1) For forcible entry, it is counted from date
of entry or taking of possession;
(a) Exception: In case of stealth or
strategy, from the time plaintiff
learned of entry. [Vda. de Prieto v.
Reyes (1965)]
(2) For unlawful detainer, it is counted from:
(a) Date of last demand to vacate in case
of non-payment of rent or noncompliance with conditions of the
lease; or
(b) Date of notice to quit, in case of tacit
renewal of lease; or
(c) Date of revocation of the permit in
case of occupancy on mere tolerance
or under temporary permit.

N.B.
Pleadings must be VERIFIED. [Rule 70, Sec.
4)]
What must be alleged in the complaints:

Forcible Entry

Unlawful Detainer

(1) That
plaintiff (1) That defendant is
was in prior
unlawfully
physical
withholding
possession
of
possession from
the property in
plaintiff because
litigation until
his
right
to
he was deprived
possess
had
thereof
by
expired
defendant
(2) That landlord has
(2) That
the
made a demand
dispossession
upon tenant to
was
through
comply with the
FISTS.
[N.B.
terms
of
the
First
two
contract and to
requirements
return
the
are jurisdictional
possession of the
(Abad
v.
property, and that
Farrales (2011)]
the tenant failed
(3) That
the
to satisfy the
complaint was
demand within 15
filed within 1
or 5 days, in case
year
from
of buildings
dispossession.
(3) That
the
complaint is filed
within 1 year from
last
demand.
[RIANO,
citing

Against whom may the action be maintained:

Person or persons unlawfully withholding or
depriving of possession, or any person/s
claiming under them [Sec. 1].
Action may be maintained only against
one in possession at the commencement
of the action.
Tenant with right of [de facto] possession
may bring action against another tenant.
Vendor may bring action for ejectment
against vendee upon failure to pay
installments.
Action may lie against the very owner of
the property.
Action may be maintained against
government officials or agents acting in
behalf of the government, even if
government is not made a party to the
action. [REGALADO]

Romullo
v.
Samahang
Magkakapitbahay
(2010)]

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J.7. ACTION ON COMPLAINT

Contents of demand: The demand must be
two-fold:
(1) To (a) pay or (b) comply with the
conditions of the lease; and
(2) To vacate.

Motu
Proprio
dismissal:
From
the
examination of allegations in the complaint,
the court may dismiss the case outright on
any grounds mentioned in Rule 16. [Sec. 5]

Form of Demand: Demand may be

(1) By service of written notice of such
demand upon the person found on the
premises; [Sec. 2]
(2) By posting of the written notice on the
premises if no person is found there; [Sec.
2] or
(3) Oral. [Jakihaca v. Aquino (1990)]

Issuance of summons: If there is no ground

for dismissal, court issues summons. [Sec. 5]
Answer by defendant: Defendant shall file his
answer within 10 days from service of
summons. [Sec. 6]
Effect of Failure to Answer: Court shall render
judgment, motu proprio or upon motion. [Sec.
7]
(1) Judgment is limited to what is prayed for
in the complaint.
(2) Court may reduce the amount of
damages and attorneys fees claimed
(a) For being excessive or otherwise
unconscionable
(b) In the exercise of its discretion
(c) No prejudice to applicability of Sec.
3(c), Rule 9 if there are 2 or more
defendants

Period to comply with demand: Lessor may

file unlawful detainer suit if lessee fails to
comply with the demand:
(1) After 15 days in the case of lands; or
(2) After 5 days in case of buildings. [Sec. 2]
When demand not required:
(1) When parties stipulate that demand
shall not be necessary [Sec. 2]; or
(2) When the action is predicated on the
expiration of the lease. [Labastida v. CA
(1998)] (Since it is not based on failure to
pay or comply with the conditions [see
Sec. 2].)

Preliminary
Conference:
Preliminary
conference shall be held not later than 30
days after filing of last answer. [Sec. 8]

N.B.
It is only where defendant fails to comply
with the demand within the periods
provided by Sec. 2 will his possession
become unlawful.
A demand to pay or vacate does not give
rise to a cause of action for unlawful
detainer. [Peas v. CA (1994)]
A person who occupies the land of
another at the latter's tolerance or
permission, without any contract
between them is necessarily bound by an
implied promise that he will vacate upon
demand, failing which, an action for
unlawful detainer may be instituted
against him. [Dakudao v. Consolacion
(1983)]

Submission of Affidavits and Position Papers:

Affidavits and position papers are to be
submitted within 10 days from receipt of the
Order stating the matters taken in the
preliminary conference. [Sec. 10]
Rendition of Judgment: Court shall render
judgment within 30 days after receipt of
affidavits and position papers. [Sec. 11]

J.8. WHEN DEMAND NECESSARY

General Rule: In unlawful detainer cases, a
prior written demand against the lessee is
required before the lessor can proceed
against him. [Sec. 2]
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Demand is not required in forcible entry

suits.

J.10.
RESOLVING
OWNERSHIP

J.9. PRELIMINARY INJUNCTION AND

PRELIMINARY
MANDATORY
INJUNCTION

REMEDIAL LAW

DEFENSE

OF

Under B.P. Blg. 129, sec. 33(2), when in an

ejectment suit, the defendant raises the
question of ownership in his pleadings, and
the issue of ownership, the MTC nevertheless
has undoubted competence to resolve the
issue of ownership only to determine the
issue of possession. Hence:
(1) Primal rule is that the principal issue
must be that of possession.
(a) Ownership is merely ancillary.
(b) Issue of ownership may be resolved
but only for the purpose of
determining the issue of possession.
(2) It must sufficiently appear from
allegations of the complaint that what
plaintiff really and primarily seeks is
restoration of possession.
(3) Inferior court cannot adjudicate on the
nature of ownership where relationship
of lease has been sufficiently established
(a) Unless it be proven that there has
been a subsequent change in or
termination of that relationship
between parties.
(4) In forcible entry, a party who can prove
prior possession can recover such
possession even against the owner
himself.
(a) Hence, if prior possession may be
ascertained in some other way, the
inferior court cannot intrude into the
issue of ownership.
(5) Where the question of who has prior
possession hinges on the issue of who is
the real owner:
(a) The inferior court may resolve issue
of
ownership,
but
such
pronouncement is merely provisional.
(b) It does not bar or prejudice an action
between the same parties involving
title. [Refugia v. CA]

Court may grant preliminary injunction in

accordance with Rule 58 to prevent
defendant from committing further acts of
dispossession against plaintiff. [Rule 70, Sec.
15]
There is no distinction as to the type of
ejectment case involved.
A preventive injunction is governed by
Rule 58. A mandatory injunction is
governed by the rules in Rule 70.
Preliminary Mandatory Injunction:
Possessor may present a motion for
issuance of preliminary mandatory
injunction in the action for forcible
entry or unlawful detainer within 5
days from filing of complaint to
restore him in his possession. Court
shall decide the motion within 30
days from filing.
Preliminary mandatory injunction
shall be available:
(1) At the start of the action; [Sec.
15]
(2) On appeal to the RTC upon
motion of plaintiff within 10 days
from perfection of appeal. [Sec.
20]
N.B. The injunction on appeal is to
restore to plaintiff in possession:
(1) If the court is satisfied that the
defendants appeal is frivolous or
dilatory; or
(2) That the appeal of plaintiff is
prima facie meritorious. [Sec. 20]
Preliminary Preventive Injunction
Preliminary preventive injunction is available
in either case. Note that Sec. 15 makes the
provisions of Rule 58 applicable to Rule 70.
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Prohibited pleadings: [Sec. 13]

(1) Petition for relief from judgment
(2) Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
(3) Reply;
(4) Third-party complaints;

J.11. HOW TO STAY IMMEDIATE

EXECUTION OF JUDGMENT [RULE 70,
SEC. 19]
Judgment of the MTC:
General rule: Judgment of the MTC against
defendant in ejectment cases is immediately
executory.

Prohibited motions: [Sec. 13]

(1) Motion to dismiss; only to exceptions:
(a) Lack of jurisdiction over subject
matter; or
(b) Failure to comply with conciliation,
when such is required;
(2) Motion for bill of particulars;
(3) Motion for new trial, reconsideration of a
judgment, or reopening of trial;
(4) Motion for extension of time to file
pleadings, affidavits, or other paper;
(5) Memoranda;
(6) Motion to declare defendant in default;
(7) Dilatory motions for postponement;
(8) Interventions.

Exception: When the following concur:

(1) The defendant perfects his appeal;
(2) He files a sufficient supersedeas bond to
pay the rents, damages, and costs
accruing down to the time judgment
appealed from; and
(3) He deposits with the appellate court:
(a) The amount of rent due from time to
time under the contract, or
(b) In the absence of contract, the
reasonable value of the use and
occupation of premises for the
preceding
month
or
period
determined by judgment on or before
the 10th day of each succeeding
month or period [Chua v. CA (1998)]

K. CONTEMPT
K.1. NATURE

Judgment of the RTC:

The judgment of the Regional Trial Court
against the defendant shall be immediately
executory, without prejudice to a further
appeal that may be taken therefrom. [Rule
70, Sec. 21]

Contempt of court is disobedience to the

court by acting in opposition to its authority,
justice, and dignity. It signifies not only a
willful disregard or disobedience to the
courts orders but also conduct tending to
bring the authority of the court and
administration of law into disrepute, or, in
some manner, to impede the due
administration of justice.

J.12.
SUMMARY
PROCEDURE,
PROHIBITED PLEADINGS
General Rule: All actions for forcible entry
and unlawful detainer shall be governed by
the summary procedure of Rule 70,
irrespective of the amount of damages or
unpaid rentals sought to be recovered. [Sec.
3]

The power to declare person in contempt of

court and in dealing with him accordingly is
an inherent power of the court. It is used as a
means to protect and preserve the dignity of
the court, the solemnity of the proceedings,
and administration of justice. [See
Montenegro v. Montenegro (2004)]

Exceptions:
(1) In cases covered by the agricultural
tenancy laws; or
(2) When the law otherwise expressly
provides. [Sec. 3]
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court and justice. [Lorenzo Shipping Corp.

K.2. KINDS OF CONTEMPT; PURPOSE

AND NATURE OF EACH

v. Distribution Management Assoc. of the

Phils. (2011)]

According to Nature
(1) Criminal contempt: Conduct directed
against the authority and dignity of the
court or a judge acting judicially.
(2) Civil contempt: Failure to do something
ordered to be done by a court or by a
judge for the benefit of the opposing
party. [Burgos v. Macapagal-Arroyo
(2011)]

Criminal Contempt
Punitive in nature
Purpose
is
to
preserve the courts
authority and to
punish
for
disobedience of its
orders
Intent is necessary

State is the real

prosecutor

Proof required is
proof
beyond
reasonable doubt
If
accused
is
acquitted, there can
be no appeal

REMEDIAL LAW

Direct Contempt

Indirect Contempt

Committed in the Not

committed
presence of or so within the presence
near a court
of the court
There is charge and
Summary in nature
hearing
Punishment:
Punishment:
If committed against
If committed against
RTC:
Fine
not
the RTC: Fine of not
exceeding P30,000
exceeding P2,000
and/or
and/or
imprisonment
not
imprisonment not
exceeding 6 months
exceeding 10 days
If committed against
If committed against
MTC:
Fine
not
the MTC: Fine not
exceeding P5,000
exceeding P200 and
and/or
or imprisonment not
imprisonment
not
exceeding 1 day
exceeding 1 month
Remedy is certiorari
Remedy is appeal
or prohibition
Otherwise known as Otherwise known as
Contempt in Facie Constructive
Curiae
Contempt

Civil Contempt
Remedial in nature
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
not
necessary
Instituted by the
aggrieved party, or
his successor, or
someone who has a
pecuniary interest in
the right to be
protected
Proof required is
more than mere
preponderance
If judgment is for
respondent,
there
can be appeal

Contempt, whether direct or indirect, may be

civil or criminal depending on the nature and
effect of contemptuous act.
The real character of the proceedings in
contempt cases is to be determined by the
relief sought or by the dominant
purpose. The proceedings are to be regarded
as criminal when the purpose is primarily
punishment, and civil when the purpose is
primarily compensatory or remedial.
[Montenegro v. Montenegro (2004)]

According to Manner of Commission

(1) Direct contempt: Act committed in the
presence of or so near the court or judge
as to obstruct or interrupt the
proceedings before the same.
(2) Indirect contempt: One not committed in
the presence of the court. It is an act
done at a distance which tends to belittle,
degrade, obstruct, or embarrass the

K.3. DIRECT CONTEMPT

For a person to be adjudged guilty of direct
contempt, he must commit a misbehavior in
the presence of or so near a judge as to

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interrupt the administration of justice. [SBMA

v. Rodriguez (2010)]

REMEDIAL LAW

(a) He files a bond fixed by the court

which rendered judgment; and
(b) Conditioned that he will abide by and
perform the judgment should the
petition be decided against him.

Grounds for Direct Contempt

(1) Disrespect toward the court;
(2) Offensive personalities toward others;
(3) Refusal to be sworn or answer as witness
or subscribe an affidavit when lawfully
required to do so;
(4) Misbehavior in the presence of or so near
a court as to obstruct or interrupt the
proceedings; [Rule 71, Sec. 1] or
(5) When the counsel willfully and
deliberately engages in forum shopping.
[Rule 7, sec. 5]

K.4. INDIRECT CONTEMPT

Specific acts constituting indirect contempt:
(1) Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions.
(2) Abuse of or any unlawful interference
with processes or proceedings of a court
not constituting direct contempt.
(3) Disobedience or resistance to lawful writ,
process, order, or judgment of a court, or
any unlawful intrusion to any real
property after being ejected.
(4) Failure to obey subpoena duly served.
(5) Assuming to be an attorney or officer of a
court, and acting as such without
authority.
(6) Improper conduct tending to impede,
obstruct, or degrade administration of
justice.
(7) Rescue, or attempted rescue, of a person
or property in custody of an officer. [Rule
71, Sec. 3]
(8) Failure of counsel to inform the court of
the death of his client. [RIANO, since it
constitutes improper conduct tending to
impede the administration of justice.]

Procedure: Summarily adjudged in contempt

by such court.
By whom initiated:
(1) Generally, civil contempt proceedings
should be instituted by an aggrieved
party, or his successor, or someone who
has pecuniary interest in the right to be
protected;
(2) In criminal contempt proceedings, it is
generally held that the State is the real
prosecutor.
Penalties [Rule 71, sec. 1]:
Offense

Penalty
Fine not exceeding
If RTC or a court of
P2,000 and/or
equivalent or higher
Imprisonment
not
rank
exceeding 10 days
Fine not exceeding
P200 and/or
If lower court:
Imprisonment
not
exceeding 1 day

Procedural requisites for indirect contempt

proceedings:
(1) A charge in writing or an order of the
court to appear and explain; and
(2) An opportunity for respondent to
comment on the charge and to appear
and explain his conduct.

Remedy of a person adjudged in direct

contempt [Rule 71, Sec. 2]
(1) He cannot appeal, but he may file
certiorari or prohibition.
(2) Execution of judgment shall be
suspended pending resolution of such
petition, provided:

Two modes of commencing a proceeding for

indirect contempt
(1) Motu proprio by the court against which
contempt was committed: By order or
any other formal charge requiring
respondent to show why he should not be
punished for contempt; or
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(2) Independent action via verified petition in

all other cases: By a charge commenced
by a verified petition with supporting
particulars. [Rule 70, Sec. 4]

If
committed
against a person
or
entity
exercising quasijudicial functions

Where Charge is to be Filed

General rule: Proceeding for Indirect
Contempt shall be filed and tried by the court
against which the contumacious conduct was
committed.

K.5. WHEN IMPRISONMENT SHALL BE

IMPOSED
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. [Rule 71, Sec.
8]

Penalties for indirect contempt [Rule 71, Sec.

7]

Offense

Penalty
Fine
not
exceeding
P30,000 and/or
Imprisonment
not
exceeding 6 months
Fine not exceeding P500,
and/or
Imprisonment
not
exceeding 1 month
Offender 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.

If
committed
against
lower
court

If
contempt
consists
in
violation of a writ
of
injunction,
TRO, or status
quo order

equivalent to the lost

thing [Rosario Textile
Mills v. CA]
Penalty shall depend
upon the provisions of
the law which authorizes
penalty for contempt
against such persons or
entities

Remedy of a person adjudged in indirect

contempt: May be appealed to the proper
court as in criminal cases, but execution shall
not be suspended until bond is filed. [Rule 71,
Sec. 11]

Exceptions:
(1) If committed against a lower court, it
may be tried by the RTC, regardless of
the imposable penalty; or
(2) If committed against the SC, it may cause
it to be investigated by the prosecutor
and filed with the RTC, or for hearing and
recommendation where the charge
involves questions of fact [Rule 70, Sec.
5]

If against RTC, or
court
of
equivalent
or
higher rank

REMEDIAL LAW

The respondent carried the keys to his

prison in his own pocket. [Galvez v. Republic
Surety & Insurance Co., Inc. (1959)]
Only the judge who ordered the confinement
of the person for contempt of court can issue
the Order of Release. [Inoturan v Limsiaco, Jr.
(2005)]
Rule 71, Sec. 8 does not apply to tenants who
refused or failed to pay their rentals to the
special administratrix of the property. The
non-payment of rentals, which is a civil debt,
is covered by the constitutional guarantee
against imprisonment. [REGALADO]

K.6. CONTEMPT AGAINST QUASIJUDICIAL BODIES [RULE 71, SEC. 12]

If there is nothing more

to return, offender is
personally liable for the
restitution of the money

Rule 71 shall apply to contempt committed

against persons, entities, bodies, or agencies
exercising quasi-judicial functions or have
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suppletory effect to such rules as they may

have adopted.
RTC of the place where the contempt was
committed shall have jurisdiction.
It is not within the jurisdiction and
competence of quasi-judicial bodies to
decide indirect contempt cases. The
requirement for a verified petition must also
be complied with (e.g. DARAB has no power
to decide the contempt charge filed before it).
[Land Bank v. Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on
all Quasi-Judicial entities or supplements
their rules, unless the applicable law
provides otherwise.
Acts or violations against quasi-judicial
bodies punishable as contempt: Where a
person, without lawful excuse, fails to appear,
make oath, give testimony or produce
documents when required to do so by the
official or body exercising such powers. Other
acts or violations cannot be punished as
contempt unless specifically defined in the
governing law as contempt of court or if it
authorizes the quasi-judicial body to punish
for
contempt,
and
providing
the
corresponding penalty. [People v. Mendoza
(1953); ADMIN. CODE, Bk. VII, Ch. 3, sec. 13]

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REMEDIAL LAW

THE SPECIAL CIVIL ACTIONS

JURISDICTION
VENUE
Personal Property:
1. MTC: If value not more than P300,000 outside
Metro Manila, or not more than P400,000 in
Metro Manila [B.P. Blg. 129, sec. 33]
2. RTC: If value exceeds P300,000 outside Metro Apply Rule 4:
Manila, or P400,000 in Metro Manila, or if
incapable of pecuniary estimation [B.P. Blg. 129, Real action: If the action affects title to or possession of real property,
sec. 19]
venue is where the real property involved or a portion thereof is situated.
INTERPLEADER

DECLARATORY
RELIEF

Real Property:
Personal action: All other actionsAt the election of the plaintiff
1. MTC: assessed value not more than P20,000
1. Where plaintiff or any of the principal plaintiffs reside; or
outside Metro Manila or not more than P50,000
2. Where defendant or any of the principal defendants resides; or
in Metro Manila (Sec. 33, BP 129)
3. In case of an non-resident, where he may be found
2. RTC: value exceeds P20,000 if outside Metro
Manila, or P50,000 if in Metro Manila, or
incapable of pecuniary estimation (Sec. 19,
BP129)
General rule: In the appropriate RTC, since the subject in
declaratory relief is incapable of pecuniary estimation.
Exception: Where the action is a proceeding similar to
Apply Rule 4, i.e. personal action.
declaratory relief (e.g. quieting of title to real property),
jurisdiction will depend on the assessed value of the
property, supra.

REVIEW
OF
JUDGMENTS
AND
FINAL SC
ORDERS
OF
COMELEC/COA

SC

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CERTIORARI
PROHIBITION
MANDAMUS

CIVIL PROCEDURE

QUO WARRANTO

EXPROPRIATION

RTC

JUDICIAL
RTC
FORECLOSURE
PARTITION
RTC
FORCIBLE ENTRY
AND UNALWFUL MTC
DETAINER

RTC, CA, SC;

Sandiganbayan, in aid of its appellate jurisdiction;
RTC where the respondent is situated, where petition relates to an act or
COMELEC, in election cases involving an act or omission of a corporation, board, an officer, or person. [Rule 65, Sec. 4]
omission by MTC or RTC, in aid of its appellate
jurisdiction.
RTC, CA, SC
Sandiganbayan, which has exclusive original
jurisdiction over quo warranto cases filed by the
Generally, action can be brought in the SC, CA, or RTC
PCGG
exercising jurisdiction over the territorial area where respondent
resides or any of the respondent resides
COMELEC, exclusive jurisdiction over cases falling
under the Omnibus Election Code
If commenced by the SolGen, it may be filed with the RTC
Manila, CA, or SC
Special Commercial Courts, for quo warranto
against duly licensed associations. (CORP. CODE
rules apply, not the RULES OF COURT.)
Apply Rule 4, i.e. where the real property involved, or a portion thereof,
is situated
Apply Rule 4, i.e. where the real property involved, or a portion thereof,
is situated
Apply Rule 4
Apply Rule 4, i.e. where the real property involved, or a portion thereof,
is situated

CONTEMPT

REMEDIAL LAW

MTC, RTC, CA, SC

206

If committed against RTC or a court of equivalent or higher rank,

or against an officer appointed by it: File with such court
If committed against a first-level court: File with the RTC of the
place in which lower court is sitting
If act was committed against persons or entities exercising
quasi-judicial functions: File with the RTC of the place wherein
contempt was committed

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IX. SPECIAL RULES

REMEDIAL LAW

Rule shall not apply:

(1) To a civil case where plaintiffs cause of
action is pleaded in the same complaint
with another cause of action subject to
ordinary procedure
(2) To a criminal case where offense charged is
necessarily related to another criminal case
subject to ordinary procedure

A. REVISED RULES ON SUMMARY

PROCEDURE
A.1. CASES COVERED BY THE RULE (SEC.
1)

A.2. EFFECT OF FAILURE TO ANSWER

(SEC. 6)

Rule shall govern the summary procedure in the

MTC, MTC in Cities, MCTC in the following cases
falling within their jurisdiction:

If defendant fail to answer the complaint within

the period provided, court (motu proprio or on
motion of plaintiff) shall render judgment

For Civil Cases:

(1) Cases of forcible entry and unlawful
detainer
(a) Irrespective of the amount of damages
or unpaid rentals sought to be
recovered
(b) Where attorneys fees are awarded, it
shall not exceed P20,000

The judgment:
(1) As may be warranted by the facts alleged in
the complaint and
(2) Limited to what is prayed for
The court may in its discretion reduce the
amount of damages and attorneys fees claimed
for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18
ROC, if there are 2 or more defendants

(2) All other civil cases where total amount of

plaintiffs claim does not exceed P100,000
or P200,000 in Metropolitan Manila,
exclusive of interest and costs
(a) EXCEPT: probate proceedings

A.3. PRELIMINARY CONFERENCE AND

APPEARANCES OF PARTIES (SEC. 7)

For Criminal Cases

(1) Traffic laws, rules, and regulations violation
(2) Rental law violations
(3) Municipal or city ordinance violations
(4) All other criminal cases where penalty
prescribed by law for offense charged is
imprisonment not exceeding 6 months
and/or a fine not exceeding P1,000
(a) Irrespective
of
other
imposable
penalties, accessory or otherwise, or of
civil liability arising therefrom
(b) In offenses involving damage to
property through criminal negligence,
this rule shall govern where imposable
fine does not exceed P10,000

A preliminary conference shall be held not later

than 30 days after the last answer is filed.
Rules on pre-trial in ordinary cases shall be
applicable unless inconsistent with the
provisions of this Rule
Failure of plaintiff to appear in preliminary
conference
(1) Cause for dismissal of complaint
(2) Defendant who appears in the absence of
plaintiff shall be entitled to judgment on his
counterclaim in accordance with Sec. 6
(3) All cross-claims shall be dismissed

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If sole defendant shall fail to appear

(1) Plaintiff entitled to judgment in accordance
with Sec. 6
(2) Rule shall not apply where one of 2 or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at preliminary conference

REMEDIAL LAW

(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 one (1) year or a fine exceeding
Five thousand pesos (P5,000.00);
(4) Offenses where there is no private offended
party;
(5) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon;
(6) Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such barangay
units adjoin each other and the parties
thereto agree to submit their differences to
amicable settlement by an appropriate
lupon;
(7) Such other classes of disputes which the
President may determine in the interest of
Justice or upon the recommendation of the
Secretary of Justice.

B. KATARUNGANG PAMBARANGAY
LAW (PD 1508; RA 7160 AS
AMENDED)
B.1. SCOPE AND APPLICABILITY OF THE
RULE
RA 7610 Sec. 399-422, and 515 is applicable.
The LGC is now the governing law on
Katarungang Pambarangay. PD 1508 was
expressly repealed

B.2. CASES COVERED

All disputes, civil and criminal in nature, where
parties actually reside in the SAME
CITY/MUNICIPALITY are subjected barangay
conciliation.

The court in which non-criminal cases not

falling within the authority of the lupon under
this Code are filed may, at any time before trial
motu propio refer the case to the lupon
concerned for amicable settlement.

B.3. SUBJECT MATTER FOR AMICABLE

SETTLEMENT (SEC. 408, RA 7160)

B.5. VENUE [RA 7610, SEC. 409]

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.

Parties

Lupon

Between
actual
Lupon
of
said
residents of the same
barangay
barangay
Lupon of the barangay
Between
actual where the respondent
residents of different or
any
of
the
barangays but within respondents actually
same city/municipality resides at the option of
complainant
Involving real property Lupon of barangay
or any interest therein were the real property

B.4. WHEN PARTIES MAY GO DIRECTLY

TO COURT
In these cases, referral to barangay conciliation
is not a condition precedent for filing a case to
court:
(1) Where one party is the government, or any
subdivision or instrumentality thereof;

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(1) Purely civil in nature where the claim or

relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of
money, and
(2) Civil aspect of criminal action, or reserved
upon the filing of the criminal action in
court, pursuant to Rule of 111 of the Revised
Rules of Criminal Procedure.

or the larger portion

thereof is located
Between
parties
Lupon of the barangay
arising
at
the
were the workplace or
workplace
or
at
institution is located
institutions of learning

B.6. EXECUTION

These claims or demands may be;

(1) For money owned under any of the
following;
(a) Contract of Lease;
(b) Contract of Loan;
(c) Contract of Services;
(d) Contract of Sale; or
(e) Contract of Mortgage;

The amicable settlement or arbitration award

may be enforced by execution by the lupon
within six (6) months from the date of the
settlement. After the lapse of such time, the
settlement may be enforced by action in the
appropriate city or municipal court. [Sec. 417,
RA 7160]

B.7. REPUDIATION

(2) For damages arising from any of the

following;
(a) Fault or negligence;
(b) Quasi-contract; or
(c) Contract;

Any party to the dispute may, within ten (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, RA 7160]

(3) The enforcement of a barangay amicable

settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417, LGC.

C. RULES OF PROCEDURE FOR

SMALL CLAIMS CASES (A.M. NO. 088-7-SC)

C.2. COMMENCEMENT OF SMALL CLAIMS

ACTION; RESPONSE [SEC. 5]

C.1. SCOPE AND APPLICABILITY OF THE

RULE

How commenced: By filing with the court an

accomplished and verified STATEMENT OF
CLAIM in duplicate

This Rule shall govern the procedure in actions

before the MeTC, MTC in Cities, MTC and MCTC
for payment of money where the value of the
claim does not exceed P100,000 exclusive of
interest and costs. [Sec. 2]

Attachments to the Statement of Claim:

(1) Certification of Non-forum Shopping
(2) Two (2) duly certified photocopies of the
actionable document/s subject of the claim
(3) Affidavits of witnesses and other evidence
to support the claim

This Rule is applicable in all actions which are;

[Sec. 4]
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C.3. PROHIBITED
MOTIONS [SEC. 14]

NOTE: No evidence shall be allowed during the

hearing which was not attached to or submitted
together with the Claim. UNLESS good cause is
shown for admission of additional evidence.

REMEDIAL LAW

PLEADINGS

AND

The following pleadings, motions, and petitions

shall not be allowed in the cases covered by this
Rule:
(1) Motion to dismiss the compliant 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; and
(12) Interventions.

No formal pleading, other than the Statement

of Claim, is necessary to initiate a small claims
action.
After examination of allegations of the Claim,
the court may dismiss outright the case for any
of the grounds apparent for the dismissal of a
civil action. [Sec. 9]
If no ground of dismissal is found, the court
shall issue Summons directing defendant to
submit a verified response. [Sec. 10]
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 [Sec. 11].
Attachments:
(1) Certified photocopies of documents
(2) Affidavits of witnesses
(3) Evidence in support

C.4. APPEARANCES
The parties shall appear at the designated date
of hearing personally or through a
representative authorized under a Special
Power of Attorney to:
(1) Enter into an amicable settlement,
(2) Submit of Judicial Dispute Resolution (JDR)
and
(3) Enter into stipulations or admissions of
facts and of documentary exhibits [Sec. 16]

NOTE: No evidence shall be allowed during

hearing which was not attached or submitted
together with the Response.
Should the defendant fail to file his response
within the required period, the court by itself
shall render judgment as may be warranted by
the facts alleged in the Statement of claim
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]

No attorney shall appear in behalf of or

represent a party at the hearing, unless the
attorney is the plaintiff or defendant. [Sec. 17]
Failure to appear:
(1) If plaintiff fails to appear it shall be a
cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.
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(2) If defendant fails to appear same effect as

failure to file Response.

The decision shall be final and unappealable.

[Sec. 23]

C.5. HEARING; DUTY OF THE JUDGE

D. EFFICIENT USE OF PAPER RULE

(A.M. NO. 11-9-4-SC)

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]

D.1. FORMAT AND STYLE

All pleadings, motions and similar papers
intended for the court and quasi-judicial bodys
consideration and action (court-bound papers)
shall:
(1) Be written in single space with one-and-a
half space between paragraphs,
(2) Use an easily readable font style of the
partys choice, of 14-size font, and on a 13
inch by 8.5- inch white bond paper

At the hearing, the judge shall conduct JDR

through mediation, conciliation, early neutral
evaluation, or any other mode of JDR. [Sec. 21]
If JDR fails and the parties agree in writing that
the hearing of the case shall be presided over by
the judge who conducted the JDR, the hearing
shall so proceed in an informal and expeditious
manner and terminated within one (1) day. [Sec.
22]

All decisions, resolutions and orders issued by

courts and quasi-judicial bodies under the
administrative supervision of the Supreme
Court shall comply with these requirements.
Similarly covered are the reports submitted to
the courts and transcripts of stenographic notes.

Absent such agreement

(1) In case of a multi-sala court , the case shall,
on the same day, be transmitted to the
Office of the Clerk of Court for immediate
referral by the Executive Judge to the
pairing judge for hearing and decision
within five (5) working days from referral;
and
(2) In case of single sala court, the pairing
judge shall hear and decide the case in the
court of origin within five (5) working days
from referral by the JDR judge.

D.2. MARGINS AND PRINTS

The parties shall maintain the following
margins on all court-bound papers:
(1) Left hand margin of 1.5 inches from the
edge;
(2) Upper margin of 1.2 inches from the edge;
(3) Right hand margin of 1.0 inch from the
edge;
(4) Lower margin of 1.0 inch from the edge.
Every page must be consecutively numbered.

C.6. FINALITY OF JUDGMENT

D.3. COPIES TO BE FILED

After the hearing, the court shall render its

decision on the same day, based on the facts
established by the evidence.

Unless otherwise directed by the court, the

number of court- bound papers that a party is
required or desires to file shall be as follows:

The decision shall immediately be entered by

the Clerk of Court in the court docket for civil
cases and a copy thereof forthwith served on the
parties.

In the Supreme Court,

(1) One original (properly marked) and 4 copies

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(2) Two sets of annexes, one attached to the

original and an extra copy

REMEDIAL LAW

In other courts,
(1) One original (properly marked)
(2) With the stated annexes attached to it.

If the case is referred to the Court En Banc:

(1) Parties shall file 10 additional copies.
(2) For the En Banc, the parties need to submit
only 2 sets of annexes, one attached to the
original and an extra copy.

D.4. ANNEXES SERVED ON ADVERSE

PARTY
A party required by the rules to serve a copy of
his court-bound on the adverse party need not
enclose copies of those annexes that based on
the record of the court such party already has in
his possession.

All members of the Court shall share the extra

copies of annexes in the interest of economy of
paper.
In the Court of Appeals and the Sandiganbayan,
(1) One original (properly marked) and
(2) Two copies with their annexes;

In the event a party requests a set of the

annexes actually filed with the court, the part
who filed the paper shall comply with the
request within five days from receipt.

In the Court of Tax Appeals,

(1) One original (properly marked) and
(2) 2 copies with annexes

D.5. APPLICABILITY
This Rule applies to all courts and quasi-judicial
bodies under the administrative supervision of
the Supreme Court.

On appeal to the En Banc:

(1) One Original (properly marked)
(2) 8 copies with annexes; and

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SPECIAL PROCEEDINGS

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SPECIAL PROCEEDINGS

I. Special Proceedings

REMEDIAL LAW

APPLICABLE RULES
If special rules are provided, they shall apply.
But in the absence of special provisions, the
rules provided for in ordinary actions shall be,
as far as practicable, applicable in special
proceedings. [Rule 72, Sec. 2]

Rule 1 Sec 3(c). A special proceeding is a remedy

by which a party seeks to establish a status, a
right, or a particular fact.

A.
SUBJECT
MATTER
AND
APPLICABILITY OF GENERAL RULES

There are special proceedings which are not

part of the ROC but are provided for under
special laws and Supreme Court circulars (e.g.
Writs of amparo and habeas data)

Rule 72 Sec 1. Subject matter of special

proceedings. Rules of special proceedings are
provided for in the following cases:
(1) Settlement of estate of deceased
persons
(2) Escheat
(3) Guardianship and custody of children
(4) Trustees
(5) Adoption
(6) Rescission and revocation of adoption
(7) Hospitalization of insane persons
(8) Habeas corpus
(9) Change of name
(10) Voluntary dissolution of corporations
(11) Judicial
approval
of
voluntary
recognition of minor natural children
(12) Constitution of family home
(13) Declaration of absence and death
(14) Cancellation of correction of entries in
the civil registry.

The distinction between final and

interlocutory orders in civil actions for purposes
of determining the issue of applicability is not
strictly applicable to orders in special
proceedings. Rule 109 specifies the orders from
which appeals may be taken [REGALADO]
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings
[Matute v. CA (1969)].

DISTINCTION BETWEEN ORDINARY CIVIL

ACTION AND SPECIAL PROCEEDINGS
Ordinary Civil Action

NOTES

Special Proceeding

To protect or enforce a Text To establish a

right or prevent or right,
status,
or
redress a wrong
particular fact

Rule 99 on Adoption and Rule 100 on

Rescission and Revocation of Adoption had
been expressly repealed by the new Rules on
Adoption (effective August 22, 2002).
[FESTIN]
Rule 104 is likewise deemed repealed by Sec
119 of the Corporation Code and a Petition for
Voluntary Dissolution of Corporations is now
to be filed with the Securities and Exchange
Commission and not with the courts.
[BAUTISTA]
Rules 105 and Rule 106 are deemed obsolete
because under the Family Code, there are no
more natural children and a family home is
deemed automatically constituted.
List under Rule 72 is not exclusive [FESTIN]

Generally adversarial in May involve only one

nature, involves two or party
more parties
Governed by ordinary Governed by special
rules supplemented by rules, supplemented by
special rules
ordinary rules
Courts
of
jurisdiction

general Courts
of
jurisdiction

limited

Initiated by pleading, Initiated by petition,

and parties respond parties
respond
through an answer
through an opposition
Laws on pleadings Laws on
applicable: filing of an generally
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B. JURISDICTION

answer, counterclaim, applicable.

cross-claim, third-party
complaint

Exclusive original jurisdiction over all matters of

probate, both testate and intestate, shall lie
with:
MTC if gross value of the estate
Outside Metro
does not exceed P300,000; If
Manila
it exceeds such value then RTC
MTC if gross value of the estate
In
Metro
does not exceed P400,000;
Manila
Otherwise RTC

An action is a formal demand of ones right in a

court of justice in the manner prescribed by the
court or by the law. It is a method of applying
legal remedies according to definite established
rules.
A special proceeding is an application or
proceeding to establish the status or right of a
party or a particular fact. Usually, in special
proceedings, no formal pleadings are required
unless the statute expressly so provides. In
special proceedings the remedy is granted
generally upon an application or motion. It is in
the nature of a distinct and independent
proceeding for particular relief, such as may be
instituted independently of a pending action, by
petition or motion upon notice. [Natcher v. CA,
366 SCRA 385]

Court first taking cognizance shall exercise

jurisdiction to the exclusion of all other courts
and cannot be divested by subsequent act of
interested parties.
Testate proceedings take precedence over
intestate proceedings of the same estate.
[Sandoval v. Santiago (1949)]
Thus, if in the course of intestate proceedings
pending before a court of first instance, 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
stage an administrator had already been
appointed, the latter being required to render
final account and turn over the estate in his
possession to the executor subsequently
appointed. This, however, is understood to be
without prejudice that should the alleged last
will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
[Uriarte vs. CFI (1970]

II. Settlement of Estate of Deceased Persons

A. MODES
ESTATE

OF

SETTLEMENT

REMEDIAL LAW

OF

(1) Extrajudicial
(a) If only one heir: Affidavit of Selfadjudication
(b) If two or more heirs: Deed of
Extrajudicial Settlement or Partition
[Rule 74 Sec 1]
(2) Judicial
(a) Partition [Rule 69]
(b) Summary Settlement of Estate of Small
Value [Rule 74 Sec 2]
(c) Petition for Letters of Administration
[Rule 79]
(d) Probate of a Will [Rule 75-79]
(i) Petition for Letters Testamentary; or
(ii) Petition
for
Letters
of
Administration with the will
annexed (if no named executor)

C. VENUE
(1) If Inhabitant of the Philippines at the time of
death (citizen or alien) Court of the
province where decedent resided at time of
death
(2) If inhabitant of foreign country at the time of
death Court of any province where
decedent had an estate [Rule 73 Sec 1]
Residence
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In the application of venue statutes and rules,

residence rather than domicile is the significant
factor. The word resides means personal,
actual, or physical habitation of a person, or his
actual residence or place of abode. It does not
mean legal residence or domicile. [Fule v. CA, 74
SCRA 189]

REMEDIAL LAW

The court first taking cognizance of the

settlement of estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts. [Rule 73 Sec 1]
Under the rule of venue, the court with whom a
petition is first filed must also first take
cognizance of the petition in order to exclude
other courts. [BAUTISTA]

NOTE: Jurisdiction as used in Rule 73 means

venue.

E. POWERS AND DUITIES OF A

PROBATE COURT

If venue is improperly laid:

General Rule: Ordinary appeal
Exceptions: Certiorari may be resorted to if
impropriety of venue (due to residence or
location of estate) appears on the record. [Rule
73 Sec 1]

It is the duty of courts of probate jurisdiction to

guard jealously the estates of the deceased
person by intervening in the administration
thereof in order to remedy or repair any injury
that may be done thereto [Dariano vs.
Fernandez Fidalgo (1909)]

D. EXTENT OF JURISDICTION OF
PROBATE COURT

There seems, however, to be a general

tendency, in the absence of express and specific
restrictions to the contrary, to uphold the
exercise by the probate court of such incidental
powers as are, within the purview of their grant
of authority, reasonably necessary to enable
them to accomplish the objects for which they
were invested with jurisdiction and to perfect
the same. [In Re: Baldomero Cosme (1937)]

A probate court is of limited jurisdiction. It may

only determine and rule upon issues relating to
the settlement of estates namely:
(1) Liquidation of estate;
(2) Administration of the estate; and
(3) Distribution of the estate [HERRERA]
General rule: Questions as to title to property
cannot be passed upon on testate or intestate
proceedings.
Exceptions:
(1) In a provisional manner to determine
whether said property should be included or
excluded in the inventory, without prejudice
to final determination of title in a separate
action [Cuizon v Ramolete (1984)]
(2) With consent of all the parties, without
prejudice to third persons [Trinidad v. CA
(1991)]
(3) If the question is one of collation or
advancement [Coca v. Borromeo (1978)]
(4) When the estate consists of only one
property [Portugal v. Portugal-Beltran
(2005)]

Ancillary powers of a probate court

(1) Issue warrants and processes to compel
attendance of a witness and to carry into
effect their orders and judgments;
(2) Issue warrant for apprehension and
imprisonment of a person who refuses to
perform an order or judgment;
(3) All other powers granted to them by law
[Rule 73 Sec 3]

Not the court where petition is first filed but

court which first takes cognizance
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III. Summary Settlement

of Estates

REMEDIAL LAW

Modes:
(1) If sole heir: Affidavit of Self-adjudication (of
the whole estate)
(2) If more than one heir: Deed of Extrajudicial
Settlement or partition

General rule: The settlement of the estate of the

decedent should be judicially administered
through an administrator or executor.

Deed of Extrajudicial Settlement is resorted to if

there is no disagreement among the heirs.

Exception
Law allows heirs to resort to:
(1) Extrajudicial settlement of estate (decedent
died intestate and left no debt); or
(2) Summary settlement of estate (for estates of
small value)

If there is a disagreement, then they may resort

to an action for partition (which is judicial)
Procedure:
Division of estate in a public instrument or
affidavit of adjudication.

Ratio: When partition is possible, either in or

out of court, the estate should not be burdened
with an administration proceeding without
good and compelling reasons. [Pereira v. CA
(1989)]

Pubic instrument/affidavit filed with proper

Registry of Deeds and posting of a bond if
estate has personal property (bond
equivalent to amount of personal property).

No preclusion from instituting administrative

proceedings
While Section 1 allows the heirs to divide the
estate among themselves as they may see fit, or
to resort to an ordinary action for partition, the
said provision does not compel them to do so
(not precluded from instituting administration
proceedings) if they have good reasons to take a
different course of action. Good reasons
depend on circumstances of each case. [Ibid]

Publication of notice of the fact of

extrajudicial settlement once a week for 3
consecutive weeks in a newspaper of general
circulation in the province, and after such
other notice to interested persons as the
court may direct.

Extrajudicial settlement not binding on those

who did not participate or had no notice
The procedure outlined in Section 1 of Rule 74 is
an ex parte proceeding. The rule plainly states,
however, that persons who do not
participate or had no notice of an extrajudicial
settlement will not be bound thereby.

A. EXTRAJUDICIAL SETTLEMENT OF
ESTATES
Requisites [Rule 74 Sec 1]
(1) Decedent died intestate
(2) Left no debts or heirs have already paid such
at the time of partition
(3) Heirs are all of age, minors represented by
their legal or judicial representatives

The requirement of publication is geared for the

protection of creditors and was never intended
to deprive heirs of their lawful participation in
the decedent's estate. [Benatiro v. Heirs of Cuyos
(2008)]
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Oral partition is valid

Because there is no law that requires partition
among heirs to be in writing to be valid. [Pada
Kilario v. CA (2000)]

Procedural Requirements:
(1) Petition by an interested person
alleging fact that estate does exceed
P10,000
(2) Hearing which shall be
(a) Held not less than 1 month nor more
than 3 months
(b) Counted from the date of the last
publication of a notice
(3) Notice
(a) Which shall be published once a
week for 3 consecutive weeks
(b) In a newspaper of general
circulation in the province
(c) It is not required that publication be
for a complete 21 days. What is
required is that it be published for
once a week for 3 consecutive weeks.
(4) Other notice to interested persons as
the court may direct [Rule 74 Sec 2]
(5) Bond in an amount to be fixed by court
if personal property is to be distributed
[Rule 74 Sec 3]

Validity of compromise agreement

Such is VALID, binding upon the parties as
individuals, upon the perfection of the contract,
even without previous authority of the court to
enter into such agreement. [Borja v. Vda. De
Borja (1972)]

TWO-YEAR PERIOD
Disputable presumption of no debt
If within two years after the death of the
decedent no creditor files a petition for letters of
administration, then it shall be presumed that
decedent left no debt.
Two-year prescriptive period
Heirs or person deprived of lawful participation
in the estate may compel settlement of estate
within 2 years from settlement and distribution.

Upon fulfillment of the requisites, the court may

proceed summarily without the appointment of
an executor/administrator and without delay,
(1) to grant, if proper, allowance of the will,
if there be any
(2) to determine who are persons legally
entitled to participate in the estate
(3) to apportion and divide among them
after the payment of such debts of the
estate
(4) persons in own right if of lawful age, or
their guardians, will be entitled to
receive and enter into possession of the
portions of the estate so awarded to
them respectively. [Rule 74 Sec 2]

A lien shall be constituted on the real property

of the estate and together with the bond, it
shall be liable to creditors, heirs or other
persons for a full period of 2 years after such
distribution.
Such lien will be not cancelled before the lapse
of two years even if a distributee offers to post
bond to answer for contingent claims [Rebong v.
Ibanez (1947)]

B. SUMMARY SETTLEMENT
ESTATES OF SMALL VALUE

REMEDIAL LAW

OF

When allowed: Whenever the gross value of

estate of the decedent does not exceed P10, 000.

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PROCEDURE

Value of the estate is Gross value of the

immaterial
estate must not exceed
P10, 000

Death of the decedent

Petition for summary settlement with an

allegation that the gross value of the estate
does not exceed P10K

Publication of notice of the fact of summary

settlement once a week for 3 consecutive
weeks in a newspaper of general circulation in
the province, and after such other notice to
interested persons as the court may direct

Hearing to be held not less than 1 month nor

more than 3 months from the date of the last
publication of notice

Court to proceed summarily, without

appointing
an
executor/administrator
(executor/administrator), and to make orders
as may be necessary such as:
(1) Grant allowance of will, if any;
(2) Determine persons entitled to estate;
(3) Pay debts of estate which are due;

Filing of bond fixed by the court

Partition of estate

Bond filed with the

Register of Deeds in an
amount equal to the
value of the personal
property of the estate

WITHIN REGLAMENTARY PERIOD OF

TWO YEARS:
(1) Claim on the bond
(2) Claim on lien on real property
notwithstanding any transfers of real property
that may have been made.
(3) Reopening by intervention before rendition
of judgment
(4) Action to Annul Settlement
When applicable: there is an heir or other
person who
(1) has been unduly deprived of his lawful
participation in the estate:
a. He shall have a right to compel
the settlement of the estate in
the courts for the purpose of
satisfying
such
lawful
participation
(2) has been unduly deprived of his lawful
participation payable in money: The
court having jurisdiction of the estate
may, by order for that purpose, after
hearing,
a. settle the amount of such debts
or lawful participation, and
b. may issue execution against the
bond or against the real estate
belonging to the deceased, or
both. [Rule 74 Sec 4]

Extrajudicial Settlement Summary Settlement

Court intervention not Summary
judicial
required
adjudication needed
Decedent may or may
not have left a will
(died intestate/testate)

Decedent left no debt

Decedent may have left

debts

Bond filed with and

amount
to
be
determined by the
court

C.
REMEDIES
OF
AGGRIEVED
PARTIES AFTER EXTRA-JUDICIAL
SETTLEMENT OF ESTATE

COMPARISON

Decedent left no will

REMEDIAL LAW

Heirs are all of age or No such requirement

minors are represented
Instituted only at the May be instituted by
instance
and
by any interested party
agreement of all heirs even by a creditor
without consent of the
heirs
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When not applicable:

(1) To persons who have participated or
taken part or had notice of the
extrajudicial partition
(2) When the provisions of Sec. 1 of
Rule 74 have been strictly complied
with (all persons or heirs of the
decedent have taken part in the
extrajudicial settlement or are
represented by themselves or
through guardians)

REMEDIAL LAW

(3) Petition for Relief on ground of fraud,

accident, mistake, excusable negligence
within 60 days after petitioner learns of
judgment final order or other proceedings
to be set aside and not more than 6 months
after such judgment or order is entered or
taken [Rule 38]

IV. Production and

Probate of Will

Additional Period for Claim of Minor or

Incapacitated Person
If on the date of the expiration of the period of 2
years, the person authorized to file a claim is:
(1) a minor or mentally incapacitated,
(2) is in prison or
(3) outside the Philippines,

A.
NATURE
PROCEEDINGS

OF

PROBATE

(1) In rem proceedings

(2) Mandatory no will shall pass either real or
personal property unless it is proved and
allowed in the proper court [Rule 75 Sec 1]
(3) Right to ask for probate does not prescribe
[Guevara v. Guevara (1943)]
(4) Doctrine of estoppel does not apply
[Fernandez v. Dimagiba (1967)]

He may present his claim within 1 year after

such disability is removed. [Rule 74 Sec 5]
Within the reglementary period, the judge of a
probate court has the power to reopen estate
proceedings even after the issuance of an order
approving a project of partition and closing the
proceedings. Rather than requiring an allegedly
preterited party to air his grievances in a
separate and independent action, he may within
the reglementary period claim his relief sought
in the same case by reopening the same even
after a project of partition and final accounting
had been approved. This is proper to avoid
needless delay in the resolution of cases [Jerez v.
Nietes (1969)

Before any will can have force or validity, it must

be probated. Until admitted to probate, a will
has no effect whatsoever and no right can be
claimed thereunder. [Sps Pascual v. CA (2003)]
The presentation of the will for probate is
mandatory and is a matter of public policy.
Unless the will is probated, the right of a person
to dispose of his property may be rendered
nugatory. [Maninang v. CA (1982)]
Duty of custodian, executor
The person who has custody of the will shall
deliver the will to the court having jurisdiction or,
to the executor within 20 days after he knows of
the death of the testator. [ Rule 75 Sec 2]

OTHERS:
(1) Action for reconveyance of real property
based on an implied trust, reckoned 10
years from issuance of title [Marquez v. CA
(1998)]

The person named executor shall present the

will to the court having jurisdiction, unless the
will has reached it in any manner, and signify

(2) Rescission in case of preterition of

compulsory heir in partition tainted with
bad faith [Art 1104 NCC]
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acceptance/refusal of the trust within 20 days

after he knows of the death of the testator or
after he knows that he is named executor.[Rule
75 Sec 3]

there is clearly preterition and the said judge

still continues the probate proceedings)

Penalty for neglect without excuse satisfactory

to the court: Fine not exceeding P2,000 [Rule 75
Sec 4]

Due execution of the will means:

(1) That the will was executed strictly in
accordance with the formalities
required by law;
(2) That the testator was of sound and
disposing mind when the will was
executed;
(3) That there was no vitiation of consent
through duress, fear or threats;
(4) That it was not procured by undue and
improper pressure or influence on part
of beneficiary or other person for his
benefit;
(5) That the testators signature is genuine
(it was not procured through fraud and
that the testator intended that what he
executed was his last will and
testament)

Extrinsic validity - due execution of the will;

Person retaining will may be committed to

prison
if:
(1) Has custody of will
(2) There is a court order directing him to deliver
the will; and
(3) Neglects without reasonable cause to deliver
the same [Rule 75 Sec 5]

V. Allowance or
Disallowance of Will
Probate or allowance of wills is the act of
proving in court a document purporting to be
the last will and testament of the deceased for
the purpose of its official recognition,
registration and carrying out its provision in so
far as they are in accordance with law. [FESTIN]

A. WHO MAY PETITION FOR

PROBATE; PERSONS ENTITLED TO
NOTICE
TIMING AND WHO MAY PETITION
A will may be probated:
(1) Before the testators death - By testator
himself
Rationale: Easier for courts to determine
mental condition of testator. Fraud
intimidation and undue influence are
minimized. And if will does not comply with
requirements prescribed by law, they can be
easily corrected.
(2) After the testators death By executor,
devisee, or legatee named in the will or any
person interested in the estate

General Rule: A probate proceeding only looks

at extrinsic validity.
Exception:
Principle of Practical Consideration
The probate court may pass upon the intrinsic
validity of the will because there is apparent
defect in its face this is also known as the
principle
of
practical
consideration
[Nepomuceno v CA (1985)]. (Ex. When on the
face of the will the petitioner appears to be
preterited)

MEANING OF INTEREST IN ESTATE

An interested party is one who would be
benefited by the estate such as an heir or one
who has claim against the estate like a creditor.
[Sumilang v. Ramagosa (1967)]

But the remedy of certiorari is available, where

the grounds for dismissal are indubitable (e.g.
grave abuse of discretion of the judge when
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Persons entitled to notice

(1) Known heirs, legatees and devisees;
(2) Named executor his co-executor if they
are not the petitioner[Rule 76 Sec 4]
(3) Compulsory heirs, if the testator himself
asks for probate of his own will.

If testator files for probate of his will, no

publication is required and notice is only to the
compulsory heirs. [Rule 76 Sec 3]

Periods to give notice

(1) Personal service: At least 10 days before
hearing
(2) By mail: at least 20 days before hearing

Uncontested will
(1) Notarial Will Testimony of at least one
subscribing witness that the will was
executed as required by law. [Rule 76 Sec 5]
a. If all subscribing witnesses reside
outside of the province their testimony
can be taken through a deposition by
presenting a photocopy of the will and
propounding questions thereat. [Rule
76 Sec 7]
b. Other witnesses who are not
subscribing
witnesses
may
be
presented if all subscribing witnesses
are dead, insane or do not reside in the
Philippines. [Rule 76 Sec 8]

EVIDENCE REQUIRED IN SUPPORT OF A

WILL

B. CONTENTS OF PETITION FOR

ALLOWANCE OF WILL
(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the
province where the probate court is
sitting Or if he is an inhabitant of a
foreign country, his leaving his estate in
such province;
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
(3) Probable value and character of the
property of the estate
(4) Name of the person for whom letters are
prayed
(5) If the will has not been delivered to the
court, the name of the person having
custody of it. [Rule 76 Sec 2]

(2) Holographic wills At least one witness who

knows the handwriting and signature of the
testator who will explicitly declare that the
will and signature are in the handwriting of
the testator.
a. Expert Testimony may be resorted to
In the absence of such competent
witness, and if the court deem it
necessary.

EFFECTS OF DEFECT IN PETITION

No defect in petition shall render void the
allowance of will, or the issuance of letters
testamentary or of administration with the will
annexed. [Rule 76 Sec 2]

If the testator himself petitions for probate of

holographic will and it is not contested: The fact
that he affirms that the holographic will and the
signature are in his own handwriting shall be
sufficient evidence of genuineness and due
execution thereof. [Rule 76 Sec 12]

JURISDICTION, HOW ACQUIRED

It is not mandatory that witnesses be presented
first before expert testimony may be resorted to
unlike in notarial wills wherein attesting
witnesses must first be presented. [Azaola v.
Singson (1960)]

(1) Attaching a mere copy of will to the petition

or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and
compliance with Sec 3-4 Rule 76.
a) Publication for 3 weeks of the order
b) Notice to all interested persons (If by mail,
20 days before hearing; if through personal
service, 10 days before hearing)

Contested will
Anyone appearing to contest the will must state
in writing his grounds for opposing the
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allowance and serve a copy to petitioner and

other interested parties [Rule 76 Sec 10]

REMEDIAL LAW

testators lifetime without his

knowledge; and
iii. Provisions of the will (clearly and
distinctly proved by at least two
credible witnesses)

(1) Notarial Will All subscribing witness and

the notary if present in the Philippines and
not insane must be presented [Rule 76 Sec
11]
a. If dead, insane or absent said fact
must be satisfactorily shown in court.
b. If present in the Philippines but outside
the province deposition may be taken.

If lost will is proved, its provisions must be

distinctly stated and certified by the judge,
under seal of court, and the certificate must be
filed and recorded as other wills are filed and
recorded. [Rule 76 Sec 6]

Can testimony of the subscribing witnesses be

dispensed with in a contested will?
YES. If all or some of the subscribing witness
i) testify against the due execution of the will;
or ii) do not remember having attested to it; or
iii) are otherwise of doubtful credibility

(2) Holographic Wills

General Rule: If a holographic will has been lost
or destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will.

Court may allow the will if it is satisfied from

testimony of other witnesses and evidence
presented that the will was executed and
attested in the manner required by law. [Rule 76
Sec 11]

Exception: A photostatic copy or xerox of the

holographic will may be allowed because
comparison can be made with the standard
writings of the testator. [Rodelas v Aranza
(1982)]

(2) Holographic Will if at least 3 witnesses

who know the handwriting of the testator
explicitly declare that the will and the
signature are in the handwriting of the
testator.
a. Expert testimony may be resorted to in
the absence of such witnesses.

C. GROUNDS FOR DISALLOWING A

WILL
The will shall be disallowed in any of the
following cases:
(1) If not executed and attested as required by
law;
(2) If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution;
(3) If executed under duress, or the influence of
fear, or threats;
(4) If procured by undue and improper pressure
and influence, on the part of the beneficiary,
or of some other person for his benefit;
(5) 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 [Rule 76 Sec
9]

If the testator himself petitions for probate of

holographic will and it is contested: Contestant
have the burden of disproving genuineness.
Testator may present additional proof to rebut
contestants evidence. [Rule 76 Sec 12]
Lost will
(1) Notarial Wills even if lost may be proved
Facts to be proved in order that lost or
destroyed will may be allowed:
i. Due execution and validity of the will;
and
ii. Existence at the time of testators
death or that it has been fraudulently
or accidentally destroyed during

The list is exclusive. [Sps Ajero v. CA (1994)]

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D. REPROBATE

F. EFFECTS OF PROBATE

Wills proved and allowed in a foreign country,

according to the laws of such country, may be
allowed, filed, and recorded by the proper Court
of First Instance in the Philippines (now RTC).
[Rule 77 Sec 1]

Effect of Probate of Will

Decree of probate is conclusive as to its due
execution, subject to the right of appeal. (Thus,
no suit for forgery of a will, which has been duly
probated and such order becoming final)
If decision admitting a will to probate becomes
final, there can no longer be any challenge to its
due execution and authenticity. Thus, criminal
action will not lie against an alleged forger of
the will. [Mercado v. Santos (1938)]

Requisites for Allowance

(1) Duly authenticated Copy of the will;
(2) Duly authenticated Order or decree of the
allowance in foreign country;
A petition for allowance in the Philippines may
be filed by executor or other person interested.
The Court having jurisdiction shall fix a time and
place for the hearing and cause notice thereof
to be given as in case of an original will
presented for allowance. [Rule 77 Sec 2]

Order allowing or disallowing may be the

subject of an appeal. [Rule 109 Sec 1]

Industrial Partner

Evidence necessary for reprobate

(1) the due execution of the will in accordance
with the foreign laws;
(2) the testator has his domicile in the foreign
country and not in the Philippines;
(3) the will has been admitted to probate in
such country;
(4) the fact that the foreign tribunal is a probate
court, and
(5) the laws of a foreign country on procedure
and allowance of wills [Vda. De Perez v. Tolete
(1994)]

Operates with
name
and
personality

Capitalist Partner

firm Operates without firm

legal name
and
legal
personality

Generally relates to a Usually limited to a

continuing business of single transaction
various transactions of
a certain kind
Corporations may not Corporations may enter
enter into a partnership into joint ventures

Effect
(1) The will shall have the same effect as if
originally proved and allowed in such court;
(2) Letters testamentary or administration with
a will annexed shall extend to all estates of
the testator in the Philippines;
(3) After payment of just debts and expenses of
administration the estate shall be disposed
of according to the will
(4) Residue disposed of in accordance with law
[Rule 77 Sec 4]

VI. Letters Testamentary

and of Administration
A. WHEN AND TO WHOM LETTERS OF
ADMINISTRATION ARE GRANTED
Who may administer the estate of a deceased
person?
(1) Executor
(2) Administrator

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Executor

Administrator

Person
named
expressly by deceased
person in his will to
administer estate and
subsequently
appointed by court

Appointed when:
1. Testator did not
appoint an executor
2. The appointment
was refused
3. The will was
disallowed
4. No will (intestate
succession)

REMEDIAL LAW

WHO ARE INCOMPETENT TO SERVE AS

EXECUTOR OR ADMINISTRATOR
(1) Minor;
(2) Non-resident
(3) One who, in the opinion of the court, is unfit
to exercise the duties of the trust by reason
of
a. Drunkenness
b. Improvidence
c. Want of understanding
d. Want of integrity; or
e. Conviction of an offense involving
moral turpitude. [Rule 78 Sec 1]
(4) Executor of an executor cannot, as such,
administer estate of the first testator [Rule
78 Sec 2]

Has duty to present the

will to court within 20
days after (1) he learns
of the death of testator
or (2) after he knew he No such duty
was appointed as
executor (if he obtained
such knowledge after
death
of testator)
unless will has reached
the court in any
manner

The list above is not exclusive.

In this jurisdiction, one is considered to be
unsuitable for appointment as administrator
when he has adverse interest of some kind or
hostility to those immediately interested in the
estate. [Lim v. Diaz-Millarez (1966)]

The
testator
may
provide that he may
serve without a bond Required to file bond
but the court shall unless exempted by
direct him to post a law
bond conditioned only
to pay debts.

WHEN ARE LETTERS TESTAMENTARY OR

OF ADMINISTRATION GRANTED
Letters testamentary it is an authority issued
to an executor named in the will to administer
the estate. It is issued once the will has been
proved and allowed and if the executor named
is competent, accepts the trust and gives bond.
[FESTIN; Rule 78 Sec 4]

Compensation
provided in the will
controls,
unless First part of Rule 85
renounced.
Sec 7 applies
If theres no provision
for compensation, Sec.
7 of Rule 85 shall
apply.

Letters administration authority issued by

court to a competent person to administer the
estate if:
(1) No executor is named in will
(2) Executor or executors named are
incompetent, refuse the trust, or fail to
give bond or
(3) Person dies intestate. [Rule 78 Sec 6]

Any competent person may serve as an executor

or administrator.
Married woman may serve as executor or
administrator and a marriage of a single woman
shall not affect her authority so to serve under a
previous appointment. [Rule 78 Sec 3]
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Court may reject order of preference when

circumstances warrant. [Villamor v. Court of
Appeals, (1988)]

B. ORDER OF PREFERENCE
Order of preference in the grant of
administration
(1) Surviving spouse or next of kin, or both, or
to such person as the surviving spouse, or
next of kin requests to have appointed, if
competent and willing to serve.
(2) If those enumerated above be incompetent
or unwilling, or if the husband or widow, 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, it may be granted to one or more of
the principal creditors, if competent and
willing to serve.
(3) If there is no (2), it may be granted to such
other person as the court may select. [Rule
78 Sec 6]

The order of preference is not absolute for it

depends on the attendant facts and
circumstances of each case. The selection of an
administrator lies in the sound discretion of the
trial court. [In Re Suntay, (2007)]

30-DAY PERIOD MAY BE WAIVED

Just as the order of preference is not absolute
and may be disregarded for valid cause, so may
the 30-day period be likewise waived under the
permissive tone in paragraph (b) of said rule
which merely provides that said letters as an
alternative, may be granted to one or more of
the principal creditors. [HERRERA]
Co-administrators may be appointed. [Matute v.
Court of Appeals (1969)]

Next of kin are those entitled by law to receive

the decedents properties. [Gonzalez v.
Aguinaldo, et al., (1990)]

C. OPPOSITION TO ISSUANCE OF
LETTERS
TESTAMENTARY;
SIMULTANEOUS FILING OF PETITION
FOR ADMINISTRATION

Reason for order of preference

Those who would reap the benefit 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 highest interest and
most influential motive to administer the estate
correctly. [Gonzalez v. Aguinaldo, et al., (1990)]

Who may oppose

Any person interested in a will. [Rule 79 Sec 1]
Meaning of interested person
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; thus interest must be
material and direct, not merely indirect or
contingent. [Saguinsin v. Lindayag, 6 SCRA 874]

Mere failure to apply for letters of

administration does not remove preference. [1
ALR 1247]
General Rule: The court cannot set aside order
of preference

Grounds
(1) Incompetency of the person/s named in the
will as executor/s, or
(2) Contestants
own
right
to
the
administration (ex. preferential right under
Rule 78 Sec 6) [Rule 79 Sec 4]

Exception:
If the person enjoying such preferential rights is
(1) Unsuitable
(2) Incompetent
(3) Unwilling
(4) Neglect to apply for letters 30 days after the
death of the decedent
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REMEDIAL LAW

Form required
Grounds for opposition must be stated in
writing; court shall then hear and pass upon
sufficiency of such grounds. [Rule 79 Sec 1]

Order appointing regular administrator is

appealable. [Rule 109]

Contents of a Petition for Letters of

Administration
(1) Jurisdictional facts;
a. Death of testator;
b. Residence at time of death in the
province where probate court is
sitting; or
c. If he is an inhabitant of foreign
country, his having left his estate in
such province

If proven at a hearing that:

When Letters of Administration is issued:

(1) Notice has been given as required; and

(2) That decedent left no will or there is no
competent and willing executor [Rule 79 Sec
5]
One who is named as executor in the will or one
who enjoys preference under the rules is not
automatically entitled to the issuance of letters
testamentary/of administration. A hearing has
to be held in order to ascertain her fitness to act
as executor/administrator. [Baluyut v. Cruz
Pano (1976)]

(2) Name, age and residence of heirs and the

name and age of creditors;
(3) Probable value of the estate;
(4) Name of person to whom letter is prayed
[Rule 79 Sec 2]

Letters of administration may be granted to any

qualified applicant, though it appears that there
are other competent persons having better right
if such persons fail to appear when notified and
claim the issuance of letters to themselves.
[Rule 79 Sec 6]

Defect in petition would not render void

issuance of letters of administration.
Jurisdictional facts
(1) Death of the testator
(2) His/her residence at the time of death in the
province where the probate court is sitting
or,
(3) If an inhabitant of a foreign country, his/her
having left his estate in such province [Diez
v. Serra, (1927)]

D. POWERS AND DUTIES OF

EXECUTORS AND ADMINISTRATORS;
RESTRICTIONS ON THE POWERS

Publication and Notice

Publication of notice for 3 weeks successively
and notice to heirs, creditors and interested
persons, if place of residence is known, are
jurisdictional. [Rule 79 Sec 3 and Rule 76 Secs. 3
& 4]

Posting
of
bond
Before an executor or administrator enters upon
the execution of his trust, and letters
testamentary or of administration issue, he
shall give a bond in such sum as the court
directs.

Simultaneous filing of Opposition and Petition: A

petition may, at the same time, be filed for
letters of administration to himself, or to any
competent person or person named in the
opposition. [Rule 79 Sec 4]

Purpose
The bond posted by the administrators and
executors is intended as an indemnity to the
creditors, the heirs and the estate. [FESTIN]

Lack of interest in the proceedings is equal to

lack of legal capacity to institute proceedings.
NOT lack of jurisdiction on part of court.
[HERRERA]

How is liability on the bond enforced?

By motion or in a separate action. [FESTIN]

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Conditions on the bond

(1) Make a return to the court, within 3 months,
a true and complete inventory of all goods,
chattel, rights, credits, and estate of the
deceased which shall come to his
possession or knowledge or to the
possession of any other person for him;
(2) To administer according to these rules, and
if an executor, according to the will of the
testator, all the goods, chattel, rights,
credits, and estate of the deceased which
shall come to his possession or to the
possession of any other person for him and
from the proceeds to pay and discharge all
debts, legacies, charges, and dividends as
shall be decreed by court.
(3) Render a true and just account within 1 year
and when required by court; and
(4) Perform all orders of the court [Rule 81 Sec 1]

REMEDIAL LAW

(a) Have access to, and may examine and take

copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on
request, shall exhibit to him all such books,
papers, and property in their hands or
control. [Rule 84 Sec 1]
Failure to freely permit the exercise of the may
subject any partner for contempt.

KEEP BUILDINGS
REPAIR

IN

TENANTABLE

(a) Houses and other structures and fences

belonging to the estate, and
(b) Deliver the same in such repair to the heirs
or devisees when directed so to do by the
court. [Rule 84 Sec 2]

If the testator provides in his will that executor

shall serve without a bond, the court may still
require him to file a bond conditioned only to
pay debts of testator. [Rule 81 Sec 2]

RIGHT
TO
POSSESSION
MANAGEMENT OF THE REAL
PERSONAL PROPERTIES

Joint bond
Joint executors or administrators may be
required by court to file either a separate bond
from each or joint bond from all. [Rule 81 Sec 3]

AND
AND

(a) So long as it is necessary for the payment of

the debts and the expenses of
administration
(b) Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of
the other co-owners since this is not within
the powers of administrator. [Rule 84 Sec 3]

Special Administrator
Condition on the bond
(1) Make and return true inventory;
(2) Render accounting when required by
court;
(3) Deliver the estate of the deceased to the
person appointed as regular executor or
administrator, or other authorized person.
[Rule 81 Sec 4]

When the estate of a deceased is already

subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the
Court. [Estate of Olave v. Reyes (1983)]

D.2. RESTRICTIONS ON POWERS OF

EXECUTORS AND ADMINISTRATORS

D.1. GENERAL POWERS AND DUTIES

OF
EXECUTORS
AND
ADMINISTRATORS

EXECUTOR
OR
ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND
INCOME

HAVE ACCESS TO PARTNERSHIP BOOKS

AND PROPERTY AT ALL TIMES

Chargeable in his account with the whole of the

estate which has come into his possession, at
the value of the appraisement contained in the
inventory:
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(a)
(b)
(c)
(d)

SPECIAL PROCEEDINGS

REMEDIAL LAW

With all the interest,

Profit
Income of such estate and
With the proceeds of as much of the estate
as is sold by him, at the price at which it was
sold. [Rule 85 Sec 1]

(b) Damages sustained may be charge and

allowed against executor or administrator in
his/her account; liable on his/her bond.
[Rule 85 Sec 5]

PROHIBITED FROM PROFITING BY

INCREASE OR LOSING BY DECREASE IN
VALUE

(a) The
amount
paid
by
an
executor/administrator for costs awarded
against him shall be allowed in his
administration account [Rule 85 Sec 6]
(b) Unless it appears that the action or
proceeding in which the costs are taxed was
prosecuted or resisted without just cause,
and not in good faith.
(c) When the executor is an attorney, cannot
charge against estate any professional fees
for legal services rendered. [Rule 85 Sec 7]

ONLY NECESSARY EXPENSES SHALL BE

ALLOWED

(a) No executor/administrator shall profit by

the increase, or suffer loss by the decrease
or destruction, without his fault, of any part
of the estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if
justly made
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement [Rule 85 Sec
2]
(e) Not accountable for debts due the deceased
which remain uncollected without his fault
[Rule 85 Sec 3]

ACCOUNTABLE FOR
REALTY USED BY HIM

INCOME

Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for purpose of liquidation,
payment of debts, and distribution of the
residue among persons entitled thereto.
[Hermanos v. Abada (1919)]

FROM

Not considered as necessary expenses

(1) Expenses on death anniversary of
deceased because no connection with
care, management and settlement of
estate;
(2) Expenses for stenographic notes and
unexplained representation expenses;
(3) Expenses incurred by heir as occupant
of family home without paying rent (ex.
Salary of house helper, light, water bills,
gas etc. [De Guzman v. De GuzmanCarillo (1978)]

(a) If the executor/administrator uses or

occupies any part of the real estate himself,
he shall account for it as may be agreed
upon between him and the parties
interested, or adjusted by the court with
their assent and if the parties do not agree
upon the sum to be allowed, the same may
be ascertained by the court, whose
determination in this respect shall be final.
[Rule 85 Sec 4]

EXECUTOR OR ADMINISTRATOR TO
MAKE
INVENTORY
AND
RENDER
ACCOUNT

ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
(a) Neglects or unreasonably delays to raise
money, by collecting the debts or selling the
real or personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer
loss.

Inventory
Of all real and personal estate of the deceased
which has come into his possession or
knowledge within 3 months after his
appointment [Rule 83 Sec 1]

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Not included:
(1) Wearing apparel of surviving husband or
wife and minor children
(2) The marriage bed and bedding
(3) Such provisions and other articles as will
necessarily be consumed in the subsistence
of the family of the deceased [Rule 83 Sec 2]

(2) By any cause, including an appeal from

allowance or disallowance of a will. [Rule 80
Sec 1]
Rule 86 Sec 8 provides that a special
administrator may be appointed with respect to
the settlement of the claim of an
executor/regular administrator against the
estate.

Allowance to surviving spouse and children

The widow and minor or incapacitated children
shall, during the settlement of the estate,
receive such allowance under the direction of
the court [Rule 83 Sec 3]

Procedure for Appointment

There must first be notice and publication.
Notice through publication of the petition is a
jurisdictional requirement even in the
appointment of a special administrator. [De
guzman v. Angeles (1988)]

ACCOUNTING MANDATORY
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Rule 85 Sec 8]

Appointment of special administrator lies

entirely in the sound discretion of the court. [De
Gala v. Gonzales, 53 Phil. 104 (1929)]

The fact that the heirs of the estate have

entered into an extrajudicial settlement and
partition in order to put an end to their
differences cannot in any way be interpreted as
a waiver of the objections of the heirs to the
accounts submitted by the administrator. [Joson
v. Joson (1961)]

EXAMINATION ON OATH BY COURT

As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof

OF

Regular Administrator

Special Administrator

Appointed by the court

in
the
following
instances:
1. Testator did not
appoint an executor
2. The appointment
was refused
3. The will was
disallowed
4. No will (intestate
succession)

Appointed by the court

when:
1. there is DELAY in
granting
letters
testamentary
or
administration
2. when the executor is
a claimant of the estate
3. by any cause,
including an appeal
from allowance or
disallowance of a will

Should pay the debts Cannot pay debts of

of the estate
the
estate
unless
ordered by the court.

The heirs, legatees, distributees, and creditors

of the estate shall have the same privilege as
the executor/administrator of being examined
on oath on any matter relating to an
administration account. [Rule 85 Sec 9]

E. APPOINTMENT
ADMINISTRATOR

REMEDIAL LAW

Order of Appointment Order of Appointment

is final and appealable. is interlocutory and is
not appealable

SPECIAL
POWERS AND DUTIES
ADMINISTRATOR

When appointed
(1) When there is delay in granting letters
testamentary or administration, or

OF

SPECIAL

(1) Take possession and charge of the goods,

chattels, rights, credits, and estate of the
deceased, and
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(2) Preserve
the
same
for
the
executor/administrator
afterwards
appointed, and
(3) For that purpose may commence and
maintain suits as administrator.
(4) May sell only such perishable and other
property as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court. [Rule 80 Sec
2]

WHEN
SPECIAL
CEASES DUTIES

REMEDIAL LAW

(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to
discharge the trust. [Rule 82 Sec 2]
List enumerated is not exclusive. Court is
invested with ample discretion in removal of
administrator for as long as there is evidence of
act or omission part of administrator not
conformable to or in disregard of rules or orders
of court which it deems as sufficient or
substantial to warrant removal of administrator.
[FESTIN]

ADMINISTRATOR

Examples of valid removal of an administrator by

probate court
(1) Administrator who disbursed funds of
estate without judicial approval. [Cotia v.
Jimenez (1958)]
(2) False representation by administrator in
securing his appointment. [Cabarrubias
v. Dizon (1946)]
(3) Administrator who holds interest
adverse to that of the estate or his
conduct shows unfitness to discharge
the trust [Garcia v. Vasquez (1970)]
(4) Administrator who has physical inability
and consequent unsuitability to manage
the estate. [De Borja v. Tan (1955)]

When letters testamentary/administration are

granted on the estate of the deceased:
(1) He
shall
deliver
to
the
executor/administrator the goods, chattels,
money, and estate of the deceased in his
hands.
(2) The executor/administrator may prosecute
to final judgment suits commenced by such
SA[Rule 80 Sec 3]
Appointment of Special Administrator is
interlocutory and is not appealable. [Garcia v.
Flores, 101 Phil. 781 (1957)]

F.
REVOCATION,
DEATH,
RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS

Temporary absence in the state does not

disqualify one to be an administrator of the
estate [Gonzales v. Aguinaldo (1990)]

Revocation of administrator
When the decedents will is allowed and proved
after a letters of administration has been
issued, the administration is deemed revoked.

Removal of Special Administrators

The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness and
the application of the order of preference under
Section 6 of Rule 78, as would be proper in the
case of a regular administrator, do not obtain.
As long as the discretion is exercised without
grave abuse, and is based on reason, equity,
justice, and legal principles, interference by
higher courts is unwarranted. [Ocampo v
Ocampo (2010)]

Duty of administrator upon revocation of Letters

(1) Surrender the letters to court;
(2) Render his account within such time as
the court may direct [Rule 82 Sec 1]
Removal of executor or administrator
Grounds
(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the
court, or a duty expressly provided by
these rules
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EFFECT OF REMOVAL,
RESIGNATION

DEATH,

OR

(2) Executor/administrator will be able to

examine each claim, determine whether it is
a proper one which should be allowed.
(3) To appraise the administrator and the
probate court of the existence of the claim
so that a proper and timely arrangement
may be made for its payment in full or by
pro-rata portion in the due course of the
administration. [Estate of Olave v. Reyes
(1983)]

(1) The remaining executor/administrator may

administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If
there
is
no
remaining
executor/administrator, administration may
be to any suitable person. [Rule 82 Sec 2]
Validity of acts
Acts of the executor/administrator before
removal/resignation are valid. [Rule 82 Sec 3]

A. TIME WITHIN WHICH CLAIMS

SHALL BE FILED; EXCEPTIONS

Powers of new executor or administrator

General Rule: Claims must be filed within the

time specified by the court in its notice which
shall not be less than 6 months nor more than 12
months from the date of the first publication of
the notice. [Rule 86 Sec 2]

(1) Collect and settle the estate not

administered;
(2) Prosecute and defend actions commenced
by or against the former executor or
administrator; and
(3) Have execution on judgments recovered in
the name of the former executor or
administrator.

Exception
Belated claims
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed provided they are filed within 1
month from the expiration of such period but in
no case beyond the date of entry of the order of
distribution. [Danan v. Buencaminao (1981); Rule
86 Sec 2]

Authority to sell granted by court to former

executor or administrator may be renewed
without further notice or hearing. [Rule 82 Sec
4]

VII. Claims against the

Estate
ESTATE BURDENED
CREDITORS

WITH

LIEN

REMEDIAL LAW

Notice to creditors to be published; Affidavit of

publication
Executor/administrator shall cause publication
of notice for 3 consecutive weeks successively in
newspaper of general circulation in province
and its posting in 4 public places in the province
and in 2 public places in the municipality where
the decedent last resided. [Rule 86 Sec 3]

OF

Upon the death of the person, all his property is

burdened with all his debts, his debts creating
an equitable lien thereon for the benefit of the
creditors.
And such lien continues until the debts are
extinguished either by the
payment,
prescription, or satisfaction in one of the modes
recognized by law. [Suiliong & Co. v. Chio
Tayaan, 12 Phil. 13]

Printed copy of the published notice shall be

filed in court within 10 days after its publication
accompanied with affidavit setting forth the
dates of first and last publication and name of
newspaper where it was printed. [Rule 86 Sec 4]

PURPOSE OF PRESENTATION OF CLAIMS

AGAINST ESTATE
(1) To protect the estate of the deceased.
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Significance of Notice

REMEDIAL LAW

If disputed:
It may be proved and allowed or disallowed by
the court as the facts may warrant [Rule 88 Sec
5]

Publication of notice is constructive notice to

creditors and thus creditor would not be
permitted to file claim beyond the period fixed
in the notice on the bare ground that he had no
knowledge of the administration proceedings.
[Villanueva v. PNB (1963)]

Mutual claims may be set off against each other

in such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be
considered the true balance against the estate,
as though the claim had been presented
directly before the court in the administration
proceedings

Statute
of
non-claims
General Rule: Claim must be filed within the
time fixed by the notice otherwise they are
barred
forever.
[Rule
86
Sec
5]

The presentation of a money claim may be

waived. [Ignacio v. Pampanga Bus co., Inc.,
(1967)]

Purpose: to settle the estate with dispatch, so

that the residue may be delivered to the persons
entitled thereto without their being afterwards
called upon to respond in actions for claims.

If obligation solidary - file claim against

decedent as if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Rule 86 Sec 6]

Claims Covered (Exclusive)

(1) Claims for money against the decedent
arising from contract
- Express or implied
- Due or not
- Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent.

ALTERNATIVE
REMEDIES
OF
A
M0RTGAGE CREDITOR UPON DEATH OF
DEBTOR
(1) Waive the security and claim the entire debt
from the estate as an ordinary claim creditor is
deemed to have abandoned the mortgage and
he cannot thereafter file a foreclosure suit if he
fails to recover his money claim against the
estate

The period, once fixed by the courts, is

mandatory.
Statute of non-claims supersedes statute of
limitations when it comes to debts of deceased
persons.

(2) Foreclose mortgage judicially and prove any

deficiency as an ordinary claim suit should be
against the executor or administrator as party
defendant; Creditor may obtain deficiency
judgment if he fails to fully recover his claim

Exceptions:
(1) When set forth as counterclaims in any
action that the executor/administrator may
bring against the claimants [Rule 86 Sec 5]
(2) Belated claims (Sec. 2, Rule 86)

(3) Rely solely on the mortgage and foreclose it

before it is barred by prescription without right to
claim for deficiency includes extrajudicial
foreclosure of sale and its exercise precludes
one from recovery of any balance of debt
against the estate and frees the estate from
further liability. [Rule 86 Sec 7]

Contingent Claim When Allowed

(1) When it becomes absolute;
(2) Presented
to
the
court
or
executor/administrator within 2 years from
the time limited for other creditors to
present their claims; and
(3) Not disputed by executor/administrator

How to file for a claim:

(1) Deliver the claim with the necessary
vouchers to the clerk of court; and
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(2) Serve a copy thereof on the executor or

administrator. [Rule 86 Sec 9]

B. CLAIM OF
ADMINISTRATOR
ESTATE

Additional requirements:
(1) If the claim be founded on a bond, bill, note,
or any other instrument - the original need
not be filed, but a copy thereof with all
indorsements shall be attached to the
claim.

REMEDIAL LAW

EXECUTOR
AGAINST

OR
AN

Procedure to follow if the executor or

administrator has a claim against the estate he
represents
(1) Executor/Administrator shall give notice
thereof, in writing, to the court;
(2) The court shall appoint a special
administrator who shall have the same
powers and liabilities as the general
executor/administrator in the adjustment of
such claim.
(3) The court may order the executor or
administrator to pay to the special
administrator necessary funds to defend
such claim. [Rule 86 Sec 8]

On demand, however, of the executor or

administrator, or by order of the court or
judge, the original shall be exhibited, unless
it be list or destroyed, in which case the
claimant must accompany his claim with
affidavit or affidavits containing a copy or
particular description of the instrument and
stating its loss or destruction.

Case law provides that these remedies are

distinct, independent, and mutually exclusive
remedies that can be alternatively pursued by
the mortgage creditor for satisfaction of his
credit in case the mortgagor dies. [FESTIN]

(2) When the claim is due - it must be

supported by affidavit stating the amount
justly due, that no payments have been
made thereon which are not credited, and
that there are no offsets to the same, to the
knowledge of the affiant.

C. PAYMENT OF DEBTS
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and
ascertained; and
(2) It appears that there are sufficient assets to
pay the debts

(3) If the claim is not due, or is contingent,

when filed it must also be supported by
affidavits stating the particulars thereof.
(4) When the affidavit is made by a person
other than the claimant, he must set forth
therein the reason why it is not made by the
claimant.

Executor/administrator shall pay the same

within the time limited for that purpose. [Rule
88 Sec 1]

Answer by executor/administrator
Shall be filed within 15 days after copy of claim
has been served upon him. Executor or
administrator may interpose any counterclaim.
Said counterclaim is regarded as compulsory, as
the failure to file the same shall bar the claim
forever. [Rule 86 Sec 10]

The probate court may hold in abeyance

intestate proceedings pending determination of
a civil case against the administrator.
The heirs of the estate may not demand the
closing of an intestate proceeding at anytime
where there is a pending case against the
administrator of the estate. The court can
rightfully hold in abeyance until the civil case is
settled. [Dinglasan v. Chia, (1956)]

Judgment of court approving or disapproving a

claim shall be appealable as in ordinary cases.
[Rule 86 Sec 13; Rule 109]

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Part of Estate from Which Debt Paid (in order of

preference)

REMEDIAL LAW

(2) If estate insolvent - Retain a portion equal

to the dividend of the other creditors. [Rule
88 Sec 4]

PORTION OF PROPERTY DESIGNATED IN

THE WILL;
PERSONAL PROPERTY; THEN

PAYMENT OF CONTINGENT CLAIM

(1) If claim becomes absolute within 2 years
limited for creditors and allowed - Creditor
shall receive payment to the same extent as
the other creditors if the estate retained by
the executor/administrator is sufficient.
(2) Claim not presented after becoming
absolute within 2 year period and allowed
The assets retained in the hands of the
executor/administrator, not exhausted in
the payment of claims, shall be distributed
by the order of the court to the persons
entitled; But 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. [Rule 88 Sec 5]

(1) Real property

IF TESTATOR DESIGNATES IN HIS WILL

PORTION OF ESTATE FOR PAYMENT OF
DEBT, EXPENSES OF ADMINISTRATION,
OR FAMILY EXPENSES, THEY SHALL BE
PAID ACCORDING TO SUCH PROVISIONS;
IF NOT SUFFICIENT THEN PART OF
ESTATE NOT DISPOSED OF BY WILL
SHALL BE APPROPRIATED.
GENERAL RULE: PERSONAL ESTATE NOT
DISPOSED OF BY WILL SHALL BE FIRST
CHARGEABLE
EXCEPTIONS:

Court to Fix Contributive Shares Where Devisees,

Legates, or Heirs Have Been in Possession

(1) Not sufficient for the purpose; or

(2) Its sale will redound to the detriment of the
participants for the estate

POSSESSION BEFORE
EXPENSES ARE PAID

DEBTS

AND

Court shall
- Hear and settle the amount of their
several liabilities
- Order how much and in what manner
each shall contribute
- May issue execution as circumstances
require. [Rule 88 Sec 6]

IN WHICH CASE
(1) The whole of the real estate not disposed of
by will, or so much thereof as is necessary,
may be sold, mortgaged, or otherwise
encumbered for that purpose by the
executor/administrator,
(2) Court approval must be obtained first, and
(3) Any deficiency shall be met by contributions
in accordance with the provisions of Sec. 6
of this rule.(contributive shares of devises,
legatees and heirs in possession) [Rule 88
sec 3]

LIABILITY OF HEIRS AND DISTRIBUTES

Heirs are not required to respond with their
own property for the debts of their deceased
ancestors. But after partition of an estate,
the heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively received
from the estate. [Govt of P.I. v. Pamintuan
(1930)]

Estate to Be Retained to Meet Contingent

Claims
If court is satisfied that a contingent claim is
valid:
(1) It may order the executor/administrator to
retain in his hands sufficient estate for the
purpose of paying the contingent claim
when such becomes absolute.

Order of Payment if Estate Is Insolvent

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SPECIAL PROCEEDINGS

Executor/administrator pays the debts against

the estate, observing the provisions of Articles
1059 and 2239 to 2251 of the Civil Code.
(Preference of credits) [Rule 88 Sec 7]

REMEDIAL LAW

assets received by the executor/administrator

for that purpose among the creditors, as the
circumstances of the estate require and in
accordance with the provisions of this rule [Rule
88 Sec 11]

Dividends to Be Paid in Proportion to Claims

If no assets sufficient to pay credits of any one
class of creditors after paying preferred credits,
Each creditor within such class shall be paid
dividend in proportion to his claim. No creditor
of any one class shall receive any payment until
those of the preceding class are paid. [Rule 88
Sec 8]

If Appeal Taken From a Decision of the Court

Concerning the Claim
The court may:
(1) Suspend the order for payment or order the
distribution among creditors whose claims
are definitely allowed
(2) Leave
in
the
hands
of
executor/administrator sufficient assets to
pay the claim disputed and appealed.

Insolvent Non-Resident
His estate found in the Philippines shall be so
disposed of that his creditors here and
elsewhere may receive each an equal share, in
proportion to their respective credits. [Rule 88
Sec 9]

When a disputed claim is finally settled, the

court shall order the claim to be paid out of the
assets retained to the same extent and in the
same proportion with the claims of other
creditors. [Rule 88 Sec 12]

Insolvent Resident with Foreign Creditors and

Foreign claims proven in another country
(1) Executor/administrator in the Philippines
had knowledge of the presentation of such
claims in such country; and
(2) Executor/administrator had opportunity to
contest such allowance

Instances when court may make further orders

for distribution of assets
(1) If whole of the debts not paid on first
distribution; and
(2) If the whole assets not distributed
(3) Other assets afterwards come to the hands
of executor/administrator. [Rule 88 Sec 13]

The court shall:

(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims
proved against the deceased person in the
Philippines
(3) So that a just distribution of the whole
estate may be made equally among all its
creditors. [Rule 88 Sec 10]

Creditors to be Paid in Accordance With Terms of

Order
When an order is made for the distribution of
assets among creditors, the executor or
administrator shall, as soon as the time of
payment arrives, pay the creditors the amounts
of their claims, or the dividend thereon, in
accordance with the terms of such order. [Rule
88 Sec 14]

Principle of Reciprocity
But the benefit of this and the preceding
sections 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 creditor, according to
their respective claims. [Rule 88 Sec 10]

Time for paying debts and legacies

General Rule: Not exceeding 1 year in the first
instance
Exception: Court may extend the period, after
hearing and notice, on the following conditions:
(1) Extension must not exceed 6 months for
a single extension; and
(2) The whole period allowed shall not
exceed 2 years.

Order for Payment of Debts

Before the expiration of the time limited for the
payment of the debts the court shall order the
payment thereof, and the distribution of the
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[RULE 88 SEC 15]

REMEDIAL LAW

(2) Written notice to all heirs, legatees,

devisees residing in the Philippines;
(3) Court orders sale of personal property or
sale or mortgage of real property;
(4) Proceeds of such sale shall be used to pay
debts and expenses.

Grounds for Extension

(1) Original executor/administrator dies
(2) New administrator appointed

REQUISITES
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
(3) Court must hear the application.

VIII. Actions by and

against executors and
administrators

Personal property may, upon order, be sold:

(1) To pay debts, expenses, legacies (Sec. 1,
Rule 89)
(2) If it appears necessary for the preservation
of the property (Sec. 1, Rule 89)
(3) If sale will be beneficial to the heirs,
devisees, legatees and other interested
persons and is not inconsistent with the
provisions of the will (Sec. 4, Rule 89)

A. ACTIONS
EXECUTORS

BY

AND

AGAINST

Actions that may be commenced directly against

executor or administrator
(1) Recovery of real or personal property or
interest therein
(2) Action to enforce a lien thereon and
(3) Actions to recover damages for an injury to
a person or property [Aguas v. Llenos (1962);
Rule 87 Sec 1]
The aforementioned instances are deemed
actions that survive the death of the decedent:
[FESTIN]

Real property may, upon order, be sold,

mortgaged, encumbered to pay debts when:
(1) Personal estate is insufficient to pay the
debts
(2) Sale of personal estate may injure the
business of persons interested in the estate
(3) Property appropriated by testator in his will
is insufficient to pay debts (Sec. 2, Rule 89)

Actions which may NOT brought against

Administrators
Claim for the recovery of money or debt or
interest
cannot
be
brought
against
executors/administrators. [Aguas v. Llenos
(1962)]

Writ of Execution
General Rule: The probate court does not have
the power to issue writs of execution. A writ of
execution is not the proper procedure for the
payment of claims against the estate. [Aldamiz
v. Judge of CFI-Mindoro (1949)]

Executor or Administrator may Bring or Defend

Actions Which Survive Death
For the recovery or protection of the property or
rights of the deceased in actions for causes
which survive death of decedent(Sec. 2, Rule
87)

Exceptions:
1. To satisfy the distributive shares of devisees,
legatees, and heirs in possession of the
decedents assets.
2. To enforce payment of expenses of the
partition.
3. To satisfy the costs when a person is cited for
examination in probate proceedings [FESTIN]

Covers injury to property i.e. not only limited to

injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished. [Javier v. Araneta, 93 Phil. 1115;
Aguas v. Llenos, supra]

Proper procedure for payment of debts

(1) Motion of administrator for sale;
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A mortgage belonging to the estate may be

foreclosed by the executor or administrator.
[Rule 87 Sec 5]

REMEDIAL LAW

Double Value Rule

A person who, before the granting of the letters
testamentary or administration of the estate,
embezzles or alienates any money, goods,
chattels or effects of the deceased, shall be
liable to an action in favor of executor or
administrator for double the value of the
property sold, embezzled or alienated.

General Rule: Heirs have no legal standing to

sue for the recovery of property of the estate
against the executor or administrator during the
pendency of the administration proceedings.
[rule 87 Sec 3]
Exception:
(1) If executor or administrator is unwilling to
bring a suit;
(2) When the executor or administrator is made
a party defendant where he is alleged to
have participated in the act complained of;
(3) Where there is no appointed administrator;
[FESTIN]

When executor or administrator may bring

action for recovery of property fraudulently
conveyed by deceased
(1) If there is deficiency of assets for payment of
debts and expenses of administration and
the deceased, in his lifetime, had conveyed
real or personal property, right or interest
therein, or debt or credit with intent to
defraud his creditors or avoid any right, debt
or duty; or
(2) Deceased had so conveyed such property,
right, interest, debt or credit that by law the
conveyance would be void as against the
creditors; and
(3) The subject of the attempted conveyance
would be liable to attachment by any of
them in his lifetime.

B.
RECOVERY
OF
PROPERTY
CONCELEAD,
EMBEZZLED
OR
FRADULENTLY CONVEYED
Proceedings
when
property
concealed,
embezzled or fraudulently conveyed
The court may cite any person suspected of
having concealed, embezzled, or conveyed
away any of the money, goods, or chattels of the
deceased, or that such person has in his
possession or has knowledge of any deed,
conveyance, bond, contract, or other writing
which contains evidence of or tends or discloses
the right, title, interest, or claim of the deceased,
to appear before it and be examined on oath
upon complaint by executor or administrator,
heir, legatee, creditor or other individual
interested in the estate of the deceased to the
court having jurisdiction of the estate; if the
person so cited refuses to appear, or to answer
on such examination or such interrogatories as
are put to him, the court may punish him for
contempt, and may commit him to prison until
he submits to the order of the court.

Process
of
recovery
by
the
executor/administrator of property fraudulently
conveyed
(1) Commence and prosecute to final judgment
an action for the recovery of such property,
right, interest, debt or credit for benefit of
the creditors
(2) Provided, creditors make an application and
pay such part of the costs and expenses or
give security therefor. [Rule 87 Sec 9]

WHEN RECOVERY BY CREDITOR OF

PROPERTY
FRAUDULENTLY
CONVEYED MAY BE DONE
Any creditor may commence and prosecute to
final judgment a like action for the recovery of
the subject of the conveyance or attempted
conveyance if the following requisites are
satisfied:

Purpose
To elicit information, secure evidence or to
investigate and take testimony for use in an
independent action. The court in such
proceedings lacks power to adjudicate titles or
determine controverted rights. [HERRERA]

(1) If
executor/administrator
commence such action
238

failed

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(a) With court permission

(b) In
the
name
of
the
executor/administrator
(c) He files a bond, conditioned to
indemnify the executor/administrator
against the cost and expenses incurred
by such action

REMEDIAL LAW

interested in the estate and where testator

has not otherwise made sufficient provision
for payment of debts, expenses and
legacies; [Rule 89 Sec 2]
B. Others:
(2) Where sale is beneficial to interested
persons, although not necessary to pay
debts, expenses, or legacies [Rule 89 Sec 4]
(3) To pay for debts, expenses or legacies of
estate of deceased in foreign country [Rule
89 Sec 5]
(4) If deceased was in his lifetime under
contract, binding in law, to deed real
property or interest therein [Rule 89 Sec 8]
(5) Where deceased held real property in trust
for another person [Rule 89 Sec 9]

(2) If conveyance or attempt is made in favor of

executor/administrator
(a) No need for court permission
(b) No need for Bond.
(c) Action shall be brought in the name
of all the creditors
Effect
Such creditor shall have a lien upon any
judgment recovered by him in the action for
such costs and other expenses incurred therein
as the court deems equitable. [Rule 87 Sec 10]

In (1) and (2), sale of real property may be done

in lieu of personal property of estate if it clearly
appears that such sale etc., would be beneficial
to persons interested.

C. SALES, MORTGAGES, AND OTHER

ENCUMBRANCES

In (3) the sale shall be authorized if not

inconsistent with provisions of the will and
proceeds of the sale shall be assigned to
persons entitled to the estate in the proper
proportions.

Order of Sale of personalty

The court upon the application of the executor
or administrator, and on written notice to the
heirs and other persons interested, may order
the whole or a part of the personal estate to be
sold, if it appears necessary for the purpose of
paying
(1) debts, expenses of administration, or
legacies, or
(2) expenses for the preservation of the
property. [Rule 89 Sec 1]

In (5), conveyance would not be authorized if

assets in the hands of the executor or
administrator will be reduced as to prevent
creditor from receiving debt or diminish his
dividend.
Persons interested may prevent such sale, etc. by
giving bond
No authority authority to sell, mortgage, or
otherwise encumber real or personal estate
shall be granted in (1) and (2) above if any
person interested in the estate gives a bond, in
a sum to be fixed by the court

When court may authorize sale, mortgage or

encumbrance of realty
A. Though personalty not exhausted:

WHEN PERSONAL ESTATE IS NOT

SUFFICIENT
TO
PAY
DEBTS,
EXPENSES OF ADMINISTRATION AND
LEGACIES; OR

Conditions of the bond: to pay the debts,

expenses of administration, and legacies within
such time as the court directs;

(1) If sale of personal estate may injure the

business or such other interests of those
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IX. Distribution
partition

Who may claim on the bond: Such bond shall be

for the security of the creditors, as well as of the
executor or administrator, and may be
prosecuted for the benefit of either. [Rule 89 Sec
3]

and

BEFORE
THERE
COULD
BE
A
DISTRIBUTION
OF
ESTATE,
THE
FOLLOWING
STAGES
MUST
BE
FOLLOWED:

Regulations for granting authority to sell,

mortgage or otherwise encumber estate
(1) The executor/administrator shall file a
written petition setting forth the following:
a. Debts due from the deceased, the
expenses for administration, the
legacies;
b. Value of the personal estate;
c. Situation of the estate to be sold,
mortgaged, encumbered; and
d. Such other facts showing sale etc.,
is necessary or beneficial;
(2) The court will fix a time and place for
hearing such petition and cause notice to be
given personally or by mail to persons
interested, and publication if deem proper;
(3) The
court
may
require
executor/administrator to give additional
bond conditioned on accounting for
proceeds of sale etc.;
(4) The court may authorize sale to be public or
private;
(5) If estate is to be sold at auction, the mode of
giving notice shall be governed by
provisions concerning notice of execution
sale;
(6) Certified copy of the order of the court, plus
deed of the executor or administrator for
real estate sold, mortgaged, or encumbered
shall be registered in registry of deeds
where property is located;[Rule 89 Sec 7]

(1) Liquidation of the estate i.e. payment of

obligations of the deceased.
(2) Collation and Declaration of heirs - to
determine to whom the residue of the estate
should be distributed.
- Determination the right of a natural child
- Determination of proportionate shares of
distributes.
Afterwards, the residue may be distributed and
delivered to the heirs. [HERRERA]
Powers of the court in distribution and partition
of estate:
(1) Collate;
(2) Determine the heirs; and
(3) Determine the share of each heirs.
Court may determine questions as to
advancement made by decedent
Advancements made or alleged to have been
made to heirs by decedent may be determined
by court having jurisdiction of estate; and the
final order of the court shall be binding on
person raising the questions and on the heir.
[Rule 90 Sec 2]

A. LIQUIDATION
General Rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral
expenses
and
expenses
of
administration, allowances, taxes, etc.,
chargeable to the estate have been paid.

Deed for sale, mortgaged or encumbrance

The deed executed by the executor or
administrator shall be valid as of executed by
deceased in his lifetime [Rule 89 Sec 7, 8]

Exception: If the distributees give a bond

conditioned on the payment of above
obligations [Rule 90 Sec 1]
The part distributed must not be subject to any
controversy or appeal. [Rule 109 Sec 2]

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mistake or inadvertence not imputable to

negligence. [Vda. De Alberto v. CA (1989)]

B. PROJECT OF PARTITION
A project of partition is merely a proposal for
the distribution of the hereditary estate which
the court may accept or reject. [Solivio v. CA,
(1990)]

C. REMEDY OF AN HEIR ENTITLED TO

RESIDUE BUT NOT GIVEN HIS SHARE
The better practice for the heir who has not
received his share is to:
(1) Demand his share through a proper motion
in the same probate or administrative
proceedings, or
(2) Motion for reopening of the probate or
administrative proceedings if it had already
been closed, and not through an
independent action. [Guilas v. Judge of the
CFI of Pampanga, (1972)]

The executor/administrator has no duty to

prepare and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the
condition of the estate. [3 Moran 541, 1980 Ed.]
It is the court that makes that distribution of the
estate and determines the persons entitled
thereto:
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing

D. INSTANCES WHEN PROBATE

COURT MAY ISSUE WRIT OF
EXECUTION

Court shall assign the residue of the estate to

the persons entitled to the same, naming them
and the proportions, or parts, to which each is
entitled.

General Rule: Writ of Execution is not allowed in

probate proceedings [Vda de Valera v. Ofilada,
59 SCRA 96]

Such persons may demand and recover their

respective
shares
from
the
executor/administrator, or any other person
having the same in his possession.

Exceptions:
(1) To satisfy the contributive shares of
devisees, legatees and heirs in possession of
the decedents assets (Sec. 6, Rule 88)
(2) To enforce payment of expenses of
partition; [Rule 90 Sec 3] and
(3) To satisfy the costs when a person is cited
for examination in probate proceedings
[Rule 142 Sec 13]

If there is a controversy as to who are heirs or

shares such shall be heard and decided as in
ordinary cases. [Rule 90 Sec 1]
Effect of Final Decree of Distribution
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject
matter involved, whether they are notified
or not, are equally bound. [Philippine
Savings Bank v. Lantin (1983)]
(3) The court acquires jurisdiction over all
persons interested, through the publication
of the notice prescribed and any order that
may be entered therein is binding against
all of them.[Ramon v. Ortuzar (1951)]

When does a probate court lose jurisdiction of an

estate under administration?
The probate court loses jurisdiction of an estate
under administration only after payment of all
debts, and the remaining estate delivered to the
heirs entitled to receive the same. [Guilas v.
Judge of CFI of Pampanga]

The only instance where a party interested in a

probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
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X. Escheat

Procedure
Solicitor General or his representative in behalf
of the Republic of the Philippines will file the
petition:
If deceased is a residentin the RTC of
the province where he last resided
If non-residentin the RTC of the
province in which he had an estate
Actions for reversion or escheat of
properties alienated in violation of the
Constitution or of any statutein the
province where the land lies in whole
or in part

If the petition is sufficient in form and

substance, the court shall make an order fixing
the date and place for the hearing (which shall
not be more than 6 months after entry of
order)

The court shall direct a copy of the order to be

published before the hearing at least once a
week for 6 consecutive weeks in some
newspaper of general circulation published in
the province, as the court shall deem best

The court shall hear the case and judge

whether or not the estate shall be escheated

To whom property escheated will be assigned:

If personal property to the
municipality or city where the
deceased last resided,
If real property to the
municipalities
or
cities,
respectively, in which the same is
situated.
If the deceased never resided in the
Philippines the whole estate may
be assigned to the respective
municipalities or cities where the
same is located.

Escheat is a proceeding where the real and

personal property of a person deceased in the
Philippines, who dies without leaving any will
and without any legal heirs, becomes the
property of the State.
It is an incident or attribute of sovereignty and
rests on the principle of ultimate ownership by
the state of all property within its jurisdiction.

A. WHEN TO FILE
Three instances of Escheats:
(1) When a person dies intestate leaving
property in the Philippines but leaving no
heir [Rule 91 Sec 1]
(2) Reversion proceedings in alienations in
violation of Constitution or other statute
[Rule 91 Sec 5]
(3) Unclaimed Balances Act (Act No. 3936 as
amended by PD 679) dormant accounts
for 10 years shall be escheated.
Where to file:
(1) If Resident RTC of the province where the
deceased last resided;
(2) If Non-resident RTC of the pace where his
estate is located. [Rule 91 Sec 1]

B. REQUISITES
PETITION

FOR

FILING

REMEDIAL LAW

OF

(1) A person died intestate

(2) He left no heirs or persons by law entitled to
the same
(3) Deceased left properties [City of Manila v.
Archbishop of Manila, 36 Phil. 815; Rule 91,
Sec.1]
Escheat proceedings must be initiated by the
Government through the Solicitor General.
The Court must fix a date and place for hearing,
which shall not be more than 6 months after the
entry of the order

Such estate shall be for the benefit of public

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schools, and public charitable institutions and

centers in said municipalities or cities.

XI. Trustees

Court may order, upon motion or motu propio,

that a permanent trust be established so that
only the income from the property shall be
used.

Note: This rule only applies to express trusts

and not implied trusts which arise by operation
of law. [REGALADO]

A.
DISTINGUISHED
FROM
EXECUTOR/ADMINISTRATOR

The right of escheat may be waived, either

expressly or impliedly. [Roman Catholic
Archbishop of Manila v. Monte de Peidad, et
al.,(1939)]

Trustee

Executor/Administrator

Accounts must be Accounts are not under

under
oath
and oath and shall be filed
annually filed
only at such times as
may be required by
court, except for initial
and final submission of
accounts

C.
REMEDY
OF
RESPONDENT
AGAINST PETITION; PERIOD FOR
FILING A CLAIM.
Period to file claim to the estate
A claim must be made within 5 years from date
of judgment; otherwise, barred forever [Rule 91
Sec 4]

Court
which
has
jurisdiction is RTC or
MTC if appointed to
carry into effect the Court
which
has
provisions of a will; If jurisdiction may be the
trustee dies, resigns, or RTC or MTC
removed
in
a
contractual trust, RTC
has jurisdiction to
appoint new trustee

By whom: Devisee, legatee, heir, surviving

spouse, or other person entitled to such estate.
[Rule 91 Sec 4]
Effect of claim
Possession and title to the estate shall be given.
If estate has already been sold, then the
city/municipality shall be accountable for the
proceeds, less reasonable charges for care of
the estate.

May sell or encumber

property of the estate
held
in
trust
if
necessary or expedient
upon order of the court

243

May sell, encumber, or

mortgage property if it
is necessary for the
purpose of 1)paying
debts, expenses of
administration
or
legacies, or 2) for the
preservation
of
property or if 3) sale
will be beneficial to
heirs, legatees, or
devisees
(upon
application to court
with written notice to
heirs)

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B. CONDITIONS OF THE BOND

Order of sale has no Order of sale has no

time limit
time limit

General Rule: Before entering the duties of his

trust a trustee shall file with the clerk of court
having jurisdiction of the trust a bond in the
amount fixed by court

Appointed to carry into Appointed by court to

effect the provisions of settle estate of a
a will or written decedent
instrument
May be exempted from
filing of bond if 1)
provided in the will or
2)beneficiaries
requested exemption

Not exempted from

filing of bond even if
such exemption is
provided in the will;
However bond is only
conditioned
upon
payment of debts.

Trusteeship
is
terminated
upon
turning
over
the
property
to
the
beneficiary
after
expiration of trust.

Services
of
executor/administrator
is terminated upon
payment of debts of
the estate and the
distribution of property
to the heirs

REMEDIAL LAW

Exception: The trustee may be exempted from

giving a bond when requested by:
1. Testator;
2. All persons beneficially interested in the
trust. [Rule 98 Sec 5]
Effect of neglect to file bond
A trustee who neglects to file a bond shall be
considered to have declined or resigned the
trust . [Rule 98 Sec 5]
Conditions
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have come
to his possession or knowledge.

No obligation to pay Must pay the debts of

debts of the beneficiary the estate.
or trustor

(2) Faithful management

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

A trustee, like an executor/administrator, holds

an office of trust, particularly when the trustee
acts as such under judicial authority.

(3) Accounting
That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by the court, a true account
of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may
order

The duties of executor/administrator are

however, fixed and/or limited by law whereas
those of the trustee of an express trust are,
usually governed by the intention of the trustor
or the parties, if established by contract.
Besides, the duties of trustees may cover a
wider
range
than
those
of
executor/administrator of the estate of
deceased persons. [Araneta v. Perez (1962)]

(4) Settlement of account and delivery of estate.

That at the expiration of his trust he will settle
his account in court and pay over and deliver all
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the estate remaining in his hands, or due from

him on such settlement, to the person or
persons entitled to thereto. [Rule 98 Sec 6]

Territoriality of authority of trustee

The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic.

C. REQUISITES FOR THER REMOVAL

AND RESIGNATION OF A TRUSTEE

This is based on the principle that his authority

cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
[HERRERA]

(1) Petition by parties beneficially interested;

(2) Due notice to the trustee;
(3) Hearing.

XII. Guardianship

Who may file a petition: Parties beneficially

interested.

Rules 92-97 are now only applicable to

guardianship over incompetent persons who are
not minors.

D. GROUDS FOR REMOVAL AND

RESIGNATION OF A TRUSTEE

Guardianship over minors is governed by A.M.

No. 03-02-05 SC or Rule on Guardianship of
Minors.

Grounds for removal

(1) Removal appears essential in the interest of
petitioner;
(2) Trustee is insane;
(3) Otherwise incapable of discharging his
trust; or
(4) Evidently unsuitable. [Rule 98 Sec 8]

Guardianship
The power of protective authority given by law
and imposed on an individual who is free and in
the enjoyment of his rights, over one whose
weakness on account of his age or other
infirmity renders him unable to protect himself.
[HERRERA]

Resignation
He may resign but the court will determine if
resignation is proper. [Rule 98 Sec 8]

E. EXTENT
TRUSTEE

OF

AUTHORITY

REMEDIAL LAW

Guardian
A person lawfully invested with power and
charged with the duty of taking care of a person
who for some peculiarity or status or defect of
age, understanding or self-control is considered
incapable of administering his own affairs.
[HERRERA]

OF

Nature of Possession
The possession of the property by the trustee is
not an adverse possession, but only a
possession in the name and in behalf of the
owner of the same.

Basis: Parens Patriae

It is the States duty to protect the rights of
persons/individuals
who
because
of
age/incapacity are in an unfavorable position
vis--vis other parties [Nery v. Lorenzo (1972)].

A trustee may acquire the trust estate by

prescription provided there is a repudiation of
the trust, such repudiation being open, clear
and unequivocal, known to the cestui que trust
[Salinas v. Tuazon (1931)].

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Kinds of Guardians
(1) Legal Guardian deemed as guardian by
provision of law, without need of court
appointment (Art. 225, FC)
(2) Guardian ad Litem appointed by the court
to prosecute or defend a minor, insane or
person declared to be incompetent, in a
court action
(3) Judicial Guardian appointed by the court
in pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased
war veterans and other incompetent
persons.
a. Guardian over the person
b. Guardian of the property
c. General guardian (both person and
property) [REGALADO]

REMEDIAL LAW

Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the
income of the real property of
the ward, if the same is
sufficient
(b) Real property of the ward
upon obtaining an order for its
sale or encumbrance. [Rule 96
Sec 2]
(2) To settle all accounts of his ward [Rule 96
Sec 3]
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects [Rule 96
Sec 3]
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose [Rule 96 Sec 3]
(5) To manage the property of the ward frugally
and without waste, and apply the income
and profits thereon, insofar as may be
necessary, to the comfortable and suitable
maintenance of the ward. If such income
and profits be insufficient for that purpose,
to sell or encumber the real or personal
property, upon being authorized by the
court to do so [Rule 96 Sec 4]
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court
after hearing
(b) Notice to relatives of the ward,
and
(c) A careful investigation as to
the necessity and propriety of
the proposed action. [Rule 96
Sec 5]
(7) To submit to the court a verified inventory of
the property of the ward:

A. GUARDIANSHIP OF INCOMPETENT
PERSONS NOT MINORS
Procedure
Filing of Petition

Court issues order setting time for hearing

Notice to the incompetent and persons

mentioned in the petition
Publication only if incompetent is a nonresident

Hearing (alleged incompetent must be present

if able to attend)

If granted, service of judgment to the Local Civil

Registrar and payment of bond of the guardian.

GENERAL POWERS AND DUTIES OF

GUARDIANS
(1) Care and custody of the person of his ward
and management of his property; or
(2) Management of his property only;
(3) Management of property within the
Philippines (in case of non-resident ward).
[Rule 96 Sec 1]
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(a) Within three months after his

appointment
(b) Annually, and
(c) Whenever required upon the
application of an interested
person. [Rule 96 Sec 7]
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition [Rule
96 Sec 7]
(9) To render to the court for its approval an
accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required. [Rule
96 Secs 7 & 8]
Reimbursement of Reasonable Expenses
The court may authorize reimbursement to the
guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
[Rule 96 Sec 8]

REMEDIAL LAW

guardian to institute the appropriate action to

obtain the possession of and secure title to said
property. [Cui v. Piccio (1952)]
Exception: Court may direct delivery of property
to the guardian only in extreme cases, where
property clearly belongs to the ward or where
his title thereto has already been judicially
decided. [Cui v. Piccio (1952)]
Selling and Encumbering the Property of the
Ward
Court may order that his personal or real
property or any part thereof be sold, mortgaged
or otherwise encumbered, and the proceeds
invested in safe and productive security, or in
the improvement or security of other real
property
Grounds
(1) When the income of a property under
guardianship is insufficient to maintain the
ward and his family; or
(2) When it is for the benefit of the ward [Rule
95 Sec 1]

Payment of Compensation
Court may order payment of reasonable
compensation not exceeding 15% of the net
income of the ward. [Rule 96 Sec 8]

Sale must first be confirmed by the court and

that until such confirmation, not even equitable
title passes. [HERRERA]

Embezzlement, Concealment, or Conveyance of

Wards Properties

Order for Sale or Encumbrance

Contents:
(1) Causes why sale or encumbrance is
necessary or beneficial;
(2) Manner of sale (public or private);
(3) Time and manner of payment;
(4) Security, if payment deferred;
(5) Additional bond from guardian, if
required. [Rule 95 Sec 4]

Upon complaint by the:

(1) The guardian or ward, or
(2) Any person having actual or prospective
interest in the property of the ward;
The court may cite the suspected person to
appear for examination and make such orders
for the security of the estate. [Rule 96 Sec 6]
General Rule: Purpose of the proceeding is to
secure evidence from persons suspected of
embezzling, concealing or conveying any
property of the ward so as to enable the

Duration of Order of Sale or Encumbrance

No order of sale granted in pursuance of this
section shall continue in force for more than 1

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year after granting of the same, without a sale

being had. [Rule 95 Sec 4]

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monies remaining in his hands, or due from

him on such settlement, to the person
lawfully entitled thereto;
(4) To perform all orders of the court and such
other duties as may be required by law.
[Rule 94 Sec 1; Sec. 14 AM 03-02-05]

Investment of Proceeds and Management of

Property
The court may authorize and require the
guardian to invest the proceeds of sales or
encumbrances, and any other money of his ward
in his hands, in real or personal property, for the
best interests of the ward.

B. RULE IN GUARDIANSHIP OVER

MINOR (A.M. NO. 03-02-05-SC)

The court may make such other orders for the

management, investment, and disposition of
the property and effects, as circumstances may
warrant. [Rule 95 Sec 5]

General Rule: The father and the mother shall

jointly exercise legal guardianship over the
property of their unemancipated common child
without the necessity of a court appointment.
[Sec. 3; also Art. 225, FC]
In case of disagreement, the fathers decision
shall prevail, unless there is a judicial order to
the contrary. [Art. 225, FC]

CONDITIONS OF THE BOND OF THE

GUARDIAN

However, if the market value of the property or

the annual Income of the child exceeds
P50,000.00, the parent concerned shall furnish
a bond.

(Applicable for both Guardianship of Minors

and incompetents)
(1) To make and return to the court, within
three months after the issuance of his
letters of guardianship, a true and complete
inventory of all the real and personal
property of his ward which shall come to his
possession or knowledge or to the
possession or knowledge of any other
person in his behalf;
(2) To faithfully execute the duties of his trust,
to manage and dispose the property
according to this rule for the best interests
of the ward, and to provide for his proper
care, custody and education;
(3) To render a true and just account of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and
of the management and disposition of the
same, at the time designated by this rule
and such other times as the court directs
and at the expiration of his trust, to settle
his accounts with the court and deliver and
pay over all the property, effects, and

Petition for Appointment of Guardian

Who may file
(1) Resident minor:
(a) Any relative; or
(b) Other person on behalf of a minor; or
(c) The minor himself, if 14 years of age or
over; or
(d) The Secretary of DSWD or the Secretary
of DOH, in the case of an insane minor
who needs to be hospitalized. [Sec. 2]
(2) Non-resident minor who has property in the
Philippines:
(a) Any relative or friend of such minor; or

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(b) Anyone interested in his property, in

expectancy or otherwise. [Sec. 12]

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Order of Preference in Appointment (in default

of parents or a court-approved guardian)

Where to file

(1) The surviving grandparent. In case several

grandparents survive, the court shall select
any of them taking into account all relevant
considerations.

Resident minor - Family Court of the province or

city where the minor actually resides.
Non-resident minor - Family Court of the
province or city where his property or any part
thereof is situated [Sec. 3]

(2) The oldest brother or sister of the minor over

21 years of age, unless unfit or disqualified.
(3) The actual custodian of the minor over 21
years of age, unless unfit or disqualified.

Grounds for filing

(4) Any other person, who in the sound

discretion of the court, would serve the best
interests of the minor. [Sec 6]

(1) Death, continued absence, or incapacity of

his parents;

Contents of petition

(2) Suspension, deprivation or termination of

parental authority;

(1) Jurisdictional facts;

(3) Remarriage of his surviving parent, if the

latter is found unsuitable to exercise
parental authority; or

(2) Name, age and residence of the

prospective ward;

(4) When the best interests of the minor so

require. [Sec 4]

(3) Ground rendering the appointment

necessary or convenient;

Qualifications of Guardians

(4) Death of the parents of the minor or the

termination, deprivation or suspension
of their parental authority;

The court shall consider the guardians:

(1) Moral character;
(2) Physical,
condition;

mental

and

(5) Remarriage of the minors surviving

parent;

psychological

(6) Names, ages, and residences of

relatives within the 4th civil degree of
the minor, and of persons having him in
their care and custody;

(3) Financial status;

(4) Relationship of trust with the minor;
(5) Availability to exercise the powers and
duties of a guardian for the full period of the
guardianship;

(7) Probable value, character and location

of the property of the minor;

(6) Lack of conflict of interest with the minor;

(8) Name, age and residence of the person

for whom letters of guardianship are
prayed. [Sec 7]

(7) Ability to manage the property of the minor.

[Sec 5]
Grounds are not exhaustive. [HERRERA]
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The petition shall be verified and accompanied

by a certification against forum shopping. No
defect in the petition or verification shall render
void the issuance of letters of guardianship. [Sec
7

REMEDIAL LAW

special notice to be given.

Case Study Report

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.

Who may file Opposition

(1) Any interested person by written opposition
[Sec. 10]
(2) The social worker ordered to make the case
study report, may intervene on behalf of the
minor if he finds that the petition for
guardianship should be denied [Sec. 9]

Hearing

Grounds for Opposition

(1) Majority of the minor;

Compliance with notice requirement

must be shown.

The prospective ward shall be

presented to the court. If the minor is
non-resident, the court may dispense
with his presence.

At the discretion of the court, the

hearing on guardianship may be closed
to the public.

The records of the case shall not be

released without court approval.

(2) Unsuitability of the person for whom letters

are prayed. [Sec. 10]
Procedure
Filing of petition.

Court shall fix a time and place for hearing.

Notice requirement

Issuance or denial of letters of guardianship.

Court shall cause reasonable notice to be given

to:

The persons mentioned in the petition

The minor, if he is 14 years of age or

over
-

Service of final and executory judgment or

order upon the Local Civil Registrar of the
municipality or city where the minor resides
and the Register of Deeds of the place where
his property or part thereof is situated, who
shall annotate the same in the corresponding
title, and report to the court their compliance
within fifteen days from receipt of the order.

For non-resident minors, notice

shall be given to the minor by
publication or any other means
as the court may deem proper.

The court may also direct other general or

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Powers and Duties

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(3) Wasted or mismanaged the property of the

ward; or

In general

(4) Failed to render an account or make a

return for thirty days after it is due. [Sec. 14]

(1) Guardian of resident minor: Care and

custody of the person of his ward and the
management of his property, or only the
management of his property.

Resignation
Ground: Any justifiable cause.

(2) Guardian
of
non-resident
minor:
Management of all his property within the
Philippines [Sec. 17]

Upon the removal or resignation of the

guardian, the court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same. [Sec. 24]

Bonds of Guardians
Before a guardian enters upon the execution of
his trust, or letters of guardianship issue, he
must file a bond as determined by the Court.
[Sec. 14]

Termination
Grounds

*Conditions of the bond are similar to those for

guardians of incompetent persons.

(1) The ward has come of age; or

(2) The ward has died.

Whenever necessary, the court may require the

guardian to post a new bond and may discharge
from further liability the sureties on the old
bond. [Sec. 15]

How Terminated:
(1) Court
motu
proprio
guardianship; or

Liability: In case of breach of any of its

conditions, the guardian may be prosecuted in
the same proceeding for the benefit of the ward
or of any other person legally interested in the
property. [Sec. 15]

terminates

(2) Upon verified motion of any person

allowed to file a petition for
guardianship.
The guardian shall notify the court of the fact of
coming of age or death of the ward within 10
days of its occurrence. [Sec. 25]

Removal, Resignation, and Termination of

Guardianship

The final and executory judgment or order

removing a guardian or terminating the
guardianship shall be served upon the Local
Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of
the province or city where his property or any
part thereof is situated, who shall enter the final
and executory judgment or order in the
appropriate books in their offices. [Sec. 26]

Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust; or
(2) Is found to be unsuitable;
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XIII. Adoption
A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Domestic Adoption (RA 8552)

Inter-country Adoption (RA 8043)

Kind of proceedings
Judicial Adoption

Extra-judicial Adoption

What it governs
RA 8552 amended Art. 183 193 of the Family RA 8043 governs adoption of Filipinos by
Code and is the governing law for Filipino citizens foreigners and non-resident citizen and is
adopting other Filipinos (whether relatives or implemented by the Inter-Country Adoption Board
strangers) with some exceptions.
Rescission of adoption is no longer allowed.
Definition of child
Child is a person below 18 years of age [Sec. 3(a)] Child means a person below fifteen (15) years of
age unless sooner emancipated by law [Sec 3 (b)]
Who may adopt
(1) Any Filipino citizen;
(2) Any alien possessing the same qualifications An alien or Filipino citizen permanently residing
for Filipino nationals;
abroad may file an application for inter-country
(3) The guardian with respect to the ward [Sec. 7] adoption of a Filipino child. [Sec. 9]

Qualifications
Filipino Citizen
(a) legal age, in possession of full civil
capacity and legal rights;
(b) of good moral character, has not been
convicted of any crime involving moral
turpitude;
(c) emotionally and psychologically capable
of caring for children;
(d) at least sixteen (16) years older than the
adoptee (waived when adopter is the
biological parent of the adoptee, or is the
spouse of the adoptees parent) [Sec. 7(a)]
Alien
(a) same as qualifications of Filipino citizens;
and
(b) His/her country has diplomatic relations
with the Republic of the Philippines;
252

(a) is 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;
(b) if married, his/her spouse must jointly file
for the adoption;
(c) 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;
(d) has not been convicted of a crime
involving moral turpitude;
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(c) He/she has been living in the Philippines

for at least 3 continuous years prior to
filing of application and maintains such
residence until adoption decree is entered;
(d) That he/she has been certified by his/her
diplomatic/consular
office
or
any
appropriate government agency that
he/she has legal capacity to adopt in
his/her country;
(e) His/her government allows the adoptee to
enter the country as his/her adopted child.
Residency and certification of qualification may be
waived if:
i.
former Filipino citizen who seeks to adopt
a relative within the 4th degree of
consanguinity or affinity; or
ii.
one who seeks to adopt legitimate child of
his/her Filipino spouse; or
iii.
one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse
a relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse. [Sec. 7(b)]

REMEDIAL LAW

law;
(f) is 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 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.
[Sec. 9]

Who may be adopted

The following may be adopted:
(a) Any person below 18 years of age who has
been administratively or judicially declared
available for adoption;
(b) The legitimate son/daughter of one
spouse by the other spouse;
(c) An illegitimate son/daughter by a
qualified adopter to improve his/her
status to that of legitimacy;
(d) A person of legal age if, prior to adoption,
said person has been consistently
considered and treated by the adopter(s)
as his/her own child since minority;
(e) A child whose adoption has been
previously rescinded; or
(f) A child whose biological or adoptive
parent(s) has died: provided that no
proceedings shall be initiated within 6
months from time of death of said parents.
[Sec. 8]

Only a legally free child may be the subject of

inter-country adoption. [Sec 8]
Legally-free child means a child who has been
voluntarily or involuntarily committed to the
Department, in accordance with the Child and
Youth Welfare Code.[Sec. 3(f)]

Where to file application

Family Court of the place where adopter resides

Either with the Philippine Regional Trial Court

having jurisdiction over the child, or with the InterCountry Adoption Board, through an intermediate
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agency, whether governmental or an authorized

and accredited agency, in the country of the
prospective adoptive parents, [Sec. 10]
What the petition for adoption may include
May include prayer for change of name, Only petition for adoption
rectification of simulated birth or declaration that
the child is foundling, abandoned, dependent or
neglected child

Annexes
RA 8552 does not provide for any annexes but Sec Application must be supported by the following
11 AM 02-6-02-SC Rule on Domestic and documents (written and officially translated in
Intercountry Adoption, requires the following to be English):
annexed to the petition
(a) Birth certificate of applicant(s);
(a) Birth, baptismal or foundling certificate, as (b) Marriage contract, if married, and divorce
decree, if applicable;
the case may be, and school records
showing the name, age and residence of (c) Written consent of their biological or adoptive
children above ten (10) years of age, in the
the adoptee;
form of sworn statement;
(b) Affidavit of consent of the following:
(d)
Physical,
medical and psychological evaluation
1. The adoptee, if ten (10) years of age
by
a
duly
licensed physician and psychologist;
or over;
(e) Income tax returns or any document showing
2. The biological parents of the child, if
the financial capability of the applicant(s);
known, or the legal guardian or the (f) Police clearance of applicant(s);
child-placement agency, child-caring (g) Character
reference
from
the
local
agency, or the proper government
church/minister, the applicant's employer and
a member of the immediate community who
instrumentality which ahs legal
have known the applicant(s) for at least five (5)
custody of the child;
years; and
3. The legitimate and adopted children
(h) Recent postcard-size pictures of the
of the adopter and of the adoptee, if
applicant(s) and his immediate family; [Sec.
any, who are ten (10) years of age or
10]
over;
4. The illegitimate children of the
adopter living with him who are ten
(10) years of age or over; and
5. The spose, if any, of the adopter or
adoptee.
(c) Child study report on the adoptee and his
biological parents;
(d) If the petitioner is an alien, certification by
his diplomatic or consular office or any
appropriate government agency that he
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has the legal capacity to adopt in his

country and that his country and that his
government allows to adoptee to enter his
country as his own adopted child unless
exempted under Section 4 (2);
(e) Home study report on the adopters. If the
adopter is an alien or residing abroad but
qualified to adopt, the home study report
by a foreign adoption agency duly
accredited by the Inter-Country Adoption
Board; and
(f) Decree of annulment, nullity or legal
separation of the adopter as well as that of
his biological parents of the adoptee, if
any.
Publication
Petition must be published at least once a week No publication requirement.
for 3 consecutive weeks in a newspaper of general
circulation in the province or city where the court is
situated;
Rescission of adoption is no longer allowed.
Supervised Trial Custody
For at least six (6) months within which the parties Trial period for 6 months in country of adopter for
are expected to adjust psychologically and at least 6 months; Only after lapse of period shall a
emotionally to each other and establish a bonding decree of adoption be issued. [Sec. 14]
relationship. During said period, temporary
parental authority shall be vested in the
adopter(s).
Period may be reduced by court if in the best
interest of adoptee. [Sec 12]
Penalties
Any govt official, employee or functionary who
shall be found guilty of violating any of the Same [Sec. 17]
provisions shall automatically suffer suspension
until resolution of the case.

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Pertinent statutes and rules:

RA 8552 (Domestic Adoption Act)
RA 8043 (Inter-Country Adoption Act)
A.M. 02-6-02-SC (Rule on Domestic and
Inter-Country Adoption)
A.M. 02-1-19-SC (Re Proposed Rule on
Commitment of Children)
A.M. 03-04-04-SC (Rule on Custody of
Minors and Writ of Habeas Corpus in Relation
to Custody of Minors)

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authority of his biological parents, or in case of

rescission of adoption, his guardian or
adopter(s). [Sec. 3]
General Rule: Husband and wife shall adopt
jointly
Exceptions:
1) If one spouse seeks to adopt the legitimate
child of other
2) If one spouse seeks to adopt his own
illegitimate child, provided the other spouse
has signified his/her consent
3) If spouses are legally separated [Sec 7(c)]

Adoption
A juridical act which creates between two
persons a relation similar to that which results
from filiation. [Prasnick v. Republic, 98 Phil. 669
(1956)]

PROCEDURE
Order of hearing

It is a proceeding in rem.
Objective: Best interest of the child

Publication at least once a week for three

consecutive weeks in newspaper of
general circulation in province or city
where the court is situated. Court shall
notify the Solicitor General if the petition
prays for a change of name.

Only an adoption made in pursuance with the

procedures laid down under the Rules on
Domestic and Inter-Country Adoption is valid in
this jurisdiction.
Adoption is strictly personal between the
adopter and the adopted. [Teotico v. Del Val
(1965)]

Child and Home Study Report

Construction of adoption statutes:

All sections are designed to protect the best
interests of the adoptee.

Hearing within six months from issuance of

Order

B. DOMESTIC ADOPTION ACT

Supervised Trial Custody for at least six (6)

months

RA 8552 (Domestic Adoption Act) and the Rule

on Adoption govern the domestic adoption of
Filipino children.

Decree of Adoption

A child legally available for adoption

It refers to a child who has been voluntarily or
involuntarily committed to the DSWD or to a
duly licensed and accredited child-placing or
child caring agency, freed of the parental

Venue: The petition for adoption shall be filed

with the Family Court of the province or city
where the prospective adoptive parents reside.

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[Sec. 6 AM 02-6-02 Rule on Domestic and InterCountry Adoption]

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Where to file petition for rescission: Family Court

of the city or province where the adoptee resides.
[Sec. 20 A.M. 02-6-02-SC, Rule on Domestic and
Inter-Country Adoption]

EFFECTS OF ADOPTION
(1) Adopters shall exercise parental authority.
(2) All legal ties between biological parent(s)
and adoptee shall be severed (except in
cases where the biological parent is the
spouse of the adopter); and the same shall
be vested on the adopter(s); [Sec. 16]
(3) Adoptee shall be considered the legitimate
child of the adopter(s) for all intents and
purposes; [Sec. 17]
(4) Adopters shall have reciprocal rights of
succession without distinction from
legitimate filiation; [Sec. 18]

When to file:
(1) Within 5 years after reaching age of majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery from
such incompetency. [Sec. 21 A.M. 02-6-02SC, Rule on Domestic and Inter-Country
Adoption]
EFFECTS OF RESCISSION OF ADOPTION
(1) Restoration of parental authority to
biological parent if adoptee is a minor if
know, or legal custody to the DSWD;
(2) Reciprocal rights and obligations of adopter
and adoptee are extinguished;
(3) Cancellation of amended birth certificate
and restore original;
(4) Successional rights shall revert to its status
prior to adoption, as of the date of final
judgment of rescission.
(5) Vested rights shall be respected [Sec. 20,
RA 8552]

INSTANCES WHEN ADOPTION MAY BE

RESCINDED; EFFECTS OF RESCISSION OF
ADOPTION
Rescission may only be at the petition of the
adoptee.
(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the
assistance of the DSWD
(3) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.
[Sec. 19]

C. INTER-COUNTRY ADOPTION
RA 8043 (Inter-country Adoption Act) governs
the adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing
abroad. [Sec. 3 (a)]

Grounds: Committed by the adopter

(1) Repeated physical and verbal maltreatment
despite having undergone counseling;
(2) Attempt on the life of the adoptee;
(3) Sexual assault or violence;
(4) Abandonment or failure to comply with
parental obligations.

WHEN ALLOWED
Inter-country Adoption as the Last Resort; Best
Interest of the child as objective
The Inter-country Adoption Board (ICAB) shall
ensure that all possibilities for adoption of the
child under the Family Code (domestic
adoption) have been exhausted and that intercountry adoption is in the best interest of the
child [Sec. 7, RA 8043]

Adoption, being in the best interests of the child,

shall not be subject to rescission by the adopter.
However, the adopter may disinherit the
adoptee for causes provided in Article 919 of the
Civil Code. [Sec. 19]

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XIV. Writ
Corpus

FUNCTIONS OF THE RTC

(1) Filing of petition may be made with the
Family Court having jurisdiction over the
place where the child resides or may be
found. [Sec. 28, AM 02-6-02 SC]
(2) Court shall determine whether or not
petition is sufficient in form and substance
and a proper case for inter-country
adoption.
(3) Transmit the petition to the ICAB for
appropriate action.

REMEDIAL LAW

of

Habeas

WRIT OF HABEAS CORPUS

Essentially a writ of inquiry, granted to test the
right under which a person is detained, and to
relieve a person if such restrain is illegal
Extends to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled
thereto. [Rule 102, Sec. 1]

BEST INTEREST OF THE MINOR STANDARD

The best interests of the minor refer to the
totality of the circumstances and conditions as
are most congenial to the survival, protection,
and feelings of security of the minor
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 A.M No. 03-04-04-sc Re:
proposed rule on custody of minors and writ of
habeas corpus in relation to custody of minors]

Can only be suspended in cases of rebellion or

invasion and when public interest requires it
[Art. III, Sec. 15]

The rule that there should be no contact

between the adoptee and his/her biological
parents shall not apply in exceptional cases
where the childs best interests are at stake [Sec.
39, IRR of RA 8043]

VITAL PURPOSES
In general
The purpose of the writ is to inquire into all
manner of involuntary restraint, and to relieve a
person therefrom if such restraint is illegal.
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned
without sufficient cause
(3) To deliver them from unlawful custody
[Villavicencio v. Lukban (1919)]

In case physical transfer fails to occur, the ICAB

shall take appropriate steps for the protection
of the best interests of the child. [Sec. 44, IRR of
RA 8043]

Concept of restraint
Actual and effective and not merely nominal or
moral restraint is required. [Zagala v. Illustre
(1926)]

Placement may be terminated if it is not in the

best interests of the child. [Sec. 48, IRR of RA
8043]

However, actual physical restraint is not always

required; any restraint which will prejudice
freedom of action is sufficient. [Moncupa v.
Enrile (1986)]

Any doubt or vagueness in the provisions of

theseRules shall be interpreted in consideration
of the best interests of the child. [Sec. 61, IRR of
RA 8043]

In the case of minors

(1) Prosecuted for the purpose of determining
the right of custody of a child.

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(2) Question of identity is relevant and material

and must be convincingly established.
[Tijing v. CA (2008)]

REMEDIAL LAW

action is sufficient. [Villavicencio v Lukban

(1919)]
(2) Violation of freedom from threat by the
apparent threat to life, liberty and security
of their person from the following facts:
a. Threat of killing their families if they
tried to escape
b. Failure of the military to protect them
from abduction
c. Failure of the military to conduct
effective investigation [Secretary of
Justice v. Manalo]

The underlying rationale is not the illegality of

the restraint but the right of custody. [Tijing v.
CA (2001)]
Who may issue the writ
(1) The SC,CA, and RTC have concurrent
jurisdiction to issue WHC [Rule 102, Sec.2]
(2) Family courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the WHC in relation to custody
of minors

NATURE
Not a suit between private parties, but an
inquisition by the government, at the
suggestion and instance of an individual, but
still in the name and capacity of the sovereign.
There can be no judgment entered against
anybody since there is no real plaintiff and
defendant. [Alimpos v. CA, 106 SCRA 159 (1981)]

Temporary release may constitute restraint;

Elements:
(a) Where a person continued to be unlawfully
denied one or more of his constitutional
rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely
involuntary but appear to be unnecessary
(d) Where a deprivation of freedom originally
valid has in light of subsequent
developments become arbitrary [Moncupa v.
Enrile (1986)]

Proceedings in habeas corpus are separate and

distinct from the main case from which the
proceedings spring.
The question whether one shall be imprisoned
is always distinct from the question of whether
the individual shall be convicted or acquitted of
the charge on which he is tried, and therefore
these questions are separate, and may be
decided in different courts [Herrera citing 4
Cranch, 75, 101]

General Rule: Release of detained person,

whether permanent or temporary, makes the
petition for habeas corpus moot.
Exceptions:
(1) Doctrine of Constructive Restraint Unless
there are restraints attached to his release
which precludes freedom of action in which
case the Court can still inquire into the
nature of his involuntary restraint

The writ of habeas corpus is not designed to

interrupt the orderly administration of the laws
by a competent court acting within the limits of
its jurisdiction, but is available only for the
purpose relieving from illegal restraint.

The essential object and purpose of the writ

of habeas corpus is to inquire into all
manner of involuntary restraint. Any
restraint which will preclude freedom of

Proceedings on habeas corpus to obtain release

from custody under final judgment being in the
nature of collateral attack, the writ deals only
with such radical defects as render the
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proceeding or judgment absolutely void, and

cannot have the effect of appeal, writ of error or
certiorari, for the purpose of reviewing mere
error and irregularities in the proceedings.
[People v. Valte (1922)]

REMEDIAL LAW

(5) Hearing by the court (upon return) [Rule 102,

Sec 12]
(6) Execution of the writ
- Officer brings the person before the judge,
and
- Officer makes due return [Rule 102, Sec 8]

It is a prerogative writ which does not issue as a

matter of right but in the sound discretion of the
court. [Mangila v. Judge Pangilinan (2013)]

A. CONTENTS OF THE PETITION

Who may apply
(1) The party for whose relief it is intended; or
(2) By some person on his behalf [Rule 102, Sec
3]
Some person any person who has a
legally justified interest in the freedom of
the person whose liberty is restrained or
who shows some authorization to make
the application [Velasco v. CA (1995)]

WHC may be used with writ of certiorari for

purposes of review
The two writs may be ancillary to each other
where necessary to give effect to the supervisory
powers of higher courts.
WHC reaches the body of the jurisdictional
matters, but not the record. Writ of certiorari
reaches the record but not the body [Galvez v.
CA (1994)]

Verified petition must set forth:

(1) That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
(2) The officer or name of the person by whom
he is so imprisoned or retrained or if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended;
(3) The place where he is so imprisoned or
restrained, if known;
(4) A copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority, such
fact shall appear. [Rule 102, Sec 3]

While generally, the WHC will not be granted

when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases [Herrera, citing 39
C.J.S. Habeas corpus 13, 486-488]
PROCEDURE
(1) Application for the writ by petition [Rule 102,
Sec 3]
(2) Grant or disallowance of writ and issuance
by court or judge [Rule 102, Secs 4-5]
(3) Clerk of Court issues the writ under the seal
of court (in case of emergency, by the judge
himself) [Rule 102, Sec 5]
(4) Service:
- By whom: sheriff or other proper officer
- How: leaving the original with the person
to whom it is directed and preserving a
copy on which to make return
- To whom: officer in custody or any officer
(when in custody of person other than an
officer) [Rule 102, Sec 7]

B. CONTENTS OF THE RETURN

Made by the person or officer in whose custody
the prisoner is found:
(1) Whether he has or has not the party in his
custody or power, or under restraint
(2) If he has the party in his custody or power,
or under restraint, the authority and the true
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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
(3) 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
bought before the court or judge

REMEDIAL LAW

Peremptory writ unconditionally commands

the respondent to have the body of the detained
person before the court at a time and place
therein specified [Lee Yick Hon v. Collector of
Customs, (1921)]

D.
WHEN
APPLICABLE

NOT

PROPER

OR

(1) For asserting or vindicating the denial of

right to bail. [Galvez v. CA (1994)]
(2) Where the petitioner has the remedy of
appeal or certiorari. [Galvez v. CA (1994)]
(3) For correcting errors in the appreciation of
facts or law [Sotto v. Director of Prisons
(19662)]
a. Exception: If error affects courts
jurisdiction making the judgment void
[Herrera]

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. [Rule
102, Sec 10]
The return or statement shall be signed by the
person who makes it; and shall also be sworn by
him if the prisoner is not produced, and in all
other cases, unless the return is made and
signed by a sworn public officer in his official
capacity. [Rule 102, Sec 11]

WHC is proper:
Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v. Galang,
(1963)]

When the return considered evidence, and when

only a plea
When the prisoner is in custody under a warrant
of commitment in pursuance of law, the return
shall be considered prima facie evidence of the
cause of restraint.

Where the court has no jurisdiction to impose

the sentence [Banayo v. President of San Pablo,
2 Phil. 413 (1903)]

E. WHEN WRIT DISALLOWED OR

DISCHARGED

If he is restrained of his liberty by any alleged

private authority, the return shall be considered
only as a plea of the facts therein set forth, and
the party claiming the custody must prove such
facts. [Rule 102, Sec 13]

(1) The person alleged to be restrained of his

liberty is in custody of an officer or Under
process issued by the court or judge or By
virtue of a judgment or order of a court of
record and said court had jurisdiction to
issue the process, render the judgment or
make the order; or
(2) If jurisdiction appears after the writ is
allowed despite any informality or defect in
the process, judgment, or order; or
(3) Person is charged with or convicted of an
offense in the Philippines; or

C. DISTINGUISH PEREMPTORY WRIT

FROM PRELIMINARY CITATION
Preliminary citation requires the respondent to
appear and show cause why the peremptory
writ should not be granted

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REMEDIAL LAW

(4) Suffering from imprisonment under lawful

judgment. [Rule 102, Sec 4]
(5) If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with
an offense punishable by death [Rule 102,
Sec 14]
(6) Even if the arrest of a person is illegal, due
to supervening events may bar release:
(a) Issuance of a judicial process [Sayo v.
Chief of Police of Manila (1948)]

Specifically, it protects image, privacy, honor,

information, self-determination and freedom of
information of a person. [Philippine Supreme
Court Bulletin Benchmark Online, November
2007]

Judicial process is defined as a writ,

warrant, subpoena, or other formal
writing issued by authority of law.
[Malaloan v. CA (1994)]
(b) The filing before a trial court a
complaint which issued a hold
departure order and denied motion to
dismiss and to grant bail [Velasco v.
CA(1995)]
(c) Filing of an information for the offense
for which the accused is detained bars
the availability of WHC [Velasco v. CA
(1995)]

G. RULES ON CUSTODY OF MINORS

AND WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC)

The writ of habeas data is not only confined to

cases of extralegal killings and enforced
disappearances. [Vivares v. St. Theresas College
(2014)]
See Annex A for detailed distinction

Applicability
Applies to petitions for custody of minors and
writs of habeas corpus in relation thereto.
Rules of Court shall apply suppletorily. [Sec. 1]
Petition for Custody of Minors
Who may file: Any person claiming right of
custody. [Sec 2]
Party against whom it may be filed shall be
designated as the respondent.

F. DISTINGUISHED FROM WRIT OF

AMPARO AND HABEAS DATA

Where to file: Filed with the Family Court of the

province or city where the petitioner resides or
where the minor may be found. [Sec. 3]

Writ of Habeas Corpus extends to all cases of

illegal confinement or detention (deprivation of
liberty), or where rightful custody is withheld
from person entitled thereto.

Contents of petition: The verified petition shall

allege the following:
(a) The personal circumstances of the
petitioner and of the respondent;
(b) The name, age and present whereabouts of
the minor and his or her relationship to the
petitioner and the respondent;
(c) The material operative facts constituting
deprivation of custody; and
(d) Such other matters which are relevant to
the custody of the minor. [Sec 4]

Writ of Amparo covers extralegal killings and

enforced disappearances or threats thereof
The writ of amparo, in its present form, is
confined only to these two instances of
extralegal
killings
and
enforced
disappearances. [Rev. Fr. Reyes v. CA (2009)]
Writ of Habeas Data in general is designed to
safeguard individual freedom from abuse in the
information age by means of an individual
complaint presented in a constitutional court.
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Answer to the Petition

Motion to Dismiss is not allowed except on
ground of lack of jurisdiction over subject matter.
[Sec. 6]

(3)

Respondent must file verified answer within 5

days after service of summons and copy of
petition. [Sec. 7]

(4)

Case study upon the filing of the verified

answer or the expiration of the period to file it,
the court may order a social worker to make a
case study of the minor and the parties and to
submit to the court at least 3 days before pretrial. [Sec. 8]

(5)
(6)

REMEDIAL LAW

and of sufficient discernment, unless the

parent chosen is unfit;
The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over 7 years of age and of
sufficient discernment, unless grandparent
chosen is unfit or disqualified;
The eldest brother or sister over 21 years of
age, unless unfit or disqualified;
The actual custodian of the minor over 21
years of age, unless unfit or disqualified;
Any other person or institution the court
may deem suitable. [Sec. 13]

In awarding custody, the court shall consider

the best interests of the minor and shall give
paramount consideration to his material and
moral welfare. [Sec. 14]

Pre-trial is mandatory. [Sec. 9]

Failure to file the pre-trial brief or to comply
with its required contents has same effect as
failure to appear at the pre-trial. [Sec.10]

Interim Reliefs
(1) Temporary visitation rights - 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.

If the petitioner fails to appear personally at the

pre-trial, the case shall be dismissed. Unless his
counsel or a duly authorized representative
appears in court and proves a valid excuse for
the non-appearance of the petitioner. [Sec. 11]
If the respondent has filed his answer but fails
to appear at the pre-trial, the petitioner shall be
allowed to present his evidence ex parte. The
Court shall then render judgment on the basis
of the pleadings and the evidence thus
presented. [Sec. 9]

The temporary custodian shall give the

court and non-custodial parent or parents
at least 5 days' notice of any plan to change
the residence of the minor or take him out of
his residence for more than 3 days. [Sec. 15]
(2) Hold Departure Order the minor child
shall not be brought out of the country
without prior order from the court while the
petition is pending.

Provisional Order awarding custody

After an answer has been filed or after
expiration of the period to file it, the court may
issue a provisional order awarding custody of
the minor. As far as practicable, the following
order of preference shall be observed in the
award of custody:
(1) Both parents jointly;
(2) Either parent taking into account all
relevant considerations, especially the
choice of the minor over seven years of age

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 (BID),
directing it not to allow the departure of the
minor from the Philippines without court
permission.

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The Family Court issuing the hold departure

order shall furnish the DFA and the BID of
the DOJ a copy of the hold departure order
within 24 hours from its issuance.

REMEDIAL LAW

or commit him to any suitable home.

Court may order either or both parents to give
an amount necessary for the support,
maintenance and education of the minor,
irrespective of custodianship.

The court may recall the hold departure

order motu proprio or upon verified motion
of any of the parties after summary hearing.
[Sec. 16]

The court may also issue any order that is just

and reasonable permitting the parent who is
deprived of the care and custody of the minor to
visit or have temporary custody. [Sec. 18]

(3) Protection Order (PO) - court may issue a

PO requiring any person:
(1) To stay away from the home, school,
business, or place of employment of
the minor, other parent or any other
party, or from any other specific place;
(2) To cease and desist from harassing,
intimidating, or threatening such minor
or the other parent or any person to
whom custody of the minor is awarded;
(3) To refrain from acts or omission that
create an unreasonable risk to minor;
(4) To permit a parent, or a party entitled
to visitation by a court order or a
separation agreement, to visit the
minor at stated periods;
(5) To permit a designated party to enter
the residence during a specified period
of time in order to take personal
belongings not contested in a
proceeding pending with the Family
Court;
(6) To comply with such other orders as
are necessary for the protection of the
minor. [Sec. 17]

Appeal
Appeal from the decision shall be allowed,
unless the appellant has filed a motion for
reconsideration or new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within 15
days from notice of the denial of the motion for
reconsideration or new trial and serving a copy
on the adverse parties. [Sec. 19]
WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS
A verified petition for a writ of habeas corpus
involving custody of minors is filed with the
Family Court. The writ shall be enforceable
within the judicial region the Family Court
belongs.
However, the petition may be filed with a
regular court in the absence of the presiding
judge of the Family Court provided that the
regular court shall refer the case to the Family
Court as soon as its presiding judge returns to
duty.

Judgment
Court shall render judgment awarding the
custody of the minor to the proper party
considering the best interests of the minor.

Petition may also be filed with the appropriate

regular courts in places where there are no
Family Courts.

If both parties are unfit to have the care and

custody of the minor, the court may designate
either the paternal or maternal grandparent of
the minor, or his oldest brother or sister, or any
reputable person to take charge of such minor,

The petition may be filed with the SC, CA, or

with any of its members and shall be
enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court
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or to any regular court within the region where

the petitioner resides or where the minor may
be found for hearing and decision on the merits.

REMEDIAL LAW

Upon return of the writ, the court shall decide

the issue on custody of minors. [Sec. 20]

Comparative Table on Habeas Corpus and Rule on Custody of Minors

Habeas Corpus [Rule 102]
Rule on Custody and Habeas Corpus
for Minors [A.M. 03-04-04]
Rights Involved

Right to liberty
Rightful custody of the aggrieved
party
Actual violation of the aggrieved
partys right to liberty, or rightful
custody [Sec. 1]

Petition for the rightful custody of a

minor

(1) RTC or any judge thereof

(2) CA or any member thereof in
instances authorized by law
(3) SC or any member thereof [Sec.
2]
(4) Special jurisdiction given to first
level courts in the absence of RTC
judges in a province or city [Sec.
Before which court or
35, BP 129]
judicial authority filed
(5) In aid of appellate jurisdiction of
the Sandiganbayan [RA 8249
further expanding its jurisdiction]

A verified petition for a writ of habeas

corpus involving custody of minors
shall be filed with the Family Court.
The writ shall be enforceable within
its judicial region to which the Family
Court belongs.

Unlawful deprivation
custody, or

of

rightful

A minor is being kept from a parent

by the other parent (e.g. which
parent shall have the care and
custody of a minor, when such parent
is in the midst of nullity or legal
separation proceedings). [Herrera;
Secs. 2 & 20]
Party for whose relief it is intended or Any person claiming rightful custody
by some person in his behalf [Sec. 1]
this covers:
Party Authorized to
(1) Unlawful deprivation of the
File
custody of a minor
(2) Which parent shall have the care
and custody of a minor [Herrera]
Respondents
May or may not be an officer
Situations Applicable

Contents
petition

of

However, the petition may be filed

with the regular court in the absence
of the presiding judge of the Family
Court, provided, however, that the
regular court shall refer the case to
the Family Court as soon as its
presiding judge returns to duty.

The petition may also be filed with

the appropriate regular courts in
places where there are no Family
Courts. [Sec. 20]
the Signed, verified either by the party for The verified petition shall allege the
whose relief it is intended, or by some following:
person in his behalf and shall set (1) The personal circumstances of
forth:
the petitioner and of the
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(1) That the person in whose behalf
the application is made is
imprisoned or restrained on his
liberty;
(2) The officer or name of the person
by whom he is so imprisoned or
restrained or, if both are
unknown or uncertain, such
officer or person may be
described by an assumed
appellation, and the person who
is served with the writ shall be
deemed the person intended;
(3) The place where he is so
imprisoned or restrained, if
known;
(4) A copy of the commitment or
cause of detention of such
person, if it can be procured
without impairing the efficiency
of the remedy or, if the
imprisonment or restraint is
without any legal authority, such
fact shall appear. [Sec. 3]

REMEDIAL LAW
respondent
(2) The name, age and present
whereabouts of the minor and
his or her relationship to the
petitioner and the respondent
(3) The material operative facts
constituting
deprivation
of
custody and
(4) Such other matters which are
relevant to the custody of the
minor.
The verified petition shall be
accompanied by a certificate against
forum shopping, which the petitioner
must sign personally. [Sec. 4]

XV. Writ of Amparo (A.M.

07-9-12-SC)

virtue of the 1987 Constitution stating that the

SC has the power to [p]romulgate rules
concerning the protection and enforcement of
constitutional rights (Art VIII Sec. 5).

WRIT OF AMPARO
Literally means to protect

A. COVERAGE
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.

Came originally from Mexico and evolved into

many forms
(1) Amparo libertad for protection of personal
freedom
(2) Amparo contra leyes for judicial review of
the constitutionality of statutes
(3) Amaparo casacion judicial review of
constitutionality and legality of judicial
decisions
(4) Amparo agrario for protection of peasants
rights

The writ shall cover:

(1) Extralegal killings (killings committed
without due process of law) and
(2) Enforced disappearances [Sec. 1]
Elements of enforced disappearance:
(1) An arrest, detention or abduction of a
person by a government official or

AM No 7-9-12-SC (Rules on the Writ of Amparo)

was promulgated by the Supreme Court by
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organized groups or private individuals

acting with the direct or indirect
acquiescence of the government
(2) 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 [Sec. of National
Defense v. Manalo (2008)]

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...

The writ applies only to the right to life, liberty

and security of persons and not property.

(1) Aggrieved party; or

(2) Qualified person or entity in the following
order:
a. Any member of the immediate family
namely: the
spouse, children and
parents of the aggrieved party;
b. Any ascendant, descendant or collateral
relative of the aggrieved party within
the fourth civil degree of consanguinity
or affinity, in default of those mentioned
in the preceding paragraph; or
c. Any concerned citizen, organization,
association or institution if there is no
known member of the immediate family
or relative of the aggrieved party.

D. WHO MAY FILE

Right to security as a guarantee of protection

by the government, is violated by the apparent
threat to the life, liberty and security of their
person.

B. DISTINGUISH FROM HABEAS

CORPUS AND HABEAS DATA
See previous discussion in writ of habeas corpus.
Likewise, see Annex A.

C. AMPARO VS SEARCH WARRANT

The filing of a petition by the aggrieved party

suspends the right of all other authorized
parties to file similar petitions. [Sec. 2]

Secretary of Defense v. Manalo (2008)

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.

Ratio for preference

(1) Necessary
for
the
prevention
of
indiscriminate and groundless filing of
petitions for amparo which may even
prejudice the right to life, liberty or security
of the aggrieved party
(2) Untimely resort to the writ by a nonmember of the family may endanger the life
of the aggrieved party

The 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 under Section 1, Rule 27 of the Rules of
Civil Procedure i.e. 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

WHERE TO FILE
(1) RTC where the threat, act or omission was
committed or any of its element occurred; or
(2) Sandiganbayanunlike the writ of habeas
corpus, because public officials and
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employees will be respondents in amparo

petitions; or
(3) Court of Appeals; or
(4) Supreme Court; or
(5) Any justice of such courts [Sec 3]

REMEDIAL LAW

May include a general prayer and equitable

reliefs.
Signed and verified [Sec. 5]
Issuance of Writ
Upon filing of petition, writ shall immediately
issue if on its face it ought to issue.

May be filed on any day, including Saturdays,

Sundays, and holidays; from morning until
evening.

Date and time for summary hearing of the

petition shall be set not later than 7 days from
date of issuance. [Sec. 6]

The writ shall be enforceable anywhere in the

Philippines. [Sec 3]
No docket fees.
Petitioner shall be exempted from payment of
docket fees and other lawful fees when filing
the petition. [Sec 4]

E. CONTENTS OF RETURN
When to file return
Respondent must file a verified written return
within 72 hours after service of writ, together
with supporting affidavits.

CONTENTS OF PETITION
(1) The personal circumstances of the
petitioner;
(2) The name and personal circumstances of
the respondent responsible for the threat,
actor omission or if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits;
(4) The investigation conducted, if any,
specifying the names, the personal
circumstances and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
(5) The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission; and
(6) The relief prayed for.

CONTENTS OF RETURN
(1) 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;
(2) The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
person responsible for the threat, act or
omission;
(3) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party;
and
(4) 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;
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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.; and
(5) The return shall also state matters relevant
to the investigation, its resolution and the
prosecution of the case.

REMEDIAL LAW

omission was committed or any of its

elements occurred.
(3) If filed with the SC, returnable to the SC or
any justice, or to the CA, SB or any of its
justices, or the RTC where the threat, act or
omission was committed or any of its
elements occurred. [Sec. 3]

F. EFFECTS OF FAILURE TO FILE

RETURN
In case the respondent fails to file a return, the
court, justice, or judge shall proceed to hear the
petition ex parte. [Sec. 12]

G. OMNIBUS WAIVER RULE

No general denial allowed. [Sec. 9]

All defenses not pleaded deemed waived.

Prohibited Pleadings and Motions: The following

pleadings and motions are prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum;
k. Motion for reconsideration of interlocutory
orders or interim relief orders; and
l. Petition for certiorari, mandamus or
prohibition against any interlocutory order.
[Sec. 11]

All defenses shall be raised in the return,

otherwise, they shall be deemed waived. [Sec.
10]

H. PROCEDURE FOR HEARING

Summary Hearing
Hearing on the petition shall be summary.
BUT: 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.
Hearing shall be from day to day until
completed and given the same priority as
petitions for habeas corpus. [Sec. 13]
Judgment
The court shall render judgment within ten (10)
days from the time of petition is submitted for
decision.

To whom returnable
(1) If filed with RTC, returnable to RTC or any
judge
(2) If filed with Sandiganbayan, CA or any
justice, returnable to such court or any
justice or the RTC where the threat, act or
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Archiving and revival of cases

If the case cannot proceed for valid cause, the
court shall not dismiss the petition but shall
archive it. If after the lapse of two (2) years from
the notice of archiving, the petition shall be
dismissed for failure to prosecute. [Sec. 20]

REMEDIAL LAW

writ of amparo, the latter shall be consolidated

with the criminal action.
After consolidation, the procedure under this
Rule shall continue to apply to the disposition
of the reliefs on the petition. [Sec. 23]

I. INSTITUTION OF SEPARATE ACTION

L. INTERIM RELIEFS AVAILABLE TO

PETITIONER AND RESPONDENT

The Rule shall neither preclude the filing of

separate criminal, civil or administrative actions
[Sec. 21]

When: Upon filing of the petition or at any time

before final judgment

But a claim for damages should instead be filed

in a proper civil action.

Interim Reliefs available to the Petitioner

(1) Temporary Protection Order.
Issued upon motion or motu proprio

If the evidence so warrants, the amparo court

may refer the case to the Department of Justice
for criminal prosecution, because the amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent

That 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 concerned. [Sec.
14(a)]

J. EFFECT OF FILING A CRIMINAL

ACTION
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
Reliefs under the writ shall be available by
motion in a criminal case.

Different from the inspection and

production order in that the temporary
protection order and the witness protection
order do not need a verification and may be
issued motu proprio or ex parte.

Procedure under this Rule shall govern the

disposition of the reliefs available under the writ
of amparo. [Sec. 22]

(2) Inspection Order.

Issued only upon verified motion and after
due hearing

K. CONSOLIDATION
When a criminal action is filed subsequent to
the filing of a petition for the writ, the latter
shall be consolidated with the criminal action.

Directed to 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.

When a criminal action and a separate civil

action are filed subsequent to a petition for a

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More similar to production of documents or

things under Sec. 1 Rule 27 of Rules of Civil
Procedure

The order shall expire five (5) days after the

day of its issuance, unless extended for
justifiable reasons. [Sec. 14(b)]

(4) Witness Protection Order.

Issued upon motion or motu proprio

Requires hearing, may be availed of both

the petitioner and the respondent

Order may refer the witnesses to

a) The Department of Justice for admission to
the Witness Protection, Security and Benefit
Program.
b) Other government agencies, or to accredited
persons or private institutions capable of
keeping and securing their safety. [Sec. 14(d)]

If the court, justice or judge gravely abuses

his or her discretion in issuing the inspection
order, the aggrieved party is not precluded
from filing a petition for certiorari with the
Supreme Court
(3) Production Order.
Issued only upon verified motion and after
due hearing

Interim Reliefs available to the Respondent

(1) Inspection Order
(2) Production Order [Sec. 15]

Directed to 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.

Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent.

M. QUANTUM OF PROOF
APPLICATION FOR ISSUANCE
WRIT OF AMPARO

Grounds for Opposition

(1) National security
(2) Privileged nature of the information

IN
OF

The parties shall establish their claims by

substantial evidence.

In which case the court, justice or judge may

conduct a hearing in chambers to determine the
merit of the opposition. [Sec. 14(c)]

If respondent is a public official or employee

Must prove that extraordinary diligence as
required as required by the applicable laws,
rules and regulations was observed in the
performance of duty.

Not the same as search warrant for law

enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a protection of
the people from unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as
respondents

Cannot invoke the presumption that official

duty has been regularly performed to evade
responsibility or liability

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means in order to achieve unlawful ends.

[Gamboa v. Chan (2012)]

If respondent is a private individual or entity

Must prove that ordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty. [Sec. 17]

Writ of Habeas Data was not enacted solely for

the purpose of complementing the Writ
of Amparo in cases of extralegal killings and
enforced disappearances. It may be availed of in
cases outside of extralegal killings and enforced
disapperances. Habeas data, to stress, was
designed to safeguard individual freedom from
abuse in the information age. As such, it is
erroneous to limit its applicability to extralegal
killings and enforced disappearances only. It
can be availed of as an independent remedy to
enforce ones right to privacy, more specifically
the right to informational privacy. [Vivares v. St
Theresas College G.R. No. 202666, September
29, 2014]

Sec. of Justice v. Manalo (supra)

With the secret nature of an enforced
disappearance and the torture perpetrated on
the victim during detention, it logically holds
that much of the information and evidence of
the ordeal will come from the victims
themselves.
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture or landmarks where detained.

XVI. Writ of Habeas Data

(A.M. No. 08-1-16-SC)

B. AVAILABILITY OF WRIT
Who may file: Any aggrieved party may file a
petition for the writ of habeas data.

A. SCOPE OF THE WRIT

The writ of habeas data 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. [Sec. 1]

However, in cases of extralegal killings and

enforced disappearances, the petition may be
filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and parents; or
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph [Sec. 2]

It is an independent and summary remedy

designed to protect the image, privacy, honor,
information, and freedom of information of an
individual, and to provide a forum to enforce
ones right to the truth and to informational
privacy. It seeks to protect a persons right to
control
information
regarding
oneself,
particularly in instances in which such
information is being collected through unlawful

Where to file:
(1) RTC
(a) Where petitioner resides; or
(b) Where respondent resides; or
(c) Which has jurisdiction over the place
where the data or information is
gathered, collected or stored, at the
option of the petitioner.

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In case of threats, the relief may include a

prayer for an order enjoining the act
complained of; and
(6) Such other relevant reliefs as are just and
equitable. [Sec. 6]

(2) SC, CA, SB (when action concerns public

data files of government offices). [Sec. 4]
Writ is enforceable anywhere in the Philippines.
[Sec. 4]
Indigent petitioner no need to pay docket fees
No docket and other lawful fees shall be
required from an indigent petitioner. The
petition of the indigent shall be docked and
acted upon immediately, without prejudice to
subsequent submission of proof of indigency
not later than fifteen (15) days from the filing of
the petition. [Sec. 5]

Issuance of Writ
Upon the filing of the petition, the court, justice
or judge shall immediately order the issuance of
the writ if on its face it ought to issue. [Sec. 7]

E. CONTENTS OF THE RETURN

The respondent shall file a verified written
return together with supporting affidavits within
five (5) work days from service of the writ, which
period may be reasonably extended by the
Court for justifiable reasons.

C. DISTINGUISHED FROM HABEAS

CORPUS AND AMPARO
See previous discussion in habeas corpus and
Annex A.

Contents:
(1) The lawful defenses such as national
security,
state
secrets,
privileged
communication, confidentiality of the
source of information of media and others;
(2) In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
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
(3) Other allegations relevant to the resolution
of the proceeding.

D. CONTENTS OF THE PETITION

A verified written petition for a writ of habeas
data should contain:
(1) The personal circumstances of the
petitioner and the respondent;
(2) The manner the right to privacy is violated
or threatened and how it affects the right to
life, liberty or security of the aggrieved
party;
(3) The actions and recourses taken by the
petitioner to secure the data or information;
(4) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in control
of the data or information, if known;
(5) The reliefs prayed for, which may include
the updating, rectification, suppression or
destruction of the database or information
or files kept by the respondent.

A general denial of the allegations in the

petition shall not be allowed. [Sec. 10]

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Prohibited Pleadings and Motions: The following

pleadings and motions are prohibited:
(1) Motion to dismiss;
(2) Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings;
(3) Dilatory motion for postponement;
(4) Motion for a bill of particulars;
(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.
[Sec. 13]

REMEDIAL LAW

H. EFFECT OF FILING CRIMINAL

ACTION
When a criminal action has been commenced,
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.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of habeas data. [Sec. 22]

I. INSTITUTION OF SEPARATE ACTION

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]

XVII. Change of Name

F. INSTANCES WHEN PETITION MAY

BE HEARD IN CHAMBERS

DISTINCTIONS BETWEEN THE RULES (103, 108,

R.A. 9048)
See Annex B.

A hearing in chambers may be conducted:

(1) Where the respondent invokes the defense
that the release of the data or information
in question shall compromise national
security or state secrets, or
(2) When the data or information cannot be
divulged to the public due to its nature or
privileged character. [Sec. 12]

GROUNDS FOR CHANGE OF NAME

[Republic v. Hernandez (1996)]
Valid Grounds for Change of Name
(1) The name is ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce.
(2) Change results as a legal consequence of
legitimation
(3) The change will avoid confusion.
(4) A sincere desire to adopt a Filipino name to
erase signs of former alienage [Ang Chay v.
Republic, 1970]
(5) Having continuously used and been known
since childhood by a Filipino name, having
been unaware of alien parentage [Uy v.
Republic, 1965]

G. CONSOLIDATION
When a criminal action is filed subsequent to
the filing of a petition for the writ, the latter
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. [Sec. 21]

Laperal v. Republic (1962)

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Legal separation is not a ground for the female

spouse to apply for a change of name under
Rule 103.

REMEDIAL LAW

as a result of using his true and official name.

Rather than avoiding confusion, changing
petitioners first name may only create grave
complications in the civil registry and the public
interest.

No Yao Siong v. Republic (1966)

The name that can be changed is the name that
appears in the civil register, and not in the
baptismal certificate or that which the person is
known in the community.

No law allows the change of entry in the birth

certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction
of clerical or typographical errors. A correction
in the civil registry involving the change of sex is
not a mere clerical or typographical error. The
birth certificate of petitioner contained no error.
All
entries
therein,
including
those
corresponding to his first name and sex, were
all correct. No correction is necessary.

Ong Huan Tin v. Republic (1967)

An alien may petition for change of name but he
must be domiciled in the Philippines.
Oshito v. Republic (1967)
Verification is a formal, not a jurisdictional,
requirement. The lack of verification is not a
ground for dismissing the petition. However,
before setting the petition for hearing, the court
should have required the petitioner to have the
petition verified.

People v. Cagandahan (2008)

Intersexuality is a valid ground for change of
name and change of entry of sex in the civil
registry. Where the person is biologically or
naturally intersex the determining factor in his
gender classification would be what the
individual, having reached the age of majority,
with good reason, thinks of his sex. Sexual
development in cases of intersex persons makes
the gender classification at birth inconclusive. It
is at maturity that the gender of such persons is
fixed.

Go Chiung Beng v. Republic (1972)

All aliases of the applicant must be set forth in
the petitions title. Such defect is fatal, even if
said aliases are contained in the body of the
petition.
Secan Kok v. Republic (1973)
A change of name granted by the court affects
only a petitioner. A separate petition for change
of name must be filed for his/her spouse and
children.

Failure to implead the local civil registrar as

well as all persons who have or claim any
interest did not render the petition fatally
defective. Cagandahan furnished the local civil
registrar a copy of the petition, the order to
publish, and all pleadings, orders or processes
in the course of the proceedings. There was
therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules of
Court

Silverio v. Republic (2007)

A persons first name cannot be changed on the
ground of sex reassignment. RA 9048 does not
sanction a change of first name on the ground
of sex reassignment. Before a person can legally
change his given name, he must present proper
or reasonable cause or any compelling reason
justifying such change. In addition, he must
show that he will be prejudiced by the use of his
true and official name. Silverio failed to show, or
even allege, any prejudice that he might suffer
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Procedure:
(1) Petition for Change of Name
(2) Court order fixing the date and place of
hearing
(3) Publication of the court order fixing the date
and place of hearing, at least once a week
for 3 consecutive weeks in a newspaper of
general circulation.
(4) Hearing on the petition
(5) Judgment granting/denying the change of
name. Copy of the judgment shall be served
upon the civil registrar, who shall annotate
the same.

REMEDIAL LAW

(5) Judgments of annulments of marriage

(6) Judgments declaring marriages void from
the beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name [Rule 108, Sec. 2]
Such changes have public interest implications
and must only be made upon approval of the
Court.

XVIII. Cancellation or
Correction of Entries in
the Civil Registry

Cancellation or correction of substantial errors

is allowed provided proceeding is adversary.
[Chiao Ben Lim v. Zosa (2004)]

Proceedings for cancellation or correction of

entries in the Civil Registry may be:
(1) Summary when the correction sought to
be made is a mere clerical error (now
governed by RA 9048)
(2) Adversarial where the rectification affects
civil status, citizenship or nationality of a
party or any other substantial change.

Appropriate adversary proceeding

One where the trial court has conducted
proceedings where all relevant facts have been
fully and properly developed, where opposing
counsel have been given opportunity to
demolish the opposite partys case, and where
the evidence has been thoroughly weighed and
considered. [Elosida v. Local Civil Registrar of
Quezon City (2002)]

Substantial Change change that affects the

civil status, citizenship, or nationality of a party.

Parties a) Civil registrar and b) all persons who

have or claim any interest which would be
affected are made parties [Rule 108, Sec. 3]

A.
ENTRIES
SUBJECT
TO
CANCELLATION OR CORRECTION IN
RELATION TO R.A. 9048

Notice and publication Reasonable notice to

be given to the persons named in the petition,
and publication once a week for 3 consecutive
weeks [Rule 108, Sec. 4]

Rule 108: Substantial changes in entries in the

civil registry

Opposition
Period to file:15 days from notice of petition, or
from last date of publication of notice [Rule 108,
Sec. 5]

Entries:
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
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May be filed by:

(1) Civil registrar or
(2) Any person having or claiming any interest
under the entry whose cancellation or
correction is sough.

requirements of Rule 103 and 108 must be

complied with. [Republic v. Valencia (1986)]

RA 9048, AS AMENDED BY RA 10172

A. PURPOSE OF THE RULE

XIX. Absentees

Clerical or Typographical Errors

In Re: Petition for Declaration of Absence of

Roberto L. Reyes (1986)
The declaration of absence made in accordance
with the provisions of the Civil Code has for its
sole purpose to enable the taking of the
necessary precautions for the administration of
the estate of the absentee

General Rule: Entry in a civil register shall be

changed or corrected with a judicial order.
Exception:
(1) Clerical or typographical errors and
(2) Change of first name or nickname, the day
and month in the date of birth or sex of a
person where it is patently clear that there
was a clerical or typographical error or
mistake in the entry, which can be corrected
or changed by the concerned city or
municipal civil registrar or consul general in
accordance with the provisions of this Act
and its implementing rules and regulations.
[Sec. 1, RA 9048, as amended]

General Rule: No independent action for

declaration of presumption of death [Nicolai v.
Szatrow, 1948)]
Exception: For purpose of contracting a second
marriage [Article 41, Family Code]

B. WHO MAY FILE; WHEN TO FILE

Clerical or typographical error: A mistake

committed in the performance of clerical work
in writing, copying, transcribing or typing an
entry in the civil register that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the
understanding (Patent)
(3) Can be corrected or changed only by
reference to other existing record or records
(4) Does not involve the change of nationality,
age, status or sex of the petitioner. [Sec. 2(3),
RA 9048, as amended]

Petition for Appointment of a Representative

[PAR] to provisionally represent absentee when
a person:
(1) Disappears from his domicile, his
whereabouts being unknown; and
(2) Has not left an agent to administer his
property or the power conferred upon the
agent has expired. [Rule 107, Sec 1]
Who may file PAR
(1) Any interested party
(2) Relative
(3) Friend [Rule 107, Sec 1]

The procedure recited in Rule 103 regarding

change of name and in Rule 108 concerning the
cancellation or correction of entries in civil
registry are separate and distinct. They may not
be substituted one for the other. If both reliefs
are to be sought in the same proceedings all the

Petition for Declaration of Absence and

Appointment of Trustee or Administrator [PDA]
Filed after 2 years:
(1) From the disappearance of and without any
news from the absentee or
(2) Since the receipt of the last news about him.
277

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REMEDIAL LAW

XX. Appeals in Special

Proceedings

Filed after 5 years:

If the absentee left an administrator of his
property. [Rule 107, Sec 2]
Who may file PDA:
(1) The spouse present
(2) The heirs instituted in a will, who may
present an authentic copy of the same
(3) The relatives who would succeed by the law
of intestacy
(4) Those who have over the property of the
absentee some right subordinated to the
condition of his death. [Rule 107, Sec 2]

A. JUDGMENTS AND ORDERS FOR

WHICH APPEAL MAY BE TAKEN
(1) If it allows or disallows a will;
(2) If it wholly determines who are the lawful
heirs or the distributive shares;
(3) If it wholly or partially allows or disallows a
claim against a decedents estate, or any
claim presented on the decedents estate, or
any claim presented on the estates behalf
on offset to claim against it;
(4) If it settles the account of an
executor/administrator/trustee/guardian;
(5) If it constitutes a final determination in the
lower court of the rights of the party
appealing in proceedings relating to estate
settlement or administration of a
trustee/guardian

Who may be appointed:

(1) Spouse present shall be preferred when
there is no legal separation;
(2) Any competent if absentee left no spouse,
or spouse is incompetent.
Termination of administration: Trusteeship or
administration of the property of the absentee
shall cease upon order of the court if:
(1) Absentee appears personally or through an
agent;
(2) Absentees death is proved and heirs
appear;
(3) Third person appears, showing that he
acquired title over the property of the
absentee.
Effects of Reappearance
If the absentee appears, or without appearing
his existence is proved, he shall recover his
property in the condition in which it may be
found, and the price of any property that may
have been alienated or the property acquired
therewith; but he cannot claim either fruits or
rents. [Art 392m Civil Code]
The subsequent marriage referred to in the
preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless
there is a judgment annulling the previous
marriage or declaring it void ab initio. [Art 42,
Family Code]

Exception: Appointment of a
administrator is not appealable

special

Remedy: Petition for certiorari under Rule

65, if there is grave abuse of discretion.
(6) If it is the final order/judgment rendered in
the case, and affects the substantial rights
of the person appealing [Rule 109, Sec 1]
Exception: Orders
MFR/MNT

granting/denying

While some of the items in Rule 109. Sec. 1 may

be considered as interlocutory under ordinary
special actions, the nature of special
proceedings declares them as appealable as
exceptions to Rule 41, Sec. 1.
Rationale: To enable the rest of the case to
proceed in the event that a separate and
278

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SPECIAL PROCEEDINGS

distinct issue is resolved by the court and held

to be final. [Marinduque Mining and Industrial
Corporation v. CA (2008)]

REMEDIAL LAW

C. MODES OF APPEAL
Notice and record on appeal required. [Sec. 3,
Rule 41]

B. WHEN TO APPEAL

Rule 109 contemplates multiple appeals during

the pendency of special proceedings. A record
on appeal in addition to the notice of appeal
is thus required to be filed as the original
records of the case should remain with the trial
court to enable the rest of the case to proceed in
the event that a separate and distinct issue is
resolved by said court and held to be final.
However, a record on appeal is not necessary
where no other matter remained to be heard
and determined by the trial court after it issued
the appealed order granting the petition for
cancellation of birth record and change of
surname in the civil registry. [Republic v. Nishina
(2010)]

In a special proceeding, the period of appeal is

30 days. [Sec. 3, Rule 41]
The appeal period may be interrupted by the
filing of an MFR/MNT. Once the appeal period
expires without an appeal/MF/MNT, the order
becomes final. [Sec. 3, Rule 41]
However, habeas corpus, amparo and habeas
data cases have different periods of appeal. See
Annex A.

D. RULE ON ADVANCE DISTRIBUTION

Notwithstanding a pending controversy/appeal
in estate settlement proceedings, the court may
permit that the estates parts which are not
affected by the controversy/appeal be
distributed, upon compliance with Rule 90.
[Rule 109, Sec 2]

279

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Annexes
Annex A (Writ of Habeas Corpus, Amparo, Data)

Writ Matrix (Comparison of the Writs)

WHC Writ of Habeas Corpus
WD Writ of Habeas Data
RWD Rules on Habeas Data
CA - Court of Appeals
RTC Regional Trial Court

Nature,
function

scope,

WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court

Habeas Corpus
1. All cases of illegal
confinement and detention
which any person is
deprived of his liberty
2. Deprived of rightful
custody of any person is
withheld from the person
entitled [Sec. 1]
Actual violation before writ
issues. Note Villavicencio v.
Lukban on applicability of
the writ in case of
constructive restraint.

Limitations

Who may file

May be suspended in cases

of invasion or rebellion
when public safety requires
it [Art. III Sec. 15, 1987
Const.]
By a petition signed and
verified by the party for
whose relief it is intended,
or by some person on his
behalf [Sec. 3]

Amparo
Involves right to life,
liberty and security
violated or threatened
with violation by an
unlawful
act
or
omission of a public
official or employee or
a private individual or
entity
It covers extralegal
killings and enforced
disappearances
or
threats thereof. [Sec. 1]

Shall not diminish,

increase or modify
substantive rights [Sec.
23]
Petition filed by the
aggrieved party or by
any qualified person or
entity in the following
order:
(1) Any member of the
immediate family
(2) Any
ascendant,
descendant
or
collateral relative
of the aggrieved

280

Habeas Data
Involves the right to
privacy in life, liberty
or security violated or
threatened by an
unlawful
act
or
omission of a public
official or employee, or
of a private individual
or entity engaged in
the
gathering,
collecting or storing of
data or information
regarding the person,
family, home and
correspondence of the
aggrieved party. [Sec.
1]
Shall not diminish,
increase or modify
substantive
rights
[Sec. 23]
Any aggrieved party
may file a petition for
the WHD
However, in cases of
extralegal killings and
enforced
disappearances, the
petition may be filed
by (also successive):
(1) Any member of

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SPECIAL PROCEEDINGS
Habeas Corpus

Amparo
within the 4th civil
degree
of
consanguinity or
affinity
(3) Any
concerned
citizen,
organization,
association
or
institution
Filing by the aggrieved
suspends the right of
all others [Sec. 2]

Where filed

Where enforceable

Where returnable

REMEDIAL LAW
Habeas Data
the
immediate
family
of
the
aggrieved
(2) Any
ascendant,
descendant
or
collateral relative
of the aggrieved
party within the
fourth civil degree
of consanguinity
or affinity [Sec. 2]

Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within
his
judicial
district (Sec. 2)
(4) MTC or first level courts
in the absence of RTC
judges in a judicial
region [Sec. 35 BP 129]

Filed on any day and at

any time:
(1) SB, CA, SC, or any
justice of such
courts
(2) RTC of place where
the threat, act, or
omission
was
committed or any
element occurred
[Sec. 3]

Petition may be filed

with 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
petitioner

If SC or CA issued,
anywhere in the Philippines

Writ
shall
be
enforceable anywhere
in the Philippines [Sec.
4]

If public data files of

government
offices,
petition shall be filed
with the SC, CA, or SB
[Sec. 3]
Writ
shall
be
enforceable anywhere
in the Philippines
[Sec. 3]

If the one that granted

the writ:

If issued by:
(1) The SC or any of

If granted by the RTC or

judge
thereof,
it
is
enforceable in any part of
the judicial region [Sec 21,
BP 129 which modified the
term judicial district in Sec 2,
Rule 102 into judicial region]
where the judge sits
If the one that granted the
writ:
281

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Habeas Corpus
(1) Is the SC or CA, or a
member
thereof,
returnable before such
court or any member
thereof or an RTC
(2) An RTC, or a judge
thereof,
returnable
before himself [Sec. 2]

Docket Fees

Upon the final disposition of

such proceedings the court
or judge shall make such
order as to costs as the case
requires (Sec. 19)

Amparo
(1) Is the SC or any of
its
justices,
returnable before
such court or any
justice thereof, or
before the SB or
CA or any of their
justices, or to any
RTC of the place
where the threat,
act or omission
was committed or
any of its elements
occurred
(2) The SB or CA or
any
of
their
justices, returnable
before such court
or
any
justice
thereof, or to any
RTC of the place
where the threat,
act, or omission
was committed or
any of its elements
occurred
(3) The RTC or any
judge
thereof,
returnable before
such court or judge
[Sec. 3]
Petitioner shall be
exempted from the
payment of the docket
and other lawful fees
Court, justice or judge
shall
docket
the
petition and act upon it
immediately (Sec 4)

Essential

Signed and verified either

Signed and verified and

282

REMEDIAL LAW
Habeas Data
its justices, before
such Court or any
justice thereof, or
CA or SB or any of
its justices, or the
RTC of the place
where
the
petitioner
or
respondent
resides/has
jurisdiction over
the place where
the
data
or
information
is
gathered, stored
or collected
(2) The CA or SB or
any of its justices,
before such court
or any justice
thereof, or the
RTC (same with
scenario:
SC
issued and then
returned in RTC)
(3) RTC, returnable
before such court
or judge [Sec. 4]

None for
petitioner

indigent

Petition
shall
be
docketed and acted
upon
immediately,
without prejudice to
subsequent
submission of proof of
indigency not later
than 15 days from
filing (Sec. 5)
Verified and written

UP LAW BOC

allegations/
Contents of petition

SPECIAL PROCEEDINGS
Habeas Corpus
by the party for whose relief
it is intended or by some
person on his behalf,
setting forth:
(1) The person in whose
behalf
whose
the
application is made is
imprisoned
or
restrained of his liberty
(2) Name of the person
detaining another or
assumed appellation
(3) Place where he is
imprisoned
or
restrained of his liberty
(4) Cause of detention
[Sec. 3]

Amparo
shall allege:
(1) The
personal
circumstances of
the petitioner
(2) Name
or
appellation
and
circumstances of
the respondent
(3) The right to life,
liberty,
and
security violated or
threatened
with
violation,
(4) The investigation
conducted, if any,
plus circumstances
of each
(5) The actions and
recourses taken by
the petitioner
(6) Relief prayed for
May include a general
prayer for other just
and equitable reliefs
[Sec. 5]

When proper

Court or judge must, when

a petition is presented and
it appears that it ought to
issue, grant the same and
then:
the clerk of court (CoC)
shall issue the writ under
the seal of the court or
in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it
Also proper to be issued
when the court or judge has
examined into the cause of
283

Upon the filing of the

petition, the court,
justice, or judge shall
immediately order the
issuance of the writ if
on its face it ought to
issue
CoC shall issue the
writ under the seal of
the court or
In case of urgent
necessity, the justice
or the judge may
issue the writ under
his or her own hand,
and may deputize
any officer or person

REMEDIAL LAW
Habeas Data
petition shall contain:
(1) Personal
circumstances of
petitioner
and
respondent
(2) Manner the right
to
privacy
is
violated
or
threatened and its
effects
(3) Actions
and
recourses taken by
the petitioner to
secure the data or
information
(4) The location of the
files, registers, or
databases,
the
government office,
and the person in
charge or control
(5) The reliefs prayed
for
Such other relevant
reliefs as are just and
equitable [Sec. 6]
Upon filing of the
petition, the court,
justice, or judge shall
immediately order the
issuance of the writ if
on its face it ought to
issue.
CoC shall issue the
writ under the seal
of the court and
cause it to be served
within 3 days from
issuance or
In case of urgent
necessity, the justice
or judge may issue
the writ under his or

UP LAW BOC

Service

SPECIAL PROCEEDINGS
Habeas Corpus
restraint of the prisoner,
and is satisfied that he is
unlawfully imprisoned [Sec.
5]
Writ may be served in any
province by the (a) sheriff,
(b) other proper officer, or
(c) person deputed by the
court or judge
Service is made by leaving
the original with the person
to whom it is directed and
preserving a copy on which
to make return of service

Respondent

How executed and

returned

If that person cannot be

found, or has not the
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
[Sec. 7]
May or may not be an
officer [Sec. 6]

The officer to whom the writ

is directed shall convey the
person so imprisoned or
restrained before:
the judge allowing the
writ, or
in
his absence
or
disability, before some
other judge of the same
court

Amparo
to serve it. [Sec. 6]

The writ shall be served

upon the respondent
by a judicial officer or
by a person deputized
by the court, justice or
judge who shall retain
a copy on which to
make a return of
service
In case the writ
cannot be served
personally on the
respondent, the rules
on
substituted
service shall apply
[Sec. 8]

Respondent is a public
official or employee or
private individual or
entity [Sec. 1]

Respondent files the

return [Sec. 9]

On the day specified in the

writ,
unless person directed to be
produced is sick or infirm,
284

REMEDIAL LAW
Habeas Data
her own hand, and
may deputize any
officer or person to
serve it [Sec. 7]
The writ shall be
served
upon
the
respondent
by
a
judicial officer or by a
person deputized by
the court, justice or
judge who shall retain
a copy on which to
make a return of
service
In case the writ cannot
be served personally
on the respondent, the
rules on substituted
service shall apply
[Sec. 9]

A public official or
employee or a private
individual or entity
engaged in gathering,
collecting or storing
data [Sec. 1]
Respondent files the
return [Sec. 10]

UP LAW BOC

SPECIAL PROCEEDINGS
Habeas Corpus
and
cannot,
without
danger, be brought therein

When to file return

Contents of return

Officer shall then make due

return of the writ, with the
day and cause of the
caption
and
restraint
according to the command
thereof [Sec. 8]
On the day specified on the
writ [Sec. 8]
When the person to be
produced is imprisoned or
restrained by an officer, the
person who makes the
return shall state, 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:
(1) Truth of custody/power
over the aggrieved
party
(2) If he has custody or
power,
or
under
restraint, the authority
and the cause thereof,
with a copy of the writ,
order, execution or
other process, if any
upon which the party is
held
(3) If the party is in his
custody or power, and
is
not
produced,
particularly the nature
and gravity of the
sickness or infirmity
(4) If he has had the party
in his custody or power,
and has transferred

Amparo

Within 5 working days

after service of the writ
[Sec. 9]
Within 5 working days
after service of the writ,
the respondent shall
file a verified written
return together with
supporting affidavits
which shall, contain:
(1) Lawful defenses
(2) The
steps
or
actions taken to
determine the fate
or whereabouts of
the aggrieved party
(3) All
relevant
information in the
possession of the
respondent
pertaining to the
threat,
act
or
omission against
the aggrieved party
(4) If the respondent is
a public official or
employee,
the
return shall further
state acts:
(a) To
verify
identity
of
aggrieved
party
(b) To recover and
preserve

285

REMEDIAL LAW
Habeas Data

Same with WA [Sec.

10]
(1) Lawful defenses
such as national
security,
state
secrets, privileged
communications,
confidentiality of
the source of
information
of
media etc.
(2) 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

UP LAW BOC

SPECIAL PROCEEDINGS
Habeas Corpus
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]

Formalities of return

Penalties
For refusing to issue
or serve
For faulty return

Return or statement shall

be signed and sworn to by
the person who makes it if
the
prisoner
is
not
produced, unless the return
is made and signed by a
sworn public officer in his
official capacity [Sec. 11]
CoC who refuses to issue
the writ after allowance
and demand, or
A person to whom a writ
is directed, who:
(1) neglects/refuses to
obey or make return
of the same according
to the command
thereof,
(2) or makes false return,
(3) or upon demand
made by or on behalf
of
the
prisoner,
refuses to deliver to
the
person

Amparo
evidence
(c) To identify and
collect witness
statements
(d) To determine
cause, manner,
location, and
time of death
or
disappearance
(e) To identify and
apprehend
persons
involved
(f) Bring
suspected
offenders
before
a
competent
court [Sec.9]
the respondent shall
file a verified written
return together with
supporting affidavits
[Sec. 9]

REMEDIAL LAW
Habeas Data
respondent to
ensure
the
security and
confidentialit
y of the data
or
information
(c) The currency
and accuracy
of the data or
information
held
Other allegations
relevant to the
resolution of the
proceeding
[Sec.10]

Respondent shall file a

verified written return
together
with
supporting affidavits
[Sec. 10]

CoC who refuses to CoC who refuses to

issue the writ after its
issue the writ after
allowance, or
its allowance, or
A deputized person A deputized person
who refuses to serve
who refuses to serve
the same,
the same,

286

shall be punished by
the court, justice or
judge for contempt
without prejudice to
other
disciplinary
actions [Sec. 7]

shall be punished by
the court, justice, or
judge for contempt
without prejudice to
other
disciplinary
actions (RWD Sec. 8)

The court, justice, or

judge may order the

The court, justice, or

judge may punish with

UP LAW BOC

SPECIAL PROCEEDINGS
Habeas Corpus
demanding, within 6
hours a true copy of
the warrant or order
of commitment,
shall forfeit to the party
aggrieved the sum of
P1000, recoverable in a
proper action, and may
also be punished for
contempt [Sec. 16]

Is period of return
extendable?
Is a general denial
allowed?
Defenses
not
pleaded

Amparo
respondent
who
refuses to make a
return, or who makes
a false return, or any
person
who
otherwise disobeys or
resist
a
lawful
process or order of
the court to be
punished
for
contempt
Contempt or may
be imprisoned or
imposed a fine
[Sec. 16]
No, not even on highly
meritorious grounds.
Not allowed [Sec. 9]
If not raised in return
deemed waived [Sec
10]
Court or justice shall
proceed to hear the
petition ex parte [Sec.
12]

Effect of failure to
file return

Nature of Hearing

Summary.
However,
the court, justice, or
judge may call for a
preliminary conference
to simplify the issues
and look at possibility
of
obtaining
stipulations
and
admissions from the
parties.
Hearing shall be from
287

REMEDIAL LAW
Habeas Data
imprisonment or fine a
respondent
who
commits contempt by:
(1) Making a false
return or
(2) Refusing to make
a return or
(3) Any person who
otherwise disobeys
or resists a lawful
process or order of
the court [Sec. 11]

Yes, by the court, for

justifiable
reasons
[Sec. 10]
Not allowed [Sec. 10]

Court, judge, or justice

shall hear the motion
ex parte, granting the
petitioner such reliefs
as the petition may
warrant
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary.
With
possibility
of
preliminary conference
similar to the WA
[Sec. 14]
Hearing on chambers
may be conducted
where
respondent
invokes the defense of
national security or

UP LAW BOC

SPECIAL PROCEEDINGS
Habeas Corpus

Date and time of

hearing

As specified in the writ [Sec.

8]

Prohibited
pleadings

In custody of minors: a
motion to dismiss, except
on the ground of lack of
jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]

Burden
Proof/Standard
Diligence

of
of

Clear
and
convincing evidence
[Dizon v. Eduardo
(1988)]
Note: no provision in Rule
but in Dizon v. Eduardo, the
SC
used clear
and
convincing evidence, a
stricter
standard
than
preponderance
of
evidence but less stricter
that
proof
beyond
reasonable doubt.

Amparo
day to day until
completed
same
priority as petitions
for WHC [Sec. 13]
As specified in the writ,
not later than 7 days
from the issuance of
the writ [Sec. 6]
Motion to dismiss,
Motion for extension of
time to file opposition,
affidavit,
position
paper
and
other
pleadings,
Dilatory
motion
for
postponement, Motion
for bill of particulars,
Counterclaims or crossclaims,
Third-party
complaint,
Reply,
Motion to declare
respondent in default,
Intervention,
Memorandum, Motion
for reconsideration of
interlocutory orders or
interim relief orders,
petition for certiorari,
mandamus,
or
prohibition [Sec.11]
Establish claims by
substantial evidence
if respondent is a
private individual or
entity,
ordinary
diligence
if public official or
employee,
extraordinary
diligence [Sec. 17]

288

REMEDIAL LAW
Habeas Data
state secrets, or the
data is of privileged
character [Sec. 12]
As specified in the
writ, not later than 10
working days from the
date of issuance writ
[Sec. 7]
Same as WA (Sec. 13,
RWD)

Substantial evidence
required to prove the
allegations in the
petition [Sec. 16]

UP LAW BOC

Presumption
Official duty

SPECIAL PROCEEDINGS

of

Habeas Corpus
Yes. Consonant with Sec.
13, stating that if warrant of
commitment
is
in
pursuance with law, serves
as prima facie cause of
restraint

Judgment

Appeal

Consolidation
actions

Within 48 hours from notice

of the judgment of final
order appealed [Sec. 39, BP
129]
of

Effect
of
filing
criminal action

Amparo
Public
official
or
employee
cannot
invoke the presumption
that official duty has
been
regularly
performed [Sec. 17]
The court shall render
judgment within 10
days from the time the
petition is submitted
for
decision
[Sec. 18]
5 working days from
the date of notice of
adverse judgment to
the SC under Rule 45
[Sec. 19]
Consolidated with a
criminal action filed
subsequent to the
petition [Sec. 23]
No more separate
petition shall be filed.
Reliefs available by
motion in the criminal
case [Sec. 22]

REMEDIAL LAW
Habeas Data

Within 10 days from

the time the petition is
submitted for decision
[Sec. 16]

5 working days from

the date of notice of
adverse judgment to
the SC under Rule 45
[Sec. 19]
Consolidated with a
criminal action filed
subsequent to the
petition [Sec. 21]
Same as WA [Sec. 21]

Annex B Differences under the applicable rules (Rule 103, Rule 108, R.A. 9048)
Rule 103
Rule 108
RA 9048
Applicability Substantial Changes in name
Substantial changes (1) Change of First Names or
in entries in the civil
Nicknames
registry (other than (2) Change brought about
name)
by
clerical
or
typographical
errors
(includes day and month
in the date of birth or
sex), except nationality,
age, or status
Nature
Judicial
Judicial
Administrative
Who May (1) The person desiring to Natural person having A natural person having
File
change his name
direct and personal direct and personal interest
(2) Some other person on his interest
in
the in the change of first name or
behalf
correction of error in nickname in the civil register.
an entry in the civil
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Rule 103

Rule 108

REMEDIAL LAW
RA 9048

register

Where Filed

RTC of the province in which RTC of the province The local civil registry office
the person desiring to change where
the
civil of the city or municipality
his name resides.
registry is located
where the record being
sought
to
be
corrected/changed is kept.
Exceptions:
(1) If the petitioner has
already migrated to
another place in the
country, the petition
shall be filed with local
civil registrar of the place
where the interested
party
is
presently
residing or domiciled
(2) If the petitioner is a
Filipino citizen presently
residing or domiciled in a
foreign country, the
petition shall be filed in
the nearest Philippine
Consulate.

Standing of Not a party to the proceeding

the LCR
Notice
requirement

No mention of notice to be sent

Made a party to the

proceeding
as
a
respondent
The court shall cause
reasonable notice to
be given to persons
named in the petition

Contents of Title: In Re: Petition for Change

Petition
of Name of X, also known as Y
and Z, to ABC. X, Petitioner.

Facts necessary to establish

the merits of the petition.
A showing that the petitioner
is competent to testify to the
matters stated.

Names or Aliases of the

Applicant (must appear in the
caption of the petition)
Omission is fatal to the petition

Particular erroneous entry or

entries which are sought to
be corrected and/or the
change sought to be made.

To allow a reader of the

published petition to notice the
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Rule 108

REMEDIAL LAW
RA 9048

said aliases
Petitioner has been a bona fide
resident of the province where
the petition is filed for at least 3
years prior to the date of such
filing.
Cause for which the change of
the petitioner's name is sought
Petitioner must show a proper
or compelling reason for the
change of name + the fact that
he will be prejudiced by the use
of his official name.

Form
Petition

Name asked for

of The petition shall be signed Verified petition
and verified.

Procedure
(1) Filing of petition for (1) Filing of petition
for
change of name.
(2) Court
shall
Changing of (2) Court shall promulgate an
promulgate
an
Name
order fixing a date and
order fixing the
place for hearing the
time and place for
petition. The date set for
hearing
the
the hearing shall NOT be:
petition and cause
reasonable notice
Within 30 days prior to
to be given to the
an election AND
persons named in
Within 4 months after
the petition.
the last publication of
the notice.
Civil registrar and
(3) Court shall direct a copy of
all persons who
the order to be published
have or claim any
before the hearing
interest
which
At least once a week for
would
be
affected
3 successive weeks
thereby shall be
In some newspaper of
made parties to
general
circulation
the proceeding
published
in
the
291

(1) In the form of an affidavit

(2) Verified
(3) Subscribed and sworn to
before
any
person
authorized by law to
administer oaths.
(1) Filing of petition and its
supporting papers in 3
copies to be distributed
to:
The concerned city or
municipal civil registrar
or the consul general
The Office of the Civil
Registrar General
The petitioner
(2) The City or Municipal
Registrar or the Consul
General shall post the
petition in a conspicuous
place
for
ten
10
consecutive days after he
finds the petition and its
supporting documents
sufficient in form and
substance.

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REMEDIAL LAW

Rule 108
RA 9048
province.
(3) Court shall direct (3) The petition shall be
a copy of the
published at least once a
(a) Hearing
shall
be
order
to
be
week for 2 consecutive
conducted.
published before
weeks in a newspaper of
the hearing
general circulation.
The SolGen or the
(4) The City or Municipal
proper provincial or city
At least once a
Registrar or the Consul
fiscal shall appear on
week
for
3
General shall render a
behalf
of
the
successive weeks
decision not later than 5
Government of the
working days after the
Republic.
In
some
completion of the posting
(b) Judgment granting or
newspaper
of
and/
or
publication
denying the change of
general
requirement. He shall
name.
circulation
transmit a copy of his
published in the
decision together with
(c) Copy of judgments
province.
the records of the
shall be furnished the (4) File opposition
proceedings to the Office
civil registrar of the
Within 15 days
of the Civil Registrar
municipality or city
from notice of the
General within 5 working
where the court issuing
petition or from
days from the date of the
the same is situated,
the last date of
decision.
who shall forthwith
publication
enter the same in the (5) Hearing shall be
Where the petition is
civil register.
conducted.
denied by the city or
Court
may
municipal civil registrar
expedite
the
or the consul general, the
proceedings and
petitioner may either
also
grant
appeal the decision to
preliminary
the civil registrar general
injunction
for
or file the appropriate
preservation
of
petition with the proper
rights
of
the
court.
parties
(5) The
Civil
Registrar
(6) Judgment
General shall, within 10
granting
or
working
days
from
denying
the
receipt of the decision
change of name.
granting
a
petition,
(7) Copy
of
exercise the power to
judgments shall
impugn such decision by
be furnished the
way of an objection.
civil
registrar
concerned
who
Grounds for objection
shall annotate the
(a) The error is not
same
in
the
clerical
or
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Rule 108
records

REMEDIAL LAW
RA 9048
typographical
(b) The correction of an
entry or entries in the
civil
register
is
substantial
or
controversial as it
affects the civil status
of a person
(c) The basis used in
changing the first
name or nickname of
a person does not fall
under one of the valid
grounds.
If the civil registrar
general fails to exercise
his power to impugn the
decision of the city or
municipal registrar or of
the consul general within
the period, such decision
shall become final and
executory.
(6) The civil registrar general
shall immediately notify
the city or municipal civil
registrar or the consul
general of the action
taken on the decision.
(7) Upon receipt of the notice
thereof, the city or
municipal civil registrar
or the consul general
shall notify the petitioner
of such action.
(8) Appeal. The petitioner
may seek reconsideration
with the civil registrar
general or file the
appropriate petition with
the proper court.

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Opposition

SPECIAL PROCEEDINGS
Rule 103
Any interested person

Grounds for Republic v. Hernandez (1996)

Change of Valid Grounds for Change of
Name
Name
(1) The name is ridiculous,
tainted with dishonor or
extremely difficult to write
or pronounce.
(2) Change results as a legal
consequence
of
legitimation
(3) The change will avoid
confusion.
(4) A sincere desire to adopt a
Filipino name to erase
signs of former alienage
[Ang Chay v. Republic,
1970]
(5) Having continuously used
and been known since
childhood by a Filipino
name,
having
been
unaware
of
alien
parentage [Uy v. Republic,
1965]

Rule 108
Civil registrar and any
person having or
claiming
interest
under the entry whose
cancellation
or
correction is sought
Entries subject to
cancellation
or
correction:
(1) Birth
(2) Marriage
(3) Death
(4) Legal separation
(5) Judgment
of
annulment
(6) Judgment
declaring
marriage
null
and void
(7) Legitimation
(8) Adoption
(9) Acknowledgment
of
natural
children
(10) Naturalization
(11) Election, loss or
recovery
of
citizenship
(12) Civil interdiction
(13) Judicial
determination of
filiation
(14) Voluntary
emancipation of
minor
(15) Changes of name

294

REMEDIAL LAW
RA 9048
N/A
Note: The Civil Registrar
General is given the power to
object to the decision of the
Local Civil Registrar.
Sec. 4: Grounds for Change
of First Name or Nickname
(1) The first name or
nickname is 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
the first name or
nickname
in
the
community.
(3) The change will avoid
confusion.

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CRIMINAL PROCEDURE

REMEDIAL LAW

REMEDIAL LAW

CRIMINAL PROCEDURE

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I. GENERAL MATTERS

crime to be prosecuted and the court before

which it must be tried. [Buaya v. Polo (1989)]

CRIMINAL JURISDICTION

It cannot be fixed by the will of the parties, the

court or the accused, or by mere administrative
policy of any trial court [Riano (2011)].

The authority to hear and try a particular

offense and impose the punishment for it
[People v. Mariano (1976)]

STATUTE APPLICABLE

A. JURISDICTION OVER SUBJECT

MATTER AND JURISDICTION OVER
PERSON
OF
THE
ACCUSED
DISTINGUISHED
Jurisdiction over
subject matter

Jurisdiction over
person of the
accused

Refers
to
the
authority of the
court to hear and
determine
a
particular criminal
case

Refers
to
the
authority of the
court
over
the
person charged

Conferred by law;
can
never
be
acquired solely by
consent
of
the
accused

May be acquired by
consent
of
the
accused
or
by
waiver of objections

Right to object is
never waived; the
absence
of
jurisdiction over the
subject matter may
be raised at any
stage
of
the
proceeding

Right to object may

be waived; failure of
the accused to
object in time would
constitute waiver

A.1. JURISDICTION
MATTER

OVER

Jurisdiction of a court to try a criminal action is

determined by the law in force at the time of
the institution of the action, and not the law in
force at the time of the commission of the
crime [People v. Lagon (1990)].

IMPOSABLE PENALTY
In determining whether or not the court has
jurisdiction over an offense, we consider the
penalty which may be imposed upon the
accused and not the actual penalty imposed
after the trial [People v. Purisima (1976)]

PRINCIPLE
OF
JURISDICTION

ADHERENCE

OF

General rule: Under the principle of adherence

of jurisdiction or continuing jurisdiction, once a
court acquires jurisdiction over a controversy, it
shall continue to exercise such jurisdiction until
the final determination of the case.
It is not affected by:
(1) A subsequent valid amendment of the
information [People v. Chupeco (1964)]; or
(2) A new law vesting jurisdiction over such
proceedings in another tribunal tribunal
[Palana v. People (2007)].

SUBJECT

This refers to the right to act or the power and

authority to hear and determine a cause.
[Gomez v. Montalban (2008)]

Exception: The exception is where the

succeeding statute expressly provides, or is
construed to the effect that it is intended to
operate to actions pending before its
enactment [Palana v. People (2007)].

It is determined by the allegations in the

complaint or information. The averments in the
complaint or information characterize the

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A.2. JURISDICTION OVER THE PERSON

OF THE ACCUSED

REMEDIAL LAW

Exception: In the cases of pleadings whose

prayer is precisely for the avoidance of the
jurisdiction of the court such as when the
accused files a motion to quash a complaint on
the ground of lack of jurisdiction over the
person of the accused, or a motion to quash
the warrant of arrest because it is the very
legality of the court process forcing the
submission of the person of the accused that is
the very issue in the motion to quash a warrant
of arrest [Miranda v. Tuliao (2006)].

This is acquired either by:

(a) Arrest of the accused; or
(b) Voluntary appearance or submission of
the accused to the jurisdiction of the
court [Antiporda v. Garchitorena (1999),
citing Arula v. Espino (1969)].
Voluntary appearance of the accused is
accomplished by:
(1) By filing pleadings seeking affirmative
relief, except that in case of special
appearance to challenge the jurisdiction of
the court over the person, it is not
voluntary
submission
[Garcia
v.
Sandiganbayan (2009)];
(2) By giving bail.

B. REQUISITES FOR EXERCISE OF

CRIMINAL JURISDICTION
Subject matter jurisdiction, that is, whether or
not the court has jurisdiction over the offense
by virtue of the imposable penalty and its
nature;
Jurisdiction over the person of the accused;
Territorial jurisdiction, which refers to venue or
the place where the case is to be tried.

General rule: Seeking affirmative relief is

deemed to be a submission to the jurisdiction
of court.

C. JURISDICTION OF CRIMINAL COURTS

C.1. REGULAR (CIVIL) COURTS
MTC/MeTC/MCTC

RTC

Sandiganbayan

(1) Exclusive original jurisdiction

over all violations of city or
municipal
ordinances
committed
within
their
respective
territorial
jurisdiction [Section 32(1), BP
129];
(2) Exclusive original jurisdiction
over all offenses punishable
with
imprisonment
not
exceeding 6 years irrespective
of the amount of fine, and
regardless of other imposable
accessory or other penalties,
including the civil liability
arising from such offenses or
predicated
thereon,
irrespective of kind, nature,
value, or amount thereof
[Section 32(2), BP 129];

(1) Exclusive original jurisdiction

in all criminal cases not
within
the
exclusive
jurisdiction of any court,
tribunal or body [Section 20,
BP 129];
(2) Exclusive
appellate
jurisdiction over all cases
decided by the MTC within its
territorial jurisdiction [Section
22, BP 129];
(3) Criminal cases where one or
more of the accused is below
18 years of age but not less
than 15 years, or where one or
more of the victims is a minor
at the time of the commission
of the offense [RA 9344];
(4) Cases
against
minors
cognizable
under
the

(1) Exclusive original jurisdiction

in those cases expressly
enumerated in PD 1606, as
amended by RA 8249,
violations of RA 3019, RA
1379, and Chapter II, Section
2, Title VII, Book II, RPC;

297

The officials enumerated are:

(a) Officials of the executive
branch occupying the
positions of regional
director
and
higher,
otherwise classified as
Grade 27 and higher, of
the Compensation and
Position Classification Act
of 1989 [RA 6758];
(b) Members of Congress
and officials thereof

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(3) Exclusive original jurisdiction

over
offenses
involving
damage to property through
criminal negligence they shall
have
exclusive
original
jurisdiction thereof [Section
32(2), BP 129; RA 7691] (this
rule disregarding the amount
of fine and other accessory
penalties
in determining
jurisdiction does not apply
when
the
offense
is
punishable by fine only);
For Nos. 1-3, cases falling within
the exclusive jurisdiction of the
RTC and Sandiganbayan are not
included.
(4) Cases classified under the
Revised Rules on Summary
Procedure [SC Resolution,
October 15, 1991];
(a) Violations of traffic laws,
rules, or regulations;
(b) Violations of rental law;
(c) Cases where the penalty
prescribed by law for the
offense
charged
is
imprisonment
not
exceeding 6 months, or a
fine
not
exceeding
P1,000,
or
both,
irrespective of other
imposable
penalties,
accessory or otherwise, or
of the civil liability arising
therefrom;
(d) Offenses
involving
damage to property
through
criminal
negligence
(imposable
fine does not exceed
P10,000);
(5) Violations of BP 22 [AM 0011-01-SC (2003)];
(6) Special jurisdiction to decide
on applications for bail in
criminal cases in the absence
of all RTC judges in a
province or city [Section 35,
BP 129].

CRIMINAL PROCEDURE

(5)
(6)

(7)
(8)

Dangerous Drugs Act, as

amended [RA 8369 (Family
Courts Act of 1997)];
Violations of RA 7610 (Child
Abuse Act);
Cases of domestic violence
against women and children.
If an act committed against
women and children likewise
constitute a criminal offense,
the accused or batterer shall
be subject to criminal
proceedings
and
the
corresponding penalties [RA
8369 (Family Courts Act of
1997)];
Violations of
intellectual
property rights [AM 03-0303-SC (2003); RA 8293];
Money Laundering Cases (RA
9160),
except
those
committed by public officers
and private persons who are
in conspiracy with such public
officers shall be under the
jurisdiction
of
the
Sandiganbayan.

298

REMEDIAL LAW

classified as Grade 27
and up under the
Compensation
and
Position Classification Act
of 1989;
(c) Members of the judiciary
without prejudice to the
provisions
of
the
Constitution;
(d) Chairmen and members
of
Constitutional
Commissions,
without
prejudice
to
the
provisions
of
the
Constitution;
(e) All other national and
local officials classified as
Grade 27
(2) Other offenses or felonies
whether simple or complexed
with other crimes committed
by public officials and
employees in relation to their
office. The following must
concur:
(a) Accused is any one of the
public
officials
enumerated in subsection
(a) of Sec. 4 of RA 8249,
Grade 27 or higher
(b) Accused commits any
other offense or felony,
than those specified in
subsec. (a), whether
simple or complexed with
other crimes
(c) The offender commits
such other offense or
felony in relation to his
office
(3) Cases filed in pursuant to and
in connection with EO 1, 2, 14,
14-A (1986).

C.2. MILITARY COURTS

General rule: Ordinary courts will have
jurisdiction over cases involving members of
the armed forces, and other persons subject to
military law, regardless of who the co-accused
or victims are.
Exception: When the offense is service-oriented,
it will be tried by the court martial, provided
that the President may, in the interest of justice,
order or direct, at any time before arraignment,
that any such crimes or offenses be tried by the
proper civil courts.

D. WHEN INJUNCTION MAY BE

ISSUED TO RESTRAIN CRIMINAL
PROSECUTION
General rule: Courts will not issue injunction.
Exceptions:
(1) When necessary in the protection of the
constitutional rights of the accused;
(2) When
necessary
for
the
orderly
administration of justice or to avoid
oppression or multiplicity of suits;
(3) Where there is a prejudicial question which
is sub judice;
(4) Where acts of the officer are without or in
excess of authority;
(5) When the prosecution is under an invalid
law or statute;
(6) When double jeopardy is apparent;
(7) Where the charges are manifestly false;
(8) Where there is no prima facie case and a
motion to quash has been denied.

II. PROSECUTION OF
OFFENSES
A.
CRIMINAL
INSTITUTED

ACTIONS;

HOW

A.1 IN GENERAL
The institution of a criminal action generally
depends upon whether the offense is one
which requires a preliminary investigation or
not.
A criminal action is commenced by the filing of
a complaint or information. The complaint may
be filed either with the MTC or with a public
prosecutor for purposes of conducting a
preliminary investigation.

A.2.
OFFENSES
REQUIRING
PRELIMINARY INVESTIGATION
Offenses
which
require
preliminary
investigation are those where the penalty
prescribed by law is at least 4 years, 2 months
and 1 day [Sec. 1, Rule 112].
The criminal action is instituted by filing the
complaint with the appropriate officer for
preliminary investigation [Sec. 1(a), Rule 110].

A.3. OTHER OFFENSES

For all other offenses, or in offenses cognizable
by inferior courts (MTCs or MCTCs), the
complaint or information is filed directly with
said courts or the complaint is filed with the
fiscal [Sec. 1(b), Rule 110].

A.4. IN METROPOLITAN MANILA AND

OTHER CITIES
In Metropolitan Manila and other chartered
cities, the complaint shall be filed with the
office of the public prosecutor unless otherwise
provided in their charters [Section 1(b), Rule 110].

A.5. EFFECT OF INSTITUTION

PRESCRIPTIVE PERIOD

ON

(6) Defamation which consists of imputation

of any of the foregoing offenses.

The institution of a criminal action shall

interrupt the running of the period of
prescription of the offense charged unless
otherwise provided in special laws [Section 1,
Rule 110].

B.2. WHO MAY FILE COMPLAINT

Persons authorized to file a complaint:
(1) The offended party
(2) Any peace officer
(3) Other public officer charged with the
enforcement of the law violated

As per People v. Pangilinan (2012), there is no

more distinction between cases under the RPC
and those covered by special laws with respect
to the interruption of the period of prescription.

Persons authorized to file an information:

(1) City or provincial prosecutor and their
assistants; and
(2) Duly appointed special prosecutors

SUSPENSION
OF
PRESCRIPTIVE
PERIODS IN CASES FALLING UNDER THE
AUTHORITY OF THE LUPON

For Private Crimes

(1) Adultery and Concubinage shall not be
prosecuted except upon complaint of the
offended spouse.Both guilty parties should
be included if both are alive [Section 5,
Rule 110].

While the dispute is under mediation,

conciliation or arbitration, the prescriptive
periods for offenses and causes of action under
existing laws shall be interrupted upon filing of
the complaint with the Punong Barangay. The
prescriptive periods shall resume upon receipt
by the complainant of the complaint or the
certificate of repudiation or of the certification
to file action issued by the Lupon or Pangkat
Secretary. Such interruption however shall not
exceed sixty (60) days from the filing of the
complaint with the punong barangay [Sec.
410[c], The Local Government Code of 1991].

However, prosecution will not prosper if

the offended party consented to the
offense.
(2) Seduction, abduction and acts of
lasciviousness are prosecuted exclusively
and successively by the following persons
in this order:
(a) the offended party
(b) her parents,
grandparents, or
guardian, in that order if the offended
party is incompetent or incapable of
doing so
(c) by the State when the offended party
dies or becomes incapable before she
could file the complaint and she has no
known parents, grandparents or
guardian.

B. WHO MAY FILE; CRIMES THAT

CANNOT BE PROSECUTED DE OFICIO
B.1.
CASES
THAT
CANNOT
PROSECUTED DE OFICIO

BE

Private crimes which may only be prosecuted

by a complaint filed by the private offended
party [Sec. 5, Rule 110]:
(1) Adultery
(2) Concubinage
(3) Seduction
(4) Abduction
(5) Acts of lasciviousness

General rule: If the offended party is a minor,

he or she has the right to initiate the
prosecution of such offenses independently of
his/her parents, grandparents, or guardians.
300

if the latter is a minor [US v. Luna

(1902)];
(b) If the offended woman is of age and
not incapacitated, only she can extend
a valid pardon which would absolve
the offender.

Exceptions: He may not do so when he is:

(a) Incompetent, or
(b) Incapable of doing so
(3) Oral defamation complaints can only be
brought upon instance and upon
complaint of the offended party.

General rule: Pardon must be made before the

filing of the criminal complaint in court.

B.3. EVENTS SUBSEQUENT TO FILING

Exception: In rape, where marriage between

the offender and the offended party would be
effective as pardon even when the offender has
already commenced serving his sentence.

B.3.A. DEATH OF OFFENDED PARTY

Death after filing the complaint would not
deprive the court of the jurisdiction.

If there is more than one accused, the pardon

must be extended to all offenders.

The State shall initiate the action on behalf of

the offended party in case of his
death/incapacity and he has no known
parents/grandparents/guardians.

Pardon or desistance extinguishes civil liability.

Pardon or express condonation has the effect
of waiving the civil liability with regard to the
interest of the injured party. Liability arising
from an offense is extinguished in the same
manner as other obligations.

In adultery/concubinage, death does not

extinguish the criminal liability of accused.

B.3.B. DESISTANCE
PARTY

BY

OFFENDED

Pardon

Desistance does not bar the People of the

Philippines from prosecuting the criminal
action, but it operates as a waiver of the right
to pursue civil indemnity.

B.3.C. PARDON BY OFFENDED PARTY

(1) In rape, seduction, abduction and acts of
lasciviousness of a minor, the pardon will
be effective if given by both parents and
the offended party;
(2) In seduction, abduction and acts of
lasciviousness, express pardon by the
offended party, parents, grandparents or
guardian will prevent prosecution [Section
5, Rule 110]:
(a) The parents/grandparents/guardian of
the offended minor (in that order)
cannot extend a valid pardon without
conformity of the offended party, even

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

Given after the

commission of the
crime

Given before the

commission of the
crime

SUBSEQUENT MARRIAGE
The marriage of the offender with the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon him,
together with the co-principals, accomplices
and accessories after the fact of the abovementioned crimes. (RPC, Art. 344)
301

(10) There is clearly no prima facie case against

the accused and MTQ on that ground has
been denied (Samson v. Guingona (2000));
(11) To prevent threatened and unlawful arrest
of petitioners (Brocka v. Enrile (1990))

Except:
(1) In adultery and concubinage
(2) Marriage was invalid or contracted in bad
faith to escape criminal liability [People v.
Santiago (1927)]
(3) In private libel, or the libelous
imputation to the complainant of the
commission of the crimes of concubinage,
adultery, seduction, abduction, or acts of
lasciviousness, and in slander by deed
[People v. Orzame (39 O.G. 1168)]
(4) In multiple rape, insofar as the other
accused in the other acts of rape
respectively committed by them are
concerned [People v. Bernardo (38 O.G.
3479)]

C. CRIMINAL
ENJOINED

ACTIONS;

D. CONTROL OF PROSECUTION
General rule: All criminal actions commenced
by a complaint or information shall be
prosecuted under the direction and control of
the prosecutor [Section 5, Rule 110].
Exceptions:
The private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or
the Regional State Prosecutor to prosecute the
case subject to the approval of the court.
(1) In case of heavy work schedule of the
public prosecutor or
(2) In the event of lack of public prosecutors,

WHEN

However, the criminal action is still prosecuted

under the direction and control of the public
prosecutor [Riano (2011)].

General rule: The prosecution of a criminal

case
may
not
be
enjoined
by
prohibition/injunction
[Domingo
v.
Sandiganbayan (1986)].

Only the Solicitor General may bring or defend

actions in behalf of the Republic of the
Philippines, or represent the People of the
Philippines or State in criminal proceedings
before the Supreme Court and the Court of
Appeals, except:
(1) When there is denial of due process of law
to the prosecution and the State or its
agents refuse to act on the case to the
prejudice of the State and the private
offended party, and
(2) When the private offended party questions
the civil aspect of a decision of a lower
court.

Exceptions:
(1) To afford protection to the constitutional
rights of the accused;
(2) Necessary for the orderly administration of
justice or to avoid multiplicity of actions;
(3) There is a prejudicial question which is sub
judice;
(4) The acts of the officer are without or in
excess of authority;
(5) The prosecution is under an invalid
law/ordinance/regulation;
(6) When double jeopardy is clearly apparent;
(7) The court has no jurisdiction over the
offense;
(8) A case of persecution rather than
prosecution;
(9) The charges are manifestly false and
motivated by the lust for vengeance;

D.1. EXTENT OF THE PROSECUTORS

CONTROL
D.1.A. PRIOR TO FILING OF THE CASE
These matters are within the control and
supervision of the prosecutor:
302

(1)
(2)
(3)
(4)

What case to file;

Whom to prosecute;
Manner of prosecution;
Right to withdraw information before
arraignment even without notice and
hearing.

E. SUFFICIENCY OF COMPLAINT OR
INFORMATION
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 [Section 3,
Rule 110].

D.1.B. AFTER FILING OF THE CASE

It is the prosecutors duty to proceed with the
presentation of his evidence.

An 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; People v. Cinco (2009)].

The prosecutor has no power to dismiss the

action without the courts consent.

D.1.C. LIMITATIONS OF CONTROL BY

THE COURT
(1) THE PROSECUTION IS ENTITLED TO
NOTICE OF HEARING;
(2) The court must await for a petition for
review (maximum of 60 days);
(3) The prosecutions stand to maintain
prosecution should be respected by the
court;
(4) The court must make its own independent
assessment of evidence in granting or
dismissing motion to dismiss; otherwise,
the judgment is void.

D.1.D.
EFFECT
OF
LACK
INTERVENTION OF FISCAL

OF

Although the private prosecutor had previously

been authorized by the special counsel to
present the evidence for the prosecution, in
view of the absence of the City Fiscal at the
hearing, it cannot be said that the prosecution
of the case was under the control of the City
Fiscal. It follows that the evidence presented
by the private prosecutor at said hearing could
not be considered as evidence for the plaintiff
[People v. Beriales (1976)].

Complaint

Information

Subscribed by the
offended party, any
peace officer or
other
officer
charged with the
enforcement of the
law violated.

Subscribed by the
fiscal. (Indispensible
requirement. Lack of
authority of the
officer signing it
cannot be cured by
silence, acquiescence
or even express
consent.)

May be filed either

in court or in the
prosecutors office.

Filed with the court.

Must be sworn
hence, under oath.

Requires no oath.
The fiscal filing the
information
is
acting under the
oath of his office.

Usually refers to
felonies
which
cannot
be
prosecuted
de
officio.

Usually refers
public crimes.

to

TEST OF SUFFICIENCY
(1) A complaint or information is sufficient if it
states:
(2) The name of the accused;
(3) The designation of the offense given by the
statute;

303

E.2 DESIGNATION OF OFFENSE

(4) The acts or omissions complained of as

constituting the offense;
(5) The name of the offended party;
(6) The approximate date of the commission
of the offense; and
(7) The place where the offense was
committed [Section 6, Rule 110].

The complaint or information shall:

(1) State the designation of the offense given
by the statute;
(2) Aver the acts and omissions constituting
the offense; and
(3) Specify the qualifying and aggravating
circumstances.

The test for sufficiency of the complaint or

information is whether the crime is described
in intelligible terms with such particularity as
to apprise the accused with reasonable
certainty of the offense charged [Lazarte v.
Sandiganbayan (2009)].

If there is no designation of the offense,

reference shall be made to the section or
subsection of the statute punishing it [Sec. 8,
Rule 110].
This is a procedural requirement to safeguard
the right of the accused to be informed of the
nature and cause of the accusation against
him.

An accused is deemed to have waived his right

to assail the sufficiency of the information
when he voluntarily entered a plea when
arraigned and participated in the trial [Frias v.
People (2007)].

Specific acts of accused do not have to be

described in detail in the information, as it is
enough that the offense be described with
sufficient particularity to make sure the
accused fully understands what he is being
charged with [Guy v. People (2009)].

Consequently, objections as to form cannot be

made for the first time on appeal. The accused
should have moved for a bill of particulars or
for quashal of information before arraignment,
otherwise he is deemed to have waived his
objections to such a defect [People v. Teodoro
(2009)].

E.3 CAUSE OF THE ACCUSATION

The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated:
(1) In ordinary and concise language; and
(2) Not necessarily in the language used in the
statute; but
(3) In terms sufficient to enable a person of
common understanding to know what
offense is being charged as well as its
qualifying and aggravating circumstances
and for the court to pronounce judgment
[Section 9, Rule 110].

E.1 NAME OF THE ACCUSED

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
with a statement that his true name is
unknown.
If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such name shall be
inserted in the complaint or information and
record [Sec. 7, Rule 110].

Qualifying and aggravating circumstances

must be alleged. Otherwise, they are not to be
considered even if proven during the trial. The
failure to allege such cannot be cured by an
304

amendment of his information after the

accused entered his plea. [People v. Antonio
(2002)]

support the charge as to one of the component

offenses, the defendant can only be convicted
of the offense proven.

Although aggravating circumstances cannot

be appreciated for the purpose of fixing a
heavier penalty, they should, however, be
considered as bases for the award of
exemplary damages [People v. Evina (2003)].

E.4 PLACE OF COMMISSION OF THE

OFFENSE

WHERE
THE
EXCEPTIONS

LAW

It is sufficient if it can be understood from its

allegations that the offense was committed or
some of its essential ingredients occurred at
some place within the jurisdiction of the court,
unless the particular place where it was
committed constitutes an essential element of
the offense charged or is necessary for its
identification [Sec. 10, Rule 110].

PRESCRIBES

RULE ON NEGATIVE AVERMENTS

E.5 DATE OF COMMISSION OF THE

OFFENSE

General rule: Where the law alleged to have

been violated prohibits generally acts therein
defined and is intended to apply to all persons
indiscriminately, but prescribes certain
limitations/exceptions from its violation, the
indictment/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
defense which the accused has to prove.

General Rule: It is not necessary to state in the

complaint or information the precise date the
offense was committed. The offense may be
alleged to have been committed on a date as
near as possible to the actual date of the
commission.
Exception: When it is a material ingredient of
the offense [Sec. 11, Rule 110]

Exception: Where the statute alleged to have

been violated applies only to specific classes of
persons and special conditions and the
exemptions from its violation are so
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.

E.6 NAME OF THE OFFENDED PARTY

The complaint or information must state the
name and surname of the person against
whom or against whose property the offense
was committed, or any appellation or
nickname by which such person has been or is
known. If there is no better way of identifying
him, he must be described under a fictitious
name.

Simply put, if the exception is needed for

defining the offense, then the information
should negate the exception [US v. Chan Toco
(1908)]

OFFENSES AGAINST PROPERTY

If the name of the offended party is unknown,
the property must be described with such
particularity as to properly identify the offense
charged.

WHERE COMPLEX CRIME IS CHARGED

Where what is alleged in the information is a
complex crime and the evidence fails to

If the name of the true name of the person

against whom or against whose property the
305

MODES OF COMMITTING OFFENSE NOT

DUPLICITOUS

offense was committed is thereafter disclosed

or ascertained, the court must cause such true
name to be inserted in the complaint or
information and the record.

General rule: In case of crimes susceptible of

being committed in various modes, the
allegations in the information of the various
ways of committing the offense would be
regarded as a description of only one offense
and information is not rendered defective.

OFFENDED PARTY IS A JURIDICAL

PERSON
Sufficient to state its name, or any name or
designation by which it is known or by which it
may be identified, without need of averring
that it is a juridical person or that it is
organized in accordance with law

Exceptions:
(1) Complex crimes;
(2) Special complex crimes;
(3) Continuous crimes;
(4) Crimes susceptible of being committed
in various modes;
(5) Crimes which another offense is an
ingredient [People v. Camerino (1960)].

F. DUPLICITY OF THE OFFENSE;

EXCEPTION
Duplicity of the offense in an information or
complaint means the joinder of two or more
separate and distinct offenses in one and the
same information or complaint.

G. AMENDMENT OR SUBSTITUTION
OF COMPLAINT OR INFORMATION

General rule: The information must charge only

one offense [Section 13, Rule 110].

KINDS OF AMENDMENT:
(1) Formal Amendment merely states with
additional precision something which is
already contained in the original
information, and which, therefore adds
nothing essential for conviction for the
crime charged [Gabionza v. CA (2001)]

Exception: Multiple offenses may be charged

when the law prescribes a single punishment
for various offenses.

REMEDY
The filing of a motion to quash is the remedy in
case of duplicity of offense in an information.

Examples of Formal Amendment:

(a) New allegations which relate only to
the range of penalty that the court
might impose in the event of
conviction;
(b) One which does not charge another
offense distinct from that already
charged;
(c) Additional allegation which do not
alter the prosecutions theory of the
case so as to surprise the accused or
affect the form of defense he has or
will assume;

Objection to a complaint or information which

charges more than one offense must be timely
interposed before trial [Sec. 3, Rule 120].
Failure to do so constitutes a waiver [People v.
Tabio (2008)] and the court may convict the
accused of as many offenses as are charged
and proved, and impose on him the penalty for
each offense [Sec. 3, Rule 120].

306

(d) One which does not adversely affect

any substantial right of the accused,
such as his right to invoke prescription.

(2) It does not cause prejudice to the rights of

the accused [Sec 14, Rule 110].

G.2.B. AS TO SUBSTANCE
(2) Substantial amendment consists of the
recital of facts constituting the offense
charged and determinative of the
juridisdiction of the court. All other matters
are merely of form [Teehankee v. Madayag
(1985)]

Substantial matter in a complaint is the recital

of facts constituting the offense charged and
determinative of the jurisdiction of the court.
All other matters are merely of form [Almeda v.
Villaluz (1975)].
General rule: Amendment as to substance at
this state of the case is proscribed [People v.
Zulueta (1951)].

The test as to whether the amendment is

merely formal is whether or not a defense
under the original information would be
equally available after the amendment and
whether or not any evidence the accused might
have would be equally applicable in one form
as in the other [People v. Degamo (2003)].

G.1. AMENDMENT IN FORM

SUBSTANCE BEFORE PLEA

Exception: Amendment may be allowed if it is

beneficial to the accused [Ricarze v. CA (2007)].

G.3. SUBSTITUTION
Substitution of a complaint or information may
be substituted if it appears at 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 would
not be placed in double jeopardy [Section 14,
Rule 110].

AND

General rule: Amendment, formal or

substantial, made before the accused enters
his plea may be done without leave of court.
Exception: If the amendment downgrades the
nature of the offense charged in, or excludes
any accused from, the complaint/information,
it can be made only:
(1) Upon motion of the prosecutor
(2) With notice to the offended party and
(3) With leave of court.

Subject to the Section 19, Rule 119, 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 good cause to detain him. The court
shall commit the accused to answer the proper
offense and dismiss the original case upon the
filing of the proper information.

The court is mandated to state its reasons in

resolving the motion of the prosecutor and to
furnish all parties, especially the offended
party, of copies of its order (Sec. 14, Rule 110).

G.2. AMENDMENT AFTER PLEA AND

DURING TRIAL

Limitations:
(1) No judgment has yet been rendered;
(2) The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein;

G.2.A. AS TO FORM
Amendment as to form can only be made
under two conditions:
(1) Leave of court must be secured;
307

(3) The accused would not be placed in double

jeopardy.

For the rule is that one cannot be held to

answer for any crime committed by him except
in the jurisdiction where it was committed
[Hernandez v. Albano (1967)].

G.4. AMENDMENT AND SUBSTITUTION

DISTINGUISHED
Amendment

Substitution

Formal
or
substantial changes

Substantial changes

Can be effected
without leave of
court

Must be with leave

of court

Only as to form,
there is no need for
another PI and
retaking of plea

Another
PI
is
entailed
and
accused has to
plead anew

The
amended
information refers to
the same offense
charged
in
the
original information
or to an offense
which is included in
the original charge;
can invoke double
jeopardy

Involves a different
offense which does
not include those
provided in the
original
charge;
cannot
invoke
double
jeopardy
[Teehankee
v.
Madayag (1992)]

Exceptions:
(1) Felonies under Article 2, RPC, which are
cognizable by the proper court where
criminal action was first filed;
(2) Those committed on a railroad train,
aircraft, or any other public or private
vehicle in the court of its trip, which 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 place of departure and
arrival;
(3) Those committed on board a vessel in the
course of its voyage, which may be
instituted and tried in the proper court of
the first port of entry or of any municipality
or territory through which vessel passed,
subject to the generally accepted
principles of international law;
(4) Piracy, which has no territorial limits and
may be instituted anywhere [People v. Lollo and Saraw (1922)];
(5) Libel, which may be instituted at the
election of the offended party or suing
party in the province or city, subject to
Article 360, RPC;
(6) In cases filed under BP 22, which may be
filed in the place where the check was
dishonored or issued, or in case of a crosscheck, in the place of the depositary or
collecting bank;
(7) For violations of RA 10175 (Cybercrime
Prevention Act of 2012), the RTCs have
jurisdiction over any violation of the
provisions of the Act, including any
violation committed by a Filipino national
regardless of the place of commission (Sec.
21);
(8) In exceptional circumstances, where, to
ensure a fair trial and impartial inquiry, the

H. VENUE OF CRIMINAL ACTIONS

General rule: In all criminal prosecutions, the
action must be instituted and tried in the
courts of the municipality or territory where:
(1) The offense was committed; or
(2) Any of its essential ingredients occurred
[Section 15(a), Rule 110]
This is the principle of territoriality. Venue in
criminal cases is jurisdictional. The court has
no jurisdiction to try an offense committed
outside its territorial jurisdiction. It cannot be
waived, or changed by agreement of the
parties, or by the consent of the defendant.
Thus, where an offense is wholly committed
outside the territorial limits wherein the court
operates, said court is powerless to try the case.
308

III. PROSECUTION OF
CIVIL ACTION

SC have the power to order a change of

venue or place of trial to avoid miscarriage
of justice [Sec. 5(4), Article VII, Constitution].
For transitory/ continuing offenses, the courts
of the territories where the essential
ingredients of the crime took place have
concurrent jurisdiction. The first court taking
cognizance of the case will exclude the others
[People v. Grospe (1988)].

A. RULE ON IMPLIED INSTITUTION

OF CIVIL ACTION WITH CRIMINAL
ACTION
General rule: The civil action for the recovery of
civil liability arising from the offense charged is
deemed instituted with the criminal action.

I. INTERVENTION OF OFFENDED
PARTY

Exception: The civil action is not deemed so

instituted if the offended party:
(1) Waives the civil action;
(2) Institutes the civil action prior to the
criminal action; or
(3) Reserves the right to institute it separately
[Section 1, Rule 111].

General rule: An offended party has the right to

intervene in the prosecution of a crime, where
the civil action for recovery of civil liability is
instituted in the criminal action [Sec. 16, Rule
110].

B. WHEN CIVIL ACTION

PROCEED INDEPENDENTLY

Note: This is still subject to the control of the

prosecutor [Phil. Rabbit Bus Lines v. People
(2004)]

MAY

B.1. INDEPENDENT CIVIL ACTIONS

Under the Rules, only civil liability arising from
the crime charged is deemed instituted. Hence,
the civil actions under the Civil Code,
specifically Articles. 32, 33, 34, and 2176, remain
separate, distinct, and independent of any
criminal prosecution although based on the
same act [Phil. Rabbit Bus Lines Inc. v. People
(2004)].

Exceptions:
(1) Where, from the nature of the crime and
the law defining and punishing it, no civil
liability arises in favor of a private offended
party (e.g. treason, rebellion, espionage
and contempt);
(2) Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has
waived the same or has expressly reserved
his right to institute a separate civil action
or he has already instituted such action;
(3) Offended party has already instituted
action for civil claims.

B.2. RESERVATION OF RIGHT TO FILE

CIVIL ACTION
The civil action may also proceed
independently of the criminal action when
reservation to institute the civil action
separately is made. The reservation shall be
made before the prosecution starts presenting
its evidence and under circumstances affording
the offended party a reasonable opportunity to
make such reservation [Section 1, Rule 111].

309

Instances where reservation to file the civil

action separately shall not be allowed:
(1) B.P. 22 cases [Sec. 1 [b], Rule 111]
(2) Cases
cognizable
bu
the
Sandiganbayan [P.D. 1606 as amended
by R.A. 8249, Sec. 4]
(3) Tax cases [R.A. 9282, Sec. 7 [b][1]]

extinguishes civil liability arising from the

delict;
(3) When death occurs during pendency of
appeal extinguishes criminal liability and
the civil liability based thereon [People v.
Ayochok (2010)].
Independent civil actions instituted under
Articles 32, 33, 34 and 2176, Civil Code, or those
instituted to enforce liability arising from other
sources of obligation may be continued against
the estate or legal representative of the
accused after proper substitution or against his
estate.

B.3. SEPARATE ACTION FILED BY THE

ACCUSED
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action [Section 1,
Rule 111].

As regards the parties in the civil action, the

heirs of the accused may be substituted
without requiring the appointment of an
executor/administrator. The court may appoint
guardian ad litem for the minors.

C. WHEN SEPARATE CIVIL ACTION IS

SUSPENDED
After the criminal action has been commenced,
the separate civil action arising therefrom
cannot be instituted until final judgment has
been entered in the criminal action [Section 2,
Rule 111].

The court shall order the legal representatives

to appear and be substituted within 30 days
from notice.

E. PREJUDICIAL QUESTION

The civil action, which should be suspended

after the institution of the criminal action, is
that arising from delict or crime.

E.1. ELEMENTS
A prejudicial question is that 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.

D. EFFECT OF DEATH OF THE

ACCUSED OR CONVICT ON CIVIL
ACTION
Upon the death of the accused or convict,
criminal liability is extinguished [Article 89,
RPC].

Elements of a prejudicial question:

(1) The previously instituted civil action
involves an issue similar or intimately
related to the issue raised in the
subsequent criminal action; and
(2) The resolution of such issue determines
whether or not the criminal action may
proceed [Sec. 7, Rule 111].
A civil action may be considered prejudicial
when the following concur:

As regards civil liability:

(1) When death occurs before the arraignment,
the case is dismissed without prejudice to
filing of civil action against estate of the
deceased [Section 4, Rule 111];
(2) When death occurs after arraignment and
during pendency of criminal action, it

310

(1) The civil case involves facts intimately

related to those upon which the criminal
prosecution would be based;
(2) In the resolution of the issue/s raised in the
civil action, the guilt/innocence of the
accused would necessarily be determined;
(3) Jurisdiction to try the action is lodged in
another tribunal [Magestrado v. People
(2009)];
(4) The action is instituted prior to the
institution of the criminal action [Pimentel
v. Pimentel (2010)].

F. RULE ON FILING FEES IN CIVIL

ACTION DEEMED INSTITUTED WITH
THE CRIMINAL ACTION
Filing fees apply when damages are being
claimed by the offended party, to be paid upon
filing of the criminal action.
General rule: The actual damages claimed or
recovered by the offended party are not
included in the computation of the filing fees
[Section 1, Rule 111].

Ratio: The rule seeks to avoid two conflicting

decisions in the civil case and in the criminal
case [Sy Thiong Siou vs Sy Chim (2009)].

When the amount of damages, other than

actual, is specified in the complaint or
information filed in court, then the
corresponding filing fees shall be paid by the
offended party upon the filing thereof in court
for trial.

E.2. EFFECT
General rule: Where both a civil and a criminal
case arising from the same facts are filed in
court, the criminal case takes precedence
[Section 2, Rule 111].

In any other case (i.e., when the amount of

damages is not so alleged in the complaint or
information filed in court), the corresponding
filing fees need not be paid and shall simply
constitute a first lien on the judgment, except
on an award for actual damages [General v.
Claravall (1991)].

Exception: If there exists a prejudicial question

which should be resolved first before an action
could be taken in the criminal case.

E.3. WHERE TO FILE PETITION FOR

SUSPENSION

Exceptions: In criminal actions for violation of

BP 22, the amount of the check involved shall
be considered as the actual damages for which
no separate civil action is allowed. In estafa
cases, the filing fees shall be paid based on the
amount involved (AM 04-2-04).

(1) Office of the prosecutor (in the PI stage);

(2) Court conducting the PI; or
(3) Court where criminal action has been filed
for trial, at any time before the prosecution
rests [Section 6, Rule 111].
Note: The Rules preclude a motu proprio
suspension of the civil action [Riano (2011)].

311

IV. PRELIMINARY
INVESTIGATION

forthwith file the corresponding information

with the proper court [People v. Perez (1960)].
An application for or admission to bail shall
not bar the accused from assailing the
regularity or questioning the absence of a
preliminary investigation of the charge against
him provided that he raises the challenge
before entering his plea [Sec. 26, Rule 114].

A. NATURE OF RIGHT
A.1. DEFINITION
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
[Section 1, Rule 112].

A.4. WHEN RIGHT DEEMED WAIVED

(1) Express waiver or by silence [Herrera,
Remedial Law, Vol. IV (2007)];
(2) Failure to invoke it during arraignment
[People v. De Asis (1993)]; and
(3) Consenting to be arraigned and entering a
plea of not guilty without invoking the right
to PI [People v. Bulosan (1988)].

Preliminary
Investigation
is
merely
inquisitorial, and it is often the only means of
discovering the persons who may reasonably
be charged with a crime, to enable the
prosecutor to prepare his complaint or
information. It is not a trial of the case on the
merits and does not place the persons against
whom it is taken in jeopardy.

The waiver, whether express or implied, must

be in a clear and unequivocal manner [Herrera
(2007)].

It is an executive, not a judicial function

[Metropolitan Bank and Trust Company v.
Tonda (2000)].

A.2.
RIGHT
INVESTIGATION

TO

The right cannot be raised for the first time on

appeal [Pilapil v. Sandiganbayan (1993)].

A.5. WHEN RIGHT NOT DEEMED WAIVED

PRELIMINARY

(1) 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 (1998)]; or
(2) When the accused filed an application for
bail and was arraigned over his objection
and the accused demand that preliminary
investigation be conducted [Go v. CA
(1992)].

The right to preliminary investigation is a

statutory right in those instances where it is
required, and to withhold it would violate the
constitutional right to due process [People v.
Oandasa (1968)].
It is not a mere formal or technical right but a
substantial right.

A.3. WAIVER OF RIGHT

B. PURPOSES OF
INVESTIGATION

The right to preliminary investigation is a

personal right which the accused may waive
either expressly or by implication.

PRELIMINARY

(1) To determine whether or not a crime has

been committed and whether or not there
is probable cause to believe that the
accused is guilty [Raro v. Sandiganbayan
(2000)];

When the accused waives his right to

preliminary investigation, the fiscal may
312

(2) To secure the innocent against hasty,

malicious and oppressive prosecution, and
to protect him from an open and public
accusation of a crime, from the trouble,
expense, anxiety of a public trial, and also
protect the state from useless and
expensive trials [Tandoc v. Resultan (1989)].

Note: RTC judges have no power to conduct

PI; and MTC judges cannot conduct PI
anymore after AM 05-8-26-SC eliminated
judges of the MTC and MCTC from those
authorized to conduct a PI effective October 3,
2005.

C.3. COMELEC

C.
WHO
MAY
CONDUCT
DETERMINATION OF EXISTENCE OF
PROBABLE CAUSE

The COMELEC may conduct investigation as

regards election offenses [Section 2(6), Article
IX-C, Constitution; Sec. 265, Omnibus Election
Code].

Probable cause means 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.

C.4. OMBUDSMAN
The Ombudsman and his deputies, as
protectors of the people, shall act promptly on
complaints filed in any form or manner against
public officials or employees of the
Government, or any subdivision, agency or
instrumentality thereof, including GOCCs and
shall, in appropriate cases, notify the
complainants of the action taken and the
result thereof [Sec. 12, Article XI, Constitution].

In general, the following may conduct the

determination of existence of probable cause:
(1) Provincial/city prosecutors and their
assistants;
(2) National and regional state prosecutors;
(3) Other officers as may be authorized by law
[Sec. 2, Rule 112, as amended by AM 05-826-SC].

The Ombudsman is authorized to conduct

preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the
jurisdiction of the Sandiganbayan, but also
those within the jurisdiction of regular courts
as well.

C.1. PROSECUTOR
The executive determination of probable cause
is one made during the PI. It is a function that
properly pertains to the public prosecutor who
is given a broad range of discretion to
determine whether probable cause exists for
purposes of indictment. Such finding will not
be disturbed by the court unless there is finding
of grave abuse of discretion.

C.5. PROCEDURE FOR PRELIMINARY

INVESTIGATION

C.2. COURT

The judicial determination of probable cause is

one made by the judge to ascertain whether a
warrant of arrest should be issued against the
accused.

313

Filing of the complaint

(1) Stating the respondents name and
address
(2) Include
the
affidavits
of
complainant and the witnesses, and
other documents to establish
probable cause, which must be
subscribed and sworn to before a
prosecutor or government official
authorized to administer oath or
notary public
(3) In such number of copies as there

D.
RESOLUTION
OF
INVESTIGATING PROSECUTOR

are respondents, plus 2 copies for

the official file [Section 3(a), Rule
112].

THE

If he finds probable cause to hold respondent

for trial, he shall prepare a resolution and
certify under oath in the information that:
(1) He or an authorized officer has personally
examined the complainant and his
witnesses;
(2) That there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
(3) That the accused was informed of the
complaint and evidences against him;
(4) That he was given opportunity to submit
controverting evidence

Action of the investigating officer

(1) Within 10 days after the filing of the
complaint, the investigating officer
will either:
(a) Dismiss, if he finds no ground to
continue; or
(b) Issue a subpoena to the
respondent,
attaching
the
complaint
and
other
documents. If subpoena is not
possible, the
investigating
officer shall decide based on
what complainant presented;
(2) Respondent has the right to
examine the evidence submitted by
complainant, and copy evidence at
his expense [Section 3(b), Rule 112].

If he finds no probable cause, he shall

recommend the dismissal of the complaint
[Section 4, Rule 112].

Defendants counter-affidavit
It must be made within 10 days from
receipt of complaint, and must comply
with the same requirements as a
complaint [Section 3(c), Rule 112].
If not made within 10 days, the
investigating officer shall resolve the
complaint based on the evidence
presented by the complainant [Section
3(d), Rule 112].

E. REVIEW

Clarificatory hearing
Hearing is conducted only if there are
such facts and issues to be clarified
from a party or a witness.
The investigator must conduct a
hearing within 10 days from receipt of
the counter-affidavit. The hearing must
be finished in 5 days.
Parties may be present evidence, but
they have no right to examine or crossexamine. Questions of parties shall be
submitted to the investigating officer.
Within 10 day after the investigation,
the officer shall determine whether or
not there is sufficient ground to hold
respondent for trial [Section 3(e), Rule
112].

314

Within 5 days from resolution, the

investigating officer will forward the
case to the prosecutor or to the
Ombudsman in cases cognizable by the
Sandiganbayan in the exercise of its
original jurisdiction.

Within 10 days from receipt of the

resolution, the Prosecutor/Ombudsman
will act on the case.

No complaint/information may be filed

or dismissed by an investigating
prosecutor without the prior written
authority or approval of the prosecutor
or ombudsman.
In case the investigation officer
recommends the dismissal of the
complaint
but
the
prosecutor/Ombudsman disagrees, the
latter may file the in-formation himself
or any deputy or order any prosecutor to
do so without conducting a new PI.

The DOJ Secretary may file the

information without conducting another
PI or dismiss the information filed by
the prosecutor. The DOJ Secretary may

If filed directly with the prosecutor, Section 3(a),

Rule 112 applies. Thus, the complaint must be
filed
(1) Stating the respondents name and
address;
(2) Include the affidavits of complainant and
the witnesses, and other documents to
establish probable cause, which must be
subscribed and sworn to before a
prosecutor
or
government
official
authorized to administer oath or notary
public; and
(3) In such number of copies as there are
respondents, plus 2 copies for the official
file.

review resolutions, via petition for

review to the Secretary of Justice, of his
subordinates in criminal cases despite
the information being filed in court
[Section 4, Rule 112; Community Rural
Bank of Guimba v. Talavera (2005)]; see
also DOJ Circ. No. 70].
The resolution of the Secretary of Justice 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 (2006)].
The
DOJ
resolution
is
appealable
administratively before the Office of the
President and the decision of the latter may be
appealed before the CA pursuant to Rule 43
[De Ocampo v. Sec. of Justice (2006)].

The prosecutor shall act on the complaint

based on the affidavits and other supporting
documents submitted by the complainant
within 10 days from its filing.

F. WHEN WARRANT OF ARREST MAY

ISSUE
If the judge finds probable cause, he shall issue
a warrant of arrest, or a commitment order if
the accused has already been arrested, and
hold him for trial.
The PI conducted by the prosecutor is
executive in nature. It is for the purpose of
determining whether or not there exists
sufficient ground for the filing of information.
The PI 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 (2002)].

G.
CASES
NOT
REQUIRING
PRELIMINARY INVESTIGATION NOR
COVERED BY THE RULE ON
SUMMARY PROCEDURE
These are cases punishable by imprisonment
of less than 4 years, 2 months and 1 day, and
filed with the prosecutor or MTC/MCTC.
315

A complaint, which complies with

Section 3(a), Rule 112, is filed.

Within 10 days after the filing of the

complaint/information, if the judge
finds no PC after personally evaluating
the evidence or after personally
examining in writing and under oath the
complainant and his witnesses in the
form of searching questions and
answers, he shall dismiss the same.

The judge may require submission of

additional evidence within 10 days from
notice, to determine the existence of
PC.

If the judge still

finds
no
PC
despite
the
additional
evidence, he shall
dismiss the case
within 10 days
from
its
submission
or
expiration of said
period.

If the judge finds

PC, he shall issue
a warrant of arrest
or a commitment
order (if already
arrested) and hold
him for trial.

H.2.
RESTRAINING
INVESTIGATION

If the judge is
satisfied
that
there is no need to
place the accused
under custody, he
may
issue
summons instead.

PRELIMINARY

General rule: The power of the Fiscal to

investigate crimes committed within his
jurisdiction will, ordinarily, not be restrained.
Exceptions: Extreme cases may exist where
relief in equity may be availed of to stop a
purported enforcement of a criminal law where
it is necessary:
(1) For the orderly administration of justice;
(2) To prevent the use of the strong arm of the
law in an oppressive and vindictive
manner;
(3) To avoid multiplicity of actions;
(4) To afford adequate protection to
constitutional rights; and
(5) In proper cases, because the statute relied
upon is unconstitutional, or was held
invalid [Ladlad v. Velasco (2007)].

H. REMEDIES OF ACCUSED IF THERE

WAS
NO
PRELIMINARY
INVESTIGATION
H.1. EFFECT OF DENIAL OF RIGHT
The absence of PI:
(1) Does not impair the validity of the
information or otherwise render it
defective;
(2) Does not affect the jurisdiction of the court;
(3) Does not constitute a ground for quashing
the information.

REMEDIES OF THE ACCUSED IF THERE

WAS NO PI:

I. INQUEST

(1) Refuse to enter a plea upon arraignment

and object to further proceedings upon
such ground;
(2) Insist on a preliminary investigation;
(3) File a certiorari, if refused;
(4) Raise lack of PI as error on appeal [United
States v. Banzuela (1915)]

An inquest 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 court for the purpose of
determining whether or not said persons
should
remain
under
custody
and
correspondingly be charged in court [DOJ-NPS
Manual].

The trial court, instead of dismissing the

information, should hold in abeyance the
proceedings and order the public prosecutor to
conduct a PI [Villaflor v. Vivar (2001)].

General rule: PI is required to be conducted

before a complaint/ information is filed for an
offense where the penalty prescribed by law is
at least 4 years, 2 months and 1 day, without
regard to the fine [Sec. 1, Rule 112]

After the filing of the complaint/information in

court without a PI, the accused may within 5
days from the time he learns of its filing, ask
for a PI with the same right to adduce evidence
in his defense as provided in Rule 112 [Section 6,
3rd par., Rule 112].

Exception: When a person is lawfully arrested

without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.

316

V. ARREST

However, before the complaint or information

is filed, the person arrested may ask for a PI,
but he must sign a waiver of the provisions of
Article 125, RPC in the presence of his counsel.
Notwithstanding the waiver, he may apply for
bail and the investigation must be terminated
within 15 days from its inception (Section 6,
Rule 112).

Arrest is the taking of a person into custody in

order that he may be bound to answer for the
commission of an offense [Section 1, Rule 113].

A. IMMUNITY
A.1. PARLIAMENTARY IMMUNITY
Senators and Members of the House of
Representatives, while Congress is in session
and for offenses punishable by not more than 6
years imprisonment are immune to arrest
[Section 11, Article VI, Constitution].

PROCEDURE
An inquest is considered commenced upon
receipt by the Inquest Officer from the law
enforcement
authorities
of
the
complaint/referral documents which should
include:
(1) Affidavit of arrest, investigation report,
statement of the complainant and
witnesses, all of which must be subscribed
and sworn to before him;
(2) Other supporting evidence gathered by the
police in the course of the latter's
investigation of the criminal incident
involving the arrested or detained person.

A.2. DIPLOMATIC IMMUNITY

Ambassadors and ministers of foreign
countries and their duly registered domestics
subject to the principle of reciprocity are
immune to arrest (RA 75).
Note: Diplomatic immunity is not limited to
immunity from arrest only.

B. HOW MADE

It must be terminated within the period

prescribed under the provisions of Article 125,
RPC. Thus, if after the inquest proceedings:
(1) There is no probable cause, the case is
dismissed;
(2) The accused wants a PI and is willing to
waive Article 125, a preliminary
investigation conducted;
(3) The arrest was without warrant, but there
possibly is PC, the accused is released for
regular PI;
(4) There is PC and the arrest was valid, an
information is filed.

By an actual restraint of a person to be

arrested;
By his submission to the custody of the person
making the arrest [Section 2, 1st par., Rule 113].
It is enough that there be an intent on the part
of one of the parties to arrest the other and an
intent on the part of the other to submit, under
the belief and impression that submission is
necessary [Sanchez v. Demetrio (1993)].
No violence or unnecessary force shall be used
in making an arrest [Sec. 2, 2nd par., Rule 113].
Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required.
An arrest may be made on any day and at any
time of the day or night [Section 6, Rule 113].

317

C. ARREST WITHOUT WARRANT, WHEN

LAWFUL

(2) Such overt act is done in the presence or

within the view of the arresting officer
[Zalameda v. People (2009); People v.
Laguio (2007)].

General rule: No peace officer or person has

the power or authority to arrest anyone without
a warrant except in those cases expressly
authorized by law [Umil v. Ramos (1991)].

In his presence means:

(1) He sees the offense, even though at a
distance;
(2) He hears the disturbances created by the
offense and proceeds at once to the scene;
or
(3) Offense is continuing or has been
consummated at the time arrest is made
[People v. Evaristo (1992)].

Exceptions:
(1) In flagrante delicto [Section 5(a), Rule 113];
(2) Hot pursuit arrest [Section 5(b), Rule 113];
(3) Arrest of escaped prisoner [Section 5(c),,
Rule 113];
(4) Other lawful warrantless arrests:
(a) Where a person who has been lawfully
arrested escapes or is rescued [Section
13, Rule 113]; any person may
immediately pursue or retake him
without a warrant at any time and in
any place within the Philippines;
(b) By the bondsman, for the purpose of
surrendering the accused [Section 23,
Rule 114];
(c) Where the accused who is released on
bail attempts to leave the country
without permission of the court where
the case is pending [Section 23, Rule
114].

The following are instances of this type of

arrest without warrant:
(1) An arrest made after an entrapment does
not require a warrant inasmuch as it is
considered a valid warrantless arrest
pursuant to Section 5(a), Rule 113 [Teodicio
v. CA (2004)]. This is different from
instigation, which means luring the
accused into a crime that he, otherwise,
had no intention to commit, in order to
prosecute him, and leads to acquittal
[People v. Dansico (2011)].
(2) When a person is caught in flagrante as a
result of the buy-bust operation, the
policemen are not only authorized but are
also under obligation to apprehend the
drug pusher even without a warrant of
arrest [People v. de Lara (1994)].

C.1. IN FLAGRANTE DELICTO

A peace officer or a private person may,
without warrant, arrest a person when the
person to be arrested:
(1) Has committed;
(2) Is actually committing; or
(3) Is attempting to commit an offense in the
presence of the peace officer or private
person who arrested him [Section 5(a), Rule
113].

C.2. HOT PURSUIT ARREST

A peace officer or a private person may,
without warrant, arrest a person when an
offense has just been committed and the
officer or private person has probable cause to
believe, based on personal knowledge of facts
or circumstances, that the person to be
arrested has committed it [Section 5(b), Rule
113].

Requisites:
(1) The person to be arrested must execute an
overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and

318

Requisites:
(1) An offense has just been committed. There
must be a large measure of immediacy
between the time the offense was
committed and the time of the arrest. If
there was an appreciable lapse of time
between the arrest and the commission of
the crime, a warrant of arrest must be
secured [People v. del Rosario (1999);
People v. Agojo (2009)]; and
(2) The person making the arrest has probable
cause to believe, based on personal
knowledge of facts, that the person to be
arrested has committed it.

Ratio: At the time of arrest, the escapee is in

continuous commission of a crime (i.e., evasion
of service of sentence).

C.4. RULES ON ILLEGALITY OF ARREST

C.4.A. EFFECT
The legality of the arrest affects only the
jurisdiction of the court over the person of the
accused [People v. Nuevas (2007)].

C.4.B. WAIVER
Any objection involving the arrest or the
procedure in the courts acquisition of
jurisdiction over the person of an accused must
be made before he enters his plea; otherwise
the objection is deemed waived [Zalameda v.
People (2009)].

Probable cause must be based on personal

knowledge which means an actual belief or
reasonable grounds of suspicion [Abelita III v.
Doria (2009)]

There is waiver if the accused voluntarily enters

his plea and participates during trial, without
previously invoking his objections thereto
[Leviste v. Hon Alameda (2010); Borlongan v.
Pea (2010)].

Note: Where a warrantless arrest is made

under the in flagrante and hot pursuit
exceptions, the person arrested without a
warrant shall forthwith arrested delivered to
the nearest police station or jail [Section 5, 2nd
par., Rule 113].

An application for or admission to bail shall

not bar the accused from challenging the
validity of his arrest or the legality of the
warrant issued, provided that he raises the
objection before he enters his plea [Section 26,
Rule 114].

C.3. ARREST OF ESCAPED PRISONER

A peace officer or a private person may,
without warrant, arrest a person when the
person to be arrested is a prisoner who has
escaped [Section 5(c), Rule 113]:
(1) From a penal establishment or place
where he is serving final judgment or
temporarily confined while his case is
pending; or
(2) While being transferred from one
confinement to another.

A waiver of the right to question an illegal

warrantless arrest does not also mean a waiver
of the inadmissibility of evidence seized during
an illegal warrantless arrest [People v. Nuevas,
(2007)].

C.4.C. WHEN CURED

(1) When the accused voluntarily submits to
the jurisdiction of the trial court [Dolera v.
People (2009); People v. Alunday (2008)];
(2) By the filing of an information in court and
the subsequent issuance by the judge of a
warrant of arrest [Sanchez v. Demetriou
(1993)].

Escapee may be immediately pursued or rearrested without a warrant at any time and in
any place within the Philippines [Section 13,
Rule 113].

319

(4) No violence or unnecessary force shall be

used in making an arrest [Sec. 2, 2nd par.,
Rule 113].

D. METHOD OF ARREST
D.1. BY OFFICER WITH WARRANT
D.1.A. DUTIES OF ARRESTING OFFICER

D.1.B. RIGHTS OF THE ARRESTING

OFFICER

(1) Execution of warrant [Section 4, Rule 113]:

(a) The head of the office to whom the
warrant of arrest was delivered shall
cause the warrant to be executed
within 10 days from its receipt;
(b) The officer to whom it was assigned for
execution shall make a report to the
judge who issued the warrant within 10
days after expiration of the period to
execute.
(c) In case of the officers failure to execute,
he shall state the reasons therefor.
(2) The officer shall inform the person to be
arrested of the cause of the arrest and the
fact that a warrant has been issued for his
arrest [Sec. 7, Rule 113].
(a) This duty does not apply:
(i)
When the person to be arrested
flees;
(ii)
When he forcibly resists before
the officer has opportunity to
so inform him;
(iii)
When the giving of such
information will imperil the
arrest.
(b) The officer need not have the warrant
in his possession at the time of the
arrest but after the arrest, if the person
arrested so requires, the warrant shall
be shown to him as soon as practicable
[Section 7, Rule 113].
(c) This is not a case of a warrantless
arrest but merely an instance of an
arrest effected by the police authorities
without having the warrant in their
possession at that precise moment
[Mallari v. CA (1996)].
(3) The officer executing the warrant shall
arrest the accused and deliver him to the
nearest police station or jail without
unnecessary delay [Sec. 3, Rule 113];

(1) To summon assistance [Sec. 10, Rule 113].

He may orally summon as many persons as
he deems necessary to assist him in
effecting the arrest.
(2) To break into building or enclosure [Sec. 11,
Rule 113], when the following concur:
(a) The person to be arrested is or is
reasonably believed to be in said
building;
(b) He has announced his authority and
purpose of entering therein; and
(c) He has requested and been denied
admittance.
(3) To break out from the building/enclosure
when necessary to liberate himself [Sec. 12,
Rule 113];
(4) To search the person arrested for
dangerous weapons or anything which
may have been used or constitute proof in
the commission of an offense without a
warrant [Sec. 13, Rule 126].
Note: Nos. 2 and 3 are also applicable where
there is a valid warrantless arrest.

D.2. BY OFFICER WITHOUT WARRANT

General rule: The officer shall inform the
person to be arrested of:
(1) His authority; and
(2) The cause of the arrest (Sec. 8, Rule 113).
Exceptions:
(1) When the person to be arrested is engaged
in the commission of the offense;
(2) When he is pursued immediately after its
commission;
(3) When he has escaped, flees or forcibly
resists before the officer has the
opportunity to so inform him; or
320

(4) When the giving of such information will

imperil the arrest.

(2) If on the basis thereof he finds no probable

cause, he may disregard the fiscals report
and require the submission of supporting
affidavits of witnesses [People v. Gray
(2010); AAA v. Carbonell (2007)].

D.3. BY PRIVATE PERSON (CITIZENS

ARREST)
(1) The private person shall inform the person
to be arrested of the intention to arrest him
and the cause of the arrest [Sec. 9, Rule 113],
except in the same cases as those for
arrest by an officer without a warrant.
(2) The private person must deliver the
arrested person to the nearest police
station or jail, and he shall be proceeded
against in accordance with Sec. 7, Rule 112.
Otherwise, the private person may be held
liable for illegal detention.

E. REQUISITES OF
WARRANT OF ARREST

F. DETERMINATION OF PROBABLE
CAUSE FOR ISSUANCE OF WARRANT
OF ARREST
Probable cause, in connection with the
issuance of a warrant of arrest, assumes the
existence of facts and circumstances that
would lead a reasonably discreet and prudent
man to believe that a crime has been
committed and that it was likely committed by
the person sought to be arrested [People v. Tan
(2009)].

VALID

Probable cause demands more than suspicion

but it requires less than evidence that would
justify conviction [People v. Gabo (2010)].

E.1. ESSENTIAL REQUISITES

The warrant must:
(1) Be issued upon probable cause determined
personally by the judge after examination
under oath or affirmation of the
complainant and the witnesses he may
produce; and
(2) Particularly describe the person to be
arrested [Section 2, Article III, Constitution]

G. PROBABLE CAUSE OF FISCAL AND

JUDGE DISTINGUISHED
Fiscal

E.2. WHEN ISSUED

A judge issues a warrant of arrest upon the
filing of the information by the public
prosecutor and after personal evaluation by
the judge of the prosecutors resolution and
supporting evidence [Section 5(a), Rule 112].
The judge does not have to personally examine
the complainant and his witnesses.
Established doctrine provides, he shall
personally evaluate the report and the
supporting documents submitted by the fiscal
regarding the existence of probable cause:
(1) If he finds probable cause, he shall issue a
warrant of arrest; or

Judge

Executive
determination of PC

Judicial determination
of PC

Determination of PC
to hold a person for
trial

Determination of PC
to issue a warrant of
arrest

Whether or not there

is reasonable ground
to believe that the
accused is guilty of
the offense charged
and should be held for
trial

Whether or not a
warrant of arrest
should be issued

The determination of probable cause for

issuing a warrant of arrest is made by the
judge. The preliminary investigation proper
whether or not there is a reasonable ground to
believe that the accused is guilty of the offense
charged is the function of the investigating
prosecutor [AAA v. Carbonell (2007)].

321

VI. BAIL

(2) Before conviction by RTC of all offenses

punishable by penalty lower than reclusion
perpetua or life imprisonment [Section 4,
Rule 114].

A. NATURE
A.1. DEFINITION

General rule: Bail is not available in capital

offenses or those punishable by death,
reclusion perpetua or life imprisonment when
evidence of guilt is strong.

Bail 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 conditions
hereinafter specified [Section 1, Rule 114].

Exception: When the accused is a minor, he is

entitled to bail regardless of whether the
evidence of guilt is strong.

A.2. PURPOSE
(1) To relieve an accused from imprisonment
until his conviction and yet secure his
appearance at the trial [People v. Hon.
Donato (2011)];
(2) To honor the presumption of innocence
until his guilt is proven beyond reasonable
doubt [Section 14, Article III, Constitution];
and
(3) To enable him to prepare his defense
without being subject to punishment prior
to conviction [Cortes v. Judge Catral (1997)].

B.1. CAPITAL OFFENSE

A capital offense is an offense which under the
law existing at the time of commission and of
the application for admission to bail is
punishable by death [Section 6, Rule 114].
The capital nature of the offense is determined
by the penalty prescribed by law and not the
one actually imposed.
Note: RA 9346 (An Act Prohibiting the
Imposition of Death Penalty in the Philippines)
enacted on June 24, 2006 (which repealed RA
8177 and RA 7659) prohibited the imposition of
death penalty. Under Section 7, RA 9346, it
stated that [c]apital offense or an offense
punishable by reclusion perpetua or life
imprisonment.

A.3. REQUIREMENT OF CUSTODY

General rule: Custody of the law is required
before the court can act on an application for
bail [Miranda v. Tuliao (2006)].
Exceptions: Custody is not required in cases of
witnesses posting bail:
(1) When bail is required to guarantee the
appearance of a material witness [Sec. 14,
Rule 119];
(2) When bail is required to guarantee the
appearance of a prosecution witness in
cases where there is substitution of the
information [Riano (2011), citing Sec. 14,
Rule 110].

B.2. EXTRADITION PROCEEDINGS

General rule: Right to bail is available only in
criminal proceedings and does not apply to
extradition proceedings because extradition
courts do not render judgments of conviction
or acquittal [Gov. of USA v. Purganan and
Jimenez (2002)].

B. WHEN A MATTER OF RIGHT;

EXCEPTIONS

Exception: Only upon a clear and convincing

evidence:

Bail is a matter of right:

(1) Before or after conviction pending appeal
by the MTC;
322

(1) That once granted, the applicant will not

be flight risk or will not pose danger to the
community; and
(2) That there exists special humanitarian and
compelling circumstances.

If the conviction by the trial court is for a capital

offense, the accused convicted of a capital
offense is no longer entitled to bail, and can
only be released when the conviction is
reversed by the appellate court [Sec. 13, Article
III, Constitution].

Note: Bail is a matter of discretion in

extradition proceedings [Govt. of HK Special
Administrative Region v. Olalia (2007)].

Note: In hearing the petition for bail, the

prosecution has the burden of showing that
the evidence of guilt is strong [Sec. 8, Rule 114].

B.3. WHEN NOT AVAILABLE

Right to bail is also not available:
(1) To military personnel accused under
general courts martial [Comendador v.
de Villa (1991)];
(2) After a judgment of conviction has
become final;
(3) If he applied for probation before
finality, he may be allowed temporary
liberty under his bail;
(4) After the accused has commenced to
serve his sentence [Sec. 24, Rule 114].

If the penalty imposed by the trial court is

imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be
cancelled upon showing by the prosecution,
with notice to the accused, of any of the
following:
(1) Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused;
(2) The accused previously escaped from legal
confinement, evaded sentence or violated
bail conditions without valid justification;
(3) Commission of offense while under
probation, parole or conditional pardon by
the accused;
(4) Probability of flight;
(5) Undue risk that the accused may commit
another crime during pendency of appeal.

C. WHEN A MATTER OF DISCRETION

(1) Before conviction, in offenses punishable
by death, reclusion perpetua or life
imprisonment and evidence of guilt is not
strong;
(2) Upon conviction by the RTC of an offense
not punishable by death, reclusion
perpetua or life imprisonment.
No. 2 refers to conviction by the trial court,
which has not become final, as the accused
still has the right to appeal.

Upon conviction of the RTC, the bail posted

earlier as a matter of right loses its force and
the accused must file a new and separate
petition for bail.

It may be filed in and acted upon by the RTC

despite the filing of notice of appeal, provided
that it has not transmitted the original record
to the appellate court.

In deportation proceedings, bail is discretionary

upon the Commissioner of Immigration and
Deportation [Harvey v. Defensor-Santiago
(1990)].

If the RTC decision changed nature of the

offense from non-bailable to bailable, the
application for bail can be resolved only by the
appellate court [Section 5, Rule 114].
323

(3) Decide whether the evidence of guilt of the

accused is strong based on the summary of
the evidence of the prosecution;
(4) If the guilt of the accused is not strong,
discharge the accused upon the approval
of the bail bond. Otherwise, petition should
be denied [Riano (2011), citing Narciso v.
Santa Romana-Cruz (2000)].

D. HEARING OF APPLICATION FOR

BAIL IN CAPITAL OFFENSES
D.1. IN GENERAL
At the hearing of an application for bail filed by
a person in custody for the commission of an
offense punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden
of showing that evidence of guilt is strong
[Section 8, Rule 114].

Note: Evidence presented during the bail

hearing are automatically reproduced at the
trial [Sec. 8, Rule 114].

Evidence of guilt in the Constitution and the

Rules refers to a finding of innocence or
culpability, regardless of the modifying
circumstances.

D.4. WHERE APPLICATION FOR BAIL IS

FILED
General rule: The application may be filed with
the court where the case is pending.

D.2. MINORS CHARGED WITH CAPITAL

OFFENSE

Exceptions:
(1) If the judge of the court where the case is
pending is absent or unavailable, the
application may be filed with any
RTC/MTC/MeTC/ MCTC judge in the
province, city or municipality;
(2) Where the accused is arrested in a province,
city/municipality other than where the
case is pending, the application may be
filed with any RTC of the said place. If no
judge is available, then with any
MeTC/MTC/MCTC judge in the said place.
Judge who accepted the application shall
forward it, together with the order of
release and other supporting papers where
the case is pending;
(3) When a person is in custody but not yet
charged, he may apply with any court in
the province or city/municipality where he
is held [Sec. 17, Rule 114].

If the person charged with a capital offense is

admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail
regardless of whether the evidence of guilt is
strong.
Reason: One who faces a probable death
sentence has a particularly strong temptation
to flee.
This reason does not hold where the accused
has been established without objection to be
minor who by law cannot be sentenced to
death.

D.3. DUTIES OF JUDGE HEARING THE

PETITION FOR BAIL
(1) Notify the prosecutor of the hearing and
require
him
to
submit
his
recommendation;
(2) Conduct a hearing of the application
regardless of whether or not prosecution
refuses to present evidence to show that
the guilt of the accused is strong;

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, on
trial, or appeal.

324

(2) When accused confesses to the

commission of the offense unless he later
repudiates the same in a sworn statement
or in open court as having been extracted
through force or intimidation;
(3) When accused is found to have previously
escaped legal confinement, evaded
sentence, or jumped bail;
(4) When accused is found to have violated
Section 2, RA 6036, which provides that
the violation of the accused of the sworn
statement (required instead of bail) shall
justify the court to order his immediate
arrest, if the failure of the accused to report
is not justified;
(5) Accused is a recidivist or habitual
delinquent or has been previously
convicted for an offense to which the
law/ordinance attaches an equal/greater
penalty or for two/more offenses to which
it attaches a lighter penalty
(6) Accused committed the offense while on
parole or under conditional pardon;
(7) Accused has previously been pardoned for
violation of municipal/city ordinance for at
least two times [Riano (2011), citing Sec. 1,
RA 6036].

E. GUIDELINES IN FIXING AMOUNT

OF BAIL
The considerations are primarily, but not
limited, to the following:
(1) Financial ability of the accused;
(2) Nature and circumstances of the offense;
(3) Penalty for the offense charged;
(4) Character and reputation of the accused;
(5) Age and health of the accused;
(6) Probability of the accused appearing at the
trial;
(7) Forfeiture of other bail;
(8) Fact that accused was a fugitive from
justice when arrested;
(9) Pendency of other cases where the accused
is on bail.

F. WHEN BAIL NOT REQUIRED

Bail is not required:
(1) When a person has been in custody for a
period equal to or more than the possible
maximum imprisonment of the offense
charged to which he may be sentenced;
(2) If the maximum penalty is destierro, he
shall be released after 30 days of
preventive imprisonment [Sec. 16, Rule 114];
(3) In cases filed with the MTC/MCTC for an
offense punishable by an imprisonment of
less than 4 yrs, 2 mos. and 1 day, and the
judge is satisfied that there is no necessity
for placing the accused under custody
[Riano (2011), citing Sec. 8, Rule 112];
(4) In cases where a person is charged with
violation of a municipal/city ordinance, a
light felony and/or criminal offense, the
penalty of which is not higher than 6
months imprisonment and/or a fine of
2000 or both where it is established that
he is unable to post the required cash or
bail bond [Sec. 1, RA 6036].

G. INCREASE OR REDUCTION OF
BAIL
After the accused is admitted to bail and for
good cause, the court may increase or decrease
the amount.

G.1. INCREASED BAIL

The accused may be committed to custody if
he does not give bail in the increased amount
within a reasonable period of time [Sec. 20,
Rule 114].

G.2. REDUCED BAIL

Bail is nonetheless required when:
(1) When accused was caught committing the
offense in flagrante;

A person in custody for a period equal to or

more than the minimum of the principal
penalty prescribed for the offense charged may

325

be released on a reduced bond [Sec. 16, Rule

114].

to the bondsmen to produce the accused or to

adduce satisfactory reason for their inability to
do so. An order of forfeiture is interlocutory and
is different form the judgment on the bond
which is issued if the accused was not
produced within the 30-day period [Mendoza v.
Alarma (2008)].

H. FORFEITURE AND CANCELLATION

OF BAIL
H.1. FORFEITURE OF BAIL
When the appearance of the accused out on
bail is required by court and he failed to appear,
the court shall issued an order of forfeiture
wherein:
(1) The provisional liberty of the accused due
to the bail bond shall be revoked and;
(2) It shall require the bondsman to produce
the principal

H.2. CANCELLATION OF BAIL

H.2.A. APPLICATION BY BONDSMEN
Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled
upon:
(1) Surrender of the accused; or
(2) Proof of his death.

If the accused failed to appear in person as

required, the bondsmen are given 30 days
within which to:
(1) Produce the body of the principal or give
reason for the non-production. The
bondsmen may:
(a) Arrest the accused;
(b) Cause him to be arrested by a police
officer or any other person of suitable
age or discretion upon written
authority endorsed on a certified copy
of the undertaking.
(2) Explain why the accused failed to appear:
(a) If the bondsmen fail to do these,
judgment is rendered against them,
jointly and severally, for the amount of
the bail.
(b) Bondsmens liability cannot be
mitigated or reduced, unless the
accused has been surrendered or is
acquitted [Sec. 21, Rule 114].

H.2.B. AUTOMATIC CANCELLATION

(1) Upon acquittal of the accused
(2) Upon dismissal of the case
(3) Upon execution of judgment
conviction [Sec. 22, Rule 114].

of

I. APPLICATION NOT A BAR TO

OBJECTIONS ON ILLEGAL ARREST,
LACK
OF
OR
IRREGULAR
PRELIMINARY INVESTIGATION
Bail is no longer a waiver of these objections
[Sec. 26, Rule 114; Leviste v. Alameda (2011)].
Thus, provided that the proper objections are
timely raised (i.e., before accused enters a plea),
an application or an admission to bail shall not
bar the accused from challenging or
questioning the:
(1) Validity of his arrest;
(2) Legality of the arrest warrant;
(3) Regularity of preliminary investigation;
(4) Absence of preliminary investigation.

Bondsmen can prevent the accused from

leaving country by arresting him or asking for
him to be re-arrested by a police officer upon
written authority [Sec. 23, Rule 114].

The court shall resolve the objections as early

as practicable but not later than the start of
the trial of the case.

Judgment against the bondsmen cannot be

entered unless such judgment is preceded by
an order of forfeiture and an opportunity given
326

J.
HOLD/ALLOW
DEPARTURE
ORDER
AND
BUREAU
OF
IMMIGRATION WATCHLIST

A hold-departure order may be issued only by

the RTCs in criminal cases within their
exclusive jurisdiction [SC Circ. No. 39-97].

The accused may be prohibited from leaving

the country during the pendency of his case
[People v. Uy Tuising (1935); Manotoc v. CA
(1986)]. If the accused released on bail
attempts to depart from the Philippines
without the permission of the court where his
case is pending, he may be re-arrested without
warrant [Sec. 23, Rule 114].

SC Circular 39-97 deals only with criminal

cases pending in the RTC. As to those cases
pending in the MTC as well as those under
preliminary
investigation,
the
DOJ
promulgated DOJ Circular No. 41 governing the
issuance of HDO, Watchlist Orders, and Allow
Departure
Orders.

Hold Departure Order

Watchlist Order

When it
may issue

(1) Against the accused, irrespective of

nationality, in criminal cases falling
within the jurisdiction of first-level
courts (MeTC, MTC, MCTC);
(2) Against the alien whose presence is
required either as a defendant,
respondent, or witness in a civil or
labor case pending litigation, or any
case before an administrative agency
of the government;
(3) Against any person, either motu
proprio, or upon the request by the
Head of a Department of the
Government, 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 security, public
safety or public health.

(1) Against the accused, irrespective of

nationality, in criminal cases pending
before the RTC;
(2) Against the respondent, irrespective of
nationality, in criminal cases pending
preliminary investigation, PFR, or MR
before the DOJ or any of its
prosecution offices;
(3) Against any person pursuant to the
Anti-Trafficking in Persons Act of 2003
(RA 9208) or in the interest of national
security, public safety or public health.

Validity

An HDO is valid for 5 years reckoned from

the date of its issuance, unless sooner
terminated.

A watchlist order is valid 60 days reckoned

from the date of its issuance, unless sooner
terminated or extended for a nonextendible period of not more than 60
days.

Grounds for
lifting or
cancellatio
n

(1) When the validity period has already

expired;
(2) When the accused 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 was issued has
been dismissed or the warrant/order of
arrest has been recalled.

(1) When the validity period has already

expired;
(2) When the accused has been allowed
by the court to leave the country
during the pendency of the case, or
has been acquitted of the charge;
(3) When the PI is terminated, or when the
PFR or MR has been denied and/or
dismissed.

327

ADOs may issue for exceptional reasons to

allow the person to leave upon submission of
the following:
(1) An affidavit of purpose, including an
undertaking to report to the DOJ
immediately upon return;
(2) Authority to travel or travel clearance
from the court or appropriate
government office or from the
investigating prosecutor.

The legislature may enact that when certain

facts have been proven they shall be prima
facie evidence of the existence of the guilt of
the accused and shift the burden of proof
provided there be rational connection between
that facts proved and the ultimate fact
presumed so that the inference of the one from
proof of the others is not unreasonable and
arbitrary because of lack of connection
between the two in common experience
[People v. Mingoa (1953)].

EQUIPOSE RULE

VII. RIGHTS OF THE

ACCUSED

Where the evidence in a criminal case is evenly

balanced, the constitutional presumption of
innocence tilts the scales in favor of the
accused [People v. Erguioza (2008)].

A. RIGHT TO BE PRESUMED
INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE
DOUBT

B. RIGHT TO BE INFORMED OF THE

NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM

The presumption of regularity in the

performance of official duty cannot by itself
overcome the presumption of innocence nor
constitute proof beyond reasonable doubt
[People v. Sanchez (2008)].

General rule: An accused cannot be convicted

of an offense, unless it is clearly charged in the
complaint or information [People v. Ortega
(1997)].

The Rules or the law may, however, provide for

a presumption of guilt [Hizon v. CA (2009)].

Exception: An information which lacks certain

essential allegations may still sustain a
conviction when the accused fails to object to
its sufficiency during the trial, and the
deficiency was cured by competent evidence
presented therein [People v. Palarca (2002)]

In such case, Hizon v. CA (2009) stressed that

the statutory presumption is merely prima facie.
At no instance can the accused be denied the
right to rebut the presumption.

The charge must be set forth with sufficient

particularity to enable the accused to
intelligently prepare his defense [Balitaan v.
CFI of Batangas (1982)].

Proof beyond reasonable doubt does not mean

such a degree of proof as, excluding possibility
of error, produces absolute certainty. Moral
certainty only is required, or that degree of
proof which produces conviction in an
unprejudiced mind [Rule 133, Sec.2].

The purpose is served by arraignment [Borja v.

Mendoza (1977)]. The title of the complaint, or
the designation of the offense charged or the
particular law violated is not controlling. No
information for a crime will be sufficient if it
does not accurately and clearly allege the

elements of the crime charged [People v.

Dimaano (2005)].

C.2. TRIAL IN ABSENTIA

C. RIGHT TO BE PRESENT AND

DEFEND IN PERSON AND BY
COUNSEL AT EVERY STATE OF THE
PROCEEDINGS

Requisites:
(1) Prior arraignment;
(2) Proper notice of the trial;
(3) Failure to appear is unjustifiable
[Parada v. Veneracion (1997)].

C.1. RIGHT TO BE PRESENT

An escapee who has been duly tried in

absentia waives his right to present evidence
on his own behalf and to confront and crossexamine witnesses who testified against him
[Gimenze v. Nazareno (1988)].

General rule: Presence of the accused during

the criminal action is not required and shall be
based on his sole discretion.
Exceptions: Presence of the accused is
mandatory:
(1) For purposes of identification;
(2) At arraignment; [Sec. 1(b), Rule 116];
(3) At the promulgation of judgment
except when the conviction is for a
light offense. [Sec. 6, Rule 120]

C.3. RIGHT TO COUNSEL

(1) It means reasonably effective legal
assistance [Gideon v. Wainright (1963)];
(2) It is absolute and may be invoked at all
times, even on appeal [Telan v. CA (1991)];
(3) Duty to appoint counsel de oficio is
mandatory only at the time of arraignment
[Sayson v. People (1988)];
(4) Violation of this right entitles the accused
to new trial [People v. Serzo (1997)]. The
right to counsel may be waived but to
insure that the waiver is voluntary and
intelligent, the waiver must be in writing
and in the presence of the counsel of the
accused [People v. Del Castillo (2004)]. It
must also not be contrary to law, public
order, public policy, morals or good
customs;
(5) Even a person under investigation for an
offense shall the right to have a
competent and independent counsel
preferably of his own choice. Included in
this right is the right to be informed of his
right to counsel [Section 12(1), Article III,
Constitution; Section 2(b) RA 7438].

The right to be present at trial is deemed

waived when:
(1) The accused is absent without just cause at
the trial of which he had notice; or
(2) The accused under custody escapes, until
custody over him is regained.

REQUIREMENTS OF WAIVER:
(1) Existence of the right;
(2) Knowledge of the existence thereof;
(3) Intention to relinquish which much be
shown clearly and convincingly; and
(4) Where the Constitution or law provides, it
must be with the assistance of counsel to
be valid.
Effects of waiver of right to appear by the
accused:
(1) Waiver of the right to present evidence and
cross-examine witnesses;
(2) Prosecution can present evidence if
accused fails to appear; and
(3) The court can decide without accuseds
evidence.

During arraignment, the court has the

affirmative duty to inform the accused of his
right to counsel and to provide him with one in
case he cannot afford it. The court must act on
its own volition, unless the right is waived by
329

the accused. During trial, it is the accused who

must assert his right to counsel.

The right is applicable to one who is compelled

to produce a document, and one who is
compelled to furnish a specimen of his
handwriting, for in both cases, the witness is
required to furnish evidence against himself
[People v. Nicandro (1986)].

C.4. RIGHT TO DEFEND IN PERSON

The accused may be allowed to defend himself
in person when it sufficiently appears to the
court that he can properly protect his rights
without the assistance of counsel [Section 1(c),
Rule 115].

An accused occupies a different tier of

protection from an ordinary witness. He is
entitled:
(1) To be exempt from being a witness against
himself; and
(2) To testify as witness in his own behalf.

D. RIGHT TO TESTIFY AS WITNESS IN

HIS BEHALF
This is subject to cross-examination on any
matter covered by his direct examination
[Section 1(d), Rule 115].

But if he offers himself as a witness he may be

cross-examined as any other witness; however,
his neglect or refusal to be a witness shall not
in any manner prejudice or be used against
him [People v. Judge Ayson (1989)].

General rule: Silence will not, in any manner,

prejudice him.
Exception: Unfavorable inference is drawn
when:
(1) The
prosecution
has
already
established a prima facie case, the
accused must present proof to overturn
the evidence
(2) The defense of the accused is an alibi
and he does not testify, the inference is
that the alibi is not believeable.

E.
RIGHT
AGAINST
INCRIMINATION

Thus, the right may be waived by the failure to

timely assert the right, that is, by answering an
incriminating question [Beltran v. Samson
(1929)] when the accused testifies in his own
behalf and is cross-examined on matters
covered by the direct examination [Sec. 1(f),
Rule 115]. The questions on cross examination
should be on matters related to his direct
examination [People v. Judge Ayson (1989)].

SELF-

F. RIGHT TO CONFRONTATION
This applies to any witness against the accused
at the trial.

The right against self-incrimination has no

application to juridical persons [BASECO v.
PCGG (1987)].

Where the adverse party is deprived of the

right to cross-examine the persons who
executed the affidavits, said affidavits are
generally rejected for being hearsay [Estrella v.
Robles (2007)].

The constitutional guaranty, that no person

shall be compelled in any criminal case to be a
witness against himself, is limited to a
prohibition against compulsory testimonial
self-incrimination. The corollary to the
proposition is that, an ocular inspection of the
body of the accused is permissible [Villafor vs.
Summers (1920)].

However, either party may utilize as part of its

evidence the testimony of a witness who is
deceased, out of or cannot with due diligence
be found in the Philippines, unavailable or
otherwise unable to testify, given in another
330

case or proceeding, judicial or administrative,

provided they involve the same parties and
subject matter and the adverse party had the
opportunity to cross-examine him [Sec. 1(f),
Rule 115].

When the accused is denied of this right, he

may pursue the following remedies:
(1) Motion to dismiss [Corpuz v.
Sandiganbayan (2004)];
(2) Mandamus [Lumanlao v. Peralta
(2006)].

This right is waived by non-appearance.

[Carredo v. People (1990)].

The accused is not entitled to a dismissal

where delay was caused by proceedings or
motions instituted by him. A dismissal based
on a violation of the right to speedy trial is
equivalent to an acquittal and double jeopardy
may attach even if the dismissal is with the
consent of the accused [Condrada v. People
(2003)].

The right does not apply in a preliminary

investigation. They parties may, however,
submit to the investigating officers questions
which may be asked to the party or witness
concerned [Section 3(e), Rule 112].
Identification by a witness of the accused is
inadmissible if the accused had no opportunity
to confront witness [People v. Lavarias (1968)].

G.
RIGHT
PROCESS

TO

I. RIGHT TO APPEAL
In all criminal prosecutions, the accused shall
have the right to appeal in the manner
prescribed by law [Hilario v. People (2008)].

COMPULSORY

An appeal in criminal case opens the entire

case for review and the appellate court may
correct even unassigned errors [People v.
Tambis (2008)].

This right may be invoked by the accused to

secure the attendance of witnesses and the
production of evidence in his behalf.
If a subpoena is issued and the witness failed
to appear, the court should order the arrest of
the witness if necessary [People v. Montejo
(1967)].

The right to appeal is a statutory right and the

requirements must be complied with;
otherwise, the right is lost [People v. Sabellano
(1991)].

H. RIGHT TO SPEEDY, IMPARTIAL

AND PUBLIC TRIAL

If the accused escapes from confinement,

appeal is not allowed unless he voluntarily
surrenders within period for appeal [People v.
Omar (1991)].

In determining whether or not the right to

speedy disposition of cases has been violated,
this Court has laid down the following
guidelines [Tan v. People (2009); Olbes v.
Buemio (2009)]:
(1) Length of the delay;
(2) Reasons for such delay;
(3) Assertion or failure to assert such right by
the accused; and
(4) Prejudice caused by the delay.

The right to appeal is lost by the unjustified

failure to appear at the promulgation of
judgment of conviction [Villena v. People (2011)].

J. RIGHTS OF PERSONS UNDER

CUSTODIAL INVESTIGATIONS
Custodial
Investigation
involves
any
questioning initiated by law enforcement
331

officers after a person has been taken into

custody or otherwise deprived of his freedom of
action in any significant way [Aquino v. Paiste
(2008)].

(2) It must be signed in the presence of his

counsel or, in the latters absence, upon a
valid waiver.
In the event of a valid waiver, it must be signed
in the presence of any of the parents, elder
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.

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.

If he cannot afford to have his own counsel, he

must be provided with a competent and
independent counsel by the investigating
officer.

A persons under custodial investigation has

the following rights:
(1) To be assisted by counsel at all times;
(2) To remain silent;
(3) To be informed, in a language known to
and understood by him, of his rights to
remain silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under custodial investigation;
(4) To be allowed visits by and conferences
with specified persons.

The modifier competent and independent in the

1987 Constitution is not an empty rhetoric. It
stresses the need to accord the accused, under
the uniquely stressful conditions of a custodial
investigation, an informed judgment on the
choices explained to him by a diligent and
capable lawyer [Lumanog v. People (2010)].
The assisting counsel may be any lawyer,
except those:
(1) Directly affected by the case;
(2) Charged with conducting preliminary
investigation;
(3) Charged with the prosecution of crimes.
[Sec. 3, RA 7438].

J.1. RIGHT TO BE ASSISTED BY COUNSEL

AT ALL TIMES
Waiver of the right to counsel must be made
with the assistance of counsel [Sec. 1(1), Article
III, Constitution].

J.2. RIGHT TO BE ALLOWED VISITS

This applies specifically in the following

instances:
(1) Signing of the written custodial report;
(2) Signing of the written extra-judicial
confession.
(3) Signing of the waiver to the provisions of
Art. 125, RPC.

A person under custodial investigation has a

right to be allowed visits by and conferences
with:
(1) Any member of his immediate family,
which includes his or her spouse, fianc or
fiance, parent or child, brother or sister,
grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward;
(2) Any medical doctor; or
(3) Priest or religious minister, chosen by him
or by any member of his immediate family
or by his counsel, or by any national NGO

For a valid extrajudicial confession made by a

person arrested, detained or under custodial
investigation, the following must concur:
(1) It shall be in writing and signed by such
person; and
332

duly accredited by the Commission on

Human Rights or by any international NGO
duly accredited by the Office of the
President.

It is the stage where the issues are joined and

without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja
v. Mendoza (1977)].

J.3. CONSEQUENCES OF VIOLATION OF

CUSTODIAL RIGHTS

PLEA
Pertains to the matter which the accused, on
his arraignment, alleges in answer to the
charge against him.

J.3.A. FAILURE TO INFORM

The arresting public officer or employee, or any
investigating officer, shall suffer a fine of
P6,000 or a penalty of imprisonment of not
less than 8 years but not more than 10 years, or
both.

A.1. DUTY OF THE COURT BEFORE

ARRAIGNMENT
The court shall:
(1) Inform the accused of his right to counsel;
(2) Ask him if he desires to have one; and
(3) Must assign a counsel de oficio to defend
him, unless the accused:
(a) Is allowed to defend himself in person;
or
(b) Has employed a counsel of his choice
[Section 6, Rule 116].

The investigating officer who has been

previously convicted of a similar offense shall
suffer the penalty of perpetual absolute
disqualification [Sec. 4, 1st par., R.A. 7438].

J.3.B. OBSTRUCTION, PREVENTION OR

PROHIBITION OF RIGHT TO VISITS AND
CONFERENCES

Before arraignment and plea, the accused may

avail of any of the following:
(1) Bill of particulars to enable him to properly
plead and prepare for trial;
(2) Suspension of arraignment; upon motion,
he may ask for suspension of arraignment
to pursue a petition for review before the
DOJ Secretary under Sec. 11, Rule 116, for a
period of suspension shall not exceed 60
days from filing of petition with the
reviewing office;
(3) Motion to quash the complaint or
information on any of the grounds under
Section 3, Rule 117 in relation to Sec. 1, Rule
117;
(4) Challenge the validity of the arrest or
legality of the warrant or assail the
regularity or question the absence of
preliminary investigation of the charge.

Any person guilty thereof shall suffer the

penalty of imprisonment of not less than 4
years nor more than 6 years and a fine of
P4,000.00 [Sec. 4, 2nd par., R.A. 7438].

VIII. ARRAIGNMENT
AND PLEA
A. ARRAIGNMENT AND PLEA; HOW
MADE
This is the stage where the accused is formally
informed of the charge against him by reading
before him the information/complaint and
asking him whether he pleads guilty or not
guilty [Section 1(a), Rule 116].

If the accused does not question the legality of

the arrest or search, this objection is deemed
waived.
333

(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 the accused whether he pleads
guilty or not guilty.
(6) Both arraignment and plea shall be made
on record but failure to enter of record
shall not affect the validity of the
proceedings.

A.2. PROCEDURE OF ARRAIGNMENT

The Court shall issue an order directing

the public prosecutor to submit the
record of the PI to the branch COC for
the latter to attach the same to the
record of the case.

The court shall inform the accused of

his right to counsel and ask him if he
desires to have one. Unless the accused
is allowed to defend himself in person
or has employed counsel of his choice,
the court must assign a counsel de
oficio to defend him.

(1) If the accused plead not guilty,

either:
(a) He raises an affirmative defense,
that is, he admits the charge
but raises exempting or
justifying circumstances, in
which case the order of trial is
reversed;
(b) He raises a negative defense,
that is, he denies the charge, in
which case regular trial
proceeds;
(2) If the accused pleads guilty:
(a) For a non-capital offense, the
court will promulgate a
judgment of conviction;
(b) For a capital offense, the
prosecution is still required to
prove guilt beyond reasonable
doubt;
(3) If the accused does not enter any
plea, a plea of not guilty is entered
by the court.

A.2.B. WHEN HELD

General rule: The accused should be arraigned
within 30 days from the date the court acquires
jurisdiction over his person.
Exceptions: When the law provides for another
period, arraignment should be held within said
period, as in the following cases:
(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 [RA 4908].
Presence of the offended party:
The private offended party shall be required to
appear in the arraignment for the purpose of:
(1) Plea bargaining;
(2) Determination of civil liability; and
(3) Other matters requiring his presence

The time of the pendency of a motion to quash

or for a bill of particulars or other causes
justifying suspension of the arraignment shall
be excluded in computing the period [Sec. 1(g),
Rule 116].

A.2.A. HOW MADE

In case of failure of the offended party to

appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the

(1) In open court where the complaint or

information has been filed or assigned for
trial;

334

offense charged with the conformity of the trial

prosecutor alone [Sec. 1(f), Rule 116; AM No. 031-09-SC Part B(2)].

(4) When the plea is indefinite or ambiguous;

(5) When he pleads guilty but presents
exculpatory evidence [Section 1(d), Rule 116].

In case of failure of accused to appear despite

due notice, there is no arraignment in absentia
[Nolasco v. Enrile (1985)]. The presence of the
accused is not only a personal right but also a
public duty, irrespective of the gravity of the
offense and the rank of the court.

Plea of guilty is mitigating if it is made before

prosecution starts to present evidence.
Except:
(1) Where the plea of guilty 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

There can be no trial in absentia without first

arraigning the accused; otherwise, the
judgment is null and void.

A.2.C. SPECIFIC RULES

(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 the 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.

C. WHEN ACCUSED MAY ENTER A

PLEA OF GUILTY TO A LESSER
OFFENSE
Requisites:
(1) The lesser offense is necessarily included in
the offense charged;
(2) The plea must be consistent with the
consent of both the offended party and the
prosecutor, except when the offended party
fails to appear despite due notice;
(3) The penalty for the lesser offense is not
more than two degrees lower than the
imposable penalty for the crime charged.

If an information is amended in substance

which changes the nature of the offense (not
merely as to form), arraignment on the
amended information is mandatory [Teehankee
v. Madayag (1992)].

C.1. DURING ARRAIGNMENT

At arraignment, the accused, with the consent
of the offended party and prosecutor, may be
allowed by the trial court to plead guilty to a
lesser offense which is necessarily included in
the offense charged.

B. WHEN A PLEA OF NOT GUILTY

SHOULD BE ENTERED

C.2. AFTER ARRAIGNMENT BUT BEFORE

TRIAL

(1) When the accused so pleaded;

(2) When he refuses to plead;
(3) When he makes a conditional or qualified
plea of guilt [Section 1(c), Rule 116];

After arraignment but before trial, the accused

may still be allowed to plead guilty to said

335

lesser offense after withdrawing his plea of not

guilty. No amendment of the complaint or
information is necessary [Section 2, Rule 116].

The judge must ask whether the accused was

assisted by counsel during custodial
investigation and PI; ask questions on age,
educational attainment and socio-economic
status; and ask the defense counsel whether or
not he conferred with the accused [People v.
Nadera (2000)].

C.3. AFTER TRIAL HAS BEGUN

After the prosecution has rested its case, a
change of plea to a lesser offense may be
granted by the judge, with the approval of the
prosecutor and the offended party if the
prosecution does not have sufficient evidence
to establish the guilt of the accused for the
crime charged. The judge cannot on its own
grant the change of plea.

Ratio: This is to enjoin courts to proceed with

more care where the possible punishment is in
its severest form and to avoid improvident
pleas of guilt [People v. Samontanez (2000)].

Guidelines for conducting a search inquiry:

(1) Ascertain from the accused himself:
(a) How he was brought into the custody
of the law;
(b) Whether he had the assistance of a
competent
counsel
during
the
custodial
and
preliminary
investigations; and
(c) Under what conditions he was
detained and interrogated during the
investigations. This is intended to rule
out the possibility that the accused has
been coerced or placed under a state
of duress either by actual threats of
physical harm coming from malevolent
quarters or simply because of the
judge's intimidating robes.
(2) Ask the defense counsel a series of
questions as to whether he had conferred
with, and completely explained to, the
accused the meaning and consequences of
a plea of guilty.
(3) Elicit information about the personality
profile of the accused, such as his age,
socio-economic status, and educational
background, which may serve as a
trustworthy index of his capacity to give a
free and informed plea of guilty.
(4) Inform the accused the exact length of
imprisonment or nature of the penalty
under the law and the certainty that he will

D. ACCUSED PLEADS GUILTY TO

CAPITAL OFFENSE; DUTY OF THE
COURT
Conditions that the trial court must observe to
obviate an improvident plea of guilty by the
accused:
(1) Conduct a searching inquiry into the
voluntariness and full comprehension of
the consequences of the pleas;
(2) Require prosecution to present evidence to
prove the guilt and precise degree of
culpability of the accused;
(3) Ask the accused if he desires to present
evidence in behalf and allow him to do so if
he desires [Section 3, Rule 116].
Note: A plea of guilty to a capital offense does
not result to an immediate rendering of
judgment.

E. SEARCHING INQUIRY
The procedure in Section 3, Rule 116, when the
accused pleads guilty to a capital offense, is
mandatory.
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.

336

serve such sentence. For not infrequently,

an accused pleads guilty in the hope of a
lenient treatment or upon bad advice or
because of promises of the authorities or
parties of a lighter penalty should he admit
guilt or express remorse. It is the duty of
the judge to ensure that the accused does
not labor under these mistaken
impressions because a plea of guilty
carries with it not only the admission of
authorship of the crime proper but also of
the aggravating circumstances attending it,
that increase punishment.
(5) Inquire if the accused knows the crime with
which he is charged and fully explain to
him the elements of the crime which is the
basis of his indictment. Failure of the court
to do so would constitute a violation of his
fundamental right to be informed of the
precise nature of the accusation against
him and a denial of his right to due process.
(6) All questions posed to the accused should
be in a language known and understood by
the latter.
(7) The trial judge must satisfy himself that
the accused, in pleading guilty, is truly
guilty. The accused must be required to
narrate the tragedy or reenact the crime or
furnish its missing details [People v. Pastor
(2002)].

should be remanded to the lower court for

further proceedings.
Exception: If the accused appears guilty
beyond reasonable doubt from the evidence
adduced by the prosecution and defense.

F.1. WHEN IMPROVIDENT PLEA MAY BE

WITHDRAWN
At any time before judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty.
The withdrawal of a plea of guilty is not a
matter of right of the accused but of sound
discretion of the trial court [People v. Lambino
(1958)].
The reason for this is that trial has already
begun and the withdrawal of the plea will
change the theory of the case and put all past
proceedings to waste.
Moreover, at this point, there is a presumption
that the plea was made voluntarily

G. GROUNDS FOR SUSPENSION OF

ARRAIGNMENT
G.1. UNSOUND MENTAL CONDITION OF
THE ACCUSED AT THE TIME OF THE
ARRAIGNMENT

F. IMPROVIDENT PLEA OF GUILTY TO

A CAPITAL OFFENSE

When the accused can neither comprehend the

full import of the charge nor can he give an
intelligent plea, the court shall order his
mental examination and, if necessary, his
confinement.

An improvident plea is one without proper

information as to all the circumstances
affecting it; based upon a mistaken
assumption or misleading information/advice
(Blacks Law Dictionary).

The need for suspension may be determined

from physical and outward manifestations at
the time of arraignment indicative of a mental
disorder which the court had observed and

General rule: An improvident plea should not

be accepted. If accepted, it should not be held
to be sufficient to sustain a conviction [People
v. De Ocampo Gonzaga (1984)]. The case

337

defense counsel had called attention to [People

v. Alcalde (2002)].

60 days from the filing of the petition (DOJ Circ.

No. 70).

In People v. Dungo (1991), there are three major

criteria to determine insanity:
(1) Delusion test, where insanity is manifested
by a false belief for which there is no
reasonable basis and which would be
incredible under the given circumstances;
(2) Irresistible impulse test, where the accused
has lost the power to choose between right
and wrong, to avoid the act in question, his
free agency being at that time destroyed.
(3) Right and wrong test, where a perverted
condition of mental and mortal faculties
afflicts the accused as to render him
incapable of distinguishing between right
and wrong.

Rationale: This is to observe judicial courtesy

and avoid legal complications in case the
resolution would be different from the offense
for which the accused was arraigned,
especially if it would upgrade the offense.
If petition for review is not resolved within 60
days, court may insist on the arraignment.
With the arraignment of the accused, the DOJ
Secretary can no longer entertain the appeal or
petition for review because petitioner had
already waived or abandoned the same.
[Gandarosa v. Flores (2007)].

G.4 OTHER PENDING INCIDENTS

In People v. Pascual (1993), there are two tests
to determine insanity:
(1) Test of cognition, which requires complete
deprivation of intelligence in committing
the criminal act. It is the test adopted in
this jurisdiction.
(2) Test of volition, which requires a total
deprivation of free will.

G.2. EXISTENCE
QUESTION

OF

Such as:
(1) Motion to quash
(2) Motion for inhibition; and
(3) Motion for Bill of particulars

IX. MOTION TO QUASH

Form and content
The motion must:
(1) Be in writing;
(2) Be signed by the accused/his counsel; and
(3) Distinctly specify the factual and legal
grounds [Section 2, Rule 117].

PREJUDICIAL

Rationale: A prejudicial question would be

determinative of guilt or innocence.
It may be raised during PI. If the information is
filed in court, it may be raised as ground to
suspend the arraignment.

G.3. PENDENCY OF PETITION

REVIEW

A. WHEN FILED
General Rule: At any time before entering his
plea, the accused may move to quash the
complaint or information [Section 1, Rule 117].

FOR

Exception: When the grounds relied upon the

motion are:
(1) Failure to charge an offense
(2) Lack of jurisdiction over the offense
charged
(3) Extinction of the offense or penalty

When the accused filed a petition for review of

the resolution of the prosecutor with the DOJ
or the Office of the President, the accused may
file a motion to suspend the arraignment and
secure a ruling on his petition for review within

338

(4) Double jeopardy

Facts charged do not constitute an offense

In cases covered by the Rules on Summary

Procedure, MTQ is allowed only if made on the
grounds of lack of jurisdiction or failure to
comply with barangay conciliation proceedings
[Section 19, Rules on Summary Procedure].

An information which does not charge an

offense or does not allege essential elements
of a crime is void.
The test is whether or not the facts alleged, if
hypothetically admitted, would establish the
essential elements of the offense, as defined
by law without considering matters aliunde
[People v. Romualdez (2008)].

B. GROUNDS
In general
The following grounds for MTQ are exclusive:
(1) Facts charged do not constitute an offense;
(2) Court trying the case has no jurisdiction
over the offense charged;
(3) Court trying the case has no jurisdiction
over the person of the accused;
(4) Officer who filed the information had no
authority to do so;
(5) The information does not conform
substantially to the prescribed form;
(6) More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
(7) Criminal action or liability has been
extinguished;
(8) Averments which, if true, would constitute
a legal excuse or justification;
(9) 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 (Section 3, Rule 117).

That the missing element may be proved

during the trial or that the prosecution has
presented evidence to establish the same
cannot have the effect of validating the void
information or of proving an offense which
does not exist [People v. Asuncion (1988)].
The defect is not cured by a failure to move to
quash or by a plea of guilty [Suy Sui v. People
(1953)].
Instead of dismissing, however, the court
should give the prosecution an opportunity to
amend the information.
Should the prosecutor fail to make the
amendment or should the information suffer
from the same defect despite amendment, the
MTQ shall be granted (Section 4, Rule 117).
Court has no jurisdiction over the offense
charged
This refers to jurisdiction over the subject
matter, which is the power to adjudge
concerning the general question involved.

Note: Although the rule is that grounds not

asserted in the motion to quash are waived,
the following objections are not subject to
waiver:
(1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction
over the offense charged
(3) Criminal action or liability has been
extinguished
(4) Double jeopardy

In a criminal prosecution, the place where the

offense was committed not only determines
venue, but is an essential element of
jurisdiction [Rule 110, Sec. 15; Lopez v. City
Judge (1966)].

339

In private crimes, the complaint of the

offended party is necessary to confer authority
to the court.

Complaint or information does not conform

substantially to the prescribed form

Court has no jurisdiction over the person of the

accused

The formal and substantial requirements are

provided for in Sections 6 to 12, Rule 110.

When the accused files a MTQ based on this

ground, he must do so only on this ground. If
he raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou (1993)].

General rule: Lack of substantial compliance

renders the accusatory pleading nugatory.

When the objection is raised, the court should

resolve it before conducting trial to avoid
unnecessary expenditure of time and money
[Mead v. Argel (1982)].

Objections not raised are deemed waived, and

the accused cannot seek affirmative relief on
such ground nor raise it for the first time on
appeal [People v. Garcia (1997)].

Officer who filed the information had no

authority to do so

Vague or broad allegations are generally not

grounds for a MTQ. The correct remedy is to
file for a bill of particulars (Section 9, Rule 116).

Exception: Mere defects in matter of form may

be cured by amendment.

Authority to file and prosecute criminal cases is

vested in:
(1) Provincial fiscals and their assistants.
(2) City fiscals and their assistants.
(3) Chief State Prosecutor and his deputies
(4) Other officers authorized by law (e.g.,
Ombudsman, COMELEC).

More than one offense is charged

General rule: The complaint or information
must charge only one offense (Section 13, Rule
110).
Exceptions:
(1) Those cases in which existing laws
prescribe a single punishment for various
offenses;
(2) Complex and compound crimes, except
where one offense was committed to
conceal another;
(3) An offense incidental to the gravamen of
the offense charged;
(4) A specific crime set forth in various counts,
each of which may constitute a distinct
offense.

The prosecutor who signed the information

must have territorial jurisdiction to conduct
preliminary investigation of the offense [Cudia
v. CA (1998)].
An information filed in the Sandiganbayan
must be signed by a graft investigating officer
with prior approval of the Ombudsman.
For election offenses, it must be signed by the
duly deputized prosecutors and legal officers
of the COMELEC.

However, this ground is waivable. The accused

may be convicted of all the offenses alleged
and proved if he goes to trial without objecting
to the inclusion of two or more separate

Lack of authority of the officer is not cured by

silence, acquiescence, express consent or even
by amendment.
340

offenses in the same information [People v.

Villamor (1998)].
Criminal action
extinguished

or

liability

has

Does not require a

prior leave of court

May be filed either

with
leave
or
without leave of
court

Grant does not

necessarily follow a
dismissal
(Court
may order the filing
of a new complaint
or information)

Grant is deemed an
acquittal and would
preclude the filing
of
another
information
or
appeal
by
the
prosecution

If the court, in
denying the motion
to quash acts with
grave abuse of
discretion,
then
certiorari
or
prohibition lies

The order denying

the motion for leave
to file a demurrer
shall
not
be
reviewable
by
appeal
or
by
certiorari
before
judgment
If the court denies
the demurrer to
evidence filed with
leave of court, the
accused
may
adduce evidence in
his defense. When
the demurrer is filed
without leave, the
accused waives the
right to present
evidence
and
submits the case for
judgment [Section
23, Rule 119]

been

When criminal liability is extinguished:

(1) Death of the accused, but liability for
pecuniary penalties is extinguished only if
death occurs before final judgment;
(2) Service of sentence, which must be by
virtue of a final judgment and in the form
prescribed by law;
(3) Amnesty;
(4) Absolute pardon;
(5) Prescription of the crime;
(6) Prescription of the penalty;
(7) Pardon in private offenses.
Protection from prosecution under a statute of
limitation is a substantive right. (People v.
Sandiganbayan (1992))
That it contains averments if true would
constitute a legal excuse or justification
Examples:
(1) Justifying circumstances
(2) Exempting circumstsnces
(3) Absolutory causes
Motion to quash and demurrer distinguished
Motion to quash
Demurrer to evidence
Filed
before
entering plea

Filed
after
prosecution
rested its case

the
has

Does not go into the

merits of the case

Based upon the

inadequacy of the
evidence adduced
by the prosecution

Grounds are stated

in Rule 117

Ground
is
insufficiency
of
evidence to convict

Effects of sustaining the motion to quash

Filing another complaint/information
General rule: Court may order that another
complaint or information be filed (Section 5,
Rule 117).
Exception: The court may not do so if MTQ was
based on the following:
341

(1) Criminal action or liability has been

extinguished;
(2) Double jeopardy.

dismissal is made prior to arraignment and on

MTQ [People v. Purisima (1978)].
Order denying MTQ

Discharge of the accused

General rule: If in custody, the accused shall
not be discharged unless admitted to bail
[Section 5, Rule 117]. The order granting the
MTQ must state either release of the accused
or cancellation of his bond.
Exception: When there is no order to file
another complaint/information or, if there is
one, when no new information is filed within
the time specified in the order or within such
further time as the court may allow for good
cause, the accused shall be discharged.
Exception to the exception: The accused will
not be discharged if he is in custody for
another charge.

Order granting MTQ

Interlocutory

Final Order

Not
appealable
absent a showing of
GAD. If there is
GAD,
then
file
petition for certiorari

Immediately
appealable
but
subject to rules on
double jeopardy

Does not dispose of

the case upon its
merits

Disposes of the case

upon its merits

Proper
remedy:
appeal after the trial

Proper
remedy:
appeal the order

Consequence:
Arraignment

Consequence:
Amend information
if possible

Note: The remedy for an order denying a MTQ

is to go to trial, without prejudice to reiterating
the special defenses invoked in their MTQ
[Serana v. Sandiganbayan (2008)]. However, if
the court in denying the motion to quash acts
without or in excess of jurisdiction or with
grave abuse of discretion, then certiorari or
prohibition lies [Lazarte v. Sandiganbayan
(2009); Javier v. Sandiganbayan (2009)].

Remedies of the prosecution

General rule: The prosecution may amend the
information to correct the defects if the TC
makes the order, and thereafter prosecute on
the basis of the amended information [Section
4, Rule 117].

Exception to the rule that sustaining the motion

is not a bar to another prosecution

Exception: Prosecution is precluded where the

ground for quashal would bar another
prosecution for the same offense.

General rule: Grant of the MTQ will not be a

bar to another prosecution for the same
offense (Section 6, Rule 117).

The prosecution may appeal from the order of

quashal to the appellate court.

Exception: It will bar another prosecution when

the ground for the quashal is either:
(1) The criminal action or liability has been
extinguished; or
(2) The accused has been previously convicted,
or in jeopardy of being convicted, or
acquitted of the offense charged.

If the information was quashed because it did

not allege the elements of the offense, but the
facts so alleged constitute another offense
under a specific statute, the prosecution may
file a complaint for such specific offense where
342

act or omission constituting the former

charge;
(2) The facts constituting the graver charge
became known or were discovered only
after a plea was entered in the former
complaint or information;
(3) The plea of guilty to the lesser offense was
made without the consent of the
prosecutor and of the offended party
except when offended party failed to
appear during such arraignment.

Double jeopardy
The right against double jeopardy prohibits the
prosecution for a crime of which he has been
previously convicted or acquitted [Caes v. IAC
(1989)].
Rule of double jeopardy
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
express consent of the accused, the latter
cannot again be charged with the same or
identical offense (Section 3(i), Rule 117).

Same act
An offense penalized by ordinance is, by
definition, different from an offense penalized
under a statute. Hence, they would never
constitute double jeopardy.
However, the second sentence of the
constitutional protection was precisely
intended to extend to situations not covered by
the first sentence. Although the prior offense
charged under an ordinance be different from
the offense charged under a national statute,
the constitutional protection is available
provided that both arise from the same act or
set of acts [People v. Relova (1987)].

Kinds of double jeopardy

No person shall be put twice in jeopardy for the
same offense;
When an act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution for the
same act (Section 21, Article III, Constitution).
Same offense
The offenses are penalized either by different
sections of the same law or by different
statutes. The essential elements of each must
be examined.
The test is whether or not evidence that proves
one likewise proves the other [People v. Ramos
(1961)].
It is not necessary to have absolute identity
[People v. Relova (1987)].

Requisites to successfully invoke double

jeopardy
(1) A first jeopardy must have attached;
(2) The first jeopardy must have been validly
terminated; and
(3) The second jeopardy must be for the same
offense or the second offense necessarily
includes or is necessarily included in the
offense charged in the first information, or
is an attempt to commit the same or a
frustration thereof [People v. Espinosa
(2003)].

General rule: There is identity between the two

offenses not only when the second offense is
exactly the same as the first, but also when the
second offense is an attempt to or frustration
of or is necessarily included in the offense
charged in the first information.

Requisites for first jeopardy to attach

(1) The accused has been convicted/acquitted,
or
the
case
against
him
was
dismissed/terminated without his express
consent;

Exceptions:
(1) The graver offense developed due to
supervening facts arising from the same
343

(2) The conviction, acquittal or dismissal was

made by the court with competent
jurisdiction;
(3) There is a valid complaint or information or
other formal charge is sufficient in form
and substance to sustain conviction;
(4) The accused pleaded to the charge (Riano
(2011), citing several cases; People v.
Honrales (2010)).

Section 8 does not state the grounds for

provisional dismissal. However, according to
the case of Los Baos v. Pedro (2007), the
delimitation of the grounds available in MTQ
suggests that where the grounds cited are
those listed under Section 3, then the
appropriate remedy is to file a motion to quash,
and not any other remedy.
Conversely, where a ground does not appear
under Section 3, then a motion to quash is not
a proper remedy. A motion for provisional
dismissal may then apply if the conditions
required by Section 8 obtain.
When dismissal becomes permanent (time bar
rule)
One year after issuance of the order without
the case having been revived for offenses
punishable:
(1) By imprisonment not exceeding 6 years;
(2) By fine of any amount;
(3) By both (Section 8, Rule 117);
(4) Two years after issuance of the order
without the case having been revived for
offenses punishable by imprisonment of
more than 6 years.

When dismissal constitutes acquittal

Dismissal constitutes acquittal when it is
granted:
(1) Upon demurrer to evidence;
(2) Due to violation of right to speedy trial
(even if dismissal was upon motion of the
accused or with his express consent).

Always based on the

merits. Defendants
guilt was not proven

Double
jeopardy
always attaches

Grounds

Even with the consent of the accused, however,

dismissal has the effect of acquittal when
predicated on:
(1) Insufficiency of the prosecutions evidence
or
(2) Denial of the right to a speedy trial
[Alamario v. CA (2001)].

Does not decide the

case on the merits.
Does not determine

Double jeopardy will

not always attach

Provisional dismissal is dismissal without

prejudice to its being refiled or revived.
Cases are provisionally dismissed where there
has already been arraignment and the accused
consented to a provisional dismissal.

Without express consent

This refers only to dismissal or termination of
the case. It does not refer to the conviction or
acquittal [People v. Labatete (1960)].
If consent is not express, dismissal will be
regarded as final (i.e., with prejudice to
refilling) [Caes v. IAC (1989)].

Acquittal

beyond reasonable
doubt

Provisional dismissal

However, a dictated, coerced and scripted

verdict of acquittal is a void judgment. It
neither binds nor bars anyone [Galman v.
Sandiganbayan (1986)].

Dismissal

innocence or guilt

344

X. PRE-TRIAL

The State may revive beyond the periods

provided there is a justifiable necessity for the
delay.
The Court is not mandated to apply Section 8
retroactively simply because it is favorable to
the accused. The time-bar under the new rule
was fixed for the benefit of the State and the
accused, and not for the accused only [People v.
Lacson (2003)].

Application of judicial affidavit rule

Under Section 9, AM 12-8-8-SC:
(1) This Judicial Affidavit Rule shall apply to
all criminal actions:
(a) Where the maximum of the imposable
penalty does not exceed six years;
(b) Where the accused agrees to the use of
judicial affidavits, irrespective of the
penalty involved; or
(c) With respect to the civil aspect of the
actions, whatever the penalties
involved are.
(2) The prosecution shall submit the judicial
affidavits of its witnesses not later than five
days before the pre-trial, serving copies if
the same upon the accused. The
complainant or public prosecutor shall
attach to the affidavits such documentary
or object evidence as he may have,
marking them as Exhibits A, B, C, and so
on. No further judicial affidavit,
documentary, or object evidence shall be
admitted at the trial.
(3) If the accused desires to be heard on his
defense after receipt of the judicial
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit as
well as those of his witnesses to the court
within ten days from receipt of such
affidavits and serve a copy of each on the
public and private prosecutor, including his
documentary
and
object
evidence
previously marked as Exhibits 1, 2, 3, and
so on. These affidavits shall serve as direct
testimonies of the accused and his
witnesses when they appear before the
court to testify.

The following are conditions sine qua non for

the application of the time-bar rule:
(1) The prosecution with the express
conformity of the accused or the accused
moves for the provisional (sin perjucio)
dismissal of the case; or both the
prosecution and the accused move for a
provisional dismissal of the case (Section 8,
Rule 117);
(2) The offended party is notified of the motion
for the provisional dismissal of the case
(3) The court issues an order granting the
motion and dismissing the case
provisionally;
(4) The public prosecutor is served with a copy
of the order of provisional dismissal of the
case (People v. Lacson (2003)).
A case may be revived by:
(1) Refiling of the information;
(2) Filing of a new information for the same
offense or one necessarily included in the
original offense charged.
General rule: Upon revival of the case, there is
no need for a new PI.
Exceptions:
(1) If the original witnesses have recanted
their testimonials or have died;
(2) If the accused is charged under a new
criminal complaint for the same offense;
(3) If the original charge is upgraded;
(4) If the criminal liability is upgraded from
accessory to principal.
345

Matters to be considered during pre-trial

Pre-trial is mandatory in all criminal cases. Its
main objective is to achieve an expeditious
resolution of the case.

death, nothing short of proof beyond

reasonable doubt of every fact necessary to
constitute the elements of the crime must be
established. Circumstances that qualify a
crime and increases its penalty to death cannot
be the subject of stipulation [People v. Sitao
(2002)].

Coverage
The court shall order pre-trial in all criminal
cases cognizable by the Sandiganbayan, RTC
and MTC or MTCC or MCTC or MeTC.

Marking for identification of evidence

Proffer of exhibits is not allowed. It ought to be
done at the time a party closes the
presentation of evidence.

Period
General rule: The court shall order a pre-trial
conference after arraignment and within 30
days from the time the court acquires
jurisdiction over the person of the accused.

What the court should do when prosecution and

offended party agree to the plea offered by the
accused

Exception: A shorter period may be provided by

special laws or SC circulars.

Plea bargaining
It is the process in criminal procedure whereby
the accused, offended party, and the
prosecution work out a mutually satisfactory
disposition of the case subject to court
approval (See DOJ Circ. No. 35, as amended by
Circ. No. 55 for the guidelines on plea
bargaining as well as note on Rule 116).
It usually involves the defendant pleading
guilty to a lesser offense or to one or some of
the counts of a multi-count indictment in
return for a lighter sentence than that for the
graver charge [People v. Mamarion (2003)].
The conviction of the accused of the lesser
offense precludes the filing and prosecution of
the offense originally charged in the
information, except when the plea of guilty to a
lesser offense is without the consent of the
offended party and the prosecutor (People v. De
Luna (1989); Section 7(c), Rule 117; see Section 2,
Rule 116).

Things considered
(1) Plea bargaining;
(2) Stipulation of facts;
(3) Marking for identification of evidence;
(4) Waiver of objections to admissibility of
evidence;
(5) Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial);
(6) Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case (Section 1, Rule 118).
Role of the judge
During the pre-trial, the judge shall be the one
to ask questions on issues raised therein and
all questions must be directed to him to avoid
hostilities between the parties (AM 03-1-09SC).
Stipulation of facts
This is no longer prohibited in criminal cases
(People v. Hernandez (1996)).
However, in a case of rape with the allegation
that the victim is below 12 years of age which
qualifies said crime and increases its penalty to

Effect when the prosecution and the offended

party agree to the plea offered by the accused
The Court shall:
(1) Issue an order which contains the plea
bargaining arrived at;

346

(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
(AM 03-1-09-SC).

Ratio: This is to enforce the mandatory

requirement of pre-trial in criminal cases
(Section 1, Rule 118).
Note: The accused is not included because his
constitutional right to remain silent may be
violated. The accused is not required to attend
(unless ordered by the court) and is merely
required to sign the written agreement arrived
at in the pre-trial conference, if he agrees to
the contents of such. The complainant is also
not required to appear during pre-trial. It is the
prosecutor who is required to appear at the
pre-trial.

Pre-trial agreement
Form
(1) Must be in writing;
(2) Signed by the accused;
(3) Signed by his counsel,
If this is not followed, the admissions cannot
be used against the accused (i.e., inadmissible
in evidence). The constitutional right to present
evidence is waived expressly.

Pre-trial order
Issuance
The pre-trial order is:
(1) Issued by the court;
(2) Within 10 days after the pre-trial (AM 03-109-SC).

General rule: Court approval is required.

Exception: Agreements not covering matters
referred to in Section 1, Rule 118, need not be
so approved (AM 03-1-09-SC).

Judgment of acquittal based on pre-trial

despite disputed documents and issues of fact
amounts to grave error and renders the
judgment void [People v. Santiago (1989)].

Effect
The stipulations become binding on the parties
who made them. They become judicial
admissions of the fact or facts stipulated.
Even if placed at a disadvantageous position, a
party may not be allowed to rescind them
unilaterally;
he
must
assume
the
consequences of the disadvantage (Bayas v.
Sandiganbayan (2002)).

Content
(1) Actions taken;
(2) Facts stipulated;
(3) Evidence marked;
(4) Admissions made;
(5) The number of witnesses to be presented;
and
(6) The schedule of trial [Section 4, Rule 118].

Non-appearance during pre-trial

The court may impose proper sanctions or
penalties (reprimand, fine or imprisonment), if
counsel for the accused or the prosecutor:
(1) Does not appear at the pre-trial
conference; and
(2) Does not offer an acceptable excuse
(Section 3, Rule 118).

Note: Nos. 4 to 6 are added by AM 03-1-09-SC

to the requirements under Section 4, Rule 118.
Effect
(1) Binds the parties. The procedure is
substantially the same in civil cases, except
that any modification of the pre-trial order
in civil cases must be made before the trial.
347

XI. TRIAL

No such limitation is provided for in

criminal cases;
(2) Limits the trial to those matters not
disposed of;
(3) Controls the course of the action during
trial, except if modified by the court to
prevent manifest injustice;

Instances when presence of accused is required

by law
General rule: The presence of the accused
during the trial may be waived.

Referral of some cases for court annexed

mediation and judicial dispute resolution
Under AM No. 03-1-09 (Proposed Rule on
Guidelines to be Observed by Trial Court Judges
and Clerks of Court in the Conduct or Pre-Trial
and use of Deposition-Discovery Measures),
after the arraignment, the court shall forthwith
set the pre-trial conference within 30 days
from the date of arraignment, and issue an
order:
(1) Requiring the private offended party to
appear thereat for purposes of pleabargaining except for violations of the
Comprehensive Dangerous Drugs Act of
2002, and for other matters requiring his
presence;
(2) Referring the case to the Branch COC, if
warranted, for a preliminary conference to
be set at least three days prior to the pretrial 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 PMC unit for purposes of
mediation if available.

Exception: The presence of the accused during

the trial is required by law for purposes of
identification.
Exception to the exception: The presence of the
accused is no longer required when he
unqualifiedly admits in open court after
arraignment that he is the person named as
defendant in the case on trial (Lavides v. CA
(2000)).
Note: The presence of the accused is also
required in the following cases:
(1) At arraignment; (Rule 116, Sec. 1(b))
(2) At the promulgation of judgment, unless
the conviction is for a light offense (Rule
120, Sec. 6).
Requisites before trial can be suspended on
account of absence of witness
(1) The witness must be either absent or
unavailable;
(2) The absent or unavailable witness must be
essential [Riano (2011)].
Absent means that his whereabouts are
unknown or cannot be determined by due
diligence.
Unavailable means that his whereabouts are
known but presence for trial cannot be
obtained by due diligence.
Essential means indispensable, necessary, or
important in the highest degree (Blacks Law
Dictionary).
The period of delay resulting from the absence
or unavailability of an essential witness shall
348

be excluded in computing the time within

which trial must commence (Section 3, Rule
119).

Remedy when accused is not brought to trial

within the prescribed period
Effect of delay
On motion of the accused, the information may
be dismissed on the ground of denial of his
right to speedy trial (Section 9, Rule 119).

Responsibility of the counsel

However, the court may, without prejudice to
any appropriate criminal and administrative
charges to be instituted by the proper party
against the erring counsel if and when
warranted, punish the counsel for the accused,
the public prosecution or public attorney who;
Knowingly allows the case to be set for trial
without disclosing the fact that a necessary
witness would be unavailable for trial; or
Otherwise willfully fails to proceed to trial
without justification consistent with the
provisions of the Speedy Trial Act.

Factors to consider:
(1) Duration of the delay;
(2) Reason therefor;
(3) Assertion of the right or failure to assert it;
and
(4) Prejudice caused by such delay [Mari and
People v. Hon. Gonzales (2011)].
Must be raised prior to trial; otherwise, the
right to dismiss is considered waived under
Section 9, Rule 119.

Conditional examination
When it satisfactorily appears that a witness
for the prosecution is too sick or infirm to
appear at the trial as directed by the court, or
has to leave the Philippines with no definite
date of returning, he may forthwith be
conditionally examined before the court where
the case is pending.
Such examination, in the presence of the
accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same
manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination after notice shall be considered a
waiver. The statement taken may be admitted
in behalf of or against the accused (Section 15,
Rule 119).

Burden of proof
The accused has the burden of proving the
ground of denial of right to speedy trial for the
motion.
The prosecution has the burden of going
forward with the evidence to establish the
exclusion of time under Section 3, Rule 119.
This is subject to the rules on double jeopardy.
Hence, if with prejudice, the case cannot be
revived anymore.
Requisites for discharge of accused to become
a state witness
Discharge of a co-accused
It is the duty of the prosecutor to include all the
accused in the complaint/information.
He may ask the court to discharge one of them
after complying with the conditions prescribed
by law (Rule 119, Sec. 17). This applies only
when the information has already been filed in
court.
Thus, even the state witness is include as
accused prior to discharge.

Trial in absentia
Requisites:
(1) Accused has been arraigned;
(2) He was duly notified of trial;
(3) His failure to appear is unjustified.
Ratio: This is to speed up disposition of cases.

349

Requisites
(1) Two or more persons are jointly charged
with the commission of any offense.
(2) Upon motion of the prosecution before
resting its case
(3) Petition for discharge is filed before the
defense has offered its evidence. [People v.
Anion (1988)]
(4) Hearing in support of the discharge where
the prosecution is to present evidence and
the sworn statement of each proposed
state witness.
(5) The court is satisfied of the following:
(a) Absolute necessity for the testimony of
the accused whose discharge is
requested; This means he alone has
the knowledge of the crime, and not
when his testimony would simply
corroborate or strengthen the evidence
in the hands of the prosecution. [Flores
v. Sandiganbayan (1983)];
(b) There is no other direct evidence
available for the proper prosecution of
the offense, except the testimony of
the said accused;
(c) The testimony can be substantially
corroborated in its material points;
(d) The accused does not appear to be the
most guilty;
(e) The accused has not, at any time, been
convicted of any offense involving
moral turpitude [Section 17, Rule 119].

Exception: If the accused fails/refuses to testify

against his co-accused in accordance with his
sworn statement constituting the basis for his
discharge, these effects do not set in.
Any error in asking for and in granting the
discharge cannot deprive the discharge of the
acquittal and the constitutional guaranty
against double jeopardy [People v. Verceles
(2002)].
Conviction of the accused against whom
discharged state witness testified is not
required.
Subsequent amendment of the information
does not affect discharge [People v. Taruc
(1962)].
Note: If the discharge is not granted, the
affidavit of the accused cannot be used by the
prosecution.
Demurrer to evidence
A demurrer to evidence is defined as an
objection or exception by one of the parties in
an action at law, to the effect that the evidence
which his adversary produced is insufficient in
point of law (whether true or not) to make out
his case or sustain the issue [Pasag v. Parocha
(2007), citing Blacks Law Dictionary].
General rule: An order granting the accuseds
demurrer to evidence amounts to an acquittal.

Note: The evidence adduced in support of the

discharge shall automatically form part of the
trial.

Exception: When there is a finding that there

was grave abuse of discretion on the part of
the trial court in dismissing a criminal case by
granting the accuseds demurrer to evidence
[Hon. Mupas v. People (2011)].

Effects of discharge of accused as state witness

General rule: The order of discharge shall:
(1) Amount to an acquittal of the discharged
accused;
(2) Bar future prosecutions for the same
offense [Section 18, Rule 119].

The order granting the demurrer is not

appealable but may be reviewed via certiorari
under Rule 65 [(People v. Sandiganbayan,
Marcos (2012)].

350

Ratio: This is to prevent the filing of demurrer

based on frivolous and flimsy grounds.

(3) It is interlocutory, but it may be assigned as

error and reviewed in the appeal that may
be taken from the decision on the merits
[Cruz v. People (1999)].

How initiated
By the court motu proprio, after giving the
prosecution the opportunity to be heard;
Upon demurrer to evidence filed by the
accused:
(1) With leave of court;
(2) Without leave of court [Section 23, Rule 119].

Right of the accused to present evidence after

demurrer is denied
Filed with leave
Filed without leave
of court
of court
May
evidence
defense

Motion for leave to file demurrer

(1) It must specifically state its grounds.
(2) It must be filed within a non-extendible
period of 5 days after the prosecution rests
(i.e. after the court shall have ruled on the
prosecutions formal offer). Prosecution
may then oppose within a non-extendible
period of 5 days from receipt.
(3) If leave of court is granted, the demurrer
must be filed within a non-extendible
period of 10 days from notice. Prosecution
may oppose within a similar period
[Section 23, Rule 119].
Effect granting demurrer
(1) The court dismisses the action on the
ground of insufficiency of evidence [Section
23, Rule 119]. This amounts to acquittal of
the accused.
(2) Sufficient evidence for frustrating a
demurrer is evidence that proves:
(3) Commission; and
(4) Precise degree of participation [Gutib v. CA
(1999)].
Effect of denial of motion for leave to file
demurrer
(1) Accused should choose to insist on filing
demurrer even without leave or to present
evidence for his defense;
(2) Order denying the motion for leave or order
denying the demurrer itself, is not
reviewable by appeal or by certiorari before
judgment [Section 23, Rule 119];
351

adduce
in his

Waives the right to

present
evidence
(Section 23, Rule
119)

Purpose
is
to
determine whether
or not the demurrer
was filed merely to
stall
the
proceedings

Submits the case for

judgment on the
basis
of
the
evidence for the
prosecution

Implied leave of
court is no longer
sufficient
and
prevents
accused
from
presenting
evidence
(e.g.
accused files motion
with reservation to
present evidence in
case
motion
is
denied)

If there are 2 or
more accused and
only one presents a
demurrer without
leave of court:
The court may defer
resolution
until
decision is rendered
on
the
other
accused
If it can be shown
from the decision
that the resolution
on the demurrer
was rendered not
only on the basis of
the
prosecutions
evidence but also on
the
evidence
adduced by his coaccused, then the
demurrer is deemed
resolved

XII. JUDGMENT

Contents of judgment
In case of conviction
(1) The judgment of conviction shall state:
(2) The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances
which
attended
its
commission;
(3) The participation of the accused in the
offense, whether as principal, accomplice
or accessory after the fact;
(4) The penalty imposed upon the accused;
(5) The penalty should not be imposed in the
alternative. There should be no doubt as to
the offense committed and the penalty for
it;
(6) The civil liability or damages caused by his
wrongful act/omission to be recovered
from the accused by the offended party, if
there is any, unless the enforcement of the
civil liability by a separate civil action has
been reserved/waived [Section 2, Rule 120].

Requisites of a judgment
A judgment is the adjudication by the court
that the accused is guilty or not guilty of the
offense charged and the imposition on him of
the proper penalty and civil liability, if any [Sec.
1, Rule 120]
Form
(1) Written in official language. If given
verbally, it is incomplete [People v. Catolico
(1972)];
(2) Personally and directly prepared by the
judge;
(3) Signed by the judge. The judge who
presided over the entire trial would be in a
better position to ascertain the truth or
falsity of the testimonies. But the judge
who only took over can render a valid
decision by relying on the transcript. It
does not violate due process [People v.
Badon (1999)];
(4) Contains clearly and distinctly a statement
of facts proved and the law upon which
judgment is based [Section 1, Rule 120].

Proof beyond reasonable doubt

It is that degree of proof which produces
conviction in an unprejudiced mind [People v.
Bacalzo (1991)].

There is sufficient compliance if the decision

summarizes the evidence of both parties,
synthesizes the findings and concisely narrates
how the offense was committed.

Judgment for two or more offenses

Where the accused fails to object to two or
more offenses charged in a single
information/complaint before trial, the court
may:
(1) Convict him of as many offenses as are
charged and proved, except when one of
the offenses has been a necessary means
for committing the other offense and
where both have been the result of a single
act; and
(2) Impose on him the penalty for each offense,
setting out separately the findings of fact
and law in each offense [Section 3, Rule
120], subject to the three-fold rule on the
service of penalty.

Failure on the part of the TC to make a finding

of fact is a revocable error.
A.2. Judge who renders decision
The fact alone that the judge who heard the
evidence was not the one who rendered the
judgment but merely relied on the record of
the case does not render his judgment
erroneous or irregular, especially when the
evidence on record is sufficient to support its
conclusion [People v. Alfredo (2010)].

352

(2) 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
[Section 5, Rule 120].
(3) The effect is that the accused may be
convicted of:
(4) The offense proved which is included in the
offense charged; or
(5) The offense charged which is included in
the offense proved [Section 4, Rule 120].

B.1.c. Judgment in case of variance between

allegation and proof
General rule: The defendant can be convicted
only of the crime with which he is charged.
Ratio: He has the right to be informed of the
nature of the offense with which he is charged
before he is put on trial [People v. Guevarra
(1989)].
However, minor variance between the
information and the evidence:
(1) Does not alter the nature of the offense;
(2) Does not determine or qualify the crime or
penalty;
(3) Cannot be ground for acquittal.

The right to be informed of the charges has not

been violated because where an accused is
charged with a specific crime, he is duly
informed also of lesser crimes/offenses
included therein [People v. Villamar (1998)].
Where a complex crime is charged and the
evidence fails to support the charge as to one
of the component offenses, the accused can be
convicted of the one which is proven.

Exception: He can be convicted of an offense

proved provided it is included in the charge, or
of an offense charged which is included in that
which is proved [Section 4, Rule 120].
(1) The accused can be convicted of an offense
only when it is both charged and proven.
(2) The mere fact that the evidence presented
would indicate that a lesser offense outside
the courts jurisdiction was committed
does not deprive the court of its jurisdiction,
which had vested in it under the
allegations in the information.

State liability for unjust conviction

The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
victims of unjust imprisonment/detention and
victims of violent crimes (RA 7309).
The following may file claims for compensation
before the Board:
(1) Any person who was unjustly accused,
convicted
and
imprisoned
but
subsequently released by virtue of a
judgment of acquittal;
(2) Any person who was unjustly detained and
released without being charged;
(3) Any victim of arbitrary or illegal detention
by the authorities as defined in the RPC
under a final judgment of the court; and
(4) Any person who is a victim of violent crimes,
including rape and shall likewise refer to
offenses committed with malice which
resulted in death or serious physical
and/or psychological injuries, permanent

Exception to the exception: Where there are

facts that supervened after the filing of the
information which change the nature of the
offense.
When an offense includes or is included in
another
(1) The offense charged necessarily includes
the offense proved when some of the
essential elements/ingredients of the
former,
as
alleged
in
the
complaint/information, constitute the
latter.
353

incapacity or disability, insanity, abortion,

serious trauma, or committed with torture,
cruelly or barbarity [Section 3, RA 7309].

(2) Upon motion of the accused, after the

prosecution rested its case, on the ground
that the evidence fails to show beyond
doubt that accused is guilty.

For victims of unjust imprisonment or

detention, the compensation shall be based on
the number of months of imprisonment or
detention and every fraction thereof shall be
considered one month; Provided, however,
That in no case shall such compensation
exceed P1,000 per month.
In all other cases, the maximum amount for
which the Board may approve a claim shall not
exceed P10,000 or the amount necessary to
reimburse the claimant the expenses incurred
for hospitalization, medical treatment, loss of
wage, loss of support or other expenses
directly related to injury, whichever is lower.
This is without prejudice to the right of the
claimant to seek other remedies under existing
laws [Section 4, RA 7309].

Reasonable doubt is doubt engendered by an

investigation of the whole proof and an
inability, after such investigation, to let the
mind rest upon the certainty of guilt.
Acquittal based on failure to prove guilt
beyond reasonable doubt does not extinguish
the civil liability arising from his acts, since the
civil liability arose not from a crime but from
the damage caused by such acts, which can be
proven by a lower quantum of evidence. Thus,
it does not bar a separate civil action based on
quasi-delict [Lontoc v. MD Transit (1988)].
The court may hold the accused civilly liable
even when it acquits him. Acquittal
extinguishes civil liability only when the
judgment includes a declaration that the facts
from which the civil liability might arise did not
exist. Thus:
(1) The court may nonetheless hold the
accused civilly liable in favor of the
offended party, or it may deny the award of
civil damages expressly or impliedly by
being silent on the matter.
(2) The losing party may appeal the ruling on
the civil liability, as in any other ordinary
appeal, in his name and not in the name of
the People.

In case of acquittal
The judgment of conviction 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
complained from which the civil liability might
arise did not exist [Sec. 2, Rule 120].
Acquittal

Dismissal

The judge acquitting an accused cannot punish

him at the same time.

Terminates the case

Decision on the
merits based on a
finding that the
accused is not guilty

Not on the merits

but no finding that
accused is not guilty

General rule: The court has authority to express

disapproval of certain acts even if judgment is
for acquittal.
Exception: The court is not permitted to
censure the accused in a judgment for
acquittal no matter how light, a censure is
still a punishment.

Acquittal means a finding of not guilty based

on the merits, either:
(1) Because the evidence does not show that
his guilt is beyond reasonable doubt; or
354

Promulgation of judgment; instances

promulgation of judgment in absentia

served in last known address (Section 6, Rule

120).

of

Sin perjuicio judgment

It is a judgment without a statement of the
facts in support of its conclusion to be later
supplemented by the final judgment [Dizon v.
Lopez (1997)].

Promulgation
Promulgation is the official proclamation or
announcement of a judgment or order.
Requisites:
(1) There must be a judge or judges legally
appointed or elected and actually acting
either de jure or de facto, and
(2) The said judgment must be duly signed
and promulgated during the incumbency
of the judge who signed it [Miguel v
Municipal Trial Court (1986)].

Promulgation in certain circumstances

Promulgation where the judge is absent
The judgment may be promulgated by the
clerk of court when the judge is absent or
outside the province or city [Section 6, Rule 120].
Where presence of accused is required;
exceptions
General rule: Presence of the accused is
mandatory in the promulgation of judgment.

(3) The judgment or sentence does not

become a judgment or sentence in law
until it is:
(4) Read and announced to the defendant; or
(5) Has become a part of the record of the
court [US v. CFI of Manila (1913)].

Exception: Convictions for light

[Section 6, Rule 120].

Where there is no promulgation of judgment,

no right to appeal accrues.
Merely reading the dispositive portion of the
decision is not sufficient.
Judgment must state the facts and the law on
which it is based.
While SC has expressed approval of the
practice of some judges withholding the
dispositive portion from their opinions until the
very last moment of promulgation in order to
prevent leakage, such refers to the preparation
of the decision and not to promulgation.
There is no more reason to keep it a secret at
the stage of promulgation.

offenses

If the judgment is for conviction and the failure

of the accused to appear was without
justifiable cause, he shall lose the remedies
available in the Rules against the judgment
and the court shall order his arrest.
However, within 15 days from promulgation of
judgment, he may surrender and file a motion
for leave of court to avail of these remedies. He
shall state the reasons for his absence.
If he proves his absence was for a justifiable
cause, shall be allowed to avail of the remedies
within 15 days from notice [Section 6, Rule 120;
People v. De Grano (2009)].
C.4.c. Promulgation when accused is confined
or detained in another city
Promulgation will be done in the RTC which
has jurisdiction over the place of confinement.
In this case, the court promulgating the
judgment shall have authority to accept notice

Notice for promulgation

The Clerk of Court gives notice to the accused
personally or through the bondsman or warden
and counsel.
If the accused jumps bail or escapes from
prison and was tried in absentia, notice will be
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XIII. NEW TRIAL OR

RECONSIDERATION

of appeal and to approve the bail bond

pending appeal [Section 6, Rule 120]
Failure of the accused to appear at the
scheduled date of promulgation
Promulgation is made by recording the
judgment in the criminal docket and serving a
copy at the accuseds last known address or
through counsel (Section 6, Rule 120).

Grounds for new trial

Errors of law or irregularities
The court shall grant a new trial when errors of
law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial.

Promulgation when a judge is no longer a judge

If at the time of the promulgation, the judge
penning the decision has ceased being a judge
of the court, the decision would not be an act
of the court. (People v. Dimalanta)
Promulgation by a succeeding judge produces
no legal effect since it cannot restore validity to
a document already void.

General rule: Errors of the defense counsel in

the conduct of the trial is neither an error of
law nor an irregularity.
Exception: They become an error of law or
irregularity when acquittal would, in all
probability, have followed the introduction of
certain testimony which was not submitted at
the trial under improper or injudicious advice
of incompetent counsel of the accused.

When does judgment become final

(1) After the lapse of the period for perfecting
an appeal;
(2) When
the
sentence
has
been
partially/totally satisfied or served;
(3) The accused has expressly waived in
writing his right to appeal;
(4) When the accused applies for probation,
and thereby waives right to appeal.

Irregularities must be with such seriousness as

to affect prejudicially the substantial rights of
the accused.
New and material evidence
The court shall grant a new trial when 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 [Estino v.
People (2007)].
The determinative test is the presence of due
or reasonable diligence to locate the thing to
be used as evidence in the trial [Briones v.
People (2009)].

Judgment also becomes final when judgment

is an acquittal (People v. Sandiganbayan
(2010)).
Note: Before the judgment becomes final, the
TC has plenary power to make, either on
motion or motu proprio, such amendment or
alterations as it may deem best, within the
frame of law, to promote the ends of justice
[Section 7, Rule 120].
After finality, the TC is divested of authority to
amend/alter the judgment, except to correct
clerical errors.

Grounds for reconsideration

The court shall grant reconsideration on the
ground of errors of law or fact in the judgment,
which requires no further proceedings [Section
3, Rule 121].
356

justice. In that case, the relief of a new trial was

granted to a client who has suffered by reason
of his/her counsels gross mistake and
negligence.

Requisites before a new trial may be granted on

ground of newly discovered evidence
Requisites: The evidence:
(1) Was discovered after the trial;
(2) Could not have been discovered and
produced at the trial even with the exercise
of reasonable diligence [US v. Pico (1982)];
(3) Burden of proving this is on the accused.
[US v. Torrente (1922)];
(4) Is material, not merely
cumulative/corroborative/impeaching;
and
(5) Is of such weight that it would probably
change the judgment if admitted [Jose v.
CA (1997)].

When there is variance between two reports

In People v. del Mundo (1996), the court allowed
the presentation in a new trial of a police
report, not new, and which could have been
discovered with due diligence, because the
evidence contained in such was at such
variance with the health officers report at trial,
that its contents raised doubts to the guilt of
the accused.
Effects of granting new trial or reconsideration

It must be of weighty influence and will affect

the result of the trial [People v. Alfaro (2003)].

In all cases
The original judgment set aside or vacated;
A new judgment is rendered accordingly;

Interest of justice as gauge for introduction of

new evidence
In People v. Almendras (2003), the court ruled
that a motion for a new trial may be granted on
a ground not specifically provided in the rules,
provided that it is sought in the interest of

Other effects
Other specific effects (see table) also result
when granted upon different grounds (Section
6, Rule 121).

Ground

Effect

Action of the court

Errors
of
law
or
irregularities
committed
during the trial

All proceedings and evidence

affected shall be set aside and
taken anew.
If error or irregularity goes into
the jurisdiction, the entire
proceeding is void and must be
set aside.

The court will allow introduction

of additional evidence in the
interest of justice.

Newly-discovered evidence

Evidence already adduced shall

stand and the newly-discovered
and such other evidence shall be
taken and considered together
with the evidence already in the
record.

The court will allow introduction

of other such evidence in the
interest of justice.

The remedy of the prosecution in case of grave

abuse of discretion in the grant of the MNT/MR
is certiorari or prohibition. Otherwise, it may no

In case of grave abuse of discretion

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longer have opportunity to question the order if

accused is acquitted after a new trial is
conducted, because of the rule on double
jeopardy (Luciano v. Estrella (1970)).

law)

E. Application of the Neypes doctrine in criminal

cases
The Neypes doctrine allows 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 MNT or MR. Neypes v. CA (2005)
declared that:
Henceforth, this 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.

XIV. Appeal
Effect of an appeal
An appeal in a criminal proceeding throws the
whole case open for review and it becomes the
duty of the appellate court to correct an error as
may be found in the appealed judgment WON it
is made the subject of assignment of errors
[People v. Calayca (1999)].
Where to appeal
For cases decided by

REMEDIAL LAW

RTC
If it involves questions of
law only
If
it
involves
constitutionality
or
validity
of
any
treaty/law/ordinance/EO
/ regulation or the
jurisdiction of the inferior
court
In
criminal
cases
involving offenses for
which
the
penalty
imposed is death or life
imprisonment
Other offenses, which,
although
not
so
punished, arose out of
the same occurrence or
which may have been
committed
by
the
accused on the same
occasion, as that giving
rise to the more serious
offense

SC

CA or Sandiganbayan

SC

How appeal taken

The right to appeal is not a natural right nor a
part of due process but merely a statutory
privilege and may be exercised only in the
manner and in accordance with the provisions
of the law [Estarija v. People (2009)].

Appeal to

MTC/MeTC/MCTC

RTC

RTC or MTC/MeTC/
MCTC (if it is government
duty-related, i.e., filed
under EO 1, 2, 4 and 14A)

Sandiganbaya
n

RTC (if it involves

questions of fact and of

CA

Who may appeal

General rule: Any party may appeal from a
judgment or final order [Section 1, Rule 122].
Exceptions:
A party may not appeal if the accused will be
placed in double jeopardy by such action
[Section 1, Rule 122];

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If the judgment is for conviction and the

accused fails to appear without justifiable cause,
he would lose the remedy to appeal [Section 6,
Rule 120].

REMEDIAL LAW

Exceptions:
Where a particular provision applies only to
either of said courts;
Criminal cases governed by the Revised Rules
on Summary Procedure [Section 1, Rule 123].

Procedure in the lower courts

When appeal to be taken. Within 15

days from promulgation of the
judgment or from notice of the final
order appealed from.
The period to appeal shall be
suspended from the time a MNT or MR
is filed until notice of the order
overruling the motion has been served
upon the accused or his counsel.

Transmission of record to RTC. Within 5

days from perfection of the appeal, the
COC shall transmit the original record
to the appropriate RTC.

Notification of parties. Upon receipt of

the complete record, TSN and evidence
of the case, the RTC COC shall notify
the parties of such fact.

Submission of memoranda/briefs.
Within 15 days from receipt of said
notice, the parties may submit
memoranda/briefs, or may be required
by the RTC to do so.

Decision. After submission of such

memoranda/briefs or upon the
expiration of the period to file the same,
the RTC shall decide the case on the
basis of the entire record of the case
and of such memoranda/briefs as may
have been filed.

Offenses falling under the jurisdiction of the

MTC/MCTC
Notwithstanding the uniform procedure rule, if
the offense falls under the jurisdiction of the
MTC/MCTC, complaint/information may be
filed directly with said courts or with the City
Prosecutors Office [Salcedo v. Nobles-Bans
(1985)].
Offenses falling under the jurisdiction of the
MeTC
In Metro Manila and other chartered cities,
criminal cases shall be commenced only by
information; thus, the complaint may be filed
only with the Office of the City Prosecutor
If the case is directly filed with the court, the
case should not be dismissed. The court should
just refer it to the City Prosecutor for the filing of
the corresponding information [Salcedo v.
Nobles-Bans (1985)].
Procedure in the Court of Appeals
Parties and title
In all criminal cases appealed to the CA, the
party appealing shall be called the appellant
and the adverse party the appellee.
The title of the case shall remain as it was in the
court of origin (i.e., People v. John Doe) (Section
1, Rule 124).
Brief for the appellant
The appellant shall file seven copies of his brief
with the clerk of court, accompanied by proof of
service of two copies on the appellee.
It shall be filed within 30 days from receipt by
the appellant (his counsel) of the CA clerk of

General rule: The procedure to be observed in

the MeTC/MTC/MCTC shall be the same as that
in the RTC.

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REMEDIAL LAW

courts notice that the evidence is already

attached to the record [Section 3, Rule 124].

Dismissal of appeal for abandonment or failure

to prosecute (grounds)

Brief for appellee

Appellee shall file seven copies of his brief with
the clerk of court, accompanied by proof of
service of two copies on the appellant.
It shall be filed within 30 days from receipt of
the appellants brief [Section 4, Rule 124].

Appellant fails to file his brief within the

prescribed time
The CA may, upon motion of the appellee or
motu proprio and with notice to the appellant
in either case, dismiss the appeal if the
appellant fails to file his brief with the time
prescribed, except where the appellant is
represented by a counsel de oficio.
If failure to file brief on time is the ground,
appellant must be given notice to give him
opportunity to reason out why his appeal should
not be dismissed.
However, dismissal is proper despite lack of
notice:
If appellant has filed a MFR or motion to set
aside the order dismissing the appeal, in which
he stated the reason why he failed to file his
brief on time and the appellate court denied the
motion after considering reason [Baradi v.
People (1948)];
If appeal was dismissed without notice but
appellant took no steps to have the appeal
reinstated.
Such
action
amounts
to
abandonment [Salvador v. Reyes (1949)].

Reply to appellees brief

Filing a reply is optional. Thus, the appellant
may file a reply brief covering matters raised in
the appellees brief but not in the brief of the
appellant.
It must be filed within 20 days from receipt of
the appellees brief (Section 4, Rule 124).
Extension of time for filing briefs
General rule: Extension of time for the filing of
briefs is not allowed.
Exception: Extension may be granted for good
and sufficient cause.
It is sought through a motion for extension,
which must be filed before the expiration of the
time sought to be extended [Section 5, Rule 124].
The court may grant as many extensions as may
be asked [Gregorio v. CA (1976)].

Appellant escapes, jumps bail, or flees

The CA may also, upon motion of the appellee
or motu proprio, dismiss the appeal if the
appellant escapes from prison/confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal [Section 8, Rule 124].
Likewise, when accused flees after the case has
been submitted for decision, he is deemed to
have waived his right to appeal [People v. Ang
Gioc (1941)].
However, the appeal will not be dismissed
despite escape:
In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured two hours

Form of briefs
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
Mimeographed copies are not allowed [Section
6, Rule 124].
Content of briefs
The briefs in criminal cases shall have the same
contents as provided in Sections 13 to 14, Rule 44
[Section 7, Rule 124] .

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after, the SC said circumstances were not

sufficient to justify dismissal of the appeal
[People v. Valencia (1949)];
If there was absolutely no evidence against the
accused as found by the appellate court, he
should be acquitted in order to prevent an
injustice
by
technicalities
[People
v.
Buenaventura (1994)];
In case of automatic review [People v. Cornelio
(1971)].

REMEDIAL LAW

When the accused appeals from the sentence of

the TC, he waives the constitutional safeguard
against double jeopardy and throws the whole
case open to the review of the appellate court,
which is then called upon to render such
judgment as law and justice dictate, WON
favorable to the accused and WON made the
subject of assignment of errors [Ko Bu Lin v. CA
(1982)].
CAs power to receive evidence
The CA has power to try cases and conduct
hearings, receive evidence and perform any and
all acts necessary to resolve factual issues in
cases:
(1) Falling within its original jurisdiction;
(2) Involving claims for damages arising from
provisional remedies;
(3) Where the court grants a new trial based
only on the ground of newly-discovered
evidence.

Prompt disposition of appeal

Appeals of accused who are under detention are
given precedence in their disposition over other
appeals.
The accused need not be present in court during
the hearing of the appeal [Section 9, Rule 124].
Reversal/modification of judgment on appeal
General rule: No judgment shall be reversed or
modified.
Exception: When the CA, after an examination
of the record and of the parties evidence, is of
the opinion that error was committed and such
error injuriously affected the appellants
substantial rights [Section 10, Rule 124].

CAs trials and hearings must be continuous

and completed within three months, unless
extended by the Chief Justice [Section 12, Rule
124].
Quorum in the CA
(1) Three CA Justices constitute a quorum for
the sessions of a division;
(2) The unanimous vote of the three Justices of
a division is necessary for the
pronouncement of a judgment or final
resolution;
(3) Decision is reached through a consultation
before the writing of the opinion by a
member of the division;
(4) If there is lack of unanimity, the Presiding
Justice shall direct the CA raffle committee
to designate two additional Justices to sit
temporarily with them. They shall then form
a special division of five members;
(5) The concurrence of a majority of that special
division is necessary for the pronouncement
of a judgment or final resolution;

When it involves credibility of witnesses,

appellate courts will not generally disturb the
TCs findings.
Ratio: The TC is in a better position to decide
the question, having seen and heard the
witnesses themselves. [People v. Cabiling (1976)]
Scope of CAs judgment
The CA may:
(1) Reverse/affirm/modify the judgment;
(2) Increase/reduce the penalty imposed by the
TC;
(3) Remand the case to the RTC for new trial or
retrial;
(4) Dismiss the case [Section 11, Rule 124].

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(6) Designation of the additional Justices shall

be made strictly by raffle and rotation
among all other CA Justices [Section 11, BP
129].

REMEDIAL LAW

(a) After the appeal from the lower

court has been perfected; but
(b) Before the CA judgment convicting
him becomes final;
(2) The motion shall conform to Section 4, Rule
121 [Section 14, Rule 124];
(3) If the CA grants a MNT, it may either:
(a) Conduct the hearing and receive
evidence;
(b) Refer the trial to the court of origin
[Section 15, Rule 124].

Certification or appeal of cases to the SC

(1) If the CA finds that death penalty should be
imposed, it shall render judgment but
refrain from making an entry of judgment. It
shall then certify the case and elevate its
entire record to the SC for review. The
accused does not have to do anything.
(2) If the judgment also imposes a lesser
penalty for offenses committed on the same
occasion or which arose from the same
occurrence that gave rise to the more severe
offense for which death is imposed, and the
accused appeals, the appeal shall be
automatically included in the case certified
for review in the SC
(3) If the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty:
(4) It shall render and enter judgment imposing
such penalty.
(5) Appeal here is not automatic. The accused
has to file a notice of appeal with the CA
[Section 113, Rule 124].

C.3.q. Reconsideration of CA judgment

MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party.
The mittimus shall be stayed during the MFRs
pendency.
General rule: No party shall be allowed a second
MFR of a judgment or final order [Section 16,
Rule 124; Section 11, BP 129].
Exception: Where the first MFR resulted in a
reversal or substantial modification of the
original decision or final resolution.
In this case, the party adversely affected by the
reversal/modification may himself file a MFR of
the latest judgment of the court, because with
respect to him, said motion is a first pleading of
that nature.

Judgment transmitted and filed in the TC

When the CAs entry of judgment is issued, a
certified true copy of the judgment shall be
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken [Section 17, Rule 124].
This copy of the entry serves as the formal
notice to the court from which the appeal was
taken of the disposition of the case in the
appellate court, so that the judgment may be
executed and/or placed or noted in the proper
file.

Applicable civil procedure rules

Provisions of Rules 42, 44-46 and 48-56
relating to procedure in the CA and the SC in
original and appealed civil cases, shall be
applied to criminal cases insofar as they are
applicable and not inconsistent with the
provision of this Rule (Section 18, Rule 124).

MNT during the pendency of appeal

(1) Appellant may file MNT on the ground of
newly discovered evidence material to his
defense any time:

Procedure in the Supreme Court

Uniform procedure

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General rule: The procedure in the SC in original

and in appealed cases shall be the same as in
the CA [Section 1, Rule 125].

REMEDIAL LAW

or arising out of the same occurrence, and

in one of those 2 cases, he was sentenced to
life imprisonment or death penalty, the
appeal with respect to the others, though
punished with a lesser penalty, is to the SC
(Section 3, Rule 122);
(c) The penalty of reclusion perpetua or death
is imposed on some of the defendants and a
lesser penalty on the other co-defendants,
on account of their varying degree of
participation in the commission of the
offense or due to the presence of modifying
circumstances, in which case the decision
on the non-life convicts is directly
appealable to the SC (People v. Carino
(2002)).

Exception: The procedure changes when the

Constitution or law so provides.
What the SC may do on review
In a criminal case, an appeal to the SC throws
open the whole case for review and it becomes
its duty to correct such errors as may be found
in the judgment appealed from, whether or not
they were assigned as errors [People v. Olfindo
(1924)].
It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed [Macali v. Revilla (1926)].
It may also assess and award civil indemnity
[Quemel v. CA (1946)].

In these cases, the SC reviews not only errors of

law but also the findings of fact by the TC.

Modes by which a case may reach the SC

(1) Automatic review
Automatic review is not a matter of right on the
part of the accused, but a matter of law.
It is available when:
(a) The RTC judgment upon the accused
imposes death penalty [Section 10, Rule
122];
(b) The RTC decision is appealed to CA and the
latter is of the opinion that the penalty
imposed should be death or life
imprisonment. CA judgment is imposed but
no entry of judgment is made; instead, the
case is certified and the entire record is
elevated to the SC for review [Section 13,
Rule 124].

(3) Petition for review on certiorari

It is available when:
(a) The constitutionality or validity of any treaty,
executive agreement, law, ordinance or
executive order or regulation is in question;
(b) When validity of law is questioned by an
accused convicted under it by the TC, the SC
cannot review the evidence or pass upon
any other question of law which may appear
on the record, but will only confine itself to
the question of the in/validity of that law
(Trinidad v. Sweeney (1904));
(c) When the jurisdiction of any inferior court is
in issue;
(d) When only an error or question of law is
involved.

(2) Ordinary appeal

It is available when:
(a) The penalty imposed by the RTC is life
imprisonment, decision is appealable
directly to the SC by filing a notice of appeal
with the RTC (Section 3, Rule 122);
(b) An accused was charged with two or more
offenses committed on the same occasion

On decisions of the CA and the Sandiganbayan,

as a rule, review here is limited to errors of law.
General rule: Certiorari is used to correct only
errors of jurisdiction and not errors of judgment
of an inferior court. For errors of judgment,
ordinary appeal is available.

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Exception: In the following cases, certiorari is

granted despite existence of the remedy of
appeal:
Where public welfare and advancement of
public policy so dictate;
Where the broader interests of justice so
require;
Where the orders complained of were found to
be completely null and void;
Where appeal was not considered as the
appropriate remedy.

REMEDIAL LAW

and should dismiss appeal [Guico v. Mayuga

(1963)].
Exceptions:
(1) When the conclusion is a finding founded
entirely
on
speculations/surmises/conjectures;
(2) When the inference made is manifestly
mistaken/absurd/impossible;
(3) When there is GAD;
(4) When the judgment is based on a
misapprehension of facts;
(5) When the findings of facts are conflicting;
(6) When the CA, in making its findings, went
beyond the issues of the case and the same
are contrary to the admissions of both
appellant and appellee [Napolis v. CA
(1972)].

Failure to specify appellate court

Failure of appellant to specify in his notice of
appeal the court to which the appeal is being
made is not fatal (RA 296).

Erroneous mode of appeal

In the case of People v. Resuello (1969), the
contention of the adverse party that the
ordinary appeal filed by appellant shall be
dismissed because the proper remedy is petition
for review on certiorari (only questions of law
were involved) was rejected.
The SC said that in cases similarly situated, and
as long as the steps formally required for the
perfection of an appeal were taken in due time,
appeal may be given due course, without
prejudice to requiring the appellant to file the
necessary petition for review on certiorari which
is also a form of appeal.

Decision if opinion is equally divided

When the SC en banc is equally divided in
opinion or the necessary majority cannot be had
on whether or not to acquit the appellant, the
case shall again be deliberated upon.
If no decision is reached after re-deliberation,
the lower courts judgment of conviction shall
be reversed and the accused is acquitted.
If case is decided by a division of the SC whose
members are equally divided, the case shall be
heard and decided by the SC en banc [Section 3,
Rule 125].
C.4.h. Composition of the SC
(1) SC is composed of one Chief Justice and 14
Associate Justices.
(2) SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
(3) No doctrine or principle of law laid down by
the SC in a decision rendered en banc or in
division may be modified/reversed except
by the court sitting en banc [Section 4,
Article VIII, Constitution].

Review of CA decisions
The procedure for the review by the SC of CA
decisions on criminal shall be the same as in
civil cases (Section 2, Rule 125).
General rule: The appellate jurisdiction of the
SC in cases brought to it from the CA is limited
to reviewing and revising the errors of law
incurred by the latter. The CAs findings of fact
are final. If an appeal in the SC involves
questions of facts, the SC has no jurisdiction

Effect of appeal by any of several accused

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General rule: An appeal taken by one or more of

several accused shall not affect those who did
not appeal.
As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
As to the co-accused who did not appeal, the
judgment of the TC insofar as it relates to him
becomes final and the appellate court has no
power to interfere with it [Salvatierra v. CA
(1996)].

REMEDIAL LAW

an appeal therefrom by the prosecution would

constitute double jeopardy [US v. Kilayko (1916)].
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable [People v. Duran (1960)].
An appeal by the People will not lie if the
purpose is to correct the penalty imposed by the
trial court or to include in a judgment a penalty
erroneously omitted [People v. Paet (1956)].
The preclusion against appeal by the State from
judgments or final orders having the effect of
acquittal, applies even though accused did not
raise question of jeopardy [People v. Ferrer
(1956)].

Exception: Insofar as the judgment of the

appellate court is favorable and applicable to
those who did not appeal or who withdrew his
appeal [People v. Gandia (2008)].

XV.
SEARCH
SEIZURE

The appeal of the offended party from the civil

aspect shall not affect the criminal aspect of the
judgment or order appealed from [Section 11,
Rule 122].

AND

Nature of search warrant

Grounds for dismissal of appeal

Definition
It is an order in writing; issued in the name of
the People of the Philippines; signed by a judge;
and directed to a peace officer, commanding
him to search for personal property described in
the warrant and bring it before the court
(Section 1, Rule 126).
If it is without the judges signature, it is fatally
defective.

When appeal by the People will not lie

The People/State cannot appeal when it will
put the accused in double jeopardy. The
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in a
new and independent cause but extends also to
appeal in the same case by the prosecution
after jeopardy had attached [Republic v. CA
(1982)].
The prosecution cannot appeal from a
judgment of acquittal

Nature
A search warrant is in the nature of a criminal
process akin to a writ of discovery, employed by
the state to procure relevant evidence of a crime
[Malaloan v. CA (1994)].
It is not available to individuals in the course of
civil proceedings.
It is interlocutory in character it leaves
something more to be done, which is the
determination of the guilt of the accused.

Ratio: A verdict of that nature is immediately

final and to try on the merits, even in an
appellate court, places the accused in double
jeopardy [Central Bank v. CA (1989)].
Dismissal of case upon filing of demurrer by the
accused was held to be final even though based
on erroneous interpretation of the law. Hence,

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Constitutional safeguard
No search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce, and
particularly describing the place to be searched,
and the things/persons to be seized [Section 2,
Article III, 1987 Constitution].
Under the exclusionary rule, any evidence
obtained in violation of this is inadmissible for
any purpose in any proceeding [Section 3, 2nd
par., Article III, Constitution].

REMEDIAL LAW

General rule: Search of property is unreasonable

unless it has been authorized by a valid search
warrant.
Exceptions: There are valid warrantless searches.
Arrest and search warrants distinguished
Search warrant
Warrant of arrest
Nature
Order in writing in
the name of the RP
signed by the judge
and directed to the
peace officer to
search
personal
property described
therein and to bring
it to court [Section 1,
Rule 126]

The constitutional guarantee is not a blanket

prohibition against all searches and seizures. It
operates only against unreasonable searches
and seizures.
What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely
a judicial question (Rodriguez v. Villamiel (1937)).

Order directed to
the peace officer to
execute the warrant
by taking the person
stated therein into
custody that he may
be bound to answer
for the commission
of the offense

Determination of probable cause

Doctrine of Attenuation
Under the doctrine of attenuation, despite the
illegality in obtaining evidence, such evidence
may be admissible if the connection between
the evidence and the illegal method is
sufficiently remote or attenuated so as to
dissipitate the taint [Wong Sun v. US (1963)].
Directed upon acts of the government, not
private persons
The constitutional protection is directed against
the acts of the government and its agents, not
private persons (People v. Marti (1991); People v.
Bongcarawan (2002)).
However, if the private person is acting upon
orders of government officials, the principle of
agency applies, because in fact such private
person is acting in the interest of government,
and is therefore subject to the prohibition
against unreasonable searches and seizures.

The judge must

personally examine
the
complainant
and witnesses in the
form of searching
questions
and
answers [Section 5,
Rule 126]

The judge does not

have to personally
examine
the
complainant and his
witnesses. Instead,
he may opt to
personally evaluate
the
report
and
supporting
documents
submitted by the
prosecutor [AAA v.
Carbonell (2007)]

The
examination
must be under oath
or affirmation of the
complainant and his
witnesses.

Examination must
be under oath.

Form
It must particularly
describe the place
to be searched and

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It must particularly
describe the person
to be arrested.

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(6) Violations of the Anti-Money Laundering

Act of 2001;
(7) Violations of the Tariff and Customs Code;
and
(8) Other relevant laws that may hereafter be
enacted by Congress and included herein by
the Supreme Court.

the things to be
seized.
When executed
Generally served in
the day time, unless
there be a direction
in the warrant that it
may be served at
any time of the day
or night [Section 9,
Rule 126]

May be made at any

time of the day or
night (Section 2,
Rule 113)

Substance of application
A search warrant shall not issue except:
(1) Upon probable cause in connection with
one specific offense;
(2) To be determined personally by the judge;
(3) After examination under oath or affirmation
of the complainant and the witness he may
produce;
(4) Particularly describing the place to be
searched and the things to be seized which
may be anywhere in the Philippines [Section
4, Rule 126].
Issuance and form of search warrant
If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause to believe that they exist,
he shall issue the warrant, which must be
substantially in the form prescribed the Rules
[Section 6, Rule 126].
Thus, the search warrant must be in writing and
contain:
(1) Name of person against whom it is directed;
(2) Offense for which it was issued;
(3) The place to be searched and
(4) The description of the specific things to be
seized;
(5) A directive to law enforcement officers to
search and seize;
(6) And for them to bring in court the things
seized;
(7) Signature of the judge issuing it.

Period of validity
Valid for 10 days
[Section 9, Rule 126]

REMEDIAL LAW

Does not expire (no

terminal life)

Application for search warrant; where filed

It may be filed in any court within whose
territorial jurisdiction the crime was committed.
For compelling reasons, which must be stated
in the application, it may also be filed:
(1) If the place of the commission of the crime
is known, any court within the judicial
region where the crime was committed;
(2) Any court within the judicial region where
the warrant shall be enforced.
However, if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending
[Section 2, Rule 126].
Under AM 03-8-02-SC, Executive Judges and,
whenever they are on official leave of absence or
are not physically present in the station, the
Vice-Executive Judges of Manila and Quezon
City RTCs shall have authority to act on
applications for search warrants involving:
(1) Heinous crimes;
(2) Illegal gambling;
(3) Illegal possession of firearms and
ammunitions
(4) Violations of the Comprehensive Dangerous
Drugs Act of 2000;
(5) Violations of the Intellectual Property Code;

Validity of the search warrant

The search warrant is valid for 10 days from its
date. Thereafter, it shall be void [Section 10,
Rule 126].
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The lifetime of the search warrant also ends

when a return has already been made [Mustang
Lumber v. CA (1996)].

REMEDIAL LAW

Search in presence of two witnesses

No search of a house, room, or any other
premises shall be made except in the presence
of the lawful occupant thereof or any member of
his family or in the absence of the latter, two
witnesses of sufficient age and discretion
residing in the same locality [Section 8, Rule
126].
Time of making search
The search shall be made at day time, unless
the affidavit asserts that the property is on the
person or in the place ordered to be searched, in
which case a direction may be inserted that it be
served at any time of the day or night [Section 9,
Rule 126].
A search warrant violates Section 9, Rule 126 if
the time for making the search is left blank,
thus enabling the officers to conduct the search
in the evening of the appointed search, causing
untold conveniences to the person searched.
Where a search is to be made during the night
time, the authority for executing the same at
that time should appear in the directive on the
face of the search warrant [Asian Surety v.
Herrera (1973)].

Service of the search warrant

Right to break door or window to effect search
The officer, if refused admittance to the place of
directed search after giving notice of his
purpose and authority, may break open any
outer or inner door or window of a house or any
part of a house or anything therein to execute
the warrant to liberate himself or any person
lawfully aiding him when unlawfully detained
therein [Section 7, Rule 126].
Knock and announce principle
Generally, officers executing a search must do
the following acts:
(1) Announce their presence;
(2) Identify themselves to the accused and to
the persons who rightfully have possession
of the premises to be searched;
(3) Show to them the search warrant; and
(4) Explain the warrant in a language or dialect
known and understood by them.

Post service
Receipt of property seized
Receipt is given differently depending on the
presence of the lawful occupant. Thus:
(1) If the lawful occupant is present, the officer
seizing the property under the search
warrant must give a detailed receipt for the
same to the lawful occupant of the premises
in whose presence the search and seizure
were made.
(2) If the lawful occupant is not present, the
officer seizing the property under the search
warrant must, in the presence of at least
two witnesses of sufficient age and
discretion residing in the same locality,
leave a receipt in the place in which he
found the seized property [Section 11, Rule
126].

When unannounced intrusion permissible

(1) Person in the premises refuses to open it
upon demand;
(2) Person in the premises already knew of the
identity and authority of the officers;
(3) When the officers have an honest belief that
there is an imminent danger to life and
limb;
(4) When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officers to believe that an escape or the
destruction of evidence is imminent.

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REMEDIAL LAW

Note: Probable cause to arrest does not

necessarily involve a probable cause to search
and vice-versa.

Delivery and inventory of property

The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof duly
verified under oath.
Ten days after issuance of the search warrant,
the issuing judge shall ascertain if the return
has been made, and if none, shall summon the
person to whom the warrant was issued and
require him to explain why no return was made.
If the return has been made, the judge shall
ascertain whether Section 11, Rule 126, on giving
or receipts, has been complied with and shall
require that the property seized be delivered to
him. The judge shall see to it that delivery has
been complied with.
The return on the search warrant shall be filed
and kept by the custodian of the log book on
search warrants who shall enter therein the
date of the return, the result, and other actions
of the judge [Section 12, Rule 126].
Goods seized remain under the courts custody
and control until the institution of the
appropriate criminal action with the proper
court [Tenorio v. CA (2003)].

Probable cause justifying warrantless arrest and

warrantless search
This implies probability of guilt and requires
more than bare suspicion but less than evidence
which would justify conviction. It is not
determined by a fixed formula but is resolved
according to the facts of each case.
Personal examination by judge of the applicant
and witnesses
Aside from the requirements mandated by
Section 4, Rule 126, the Rules require the judge
to comply with a specific procedure in the
conduct of the examination of the complainant
and the witnesses he may produce [Section 5,
Rule 126]:
(1) The examination must be personally
conducted by the judge;
(2) The examination must be in the form of
searching questions and answers;
(3) The complainant and the witnesses shall be
examined on those facts personally known
to them;
(4) The statements must be in writing and
under oath; and
(5) The sworn statements of the complainant
and the witnesses, together with the
affidavits submitted, shall be attached to
the record.

Probable cause
Warrants issued upon probable cause
Probable cause means such facts and
circumstances which would lead a reasonably
discreet and prudent man to believe that an
offense has been committed, and that objects
sought in connection with the offense are in the
place sought to be searched [Santos v. Pryce
Gases Inc. (2007)].
This probable cause must be shown to be within
the personal knowledge of the complainant or
the witnesses he may produce and not based on
mere hearsay.
The probable cause must refer only to one
specific offense [Roan v. Gonzales (1986)].

Searching questions and answers

Searching questions are such questions which
have the tendency to show the commission of a
crime and the perpetrator thereof [Luna v. Plaza
(1968)].
In search cases, the application must be
supported by substantial evidence:
(1) That the items sought are in fact seizable by
virtue of being connected with criminal
activity; and

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(2) That the items will be found in the place to

be searched [People v. Tuan (2010)].

REMEDIAL LAW

reasonable efforts, ascertain and identify the

place intended [People v. Veloso (1925)].
An apparent typographical error will not
necessarily invalidate the search warrant, as
long as the application contains the correct
address [Burgos v. Chief of Staff (1984)].

A search warrant issued by a judge who did not

ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR
(2000)].
Although there is no hard-and-fast rule
governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application. (Yao v. People
(2007))
A warrant not based on personal knowledge is
void.

Particularity of things to be seized

The scope of the search warrant is limited to
personal property only. It does not issue for
seizure of immovable properties.
General rule: Things to be seized must be
described particularly. General search warrants
are not allowed. Otherwise, the search and
seizure of the items in the implementation of
such search warrant is illegal and the items
seized are inadmissible in evidence [Section 2,
Article III, Constitution].
SWs authorizing the seizure of books of
accounts and records showing all the business
transactions of certain persons, regardless of
whether the transactions were legal or illegal,
are general warrants prohibited by law
[Stonehill v. Diokno (1967)].
Likewise, a description of things to be seized as
subversive documents, propaganda materials,
FAs, printing paraphernalia and all other
subversive materials hardly provided a definite
guideline to the executing officers (Dizon v.
Castro (1985)).
Where the language used is too all-embracing
as to include all the paraphernalia of petitioner
in the operation of its business, the SW is
constitutionally
objectionable
(Columbia
Pictures v. Flores (1993)).

Examination under oath

The judge must examine under oath or
affirmation the complainant and the witness he
may produce.
Oath includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
The oath required must refer to the truth of
facts within the personal knowledge of the
petitioner or his witnesses [Alvarez v. CFI (1937)].
Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of the
complaint or his witnesses, and attach the same
to the record [Prudente v. Judge Dayrit (1989)].
Particularity of place to be searched and things
to be seized
Warrant issued must particularly describe the
place to be searched and the things to be seized.

Particularity of place to be searched

Description of place to be searched is sufficient
if the officer with the search warrant can, with

Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather general, it is
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not required that a technical description be

given, for this would mean that no search
warrant could issue (People v. Rubio (1932)).
The general description of the documents listed
in the search warrant does not render the it void
if it is severable, and those items not
particularly described may be cut off without
destroying the whole (Uy v. BIR (2001)).

REMEDIAL LAW

have probable cause to make the arrest at the

outset of the search [Riano (2011)].
The rule assumes that the arrest is legal. If the
arrest is illegal, then the search is illegal and as
a result, the things seized are inadmissible as
evidence [People v. Aruta (1998)].
The search is confined to his person, but as an
incident of an arrest, the place or premises
where the arrest was made can also be
searched without a search warrant. The extent
and reasonableness of the search must be
decided on its own facts and circumstances
[Nolasco v. Pao (1985)].
Where a search is first undertaken, and an
arrest was effected based on evidence produced
by such search, both search and arrest are
illegal [Lui v. Matillano (2004)].

Personal property to be seized

What may be seized
(1) Personal property subject of the offense;
(2) Personal property stolen/embezzled and
other proceeds/fruits of the offense;
(3) Personal property used or intended to be
used as the means of committing an offense
(Section 3, Rule 126).

(2) Consented search

Jurisprudence requires that in case of consented
searches or waiver of the constitutional
guarantee against obtrusive searches, it must
first appear that:
(a) The right exists;
(b) The person involved had knowledge, either
actual or constructive, of the existence of
such right; and
(c) The said person had an actual intention to
relinquish the right [People v. Nuevas
(2007)].

The rule does not require 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 of possession of
the property sought to be seized (Burgos v. Chief
of Staff (1984)).
Exceptions to search warrant requirement
(1) Search incidental to lawful arrest
In a search incidental to an arrest, even without
a warrant, the person arrested may be searched
for:
(a) Dangerous weapons;
(b) Anything which may have been used in the
commission of an offense; or
(c) Anything which may constitute proof in the
commission of the offense (Section 13, Rule
126).

Consent to a search is not to be lightly inferred,

but must be shown by clear and convincing
evidence. It is the State which has the burden of
proving, by clear and positive testimony, that
the necessary consent was obtained and that it
was freely and voluntarily given [Valdez v.
People (2007)].
A peaceful submission to a search or seizure is
not a consent or an invitation thereto, but is
merely a demonstration of regard for the
supremacy of the law (People v. Nuevas (2007)).
Consented search is reasonable only if kept
within the bounds of the actual consent.

The arrest must precede the search; generally,

the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an
arrest can precede the arrest as if the police

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A persons consent may limit the extent/scope

of a warrantless search in the same way that the
specifications of a warrant limit the search
pursuant thereto.

REMEDIAL LAW

(c) Officer flashes a light therein without

opening cars doors;
(d) Occupants not subjected to a physical
search;
(e) Inspection is limited to usual search or
inspection; or
(f) Routine check is conducted in a fixed area
[People v. CA (2002)].

(3) Search of moving vehicle

Ratio: Peace officers may lawfully conduct
searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can
be quickly moved out of the locality or
jurisdiction in which the warrant may be sought
[People v. Tuazon (2007)].

(5) Plain view situation

Requisites:
(a) A prior valid intrusion i.e., based on the
valid warrantless arrest in which the police
are legally present in the pursuit of their
official duties;
(b) Evidence was inadvertently discovered by
the police who have a right to be where they
are;
(c) Evidence must be immediately apparently
illegal (i.e., drug paraphernalia);
(d) Plain view justified mere seizure of evidence
without further search [People v. Valdez
(1999); People v. Salanguit (2001)].

However, these searches would be limited to

visual inspection and the vehicles or their
occupants cannot be subjected to physical or
body searches, except where there is probable
cause to believe that the occupant is a law
offender or the contents of the vehicles are
instruments or proceeds of some criminal
offense.
The search and seizure without warrant of
vessel and aircrafts for violation of customs
laws has been a traditional exception to the
requirement of search warrant [Roldan v. Arca
(1975)].
Nonetheless, in all cases falling under this
category, there must be a showing of a probable
cause of a violation of the law [Caroll v. US
(1924)].

Limitations:
(a) It may not be used to launch unbridled
searches and indiscriminate seizures.
(b) It does not extend to a general exploratory
search made solely to find evidence of
defendants guilt (People v. Musa (1993)).

(4) Checkpoints; body checks in airport

Searches conducted in checkpoints are valid as
long as they are warranted by the exigencies of
public order and conducted in a way least
intrusive to motorists [People v. Vinecario
(2004)].
Routine inspections are not regarded as
violative of an individuals right against
unreasonable search:
(a) Where the officer merely draws aside the
curtain of a vacant vehicle which is parked
on the public fair grounds;
(b) Officer simply looks into a vehicle;

The doctrine is usually applied where a police

officer is not searching for evidence against the
accused, but nonetheless inadvertently comes
across an incriminating object.
Even if an object is in plain view, before it can be
seized without a search warrant, its
incriminating nature must first be apparent.
Where police officers are on the premises
pursuant to a valid consent to a search, an item
falling into their plain view may properly be

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seized even if the item is not connected with

their purpose in entering.

REMEDIAL LAW

on board, or stop and examine any

vehicle/beast/person
suspected
of
holding/conveying any dutiable/prohibited
article introduced into the Philippines
contrary to law.

(6) Stop and frisk situation

Stop and frisk is a limited protective search of
outer clothing for weapon [Malacat v. CA (1997)].
Where a police officer observes unusual conduct,
which leads him reasonably to conclude in the
light of his experience that criminal activity may
be afoot, and that a person with whom he is
dealing may be armed and presently dangerous,
he is entitled to conduct a stop and frisk search.
Where in the course of investigating this
behavior he identifies himself as a policeman
and makes reasonable inquiry, and where
nothing in the initial stage of the encounter
serves to dispel his reasonable fear for his own
or others safety, he is entitled for the protection
of himself and others in the area to conduct a
carefully limited search of outer clothing of such
persons in an attempt to discover weapons
which might be used to assault him [Terry v.
Ohio (1968)].
Under this theory, probable cause is not
required to conduct a stop and frisk but mere
suspicion or hunch will not validate a stop and
frisk.
The test is whether or not there is a reasonable
belief based on genuine reason and in the light
of the officers experience and the surrounding
circumstances, that a crime has either taken
place or is about to take place and the person to
be stopped is armed and dangerous.

General rule: The Tariff and Customs Code does

not require a warrant for such searches.
Exception: In the search of a dwelling house, a
search warrant is required.
(8) Other exceptions
(a) Exigent and emergency circumstances
In one case, there was a prevailing general
chaos and disorder because of an ongoing coup,
and the raid of the office/building was
precipitated by an intelligence report that said
office was being used as HQ by the RAM. Also,
the surveillance team before the raid was fired
upon by the people inside. The raiding team
had no opportunity to apply for warrant as the
court then was closed [People v. de Gracia
(1994)].

(b) Buy-bust operation

This is a form of entrapment legally employed
by peace officers as an effective way of
apprehending drug dealers in committing an
offense. There is no need for a search warrant
(or warrant of arrest) because the accused is
caught in flagrante delicto.

(7) Enforcement of customs law

For the enforcement of customs duties and
tariff laws, the Collector of Customs is
authorized to effect searches and seizure
[General Travel Services v. David (1966)].
The Tariff Code authorizes customs officers to:
(a) Enter, pass through or search any land,
enclosure, warehouse;
(b) Inspect/search/examine any vessel or
aircraft
and
any
trunk/package/box/envelope or any person

(c) Private searches

In one case, the evidence was obtained by a
private person acting in a private capacity, while
performing company standard operating
procedures and without state participation and
intervention. It was held that the constitutional
rights cannot be invoked when there is no
government interference (People v. Marti
(1999)).
Remedies from unlawful search and seizure
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another court, the motion may be filed in either

court [People v. CA (1999)].

Who may avail

Only the party whose rights have been impaired
thereby; the objection to an unlawful search
and seizure is purely personal and cannot be
availed of by third parties [Stonehill v. Diokno
(1967); Santos v. Pryce Gases, Inc. (2007)].

Grounds
The following may be raised in the MTQ:
(1) Absence of probable cause at the time of
the issuance of the search warrant;
(2) Non-compliance with substantive and
procedural requisites, such as:
(a) No personal examination by the judge;
(b) More than one specific offense;
(c) No particular description (Bache & Co. v.
Ruiz (1971)).

Remedies
Employ any means to prevent the search
Without a search warrant, the officer cannot
insist on entering a citizens premises. If he does
so, he becomes an ordinary intruder.
The person to be searched may resist the search
and employ any means necessary to prevent it,
without incurring any criminal liability [People v.
Chan Fook (1921)].

These may also be raised in the criminal action

as matters of defense (DOH v. Sy Chi Siong
(1989)).
Failure to file motion to quash
Where no MTQ the search warrant was filed in
or resolved by the issuing court, the interested
party may move in the court where the criminal
case is pending for the suppression of the
personal property seized if the same is offered
therein as evidence [Regalado, Remedial Law
Compendium (2010)].
The MTQ and Motion to Suppress Evidence are
alternative, not cumulative remedies.

File criminal action against officer

A public officer/employee who procures a
search warrant without just cause is criminally
liable under Article 129, RPC, on search warrants
maliciously obtained and abuse in the service of
those legally obtained.
File a motion to quash the illegal warrant
This remedy is employed if search is not yet
conducted.
Who may file
(1) Person injured;
(2) Person searched;
(3) Owner of the property.

File a motion to return things seized

This is the remedy used if the search was
already conducted and goods were seized as a
consequence thereof.
Where the motion will be filed follows the same
rules as in a motion to quash.
An accused may file a motion to suppress
evidence if he is not among the persons who
can file a motion to quash.

Where to file
General rule: The motion must be filed before
the sala of the judge who issued it. Only the
court that issued the SW may order revocation
of search warrant or release of things seized
(Pagkalinawan v. Gomez (1967)).

General rule: Goods seized by virtue of an illegal

warrant must be returned [Castro v. Pabalan
(1976)].

Exception: Where the search is issued by one

court and the criminal action based on the
results of the search is afterwards filed in

Exception: If possession of the things seized is

prohibited by law, they should not be returned.
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Where the accused obtained goods from

another through payment of bouncing checks
and thereafter sold said goods to a buyer in
good faith, but said goods were taken from the
purchaser with the use of a search warrant
although the criminal case for estafa against
the accused was still pending, the goods should
be returned to the buyer. The buyer is entitled to
possession of goods until restitution is ordered
by the court in the criminal case [Yu v. Honrado
(1980)].

REMEDIAL LAW

It may also result in civil liability for:

(1) Violation of rights and liberties [Article 32
(9), Civil Code];
(2) Malicious prosecution and acts referred to
Article 32 [Article 2218, Civil Code].

Malice or bad faith is not required.

Not only official actions, but all persons who are
responsible for the violation are liable for
damages [MHP Garments v. CA (1994)].

Motion to suppress evidence

This refers to a motion to suppress as evidence
the objects illegally taken pursuant to the
exclusionary rule, which states that any
evidence obtained through unreasonable
searches and seizures shall be inadmissible for
any purpose in any proceeding.

Waiver of immunity against unreasonable search

and seizure
The
constitutional
immunity
against
unreasonable searches and seizure is a personal
right that may be waived expressly/impliedly
only by the person whose right is being invaded
or one who is expressly authorized to do so in
his behalf [Pasion v. Locsin (1938)].

Civil and criminal liability

The following offenses may result from
unreasonable search and seizure:
(1) Violation of domicile [Article 128, RPC];
(2) SW maliciously obtained [Article 129, RPC];
(3) Searching domicile without witnesses
[Article 130, RPC];
(4) Unjust interlocutory order [Article 206, RPC].

Requisites:
(1) It must appear that the right exists;
(2) That the person involved had knowledge,
(actual or constructive) of the existence of
such right;
(3) That the person had an actual intention to
relinquish the right.

The public officer or employee may be held

liable for:
(1) Entering without authority; against the will;
refuses to leave;
(2) A search warrant procured without just
cause or if with just cause, exceeds his
authority or uses unnecessary severity of
force;
(3) Conducting the search without the required
witnesses.

XIV.
PROVISIONAL
REMEDIES
Nature
Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
connection with the civil action deemed
instituted with the criminal action [Section 1,
Rule 127].
Where the civil action has actually been
instituted, or proceeded independently of the
criminal action, these provisional remedies
cannot be availed of in the criminal action but

The judge may be held liable for:

(1) Knowingly rendering an unjust interlocutory
order;
(2) Inexcusable negligence or ignorance.
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may be applied for in the separate civil action.

[Regalado (2010)]

REMEDIAL LAW

recovered from the accused in the following

cases:
(e) When the accused is about to abscond from
the Philippines
(f) When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a
public/corporate officer, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other person
in a fiduciary capacity, or for a willful
violation of duty
(g) When the accused has concealed, removed
or disposed of his property, or is about to do
so
(h) When the accused resides outside the
Philippines [Section 2, Rule 127].

If the civil action is suspended on account of

filing of the criminal action, the court with which
the civil case is filed is not thereby deprived of
its authority to issue auxiliary writs that do not
go into the merits of the case [Ramcar, Inc v. de
Leon (1947)].
Provisional remedies are not available when:
(1) Offended party has waived the civil claim;
(2) Offended party has reserved the civil claim;
(3) Offended party has already instituted a
separate civil action;
(4) Criminal action carries with it no civil
liability.
Kinds of provisional remedies
In general
Reference to provisional remedies in Section 1,
Rule 127 is made in general terms, hence
preliminary injunction, preliminary attachment,
receivership, replevin or support pendent lite
may be availed of [Riano, Criminal Procedure
(2011)]. However, only preliminary attachment is
provided for under the same rule.
The accused may present evidence to prove his
defense and damages, if any, arising from the
issuance of a provisional remedy in the case
[Section 11(b), Rule 119].

Issuance and implementation

The writ may be issued ex parte before
acquisition of jurisdiction over the accused.
However, it may be enforced only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties (2001)].
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 and Loan Assoc. v. CA (1989)].

Preliminary attachment
When proper
When the civil action is properly instituted in the
criminal action, the offended party may have
the property of the accused attached as security
for the satisfaction of any judgment that may be

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EVIDENCE

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EVIDENCE

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I. General Principles

to the technical rules of procedure and evidence

applicable to judicial proceedings [Dela Cruz v.
Malunao (A.M. No. P-11-3019, March 20, 2012)]

A. Concept of Evidence
B. Scope of the Rules of Evidence
C. Evidence in Civil Cases vs. Evidence in
Criminal Cases
D. Proof Versus Evidence
E. Factum Probans Versus Factum Probandum
F. Admissibility of Evidence
G. Burden of Proof and Burden of Evidence
H. Presumptions
I. Liberal Construction of the Rules of Evidence
J. Quantum of Evidence (Weight And Sufficiency
of Evidence)

Note: There is a different rule for Rules on

Electronic Evidence since it covers quasi-judicial
and administrative bodies [Sec. 2, Rule 1, Rules
on Electronic Evidence]

C. EVIDENCE IN CIVIL CASES VERSUS

EVIDENCE IN CRIMINAL CASES
In Civil Cases

In Criminal Cases

Preponderance of Proof beyond reasonable

evidence
doubt [Sec. 2, Rule 133]
[Sec. 1, Rule 133]

A. CONCEPT OF EVIDENCE

Offer
of
compromise NOT
an admission of
any liability
[Sec. 27, Rule 130]

The means, sanctioned by these rules, of

ascertaining in a judicial proceeding, the truth
respecting a matter of fact [Sec. 1, Rule 128]

B. SCOPE OF THE RULES

EVIDENCE [SEC. 2, RULE 128]

REMEDIAL LAW

OF

General rule: Principle of uniformity

The rules of evidence shall be the same in all
courts and in all trials and hearings.
Exceptions: If otherwise provided by:
(1) Law [e.g. 1987 Constitution, statutes];
(2) Rules of Court.
Applicability
The rules of evidence are specifically applicable
only in judicial proceedings. [Sec. 1, Rule 128]
In quasi-judicial proceedings, the same apply by
analogy or suppletorily AND whenever
practicable and convenient [Sec. 4, Rule 1],
except in cases where the governing law in the
particular proceeding specifically adopts the
rules of evidence in the Rules of Court.
[Regalado]

EXCEPT for quasi-offenses or

those allowed by law to be
compromised,
offer
of
compromise by the accused
may be received in evidence
as an implied admission of
guilt.
Exceptions:
(1) Sec 204, RA 8424 Tax
Reform Act of 1997
which provides that
payment of any internal
revenue tax and all
criminal violations may
be
compromised,
except those already
filed in Court and those
involving fraud.
(2) Rape cases, through
marriage (Art. 344, RPC)
A plea of guilty later
withdrawn or an unaccepted
offer of a plea of guilty to a
lesser offense, is not
admissible
in
evidence
against the accused who
made the plea or offer [Sec.
27, Rule 130]

Administrative
investigations
shall
be
conducted without necessarily adhering strictly
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REMEDIAL LAW

Presumption of Presumption of innocence a

innocence does constitutional guarantee on
NOT apply
the accused [Sec. 14, Art. III]

Other Classifications
Cumulative and Corroborative Evidence
Cumulative
Corroborative
Evidence
Evidence

An offer to pay or the payment of medical,

hospital or other expenses occasioned by an
injury is NOT admissible as proof of criminal or
civil liability for the injury. [Sec. 27, Rule 130]

Evidence of the same Additional evidence of a

kind and to the same different character to the
state of facts
same point
Prima Facie and Conclusive Evidence

D. PROOF VERSUS EVIDENCE

Proof

Evidence

Result or effect Mode and manner of proving

of
evidence competent facts in judicial
[Regalado]
proceedings [Bustos v. Lucero,
G.R. No. L-2068, October 20,
1948]

Prima Facie

Conclusive

Standing
alone,
unexplained
or
uncontradicted,
is
sufficient to maintain the
proposition affirmed

Class of evidence
which the law does
not allow to be
contradicted

Primary and Secondary Evidence

Primary

E. FACTUM PROBANS
FACTUM PROBANDUM
Facrum Probans
Facts
or
evidencing
proposition

VERSUS

Facrum Probandum

material The proposition to be

the established

The evidentiary fact The ultimate

tending to prove the fact sought
to
in issue
established

Secondary

Best evidence

Substitutionary evidence

That which the law

regards as affording
the greatest certainty
of the fact in question

Inferior
to
primary;
permitted only when the
best evidence is not
available

F. ADMISSIBILITY OF EVIDENCE
Requisites for admissibility of evidence
Evidence is admissible when it is:
(1) Relevant to the issue; and
(2) Competent i.e. not excluded by law or the
ROC. [Sec. 3, Rule 128]

fact
be

3 classes of evidence according to form

(1) Object- those addressed to the senses of
the court. [Sec. 1, Rule 130]
(2) Documentary - consists 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, Rule 130]
(3) Testimonial - evidence elicited from the
mouth of a witness [Riano, citing Blacks
Law Dictionary]

When determined
Admissibility is determined at the time the
evidence is offered to the court
[Sec 35, Rule 132]
Every objection to the admissibility of evidence
shall be made at the time such evidence is
offered, or as soon thereafter as the objection to
its admissibility have become apparent,
otherwise the objection shall be considered
waived. [Abrenica v. Gonda, 94 Phil. 739]
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In case of:
Testimonial evidence - objection to the
qualification of the witness must be made
at the time he is called to the stand and if
the witness is qualified, objections should
be raised when the objectionable question
is asked or after the answer was given if the
objectionable feature became apparent by
reason of such answer.
Object or real evidence - objection must be
made either at the time it is presented in an
ocular inspection or demonstration or when
it is formally offered.
Documentary evidence objection must be
made at the time it is formally offered. [Sec.
35 to 37, Rule 132]

REMEDIAL LAW
probability or improbability of the fact in
dispute. They are evidence of relevant
collateral facts. [Regalado]

Competence
Evidence is competent when it is not be
excluded by (i) law or (ii) the ROC [Sec. 3,
Rule 128]
Determined by the prevailing exclusionary
rules of evidence [Regalado]
Exclusionary rules of evidence by law are
either constitutional or statutory.
o Constitutional exclusionary rules
Unreasonable searches and seizures [Sec.
2, Art. III]; privacy of communication and
correspondence [Sec. 3, Art. III]; right to
counsel, prohibition on torture, force,
violence, threat, intimidation or other
means which vitiate the free will;
prohibition on secret detention places,
solitary, incommunicado. [Sec. 12, Art. III];
right against self-incrimination [Sec. 17,
Art. III]
o Statutory exclusionary rules
Lack of documentary stamp tax to
documents required to have one makes
such document inadmissible as evidence
in court until the requisite stamp/s shall
have been affixed thereto and cancelled
[Sec. 201, NIRC]; Any communication
obtained by a person, not being
authorized by all the parties to any
private communication, by tapping any
wire/cable
or
using
any
other
device/arrangement
to
secretly
overhear/intercept/record
such
information by using any device, shall not
be admissible in evidence in any judicial /
quasi-judicial / legislative/ administrative
hearing or investigation. [Secs. 1 and 4,
R.A. 4200 (Wire-Tapping Act)]
Under the ROC, Rule 130 is the applicable
rule in determining the admissibility of
evidence.

Relevance of evidence and collateral matters

Relevancy
Evidence is relevant when it has such a
relation to the fact in issue as to induce
belief in its existence or non-existence.
[Sec. 4, Rule 128]
Determinable by the rules of logic and
human experience.
Collateral matters
Matters other than the fact in issue which
are offered as a basis for inference as to the
existence or non-existence of the facts in
issue [Regalado]
General Rule: Evidence on collateral
matters is NOT allowed. [Sec. 4, Rule 128]
Exception: When it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue. [Sec. 4,
Rule 128]
NOTE: What is prohibited by the Rules is not
evidence of all collateral matters, but evidence
of irrelevant collateral facts. [Regalado]
Circumstantial evidence is the evidence of
collateral facts or circumstances from
which an inference may be drawn as to the
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Doctrines of admissibility
Multiple admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence shall
be admitted for any or all the purposes for
which it is offered, provided it satisfies all the
requisites of law for its admissibility therefor.
[Regalado]

REMEDIAL LAW

Direct v. Circumstantial

Conditional admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received, on condition that the other facts will
be proved thereafter; otherwise, the evidence
already given shall be stricken out.

Direct Evidence

Circumstantial

Proves the fact in

dispute
without
the aid of any
inference
or
presumption

Proof of a fact/s from which,

taken either singly or
collectively, the existence of
a particular fact in dispute
may be inferred as a
necessary
or
probable
consequence

Positive Evidence v. Negative Evidence

Positive Evidence

Negative Evidence

Witness
affirms Witness states he/she did
that a fact did or not see or know of the
did not occur
occurrence of a fact
Competence v. Credibility

This was applied in the case of People v. Yatco

[G.R. No. L-9181, November 28, 1955] subject to
the qualification that there should be no bad
faith on the part of the proponent. The
qualification appears to avoid unfair surprises.
[Regalado]

Competence

Credibility

Eligibility of evidence to Worthiness of belief;

be received as such
believability

G. BURDEN OF PROOF AND BURDEN

OF EVIDENCE

Curative admissibility
Where the court has admitted incompetent
evidence adduced by the adverse party, a party
has a right to introduce the same kind of
evidence in his/her behalf. [Regalado]

Burden of proof is the duty of a party to present

evidence on the facts in issue necessary to
establish his/her claim or defense by the
amount of evidence required by law.
[Sec. 1, Rule 131]

What determines the rule of curative

admissibility:
(1) Whether the incompetent evidence was
seasonably objected to - Lack of objection
to incompetent evidence constitutes waiver
on the part of the party against whom it
was introduced but the opposing party is
not deprived of his right to similar
rebutting evidence; and
(2) Whether the admission of such evidence
will cause a plain and unfair prejudice to
the party against whom it was admitted
[Regalado]

In civil cases, the quantum of evidence required

to sustain the proponent of an issue is
preponderance of evidence. The burden of proof
is on the party who would be defeated if no
evidence were given in either side, the plaintiff
with respect to his complaint, the defendant
with respect to his counterclaim, and the crossclaimant, with respect to his cross-claim.
In criminal cases:
For the issuance of warrant of arrest evidence of probable cause that there exist
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a reasonable ground that the accused has

committed an offense [Algas v. Garrido,
A.M. No. 289-MJ, November 15, 1974]
To warrant the filing of an information prima facie evidence
To sustain a conviction - evidence of guilt
beyond reasonable doubt.

Equipoise Rule or Equiponderance Doctrine

The doctrine refers to the situation where the
evidence of the parties are evenly balanced or
there is doubt on which side the evidence
preponderates. In this case, the decision should
be against the party with the burden of proof.
[Rivera v. CA, GR No. 115625, Jan. 23, 1998;
Marubeni v. Lirag, GR No. 130998, Aug. 10, 2001]

The burden of proof rests on the prosecution.

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, August 27, 2008]

A party will have the burden of evidence only

(i.e., will have to be a proponent) if there is any
factum probandum (whether evidentiary or
otherwise) that the adverse party has already
established (whether by law, rule, or by virtue of
evidence that he has presented) that he (the
potential proponent) has to overcome. That
factum probandum may, but does not have to
be, nor is limited to a "prima facie
presumption." Likewise, a party will not have
any burden of evidence at all if the adverse
party has not established any factum
probandum in the first place (Prof. Avena).

H. PRESUMPTIONS

In both civil and criminal cases, the burden of

evidence lies with the party who asserts an
affirmative allegation. [Regalado]
Burden of Proof v. Burden of Evidence
Burden of
Burden of Evidence
Proof

Conclusive

Disputable

Inferences which the law

makes so peremptory
that it will not allow
them to be overturned
by any contrary proof
however strong [Datalift
Movers
v.
Belgravia
Realty, G.R. No. 144268,
August 30, 2006]

Satisfactory
if
uncontradicted, but
may be contradicted
and overcome by
other evidence. [Sec.
3, Rule 131]

Conclusive Presumptions under the Rules [Sec.

2, Rule 131]:
(1) A party is not permitted falsify a thing if:
(a) By his own declaration, act or omission;
(b) He intentionally and deliberately led
another to believe a particular thing is
true;
(c) To act upon such belief; and
(d) The litigation arises out of such
declaration act or omission.

Does not shift Shifts from party to party

throughout
depending upon the exigencies
the trial
of the case in the course of the
trial
Generally
determined by
the pleadings
filed by the
party

REMEDIAL LAW

Generally determined by the

developments at the trial, or by
the provisions of substantive
law or procedural rules which
may relieve the party from
presenting evidence on the fact
alleged (presumptions, judicial
notice and admissions)

(2) A 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.
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These conclusive presumptions are based upon

the doctrine of estoppel in pais under the Civil
Code. [Regalado]

REMEDIAL LAW

(16) Private transactions have been fair and

regular;
(17) Ordinary course of business has been
followed;
(18) There was a sufficient consideration for a
contract;
(19) Negotiable instrument was given or
indorsed for a sufficient consideration;
(20) An
indorsement
of
negotiable
instrument was made before the
instrument was overdue and at the place
where the instrument is dated;
(21) A writing is truly dated;
(22) Letter duly directed and mailed was
received in the regular course of the mail;

Disputable Presumptions under the Rules [Sec. 3,

Rule 131]
(1) Person is innocent of a crime or wrong;
(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;
(5) Evidence willfully suppressed would be
adverse if produced;
(6) Money paid by one to another was due to
the latter;
(7) Thing delivered by one to another belonged
to the latter;
(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;
(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;
(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;
(13) Official duty has been regularly performed;
(14) A court or judge acting as such, whether in
the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
(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;

(23)Presumptions concerning absence:

(a) Ordinary but continued absence of:
i. 7 years, it being unknown WON the
absentee still lives, he is considered
dead for all purposes, except for
those of succession
ii. 10 yearsthe absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75
years, an absence of 5 years shall
be sufficient to open his succession
iii. 4 consecutive yearsthe spouse
present may contract a subsequent
marriage if s/he has a well-founded
belief that the absent spouse is
already dead; but where there is
danger of death, an absence of only
2 years shall be sufficient for
remarriage
(b) Qualified absence
i. A 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
ii. A member of the armed forces who
has taken part in armed hostilities,
and has been missing for 4 years
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iii. A person who has been in danger of

death under other circumstances
and whose existence has not been
known for 4 years

After 180 days

following
the
celebration of the
subsequent
marriage

(24) Acquiescence resulted from a belief that

the thing acquiesced in was conformable to
the law/fact;
(25) Things have happened according to the
ordinary course of nature and ordinary
nature habits of life;
(26) Persons acting as co-partners have
entered into a contract of co-partnership;
(27) A man and woman deporting themselves
as husband and wife have entered into a
lawful contract of marriage;
(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 a void
marriage, has been obtained by their joint
efforts, work or industry;
(29) In cases of cohabitation by a man and a
woman who are not capacitated to marry
each other and who have acquired property
through their actual joint contribution of
money, property or industry, such
contributions and their corresponding
shares including joint deposits of money
and evidences of credit are equal;
(30) Presumptions governing children of
women who contracted another marriage
within 300 days after termination of her
former marriage (in the absence of proof to
the contrary):
When Child was
Presumption
Born
Before 180 days
after
the
solemnization
of
the
subsequent
marriage

REMEDIAL LAW
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.

(31) A thing once proved to exist continues as

long as is usual with things of the nature;
(32)The law has been obeyed;
(33)A printed/published book, purporting to be
printed/published by public authority, was
so printed/published;
(34) A printed/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 such person or his
successor in interest;
(36) Presumptions regarding survivorship:
(Applicable for all purposes except
succession)
(a) When 2 persons perish in the same
calamity,
(b) and it is not shown who died first,
(c) and
there
are
no
particular
circumstances from which it can be
inferred,
(d) the survivorship is determined from the
probabilities resulting from the strength
and the age of the sexes:
Person presumed
Situation
to have survived

Considered to have been

conceived
during
the
former marriage, provided
it be born within 300 days
after the termination of the
former marriage

384

Both < 15 y/o

The older

Both < 60 y/o

The younger

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REMEDIAL LAW

It does not mean such a degree of proof

excluding possibility of error and producing
absolute certainty. Only moral certainty is
required that degree of proof which produces
conviction in an unprejudiced mind.
[Sec. 2, Rule 133]

the other > 60 y/o

Both > 15 and < 60 y/o, of The male
different sexes
Both > 15 and <60 y/o, of The older
the same sex
One < 15 or > 60 y/o, and The one between
the other between those those ages
ages

The burden is on the prosecution to prove guilt

beyond reasonable doubt, NOT on the accused
to prove his/her innocence. [Boac v People, G.R.
No. 180597, November 7, 2008]

(37) As between 2 or more persons called to

succeed each other: If there is a doubt 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.

The prosecution must not rely on the weakness

of the evidence of the defense. [Ubales v People,
G.R. No. 175692, October 29, 2008; People v. Hu,
G.R. No. 182232, October 6, 2008]
Preponderance of evidence
Applicable quantum of evidence in civil cases
[Sec. 1, Rule 133]

No presumption of legitimacy or illegitimacy

There is no presumption of legitimacy or
illegitimacy of a child born after three hundred
days following the dissolution of marriage or
the separation of spouses. Whoever alleges the
legitimacy or illegitimacy of such child must
prove his allegation. [Sec. 4, Rule 131]

Means that the evidence adduced by one side is,

as a whole, superior to or has greater weight
than that of the other. [Habagat Grill v. DMCUrban Property Developer, Inc., G.R. No. 155110,
March 31, 2005; Bank of the Philippine Islands v.
Reyes, G.R. No. 157177, February 11, 2008]

I. LIBERAL CONSTRUCTION OF THE

RULES OF EVIDENCE

In determining preponderance of evidence, the

court may consider:
(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 they testify,
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;
(3) Number
of
witnesses
(although
preponderance is not necessarily with the
number of witnesses). [Sec. 1, Rule 133]

Like all other provisions under the ROC, rules of

evidence must be liberally construed.
[Sec. 6, Rule 1]
Rules on Electronic Evidence shall likewise be
construed liberally.
[Sec. 2, Rule 2, Rules on Electronic Evidence]

J. QUANTUM OF EVIDENCE (WEIGHT

AND SUFFICIENCY OF EVIDENCE)
Proof beyond reasonable doubt
Applicable quantum of evidence in criminal
cases. The accused is entitled to an acquittal if
his guilt is not shown beyond reasonable doubt.
[Sec. 2, Rule 133]

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Substantial evidence
Degree of evidence required in cases filed
before administrative or quasi-judicial bodies.
[Sec. 5, Rule 133]

REMEDIAL LAW

further traditional evidentiary support. The

principle is based on convenience and
expediency in securing and introducing
evidence on matters which are not ordinarily
capable of dispute and are not bona
fide disputed. [Republic v. Sandiganbayan, G.R.
No. 166859, April 12, 2011]

Substantial evidence is that amount of relevant

evidence which a reasonable mind might accept
as adequate to justify a conclusion.
[Sec. 5, Rule 133]

B. MATTERS OF JUDICIAL NOTICE

Mandatory
(1) Existence and territorial extent of states;
(2) Their 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 the legislative, executive
and judicial departments of the
Philippines;
(7) LaWs of nature;
(8) Measure of time; and
(9) Geographical divisions. [Sec. 1, Rule 129]

Clear and convincing evidence

The standard of proof required in granting or
denying bail in extradition cases is clear and
convining evidence that the potential extradee
is not a flight risk and will abide with all the
orders and process of the extradition court.
[Government of Hongkong Special Administrative
Region v. Olalia, Jr., G.R. No. 153675, April 19,
2007]
Intermediate in character lower than proof
beyond reasonable doubt, but higher than
preponderance of evidence

II. Judicial Notice and

Judicial Admissions

Note: It would be error for the court not to take

judicial notice of an amendment to the Rules of
Court [Riano citing Siena Realty v. Gal-lang (428
SCRA 422)]

A.
What Need Not be Proved
B.
Matters of Judicial Notice
C.
Judicial Admissions
D.
Judicial Notice of Foreign Laws, Law of
Nations and Municipal Ordinance

Discretionary
(1) Matters of public knowledge;
(2) Matters capable of unquestionable
demonstration; and
(3) Matters ought to be known to judges
because of their judicial functions. [Sec. 2,
Rule 129]

A. WHAT NEED NOT BE PROVED

(1) Facts of Judicial Notice
(2) Judicial Admissions
(3) Conclusive Presumptions

Requisites:
For the court to take judicial notice, three
material requisites should be present:
(a) The matter must be one of common and
general knowledge;
(b) It must be well and authoritatively settled
and not doubtful or uncertain;

Judicial Notice
Judicial notice is the cognizance of certain facts
that judges may properly take and act on
without proof because these facts are already
known to them. Put differently, it is the
assumption by a court of a fact without need of
386

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(c) It must be known to be within the limits of

the jurisdiction of the court. [State
Prosecutors v, Muro, A.M. No. RTJ-92-876,
September 19, 1994]

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General Rule: Courts are not authorized to take

judicial notice of the contents or records of
other cases even if both cases may have been
tried or are pending before the same judge.
[Prieto v. Arroyo (G.R. No. L-17885 June 30,
1965)]

Judicial notice is not judicial knowledge. The

mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not
authorized to make his individual knowledge of
a fact, not generally or professionally known,
the basis of his action. Judicial cognizance is
taken only of those matters which are
"commonly" known. [State Prosecutors v, Muro
(supra)]

Exceptions: In the absence of objection, and as a

matter of convenience to all parties, a court may
properly treat all or any part of the original
record of a case filed in its archives as read into
the record of a case pending before it, when:
(1) With the knowledge of the opposing party,
reference is made to it for that purpose, by
name and number or in some other
manner by which it is sufficiently
designated; or
(2) The original record of the former case or
any part of it, is actually withdrawn from
the archives by the court's direction, at the
request or with the consent of the parties,
and admitted as a part of the record of the
case then pending. [Tabuena v. CA, G.R. No.
85423, May 6, 1991]

When Hearing Necessary

During the trial
The court, on its own initiative, or on request of
a party, may announce its intention to take
judicial notice of any matter and allow the
parties to be heard thereon.
After the trial
Before judgment or on appeal
The proper court, on its own initiative or on
request of a party, may take judicial notice of
any matter and allow the parties to be heard
thereon if such matter is decisive of a material
issue in the case. [Sec. 3, Rule 129]

With Respect to Ordinances

Municipal trial courts are required to take
judicial notice of the ordinances of the
municipality or city wherein they sit.

With Respect to Courts Own Acts and Records

A court MAY take judicial notice of its own acts
and records in the same case, of facts
established in prior proceedings in the same
case, of the authenticity of its own records of
another case between the same parties, of the
files of related cases in the same court, and of
public records on file in the same court.
[Republic v Court of Appeals, G.R. No. 119288,
August 18, 1997]

Regional Trial Courts must take judicial notice

of such ordinances only:
(a) When required to do so by statute e.g. in
Manila as required by the city charter [City
of Manila v. Garcia, et al., L-26053, February
21, 1967]; and
(b) In a case on appeal before them and
wherein the inferior court took judicial
notice of an ordinance involved in said
case. [U.S. v. Blanco, 37 Phil. 126; U.S. v.
Hernandez, 31 Phil. 342]

With Respect to Records of Other Cases

Note: The principal guide in determining what

facts may be assumed to be judicially known is
that of notoriety. It is either
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(1) generally known within the territorial

jurisdiction of the trial court; or
(2) capable
of
accurate
and
ready
determination by resorting to sources
whose accuracy cannot reasonably be
questionable. [Riano]

REMEDIAL LAW

like immaterial allegations (Sec. 11, Rule 8),

conclusions, non-ultimate facts in the pleading
(Sec. 1, Rule 8) as well as the amount of
liquidated damages (Sec. 11, Rule 8). [Riano]
Although an admission made during the pretrial is deemed to have been made in the course
of the judicial proceeding and is necessarily a
judicial admission, an admission made by the
accused in the pre-trial of a criminal case is not
necessarily admissible against him. To be
admissible, it must comply with the conditions
set forth under Sec. 2, Rule 118:
(1) Reduced in writing, and
(2) Signed by the accused and counsel. [Riano]

C. JUDICIAL ADMISSIONS
To be a judicial admission, the same:
(1) Must be made by a party to the case;
(2) Must be made in the course of the
proceedings in the same case; and
Note: As regards judicial admissions
made in the trial of another case, the
same would be considered an
extrajudicial admission for the purpose
of the other proceeding where such
admission is offered. [Riano]
(3) May be verbal or written.
[Sec. 4, Rule 129]

Effect of judicial admissions

It does NOT require proof. [Sec. 4, Rule 129]
General rule: Judicial admissions CANNOT be
contradicted. [Sec. 4, Rule 129]
An original complaint, after being amended,
loses its character as a judicial admission, which
would have required no proof. It becomes
merely an extra-judicial admission requiring a
formal offer to be admissible. [Torres v CA, G.R.
No. L-37420, July 31, 1984].

Judicial admissions may be

(1) Made in:
(a) Pleadings filed by the parties
(including admissions made in
pleadings
which
are
withdrawn/superseded
by
an
amended pleading [Regalado])
(b) Stipulations of facts by the parties in a
pre-trial conference
[People v. Hernandez, G.R. No. 108028,
July 30, 1996]
(c) The course of the trial either by verbal
or written manifestations/stipulations
(d) Other stages of judicial proceedings

A party who judicially admits a fact cannot later

challenge that fact as judicial admissions are a
waiver of proof; production of evidence is
dispensed with. [Alfelor v Halasan, G.R. No.
165987 March 31, 2006]
How judicial admissions may be contradicted
As an exception to the general rule, judicial
admissions may be contradicted only by
showing that:
(1) It was made through palpable mistake; or
(2) No such admission was made.
[Sec. 4, Rule 129]

(2) Obtained through:

(a) Depositions
(b) Written interrogatories
(c) Request for admissions [Regalado; See
also Civil Procedure Rules]
There are averments made in pleadings which
are not deemed admissions even if the adverse
party fails to make a specific denial of the same

This may be invoked when the statement of a

party is taken out of context or that his
statement was made not in the sense it is made
388

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to appear by the other party. [Phil. Health Care

Providers v. Estrada, G.R. No. 171052, January 28,
2008 citing Atillo, III v. CA, 1997]

REMEDIAL LAW

admissible as tending to prove the truth of a

matter stated therein if:
(1) the court takes judicial notice, or
(2) a witness expert in the subject testifies,
that the writer of the statement in the
treatise, periodical or pamphlet is
recognized in his profession or calling as
expert in the subject.

D. JUDICIAL NOTICE OF FOREIGN

LAWS, LAW OF NATIONS AND
MUNICIPAL ORDINANCE
Foreign Laws
General Rule: Courts cannot take judicial notice
of foreign laws. They must be alleged and
proved as any other fact. [Yao-Kee v. SyGonzales, G.R. No. L-55960, Nov. 24, 1988]

Doctrine of Processual Presumption

In the absence of proof, the foreign law will be
presumed to be the same as the laws of the
jurisdiction hearing the case. [Northwest Orient
Airlines v Court of Appeals (G.R. No. 112573
February 9, 1995)]

Written foreign law may be proved by:

(1) An official publication; or
(2) A duly attested and authenticated copy.

The court may take judicial notice of the foreign

law
(1) Where the foreign law is within the actual
knowledge of the court such as when the
law is well and generally known such as
when they are well and generally known or
they had been ruled upon in other cases
before it and none of the parties claim
otherwise [PCIB v Escolin (G.R. L-27860 and
L-27896 March 29,1974)]
(2) When the foreign law is part of a published
treatise, periodical or pamphlet and the
writer is recognized in his/her profession or
calling as expert in the subject
[Sec. 46, Rule 130]

Attested copy
(1) Attestation must be made by the officer
having legal custody of the record or by his
deputy. (Sec. 24, Rule 132)
(2) It must state, in substance, that the copy is
a correct copy of the original, or a specific
part thereof (Sec. 25, Rule 132)
(3) It must be under the official seal of the
attesting officer, if there be any, or if he be
a clerk of court having a seal, under the
seal of such court. (Sec. 25, Rule 132)
(4) It must be accompanied by a certificate
that attesting officer has custody
(Sec. 24, Rule 132)
(a) 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.

Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law
of the land. [Sec. 2, Art. II, 1987 Constitution]
Being part of the law of the land, they are
therefore in the nature of local laws, and hence,
subject to mandatory judicial notice under Sec. 1
of Rule 129.
Municipal Ordinances
Municipal trial courts are required to take
judicial notice of the ordinances of the

Unwritten foreign law may be proved through

Sec. 46, Rule 130
Published treatise, periodical or pamphlet on a
subject of history, law, science or art is
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municipality or city wherein they sit. [US v.

Blanco (37 Phil 126 November 9, 1917)]

(4) Object must be formally offered

[Sec. 34, Rule 132]

However, in the case of the RTC, they must take

such judicial notice only
(a) when required to do so by statute (City of
Manila v. Garcia (1967));
All courts sitting in the City of Manila
shall take judicial notice of the
ordinances by the Municipal Board.
[Sec. 50, RA 409 Revised Charter of
the City of Manila]
(b) in a case of appeal before them wherein
the inferior court took judicial notice of an
ordinance involved in said case [US v.
Blanco (supra)] [Regalado]

Requisites for the admissibility of tape recording:

(1) A showing that the recording was capable
of taking testimony
(2) A showing that the operator of the
recording device is competent
(3) Establishment of the authenticity and
correctness of recording
(4) A showing that no changes, deletions, or
additions have been made on the
recordings
(5) A showing of the manner of preservation of
the recording
(6) Identification of speakers
(7) A showing that the testimony elicited was
voluntarily made without any kind of
inducement. [Torralba v. People (G.R. No.
153699, August 22, 2005)]

III. Object (Real) Evidence

A.
Nature of Object Evidence
B.
Requisites for Admissibility
C.
Categories of Object Evidence
D.
Demonstrative Evidence
E.
View of an Object or Scene
F.
Chain of Custody in Relation to Section
21 of the Comprehensive Dangerous Drugs Act
of 2002
G.
Rule on DNA Evidence (A.M. No. 06-115-SC)

A.

Relevant
General Rule: When an object is relevant to the
fact in issue, it may be exhibited to, examined or
viewed by the court.
[Sec. 1, Rule 130]
Exceptions: Court may refuse exhibition of
object evidence and rely on testimonial
evidence alone if
(1) Exhibition is contrary to public policy,
morals or decency;
(2) It would result in delays, inconvenience,
unnecessary expenses, out of proportion to
the evidentiary value of such object; [People
v. Tavera (47 Phil. 645 March 17, 1925)]
(3) Evidence would be confusing or misleading.
(4) The testimonial or documentary evidence
already presented clearly portrays the
object in question as to render a view
thereof unnecessary

NATURE OF OBJECT EVIDENCE

Those addressed to the senses of the court

[Sec. 1, Rule 130]
The right against self-incrimination CANNOT be
invoked against object evidence. [People v.
Malimit, G.R. No. 109775 November 14, 1996]

B.
REQUISITES
ADMISSIBILITY

REMEDIAL LAW

FOR

Basic Requisites for Admissibility (Riano)

(1) Evidence must be relevant;
(2) Evidence must be authenticated;
(3) Authentication must be made by a
competent witness; and

Competent
Evidence be Authenticated

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To authenticate the object is to show that the

object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.

REMEDIAL LAW
(a) by the person who made the
recording, or
(b) by some other person competent to
testify on the accuracy thereof [Sec. 1,
Rule 11, Rules on Electronic Evidence]

Authentication be Made by Competent Witness

To authenticate the object, the witness must
have the capacity to identify the object as the
very thing involved in the litigation.

Ephemeral electronic communications

Refers to telephone conversations, text
messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. [Sec. 1(k), Rule 2, Rules on
Electronic Evidence]

A witness can testify to those facts which

he/she knows of his/her personal knowledge;
that is, which are derived from his/her own
perception. [Sec. 36, Rule 130]

The Thing Itself

Unique Objects
Objects that have readily identifiable marks,
e.g., a caliber 45 pistol by virtue of its serial
number

How Proven
(1) by the testimony of a person who was a
party to the same;
(2) by the testimony of a person who has
personal knowledge thereof; or
(3) in the absence or unavailability of such
witnesses, by other competent evidence
[Sec. 2, Rule 11, Rules on Electronic Evidence]

Objects Made Unique

Objects with no unique characteristic but are
made readily identifiable, e.g., a typical kitchen
knife with identifying marks placed on it by the
witness

When recorded, the communication ceases to

be ephemeral and shall be proven in the same
manner as proving audio, photographic and
video evidence [Sec. 2, Rule 11, Rules on
Electronic Evidence].

C.
CATEGORIES
EVIDENCE

OF

OBJECT

E. VIEW OF AN OBJECT OR SCENE

Non-Unique Objects
Objects with no identifying marks and cannot
be marked, e.g., narcotic substances

D.

When an object is relevant to the fact in issue, it

may be viewed by the court. [Sec. 1, Rule 130]
Court has an inherent power to order view when
there is a need to do so.
[Riano citing Sec. 1, Rule 130]

DEMONSTRATIVE EVIDENCE

Not the actual thing, rather it represents or

demonstrates
the
real
thing,
E.g.,
photographs, motion pictures and recordings
[Riano]
Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided it shall be:
(1) shown, presented or displayed to the
court, and
(2) identified, explained or authenticated

Inspection may be made inside or outside the

courtroom. An inspection outside should be
made in the presence of the parties or at least
with the previous notice to them.
[Riano citing Moran]

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F. CHAIN OF CUSTODY IN RELATION

TO SEC. 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002

REMEDIAL LAW

Note: A unique characteristic of narcotic

substances is that they are not readily
identifiable. Hence, in authenticating the same,
a more stringent standard than that applied to
readily identifiable objects is necessary. This
exacting standard entails a chain of custody of
the item with sufficient completeness to render
it improbable for the original item to be
exchanged with another, contaminated or
tampered with [Lopez v. People (G.R. No. 172953
April 30, 2008)]

Meaning of chain of custody

A method of authenticating evidence which
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 [Lopez v People (G.R. No.
172953 April 30, 2008)]

G. RULE ON DNA EVIDENCE

(A.M. NO. 06-11-5-SC)

In Relation to Drug Cases

The apprehending team having initial custody
and control of the drugs shall:
(1) physically inventory, and
(2) photograph the same,
(3) in the presence of
(a) accused or the person/s from whom the
drugs were seized, or his/her
representative or counsel
(b) representative from the media and the
Department of Justice
(c) any elected public official
(4) who shall be required to sign the copies of
the inventory and be given a copy thereof.
[Sec. 21, Art. II, R.A. 9165 or the
Comprehensive Dangerous Drugs Act of
2002]

DNA evidence
The totality of the DNA profiles, results and
other genetic information directly generated
from DNA testing of biological samples.
[Sec. 3(c)]
Application for DNA testing order
With prior court order
(1) The appropriate court may, at any time,
either (i) motu proprio or (ii) on application
of any person who has a legal interest in
the matter in litigation, order a DNA
testing.
(2) Such order shall issue after due hearing
and notice to the parties upon a showing of
the following:
(a) A biological sample exists that is
relevant to the case;
(b) The biological sample: (i) was not
previously subjected to the type of
DNA testing now requested; or (ii) was
previously subjected to DNA testing,
but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically
valid technique;
(d) The DNA testing has the scientific
potential to produce new information
that is relevant to the proper
resolution of the case; and

Non-compliance with sec. 21 of R.A. 9165,

particularly the making of the inventory and
their photographing of the drugs confiscated
will not render the drugs inadmissible in
evidence. The issue if there is non-compliance
with the law is not admissibility, but of weight
evidentiary merit or probative value. [People v
Del Monte (G.R. No. 179940 April 23, 2008)]
Purpose of Establishing Chain of Custody: To
guaranty the integrity of the physical evidence
and to prevent the introduction of evidence
which is not authentic. [Riano]
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(e) The existence of other factors, if any,

which the court may consider as
potentially affecting the accuracy of
integrity of the DNA testing. [Sec. 4]

REMEDIAL LAW

(2) DNA testing methodology

(a) Procedure followed in analyzing the
samples
(b) Advantages and disadvantages of the
procedure
(c) Compliance with scientifically valid
standards in conducting the tests

Without prior court order

(1) This Rule shall not preclude a DNA testing,
without need of a prior court order, at the
behest of any party. [Sec. 4]
(2) Post-conviction DNA testing [Sec. 6]

(3) Forensic DNA laboratory

(a) Accreditation by any reputable
standards-setting institution
(b) Qualification of the analyst who
conducted the tests
(c) If not accredited, relevant experience
of the laboratory in forensic work and
its credibility

Post-conviction DNA testing

How Obtained
(1) Without need of prior court order
(2) Available to the prosecution or any person
convicted by final and executory judgment
Requisites
(1) A biological sample exists
(2) Such sample is relevant to the case
(3) The testing would probably result in the
reversal or modification of the judgment of
conviction. [Sec. 6]

(4) Reliability of the testing result [Sec. 7]

Vallejo Standard
In assessing the probative value of DNA
evidence, courts should consider the following:
(a) How the samples were collected
(b) How they were handled
(c) The possibility of contamination of the
samples
(d) The procedure followed in analyzing the
samples, whether the proper standards
and procedures were followed
(e) Qualification of the analyst who
conducted the tests [People v. Vallejo (May
9, 2002)]

Remedy if Results Favorable to the Convict

Convict or the prosecution may file a petition for
a writ of habeas corpus in the court of origin, CA
or SC or any member of said courts. [Sec. 10]
General Rule: If the court, after due hearing,
finds the petition meritorious, it shall reverse or
modify the judgment of conviction and order the
release of the convict. [Sec. 10]

Factors that Determine the Reliability of the

DNA Testing Methodology
(1) Falsifiability of the principles or methods
used, that is, whether the theory or
technique can be and has been tested
(2) Subject to peer review and publication of
the principles or methods
(3) General acceptance of the principles or
methods by the scientific community
(4) Existence and maintenance of standards
and controls to ensure the correctness of
data generated

Exception: If continued detention is justified for

a lawful cause. [Sec. 10]
Factors in Assessing the Probative Value of DNA
Evidence
(1) Chain of custody
(a) How the biological samples were
collected
(b) How they were handled
(c) Possibility of contamination

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(5) Existence of an appropriate reference

population database
(6) General degree of confidence attributed
to mathematical calculations used in
comparing DNA profiles; and
(7) Significance and limitation of statistical
calculations used in comparing DNA
profiles (Sec. 5)

When applicable (General Rule)

Only when the subject of inquiry is the contents
of a document [Rule 130, Sec. 3]
The best evidence rule does not apply when the
issue is only as to whether or not such
document was actually executed or in the
circumstances relevant to its execution. [People
v Tandoy (G.R. No. 80505 December 4, 1990)]

IV. Documentary Evidence

A.
Meaning of Documentary Evidence
B.
Requisites for Admissibility
C.
Best Evidence Rule
D.
Rules on Electronic Evidence (A.M. No.
01-7-01- SC)
E.
Parol Evidence Rule
F.
Authentication and Proof of Documents

A. MEANING
EVIDENCE

OF

REMEDIAL LAW

Affidavits and depositions are considered as not

being the best evidence, hence not admissible if
the affiants or deponents are available as
witnesses. [Regalado citing 4 Martin, op cit., p.
82]
Original document
(1) A document, the contents of which is the
subject of inquiry
(2) All such copies executed at or about the
same time, and with identical contents

DOCUMENTARY

Consist of writings or any material containing

letters, words, numbers, figures, symbols or
other modes of written expressions offered as
proof of their contents [Rule 130, sec. 2]

NOTE: Carbon copies are deemed duplicate

originals. [People v Tan (105 Phil. 1242 July
31, 1959)]
(3) All such entries made and repeated in the
regular course of business, at/near the
time of the transaction [Rule 130, Sec. 4]

To be deemed documentary evidence, such

writings or materials must be offered as proof of
their contents. If offered for some other purpose,
they constitute OBJECT EVIDENCE.

Secondary Evidence [In Order]

(1) Copy
(2) Recital of contents in some authentic
document
(3) Testimony of witnesses (Rule 130, Sec. 5)

B. REQUISITES FOR ADMISSIBILITY

(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence [Riano]

Requisites for introduction of secondary

evidence (Exceptions to BER)
[Rule 130, Sec. 3]
(1) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the offerors part
Proponent must prove due execution,
loss, destruction or unavailability of the
original (Section 5, Rule 130) and

C. BEST EVIDENCE RULE

Meaning of the rule
When the subject of inquiry is the contents of a
document, no evidence shall be admissible
other than the original document itself. [Rule 130,
Sec. 3]
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reasonable diligence and good faith in

the search for/attempt to produce the
original [Tan v. CA (G.R. No. L-56866
June 27, 1985)]
ALL duplicates or counterparts must be
accounted for before using copies [De
Vera v. Aguilar, GR. No. 83377 Feb 9,
1993)]
Due execution of the document should
be proved through the testimony of
either:
(a) the person or persons who
executed it;
(b) the person before whom its
execution was acknowledged; or
(c) any person who was present and
saw it executed and delivered, or
who, after its execution and
delivery, saw it and recognized the
signatures, or by a person to whom
the parties to the instruments had
previously confessed the execution
thereof. [Director of Lands v. CA
(G.R. No. L-29575 April 30, 1971)]
(2) When the original is in the custody or under
the control of the party against whom it 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
(4) When the original is a public record in the
custody of a public officer or is recorded in
a public office
(5) When the original is outside the jurisdiction
of the court, secondary evidence is
admissible [PNB v. Olila (98 Phil 1002,
unreported, March 23, 1956)]

REMEDIAL LAW

D. RULES ON ELECTRONIC EVIDENCE

(A.M. NO. 01-7-01- SC)
Applicability
These Rules shall apply to all civil actions and
proceedings, as well as quasi-judicial and
administrative cases. (REE, Rule 1, Sec. 2)
Application in Criminal Actions
While the case of Ang v. CA (G.R. No. 182835
April 20, 2010) held that the Rules on Electronic
Evidence applies only to civil actions, quasijudicial proceedings and administrative
proceeding, not to criminal action, People vs.
Enojas (G.R. No. 204894, March 10, 2014), the
SC upheld the RTCs admission of text
messages as evidence in a murder case as
conforming with the Courts earlier Resolution
[A.M. NO. 01-7-01] applying the Rules on
Electronic Evidence to criminal actions.
Electronic document
(1) Information or the representation of
information, data, figures, symbols or other
modes of written expression,
(2) Described or however represented, by
which a right is established or an obligation
extinguished, or by which a fact may be
proved and affirmed,
(3) Which is received, recorded, transmitted,
stored, processed, retrieved or produced
electronically.
(4) It includes digitally signed documents and
any print-out or output, readable by sight
or other means, which accurately reflects
the electronic data message or electronic
document.
For purposes of these Rules, the term
electronic
document
may
be
used
interchangeably
with
electronic
data
message. [Sec. 1(h), REE]
Electronic data message
Information generated, sent, received or stored
by electronic, optical or similar means.
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[Sec. 1(g), REE]

REMEDIAL LAW

(4) The familiarity of the witness or the person

who made the entry with the
communication and information system;
(5) The nature and quality of the information
which went into the communication and
information system upon which the
electronic data message or electronic
document was based; or
(6) Other factors which the court may consider
as affecting the accuracy or integrity of the
electronic document or electronic data
message.

Factors in assessing evidentiary weight of

electronic evidence (Rule 7, Sec. 1)
In assessing the evidentiary weight of an
electronic document, the following factors may
be considered:
(1) The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
(a) input and output procedures,
(b) controls, tests and checks for accuracy
and reliability of the electronic data
message or document,
(c) in the light of all the circumstances as
well as any relevant agreement;
(2) The reliability of the manner in which its
originator was identified;
(3) The integrity of the information and
communication system in which it is
recorded or stored, including but not
limited to the hardware and computer
programs or software used as well as
programming errors;
(a) Whether
the
information
and
communication system or other
similar device was operated in a
manner that did not affect the
integrity of the electronic document,
and there are no other reasonable
grounds to doubt the integrity of the
information
and
communication
system;
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to
that of the party using it; or
(c) Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a
person who is not a party to the
proceedings and who did not act
under the control of the party using it
[Rule 7, Sec. 2]

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. Salud (A.M. No. CA-05-20-P Sept. 9, 2005)]
Method of Proof
(1) Affidavit of Evidence [Rule 9, sec. 1]
(a) Must state facts
i. of direct personal knowledge, or
ii. based on authentic records
(b) Must affirmatively show the competence
of the affiant to testify on the matters
contained in the affidavit
(2) Cross-Examination of Deponent
[Rule 9, Sec. 2]
(a) Affiant shall affirm the contents of the
affidavit in open court.
(b) Affiant may be cross-examined as a
matter of right by the adverse party.

Authentication of electronic documents and

electronic signatures
(Rule 5, Secs. 1-3; Rule 11, Secs. 1-2, REE)
Of Electronic Documents
Burden of Proving Authenticity: The person
seeking to introduce the electronic document in
any legal proceeding has the burden of proving
its authenticity. [Rule 5, Sec. 1]
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REMEDIAL LAW

What Constitute Business Records: Records of

any
business,
institution,
association,
profession, occupation, and calling of every
kind, whether or not conducted for profit, or for
legitimate purposes [Rule 2, Sec. 1 (b)]

Before any private electronic document can be

offered as authentic is received in evidence, its
authenticity must be proved by any of the
following manner:
(1) By evidence that it had been digitally
signed by the person purported to have
signed the same;
(2) 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
(3) By other evidence showing its integrity and
reliability to the satisfaction of the judge.
[Rule 5, Sec. 2]

Requisites to an exception to the rule on hearsay

evidence
A memorandum, report, record, or data
compilation of acts, events, conditions, opinions
or diagnosis:
(1) Made by electronic, optical or other similar
means
(2) Made at or near the time of or from
transmission or supply of information
(3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a
business activity,
(5) Such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means
(6) Abovementioned facts shown by the
testimony of the custodian or other
qualified witnesses [Rule 8, Sec. 1]

Of Electronic Signatures [Rule 6, Sec. 2]

(1) By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
(2) By any other means provided by law; or
(3) By any other means satisfactory to the
judge
Electronic documents and the Best Evidence
Rule
The following are originals/equivalent of
originals (Rule 4, Secs. 1 and 2)
(1) A printout or output readable by sight or
other means, shown to reflect data
accurately
(2) Copies executed at or about the same time
with identical contents
(3) Counterpart produced by the same
impression as the original
(4) Copies or duplicates produced from the
same matrix, or by mechanical or electronic
re-recording, or by chemical reproduction,
or by other equivalent techniques which
reproduces the original

The presumption provided above may be

overcome by evidence of
(1) Untrustworthiness of the source of
information
(2) Untrustworthiness of the method of the
preparation, transmission or storage
thereof
(3) Untrustworthiness of the circumstances of
the preparation, transmission or storage
thereof [Rule 8, Sec. 2]
Audio, photographic, video and ephemeral
evidence
Audio, video and similar evidence, to be
admissible shall be
(1) shown, presented or displayed to the court
and
(2) identified, explained or authenticated by
the person who made the recording or by

Electronic documents and the Hearsay Rule

Business Records as Exception to the Hearsay
Rule
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REMEDIAL LAW

some other person competent to testify on

the accuracy thereof (Rule 11, Sec.1)

(2) Ground/s for presenting parol evidence is

put in issue in the pleading

Ephemeral electronic communications 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 may be
admitted. (Rule 11, Sec. 2)

Grounds for presenting parol evidence:

(1) An intrinsic ambiguity, mistake or
imperfection in the written agreement
Intrinsic ambiguity writing admits of
two constructions both of which are in
harmony with the language used

If ephemeral electronic communication and

recording of telephone conversation under Rule
11, Sec 2 of the REE are recorded or embodied in
an electronic document, then the provisions of
Rule 5 (Authentication of Electronic
Documents) shall apply.

Note: If ambiguity is intermediate

(both latent and patent), parol
evidence is admissible [Regalado citing
20 Am. Jur 1011]
Mistake refers to mistake of fact which
is mutual to the parties [BPI v. Fidelity
and Surety, Co (G.R. No. L-26743
October 19, 1927)]
Imperfection
includes inaccurate
statement in the agreement or
incompleteness in the writing or the
presence of inconsistent provisions
[Regalado]

E. PAROL EVIDENCE RULE

Meaning of parol evidence
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or contradict
a complete and enforceable agreement
embodied in a document. [Regalado]

Application of the parol evidence rule (General

Rule)
When the terms of an agreement (including
wills) 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. [Rule 130, Sec. 9]
It does not apply when third parties are involved
or those not privy to the written instrument in
question and does not base a claim or assent a
right originating in the instrument. [Lechugas v.
CA (G.R. No. L-39972 & L-40300 August 6,
1986)]
When parol evidence can be introduced
(1) When a party presents parol evidence to
modify, explain or add to the terms of a
written agreement AND

(2)

Failure of the written agreement to express

the true intent and agreement of the
parties thereto
Purpose: To enable court to ascertain
the true intention of the parties
[Tolentino v. Gonzales Sy Chiam (G.R.
No. 26085 August 12, 1927]

(3)

Validity of the written agreement

Parol Evidence may be admitted to
show:
o True consideration of a contract
o Want/Illegality of consideration
o Incapacity of parties
o Fictitious/simulated contract
o Fraud in inducement [Regalado]

(4)

Existence of other terms agreed to by the

parties or their successors in interest after
the execution of the written agreement.
Regarding Collateral Agreements:

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General Rule: Parol Evidence Rules applies

Exceptions:
(1) Collateral agreement is not inconsistent
with the terms of the written contract
(2) Collateral agreement has not been
integrated in and is independent of the
written contract
(3) Collateral agreement is subsequent to and
novatory of the written contract
(4) Collateral agreement constitutes a
condition precedent which determines
whether the written contract may become
operative or effective (does not apply to
conditions subsequent not stated in the
agreement) [Regalado]

directly
thereby

Meaning of authentication
The preliminary step in showing the
admissibility of evidence
Proving that the objects and documents
presented in evidence are not counterfeit
Public and private documents

Parol Evidence Rule

Contemplates
the Presupposes that the
situation wherein the original document is
original writing is not available in court
available and/or there is
a dispute as to whether
said writing is the
original

Private Documents

Public Documents

When offered as
authentic,
due
execution
and
authenticity must be
proved

Admissible
without
further proof of its due
execution
and
authenticity

When a private writing requires authentication;

proof of a private writing
PRIVATE DOCUMENTS
When offered as authentic
General Rule: Authentication necessary

Prohibits
the Prohibits the varying
introduction
of of the terms of a
substitutionary evidence written agreement
in lieu of the original
document regardless of
WON it varies the
contents of the original

How to Prove Due Execution and Authenticity

(1) By anyone who saw the document executed
or written; OR
(2) By evidence of the genuineness of the
signature or handwriting of the maker
[Rule 132, sec. 20]

Applies to all kinds of Applies

only
to
documents
documents
contractual in nature
(Exception: wills)
Can be invoked by any
party to an action
regardless of WON such
party participated in the
writing involved

affected

F. AUTHENTICATION AND PROOF OF

DOCUMENTS

Distinctions between the best evidence rule and

parol evidence rule [Regalado]
Best Evidence Rule

REMEDIAL LAW

Additional Modes of Authentication under

American Jurisprudence [Regalado]
(1) Doctrine of Self-Authentication Where the
facts in writing could only have been known
by the writer
(2) Rule of Authentication by adverse part
Where the reply of the adverse party refers
to and affirms the transmittal to him and
his receipt of the letter in question, a copy
of which the proponent is offering as
evidence

Can be invoked only

when the controversy
is between the parties
to
the
written
agreement,
their
privies or any party
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REMEDIAL LAW

PUBLIC DOCUMENTS
Kinds of public documents
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
Public records, kept in the Philippines, of private
documents required by law to be entered
therein
Notarial documents (except last wills and
testaments) [Rule 132, Sec. 19]

When evidence of authenticity of a private

writing is not required
Ancient Documents authentication NOT
necessary provided that private document be:
(1) More than 30 years old;
(2) Produced from a custody in which it would
naturally be found if genuine; and
(3) Unblemished by any alterations or
circumstances of suspicion.
[Rule 132, Sec. 21]

Proof of public documents

Records of Official Acts [Rule 132, sec. 24]
By an official publication thereof; or
By an attested copy of the document

Other instances when authentication is not

required:
(1) Writing is a public document/record [Rule
132, Sec. 19]
(2) Notarial document
acknowledged,
proved/certified [Rule 132, Sec. 30]
(3) When authenticity and due execution has
been admitted as in the case of actionable
documents under Rule 8, Sec. 8
(4) That which it is claimed to be:
Authentication not necessary
[Rule 132, sec. 20]

Note: Documents without documentary stamp

affixed thereto, unless specifically exempted by
law, may not be admitted or used in evidence in
any court until the requisite stamp shall have
been affixed. [Sec. 201, NIRC] Also, there is a
presumption that the requisite stamps have
been affixed in the original copy when only the
carbon copies of the same is available.
[Mahilum v CA (G.R. No. L-17666 June 30, 1966)]

How to prove genuineness of handwriting

(1) By any witness who believes it to be the
handwriting of such person because:
(a) he has seen the person write;
(b) he has seen writing purporting to be his
upon which the witness has acted or
been charged, and has thus acquired
knowledge of the handwriting of such
person [Rule 132, sec. 22]
(2) A comparison by the witness or the court of
the questioned handwriting, and admitted
genuine specimens thereof or proved to be
genuine to the satisfaction of the judge
[Rule 132, sec. 22]
(3) Expert evidence [Rule 130, sec. 49]

Attestation of a copy of a document or record

[Rule 132, Sec. 25]
(1) Must be made by the officer having the
legal custody of the record, or by his deputy
(2) Must state that the copy is a correct copy of
the original or a specific part thereof, as the
case may be
(3) 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
If the record is not kept in the Philippines,
attested copy must be accompanied with a
certificate, which
(1) May be made by a secretary of the
embassy/legation, consul-general, consul,
vice-consul, consular agent or any officer in
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the foreign service of the Philippines

stationed in the foreign country in which
the record is kept;
(2) Must state that such officer has the
custody; and
(3) Must be authenticated by the seal of his
office. [Rule 132, Sec. 24]

REMEDIAL LAW

acknowledgment being prima facie evidence of

the execution of the instrument or document
involved. [Rule 132, sec. 30]
Such notarized documents are evidence, even
against 3rd persons, of the facts which gave rise
to their execution and of the date of execution.
[Rule 132, sec. 23]

Public Records of Private Documents [Rule 132,

sec. 27]
(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. [Rule 132, sec. 27]

How to explain alterations in a document [Rule

132, sec. 31]
(1) Document is being presented as genuine;
(2) Document has been altered and appears to
have been altered;
(3) Alteration was made after execution of the
document; and
(4) Alteration is in a part material to the
question in dispute

Note: Please refer to Attestation of Copy under

Rule 132, Sec. 25.
Proof of lack of record
[Rule 132, Sec. 28]
(1) Written statement
(a) Signed by an officer having the custody
of an official record or by his deputy
(b) Must state that after diligent search, no
record or entry of a specified tenor is
found to exist in the records of his office
(2) Certificate
(a) Accompanying the written statement
(b) Must state that that such officer has the
custody
What to Establish to Impeach Judicial Record
[Rule 132, sec. 29]
(1) Want of jurisdiction in the court or judicial
officer;
(2) Collusion between the parties; OR
(3) Fraud in the party offering the record, with
respect to the proceedings

What to Show about 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) Did not change the meaning or language of
the instrument.

Proof of notarial documents

Notarial Documents (except last wills and
testaments):
every
instrument
duly
acknowledged or proved and certified as
provided by law which may be presented in
evidence without further proof, the certificate of

Parties or their attorneys are directed to have

the translation prepared before trial.

Whose Burden of Proof

Party producing the document must account for
the alteration. Failure to do so would result in
the inadmissibility of evidence.
Documentary evidence in an unofficial language
[Rule 132, Sec. 33]
NOT admissible unless accompanied by a
translation into English or Filipino.

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V. Testimonial Evidence

REMEDIAL LAW

In case person is convicted of a crime

General Rule: Not disqualified
Exception: Otherwise provided by law, e.g.
under Art. 821 of the Civil Code, a person
convicted of any of the following crimes cannot
be a witness to a will:
(a) Falsification of documents,
(b) Perjury; or
(c) False testimony

A. QUALIFICATIONS OF A WITNESS
Witness Defined
A witness is one who, being present, personally
sees or perceives a thing, a beholder, spectator
or eyewitness. One who testifies to what he has
seen or heard, or otherwise observed. [Herrera
citing Blacks Law Dictionary]

B.
COMPETENCY
CREDIBILITY

Qualifications of a Witness [Rule 130, Sec. 20]

All persons who can perceive, and, in perceiving,
can make their known perception to others, may
be witnesses.

VERSUS

Competency of a witness [Herrera]

(1) One is qualified to take the witness stand if:
(2) He is capable of perceiving at the time of
the occurrence of the fact; and
(3) He came make his perception known

Religious/political belief, interest in the

outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be
ground for disqualification.

Competence

Credibility

A matter of law and of Has nothing to do

rules
with the law or rules

Qualifications of a witness (Herrera)

(1) To observe, the testimonial quality of
perception; (Rule 130, sec. 20)
(2) To remember, the testimonial quality of
memory;
(3) To relate, the testimonial quality of
narration; (Rule 130, sec. 20)
(4) To recognize a duty to tell the truth, the
testimonial quality of sincerity; (Rule 132,
sec. 1)
(5) He must not possess any of the
disqualifications imposed by the law or
rules. (Rule 132, sec. 1)

Refers to the basic

qualifications of a witness
as his capacity to perceive
and his capacity to
communicate
his
perception to others

Refers to the weight

and trustworthiness
or reliability of the
testimony

Remedy for errors or questions on competence

of witness is by appeal
Appeal, not certiorari, is the proper remedy for
the correction of any error as to the competency
of a witness committed by an inferior court in
the course of the trial. (Icutanim v. Hernandez,
June 8, 1948; G.R. No. L-1709)

When determined
Qualification of a witness is determined at the
time the said witness are produced for
examination or at the taking of their depositions.

Credibility not reviewable by the Supreme Court

Credibility of a witness is a question of fact,
which is not reviewable by the Supreme Court
(Addenbrook v. People, June 29, 1967; G.R. No. L22995)

With respect to children of tender years,

competence at the time of the occurrence is
also taken into account.

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Two kinds of incompetency to testify: [Herrera, pg.

278]
(1) Absolute forbidden to testify on any
matter.
(2) Partial forbidden to testify only on certain
matters specified under Rule 130, Secs. 22
and 23 due to interest or relationship, or to
privileges of the parties.

(2) His incapability must exist at the time of his

production for examination [Riano]
By reason of immaturity
[Rule 130, Sec. 21(b)]
Requisites
(1) Mental maturity of the witness (child) must
render him incapable of perceiving the
facts respecting which he is examined.
(2) He is incapable of relating his perception
truthfully. [Riano]

Competency presumed
A person who takes the witness stand is
presumed to possess the qualifications of a
witness. His competence may be questioned by
the other party by interposing an objection.
[Herrera, pg. 280]

When incapacity is determined

Incapacity must occur at the time the witness
perceives the event.

Incompetence vs. privilege

Incompetency disqualifies a witness. Privilege
excuses him from testifying. [Herrera, pg. 281]

C.
DISQUALIFICATIONS
WITNESSES

REMEDIAL LAW

Presumption of sanity [Herrera, p. 285]

General rule: the law presumes that every
person is of sound mind, in the absence of proof
to the contrary. (Civil Code, Art. 800)
Exception: if the witness is a lawful inmate of an
asylum for the insane. [Herrera citing Torres v.
Lopez (1926)]

OF

Effect if witness has interest in the subject

matter [Regalado]
A person is not disqualified (except if covered by
the Dead Mans statute)

A mental retardate is not therefore, per se,

disqualified from being a witness. As long as his
senses can perceive facts and if he can convey
his perceptions in court, he can be a witness.
[People v. Espaola, (G.R. No. 119308. April 18,
1997) citing People v. Salomon (G.R. No. 96848
January 21, 1994)]

Interest only affects credibility, not competency.

Effect of Relationship
Mere relationship does not impair credibility. To
warrant rejection, it must be clearly shown:
(1) Testimony was inherently improbable or
defective
(2) Improper/evil motives had moved the
witness to incriminate falsely

Unsound mind
(1) Includes
any
mental
aberration
(organic/functional),
induced
by
drugs/hypnosis
(2) Not disqualified as long as the witness can
convey ideas by words/signs

C.1. BY REASON OF MENTAL CAPACITY

OR IMMATURITY

Deaf-Mutes
Deaf-mutes are competent witnesses where
they have sufficient knowledge to understand
and appreciate the sanctity of an oath and
comprehend the facts as to which they wish to
speak, and are capable of communicating their

By reason of mental incapacity

[Rule 130, Sec. 21(a)]
Requisites
(1) Person must be incapable of intelligently
making known his perception to others
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Ideas with respect thereto. [People v. Hayag (G.R.

No. L-38635 November 17, 1980)]

REMEDIAL LAW

prevent
domestic
disunion
and
unhappiness; and
(4) Where there is want of domestic
tranquillity, there is danger of punishing
one spouse through the hostile testimony
of the other.

They may give evidence by signs, or through an

interpreter or in writing, and such testimony,
through an interpreter, is not hearsay. But sign
language must be capable of verification.
[People v. Hayag (GR No. L-38635 Nov. 17, 1980)]

Waiver of marital disqualification

If a spouse imputed the conviction to the other.

Child Witness
The competency of a child witness is
determined by his capacity for observation,
recollection and communication. [People v.
Mendoza (G.R. No. 113791. February 22, 1996)]

Spouses as co-accused
The other cannot be called as an adverse party
witness under this Rule.
Scope of rule
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute
prohibition against the spouses testifying to
any facts affecting the other however these
facts may have been acquired. [Herrera]

C.2. BY REASON OF MARRIAGE (ALSO

KNOWN
AS
MARITAL
DISQUALIFICATION RULE OR SPOUSAL
IMMUNITY)
Requisites (Rule 130, sec. 22)
(1) Marriage is valid and existing as of the time
of the offer of testimony.
(2) That the spouse for or against whom the
testimony is offered is a party to the case;
(3) That the case is not one against the other.
[Herrera]

Duration
The privilege lasts only during the marriage and
terminates upon divorce or annulment or death.
[Herrera]

Exceptions [Rule 130, sec. 22]:

Spouse may testify for or against the other even
without the consent of the latter
(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 latter's direct
descendants/ascendants.

C.3. BY REASON OF DEATH OR INSANITY

OF ADVERSE PARTY (ALSO KNOWN AS
DEAD
MANS
STATUTE
OR
SURVIVORSHIP RULE)
Requisites [Rule 130, Sec. 23]
(1) Defendant is the executor or administrator
or a representative of the deceased or of
the person of unsound mind;
(2) Suit is upon a claim by the plaintiff against
the estate of said deceased or person of
unsound mind;
(3) Witness is the plaintiff, or an assignor of
that party, or a person in whose behalf the
case is prosecuted; and
(4) Subject of the testimony is as to any matter
of fact occurring before the death of such

Rationale [Alvarez v. Ramirez (G.R. No. 143439,

October 14, 2005)]
(1) There is identity of interests between
husband and wife;
(2) If one were to testify for or against the
other, there is a consequent danger of
perjury;
(3) Policy of the law is to guard the security
and confidence of private life, and to

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deceased person or before such person

became of unsound mind.

REMEDIAL LAW

(5) No application to nominal parties, officers

and stockholders against corporations
(6) Cannot be used in a negative testimony
(7) If the testimony is offered to prove a claim
less than what is written
(8) If the defendant did not object
(9) When there is an existence of fraud
(10) When the party cross-examines the witness

Applicability
This rule is applied only to civil cases.
It is still applicable even if the property has
already been judicially adjudicated to the heirs
regardless whether the deceased died before or
after the suit.

C.4. BY REASON
COMMUNICATIONS

Rationale
To close lips of the plaintiff when death has
closed the lips of the defendant in order to
discourage perjury and protect the estate from
fictitious claims.

OF

PRIVILEGED

Privilege (defined)
A privilege is a rule of law that, to protect a
particular relationship or interest, either permits
a witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone usually one of the parties, to
prevent the witness from revealing certain
information. [Herrera, p. 315]

Facts favorable to the deceased are not

prohibited
The rule does not operate to exclude testimony
favorable to the deceased because the rule
seeks to protect his interests. [Herrera citing Go
Chi Gun v. Co Cho (L-13342 November 28, 1962)
which cited Jones on Evidence, pg. 313]

1. HUSBAND AND WIFE (MARITAL

PRIVILEGE) [SEC. 24(A), RULE 130]
Rationale
Confidential nature of the privilege; to preserve
marital and domestic relations.

When the Dead Mans statute is not applicable

(1) The survivor may testify against the estate
of the deceased where the latter was guilty
of fraud which fraud was established by
evidence other than the testimony of the
survivor. [Ong Chua v. Carr (G.R. No. L29512 January 17, 1929)]
(2) He may also testify where he was the one
sued by the decedents estate since the
action then is not against the estate.
[Tongco v. Vianzon (G.R. No. 27498
September 20, 1927)]
(3) He may likewise testify where the estate
had filed a counterclaim against him or
where the estate cross-examined him as to
matters occurring during the lifetime of the
deceased. [Goi v. CA (G.R. No. L-27434
September 23, 1986)]
(4) No application to a mere witness

Requisites
(1) There must be a valid marriage between
the husband and wife;
(2) There is a communication received in
confidence by one from the other; and
(3) The confidential communication was
received during the marriage.
(4) The spouse against whom such is being
offered has not given his consent to such
testimony.
A widow of a victim allegedly murdered may
testify as to her husbands dying declaration as
to how he died the since the same was not
intended to be confidential. [US v. Antipolo (37
Phil. 726, March 6, 1918)]

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Scope: Any communication

Includes utterances, either oral or written, or
acts. [Herrera, pg. 318]

ii. Attorney and client [Sec. 24(b), Rule 130]

Requisites
(1) There must be a communication made by
the client to the attorney or an advice given
by the attorney to his client;
(2) The communication must have been given
in confidence; and
(3) The communication or advice must have
been given either in the course of the
professional employment or with a view to
professional employment.
(4) The client has not given his consent to the
attorneys testimony thereon.

When not applicable

(1) When the communication was not intended
to be kept in confidence
(2) When the communication was made prior
to the marriage
(3) When
the
communication
was
overheard/comes into the hands of a third
party whether legally or not
(4) Waiver of the privilege
(5) In a civil case by one against the other
(6) In a criminal case for a crime committed by
one against the other or the latter's direct
descendants/ascendants.

Attorneys secretary, stenographer, or clerk are

also covered by the rule and cannot be
examined concerning any fact the knowledge of
which has been acquired in such capacity
without the consent of the client AND their
employer.

Waiver [Herrera, pg. 322]

(1) Failure of the spouse to object; or
(2) Calling spouse as witness on cross
examination
(3) Any conduct constructed as implied
consent.

Subject-matter of the privilege [Herrera pg. 329337]

(1) Communications
(2) Observations by the lawyer (regardless of
medium of transmission which may include
oral or written words and actions)
(3) Tangible evidence delivered to a lawyer
(4) Documents entrusted to a lawyer

In Contrast to Marital Disqualification

Marital Disqualification
[Sec. 22]
One spouse should be
a party to the case;
Applies only if the
marriage is existing at
the time the testimony
is offered; and
Constitutes a total
prohibition on any
testimony
for
or
against the spouse of
the witness.

REMEDIAL LAW

Marital Privilege [Sec.

24 (a)]
Neither of the spouses
needs to be a party;
Does not cease even
after the marriage is
dissolved; and

When not applicable

(1) When the communication made was not for
the purpose of creating relationship (even if
afterwards he become counsel)
(2) When the communication was intended to
be made public
(3) When the communication was intended to
be communicated to others. When the
communication was intended for an
unlawful purpose
(4) When the communication was received
from third persons not acting in behalf/as
agents of clients

Prohibition is limited
to
testimony
on
confidential
communications
between spouses.

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(5) When the communication was made in the

presence of third parties stranger to the
attorney-client relationship
(6) When the communication has something to
do with a clients contemplated criminal act
[People v. Sandiganbayan (G.R. Nos.
115439-41 July 16, 1997)]
(7) When there is a controversy between the
client and attorney [Herrera, pg. 335]

REMEDIAL LAW

(3) The information was necessary to enable

him to act in that capacity;
(4) Information, advice or treatment, if revealed,
would blacken the reputation of the patient;
and
(5) Privilege is invoked in a civil case, whether
or not the patient is a party thereto.
Physician-patient relationship need not be
entered into voluntarily.

Identity of Client
General Rule: The attorney-client privilege may
not be invoked to refuse to divulge the identity
of the client.

Where applicable
(1) All forms of communication, advice or
treatment
(2) Information acquired by the physician from
his personal observations and examination
of the patient

Exceptions [Regala v. Sandiganbayan (G.R. No.

105938 and G.R. No. 108113 September 20,
1996)]:
(1) When a strong probability exists that
revealing the name would implicate that
person in the very same activity for which he
sought the lawyers advice;
(2) When disclosure would open the client to
liability;
(3) When the name would furnish the only link
that would form the chain of testimony
necessary to convict.

When not applicable

(1) Communication was not given in confidence
(2) Communication was irrelevant to the
professional employment
(3) Communication was made for an unlawful
purpose
(4) Communication was intended for the
commission/concealment of a crime
(5) Communication was intended to be made
public/divulged in court
(6) When there was a waiver
(7) When the doctor was presented as an
expert witness and only hypothetical
problems were presented to him. [Lim v. CA
(supra)]

Duration of the privilege

In the absence of a statute, the privilege is
permanent. It may even be claimed by a clients
executor or administrator after the clients
death. [Herrera, pp. 39-40]
iii. Physician and patient [Sec. 24(c), Rule 130]

Waiver
Express waiver may only be done by the
patient.

Requisites [Krohn v. CA (G.R. No. 108854 June

14,1994) citing Lim v. CA (G.R. No. 91114
September 25, 1992)]
(1) Physician is authorized to practice medicine,
surgery or obstetrics;
(2) Information was acquired or the advice or
treatment was given by him in his
professional capacity for the purpose of
treating and curing the patient;

Implied waiver [Herrera, pg. 355]

(1) By failing to object
(2) When the patient testifies
(3) A testator procures an attending doctor to
subscribe his will as an attesting witness

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(4) Disclosure of the privileged information

either made or acquiesced by the privilege
holder before trial
(5) Where the patient examines the physician
as to matters disclosed in a consultation
(6) Also check Rule 28 on Mental or Physical
Examination (Rules on Civil Procedure)

REMEDIAL LAW

iv. Priest and penitent [Sec. 24(d), Rule 130]

Requisites
(1) Confession was made to, or advice given by
him pursuant to a religious duty enjoined in
the course of discipline of the sect or
denomination of the priest.
(2) Confession or advice was confidential and
penitential in character.

Professional capacity (defined)

When the doctor attends to a patient for
curative treatment, or for palliative or
preventive treatment. [Herrera, pg. 343]

The priest or minister must be duly ordained in

the sect in which he belongs.
v. Public officers [Sec. 24(e), Rule 130]

Extent of rule
The privilege extends to communications which
have been addressed to physicians assistants
or agents. [Herrera, pg. 345]

Requisites
(1) Communication was made to the public
officer in official confidence; and
(2) Public interest would suffer by the
disclosure of such communication.

Physician allowed to testify as an expert

A doctor is allowed to be an expert witness
when he does not disclose anything obtained in
the course of his examination, interview and
treatment of a patient. [Lim v. CA, supra]

Elements of presidential communications

privilege
(1) Must relate to a quintessential and nondelegable presidential power;
(2) Must be authored or solicited and received
by a close advisor of the President or the
President himself; and
(3) Privilege may be overcome by a showing of
adequate need such that the information
sought likely contains important evidence
and by the unavailability of the information
elsewhere. [Neri v. Senate (G.R. No. 180643
September 4, 2008)]

Autopsical information
If the information was not acquired by the
physician in confidence, he may be allowed to
testify thereto. But if the physician performing
the autopsy was also the deceaseds physician,
he cannot be permitted either directly or
indirectly to disclose facts that came to his
knowledge while treating the living patient.
[Herrera citing US Case Travelers Insurance Co. v.
Bergeron)]

Purpose of privilege: protection of public interest

The privilege is not intended for the protection
of public officers but for the protection of the
public interest. When no public interest would
be prejudiced, this privilege cannot be invoked.
[Banco Filipino v. Monetary Board (G.R. No.
70054 July 8, 1986)]

Duration of privilege
The privilege continues until the death of the
patient. It may be waived by the personal
representative of the decedent. [Herrera, pg.
356]

vi. Other Privileged Communication not in the

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REMEDIAL LAW

persons within the circles that normally deal

with the kind of info in question, 2) Has
commercial value because it is a secret; 3) Has
been subject to reasonable steps, under the
circumstances by the person lawfully in control
of the information, to keep it a secret. [Art. 39]

Newsmans Privilege [RA 53, as amended by RA

1477]
General Rule: Publisher, editor or duly
accredited reporter cannot be compelled to
reveal the source of any news report or
information related in confidence
Exception:
Court/House/Committee
in
Congress finds that such revelation is
demanded by security of the State

Note: Electronic Document as Privileged

Communication
The confidential character of a privileged
communication is not solely on the ground that
it is in the form of an electronic document.
[Rules on Electronic Evidence Rule 3, sec. 3]

Information in Conciliation Proceedings

All information and statements made at
conciliation proceedings shall be treated as
privileged communications [Article 233, Labor
Code]

vii. Parental and filial privilege rule [Sec. 25,

Rule 130]

Data Privacy Act

Personal information controllers may invoke the
principle of privileged communication over
privileged information that they lawfully control
or process. Subject to existing laws and
regulations, any evidence gathered on
privileged information is inadmissible. [Sec. 15,
RA 10173]

General Rule: A person cannot be compelled to

testify against his parents (parental privilege),
other direct ascendants, children or other direct
descendants (filial privilege).
Exception [Art. 215, Family Code]:
Descendant may be compelled to give his
testimony in a criminal case when
(1) [against parent or grandparent] The
testimony is indispensable in a crime
committed against said descendant; or
(2) [against parent] In a crime committed by
one parent against the other.

Food and Drug Administration Act

Prohibits the use of a person to his own
advantage, or revealing, other than to the
Secretary of Health or officers or employees of
the Department of Health or to the courts when
relevant in any judicial proceeding under this
Act, any information acquired under authority
Board of Food Inspection and Board of Food
and Drug, or concerning any method or process
which as a trade secret is entitled to protection.
[Secs. 9, 11 (f) and 12, RA 3720]

Applicability
The rule is applied to both civil and criminal
cases. [Herrera, pg. 364]

D. EXAMINATION OF A WITNESS
D.1. RIGHTS AND OBLIGATIONS OF A
WITNESS [SEC. 3, RULE 132]

TRIPS Agreement
Undisclosed information or trade secrets are
considered privileged communication.

i. Obligation of a witness
To answer questions, although his answer may
tend to establish a claim against him.
ii. Rights of a witness

It is protected information if it complies with 3

requisites: 1) A secret in a sense that it is not
generally known among or readily accessible to
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(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, e.g., Sec.
8, RA 1379 and other immunity statutes
which grant the witness immunity from
criminal prosecution for offenses admitted
(5) Not to give an answer which will tend to
degrade his reputation, unless it to be 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.

REMEDIAL LAW

Examination of the witness by the adverse party

after said witness has given testimony on direct
examination.
The purpose is to test the witnesss accuracy
and truthfulness, and freedom from interest or
bias, or the reverse, and to elicit all important
facts bearing upon the issue.
Matters covered
Any matters stated in the direct examination, or
connected therewith
Right to cross-examination
Cross-examination is the most reliable and
effective way known of testing the credibility
and accuracy of testimony. This is an essential
element of due process. [Herrera, pg. 175 citing
Alford v. US (1931)]

One-Day Examination of Witness Rule [AM

03-1-09-SC] [2009 BAR]

The right to cross-examine under the

constitution is superior to technical rules on
evidence. [Herrera, pg. 176 citing People v. Valero
(1982)]

A witness has to be fully examined in one (1) day

only. It shall be strictly adhered to subject to the
courts' discretion during trial on whether or not
to extend the direct and/or cross-examination
for justifiable reasons.

Partial cross-examination is sufficient where the

witness was cross-examined on material points,
and full cross-examination was not due to
prosecutors fault but that of the defense who
repeatedly moved for postponement, direct
examination cannot be thrown off the case.
[Herrera, pg. 178 citing People v. Caparas, 102
SCRA 782]

D.2. ORDER OF EXAMINATION OF AN

INDIVIDUAL WITNESS
i. Direct Examination [Rule 132, Sec. 5]
Examination-in-chief of a witness by the party
presenting him, on the facts relevant to the
issue.

Effect of denial of right to cross-examine

Most courts require that the testimony given on
direct examination be stricken off provided
the unavailability of the witness is through no
fault of the party seeking to cross-examine.
[Herrera, pg. 175]

The purpose is to elicit facts about the clients

cause of action or defense.

Cross-examination must be completed or

finished. When cross-examination is not and
cannot be done or completed due to causes

ii. Cross Examination [Rule 132, Sec. 6]

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attributable to the party offering the witness,

the uncompleted testimony is thereby rendered
incompetent. [Herrera, pg. 176 citing Ortigas, Jr.
v. Lufthansa German Airlines (1975)]

REMEDIAL LAW

Leading and Misleading Questions [Sec. 10, Rule

132]
Questions not allowed
(1) Misleading Questions These are questions
that assume as true a fact not yet testified
to by the witness, or contrary to that which
he has previously stated. These are never
allowed.
(2) Leading Questions These are questions
that suggest to the witness the answer,
which the examining party desires.

iii. Re-direct Examination [Rule 132, Sec. 7]

Examination of a witness by the counsel who
conducted the direct examination after the
cross examination.
The purpose is for the witness to explain or
supplement his answers given during the crossexamination.

Leading questions
General Rule: Leading questions are not
allowed.

Matters covered
Those stated in the cross-examination, and
matters not dealt with, if allowed by the Court

Test of leading questionsby putting the words

or though in the witness mind to be echoed
back, the examiner is in effect the one testifying,
not the witness. [Herrera, pg. 200 citing Escato v
Pineda, CA 53 OG 7742]

iv. Re-cross Examination [Rule 132, Sec. 8]

Examination conducted by adverse party upon
conclusion of the re-direct examination.

Exceptions to leading questions:

(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is 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) On an unwilling or hostile witness;
(a) Adverse interest;
(b) Unjustified reluctance to testify;
(c) His having misled the party into calling
him to the witness stand.
(5) On a witness who is an adverse party or an
officer/director or managing agent of a
public/private corporation or of a
partnership/association which is an adverse
party.

Matters covered
Those stated in his re-direct examination, and
also on such other matters as may be allowed
by the court in its discretion.
v. Recalling the Witness [Rule 132, Sec. 9]
After both sides have concluded the
examination of a witness, either party with leave
of court may recall a witness.
Why conducted
(1) Particularly identified material points were
not covered in cross-examination
(2) Particularly described vital documents were
not presented to the witness
(3) Cross-examination was conducted in so
inept a manner as to result in a virtual
absence thereof [People v. Rivera (G.R. No.
98376 August 16, 1991)]

Misleading questions
Questions containing facts not in evidence.
[Herrera, pg. 207]

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Methods of Impeachment of Adverse Partys

Witness [Sec. 11, Rule 132]

authorized by the SC to receive evidence,

including the IBP (Sec. 1)

(1) By contradictory evidence;

(2) By evidence that his general reputation for
truth, honesty or integrity is bad;
(3) By evidence that he has made at other times
statements inconsistent with his present
testimony.

Submission of Judicial Affidavits and Exhibits in

lieu of direct testimonies
(1) The parties shall file with the court and
serve on the adverse party, personally or by
licensed courier service, not later than five
days before pre-trial or preliminary
conference or the scheduled hearing with
respect to motions and incidents, the
following:
(a) The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies; and
(b) The parties' documentary or object
evidence, if any, shall be marked and
attached to the judicial affidavits
(2) Should a party or a witness desire to keep
the original document or object evidence in
his possession, he may, after the same has
been identified, marked as exhibit, and
authenticated, warrant in his judicial
affidavit that the copy or reproduction
attached to such affidavit is a faithful copy
or reproduction of that original. In addition,
the party or witness shall bring the original
document or object evidence for
comparison
during
the
preliminary
conference with the attached copy,
reproduction, or pictures, failing which the
latter shall not be admitted

How the witness is impeached by evidence of

inconsistent statements (laying the predicate)
(1) 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 be shown to him.
(2) Witness may be asked whether he made
such statements and also to explain them if
he admits making those statements.
Purpose: To allow the witness to admit or deny
the prior statement and afford him an
opportunity to explain the same.
Evidence of the good character of a witness
Evidence of the witness good character is not
admissible until such character has been
impeached. [Sec. 14, Rule 132]
Because a witness is presumed to be truthful
and of good character, the party presenting him
does not have to prove he is good because he is
presumed to be good.
vi. Judicial Affidavit Rule [AM 12-8-8-SC]

This is without prejudice to the introduction of

secondary evidence in place of the original
when allowed by existing rules. (Sec. 2)

Scope
Applies to all actions and proceedings, and
incidents requiring the reception of evidence
before the courts, quasi-judicial bodies, whose
rules of procedure are subject to disapproval of
the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of
this Rule, and investigating officers and bodies

Contents (Section 3)
A judicial affidavit shall be prepared in the
language known to the witness and, if not in
English or Filipino accompanied by a translation
in English or Filipino, and shall contain the
following:
(1) The name, age, residence or business
address, and occupation of the witness;
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(2) The name and address of the lawyer who

conducts or supervises the examination of
the witness and the place where the
examination is being held;
(3) A statement that the witness is answering
the questions asked of him, fully conscious
that he does so under oath, and that he may
face criminal liability for false testimony or
perjury;
(4) Questions asked of the witness and his
corresponding
answers,
consecutively
numbered, that:
(a) Show the circumstances under
which the witness acquired the facts
upon which he testifies;
(b) Elicit from him those facts which are
relevant to the issues that the case
presents; and
(c) Identify the attached documentary
and object evidence and establish
their authenticity;
(5) The signature of the witness over his printed
name; and
(6) A jurat with the signature of the notary
public who administers the oath or an
officer who is authorized by law to
administer the same.

REMEDIAL LAW

Offer
When made: Upon the termination of the
testimony of his last witness
How made: Party shall immediately make an
oral offer of evidence of his documentary or
object exhibits, piece by piece, in their
chronological order, stating the purpose or
purposes for which he offers the particular
exhibit.
Objection
When made: After each piece of exhibit is
offered,
How made: Party shall state the legal ground
for his objection, if any, to its admission.
The court shall immediately make its ruling
respecting that exhibit.
Note: It is sufficient that the exhibits are simply
cited by their markings during the offers, the
objections, and the rulings, dispensing with the
description of each exhibit.
Effect of Non-compliance [Section 10]
Party who fails to submit is deemed to have
waived the submission of the same. The court,
however, may allow, only once, late submission,
provided the delay is for a valid reason and the
defaulting party pays a fine.

The judicial affidavit shall also contain a sworn

attestation executed by the lawyer who
conducted or supervised the examination of the
witness, to the effect that:
(1) He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness
gave; and
(2) Neither he nor any other person then
present or assisting him coached the
witness regarding the latter's answers.
[Section 4]

Court shall not consider affidavit of witness who

fails to appear at the scheduled hearing.
Counsel who failed to appear shall be deemed
to have waived his clients right to crossexamine the witnesses there present.
Judicial affidavits that do not conform with the
requirements cannot be admitted as evidence.
Issuance of Subpoena [Section 5]
If the government employee or official, or the
requested witness, who is neither the witness of
the adverse party nor a hostile witness,

A false attestation shall subject the lawyer

mentioned to disciplinary action, including
disbarment. [Section 4]

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unjustifiably declines to execute a judicial

affidavit or refuses without just cause to make
the relevant books, documents, or other things
under his control available for copying,
authentication, and eventual production in
court, the requesting party may avail himself of
the issuance of a subpoena ad testificandum or
duces tecum under Rule 21 of the Rules of Court.
The rules governing the issuance of a subpoena
to the witness in this case shall be the same as
when taking his deposition except that the
taking of a judicial affidavit shall be understood
to be ex parte.

REMEDIAL LAW

A statement by the accused, direct or implied,

of facts pertinent to the issue, and tending in
connection with proof of other facts, to prove his
guilt. [People v. Lorenzo (G.R. No. 110107 January
26, 1995)]
This rule talks about extra-judicial admission.
Admission must
(1) Involve matters of fact, not of law
(2) Be categorical and definite
(3) Knowingly and voluntarily made
Requisites for Admissibility
(1) Made by a party;
(2) Outside of court;
(3) Relates to a relevant fact; and
(4) Is against admitters interest. [Sec. 26, Rule
130]

E. ADMISSIONS AND CONFESSIONS

E.1. RES INTER ALIOS ACTA RULE (2
BRANCHES)
(1) First branch: Admission by a third party
[Rule 130, sec. 28]
(2) Second branch: Similar acts as evidence
[Rule 130, sec. 34]

Effect
It may be given in evidence against the admitter.
[Sec. 26, Rule 130]

i. First branch With Respect to Admissions by

a Third-Party

Flight from justice is an admission by conduct

and circumstantial evidence of consciousness of
guilt. [US v. Sarikala (G.R. No. L-12988 January
24, 1918)]

General Rule: Admission by a third party is

inadmissible

Admission must be made in context

It is a rule that a statement is not competent as
an admission where it does not, under
reasonable construction, appear to admit or
acknowledge the fact which is sought to be
proved by it. [CMS Logging, Inc. v. CA (G.R. No.
L-41420 July 10, 1992)]

Exceptions: (see detailed explanations below)

(1) Partners or Agents Admission [Rule 130,
sec. 29]
(2) Admission by conspirator [Rule 130, sec. 30]
(3) Admission by privies [Rule 130, sec. 31]
Admission by a party [Rule 130, sec. 26]
The act, declaration or omission of a party, as to
a relevant fact may be given in evidence against
him.

Rationale
No man would make any declaration against
himself unless it is true. [Republic v. Bautista
(G.R. No. 169801 September 11, 2007)]

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.

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As Distinguished from Judicial Admissions

Judicial
Extrajudicial
Made in connection Any other admission
with
a
judicial (Rule 130, secs. 26 and
proceeding in which it 32)
is offered (Rule 129,
sec. 4)
May be conclusive Rebuttable
(Rule 192, sec. 2)
May be written, oral express or implied

REMEDIAL LAW

Just like in partnership and agency, the interest

must be a subsisting one unless for the
admission to be admissible. [Herrera, pg. 402]
Exception to Res Inter Alios Acta Branch 1CoConspirators Admission [Sec. 30, Rule 130]
Requisites for admissibility
(1) Act or declaration must relate to the
conspiracy;
(2) It must have been made during the
existence of the conspiracy; and
(3) Conspiracy must be shown by evidence
other than such act/declaration.

Exception to Res Inter Alios Acta Branch 1

Partners or Agents Admission [Sec. 29, Rule
130]
Requisites for admissibility: [Herrera, pg. 398]
(1) The act or declaration of a partner or agent
of the party;
(2) Within the scope of his authority and
(3) During the existence of the partnership or
agency;
(4) After the partnership or agency is shown by
evidence other than such act or declaration
(5) May be given in evidence against such party.

Existence of the conspiracy may be inferred

from acts of the accused. [People v. Belen (G.R.
No. L-13895 September 30, 1963)]
Rule 130, sec. 30 applies only to extra-judicial
statements, not to testimony given on the stand.
[People v. Serrano (G.R. No. L-7973 April 27,
1959)]
As regards extrajudicial admissions after
termination of conspiracy, before trial
General Rule: Not admissible
Exceptions:
(1) made in the presence of the co-conspirator
who expressly/impliedly agreed (tacit
admission)
(2) facts in admission are confirmed in the
independent extrajudicial confessions made
by the co-conspirators after apprehension
(3) as a circumstance to determine credibility of
witness
(4) circumstantial evidence to show the
probability of the latters participation
[Regalado]

This rule also applies to the act or declaration of

a joint owner, joint debtor, or other persons
jointly interested with the party. [Sec. 29, Rule
130]
Joint interests [Herrera, pg. 401]
It is essential first that the joint interest be
made to appear by evidence other than the
admission itself. Second, it must be shown that
the admission relates to the subject-matter of
joint interest.
The word joint must be construed according
to its meaning in the common law system, that
is, in solidum for the whole [Jaucian v. Querol
(G.R. No. L-11307 October 5, 1918)].

Doctrine of interlocking confessions: [People v.

Molleda (G.R. No. L-34248 November 21, 1978)]
Extrajudicial statements of co-accused may be
taken as circumstantial evidence against the

A mere community of interests between several

persons is not sufficient to make the admissions
of one admissible against all. [Herrera, pg. 402]
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person implicated to show the probability of the

latters actual participation, provided that the
statements are made by several accused are:
(1) made without collusion
(2) identical with each other in their essential
details;
(3) corroborated by other evidence on record

REMEDIAL LAW

holds title to the property in order that such

admission may be binding upon the present
owner. [Herrera, pg. 421 citing Gevero v. IAC (G.R.
No. 77029 August 30, 1990)]
Admission by Silence
Requisites for Admissibility
When silence is deemed an admission: [People v.
Paragsa (G.R. No. L-44060 July 20, 1978)]
(1) Person heard or understood the statement;
(2) That he was at a liberty to make a denial;
(3) That the statement was about a matter
affecting his rights or in which he was
interested and which naturally calls for a
response;
(4) That the facts were within his knowledge;
and
(5) That the fact admitted from his silence is
material to the issue

Applicable to extrajudicial statements

The evidence adduced in court by the
conspirators as witnesses are not declarations
of conspirators, but direct testimony to the acts
to which they testify. This is applicable only
when it is sought to introduce extrajudicial
declarations and statements of the coconspirators. [Herrera, pg. 410, citing People v.
Vizcarra (G.R. No. L-38859 July 30, 1982)]
Admission by Privies [Sec. 31, Rule 130]
Requisites
(1) There must be an act, declaration or an
omission by a predecessor-in-interest;
(2) Act, declaration or omission must have
occurred while he was holding (not after)
the title to the property; and
(3) Act, declaration or omission must be in
relation to the property.

When not applicable

(1) Statements adverse to the party were made
in the course of an official investigation,
neither asked to reply nor comment [Sec.
2(b), R.A. 7438]
(2) Party had justifiable reason to remain silent,
ex. Acting on advice of counsel [Regalado]

Privies Defined
Persons who are partakers or have an interest in
any action or thing, or any relation to another
[Riano citing Blacks Law Dictionary]

Confessions
A declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
necessarily included therein [Sec. 33, Rule 130]

It denotes the idea of succession, not only be

right of heirship and testamentary legacy, but
also that of succession by singular title, derived
from acts inter vivos, and for special purposes.
(example: assignee of a credit and one
subrogated to it are privies.) [Alpuerto v. Perez
Pastor and Roa (G.R. No. L-12794 October 14,
1918)]

An acknowledgment in express words or terms,

by a party, in a criminal case, of the crime
charged or some essential parts of it. [People v.
Lorenzo (G.R. No. 110107 January 26, 1995)]
Requisites
(1) Express and categorical acknowledgement
of guilt
(2) Facts admitted constitutes a criminal
offense
(3) Given voluntarily

Former owner of Real Estate

It is necessary that the admission of the former
owner of a property has been made while he
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(4) Intelligently made, realizing the importance

or legal significance of the act
(5) No violation of Secs. 12 and 17, Art. III of the
Constitution [Regalado]

REMEDIAL LAW

ii. Similar Acts as Evidence

Similar acts previously done
General Rule: 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. (2nd Branch of res
inter alios acta rule) [Sec. 34, Rule 130]

If the accused admits having committed the act

in question but alleges a justification therefore,
the same is merely an admission. [Ladiana v.
People (G.R. No. 144293. December 4, 2002)]

Exceptions: Said evidence may be received to

prove:
(1) specific intent or knowledge;
(2) identity;
(3) plan, system, or scheme;
(4) habit;
(5) custom, usage and the like. [sec. 34, Rule
130]

Any confession, including a re-enactment,

without admonition of the right to silence and
to counsel, and without counsel chosen by the
accused is inadmissible in evidence. [People v.
Yip Wai Ming (G.R. No. 120959. November 14,
1996)]
Effect of Extrajudicial Confession of Guilt
General Rule: An extra-judicial confession made
by an accused is not a sufficient ground for
conviction. [Sec. 3, Rule 133]
Exception: When corroborated by evidence of
the actual commission of a particular crime
(corpus delicti). [Sec. 3, Rule 133]

Reason for General Rule

The rule is founded upon reason, justice and
judicial convenience. The lone fact that a person
committed the same or similar act at some prior
time affords, as a general rule, no logical
guaranty that he committed the act in question.
A mans mind and even his modes of life may
change; and objectively, the conditions which
he may find himself at a given time make
likewise change and induce him to act a
different way. [Herrera, pg. 539 citing Justice
Moran]

Corpus Delicti - substance of the crime; the fact

that a crime has actually been committed
[People v. De Leon (G.R. No. 180762. March 4,
2009)]
As Distinguished from Admissions of a Party
Admission of a Party
Confession
Merely a statement of Acknowledgment of
fact
guilt or liability
Maybe express or tacit Must be express
Maybe made by 3rd Can be made only by
parties, and in certain the party himself, and
cases,
admissible admissible against his
against a party
co-accused in some
instances
Acts, declarations or Declarations
omissions
May be in any Criminal case
proceeding

F. HEARSAY RULE
F.1. GENERAL RULE ON HEARSAY
A witness can testify only as to those facts
which he knows of his personal knowledge, or
those derived from his own perception. [Rule
130, Sec. 36]
The hearsay rule is not limited to oral testimony
or statements; it applies to written, as well as
oral statements. [Consunji v. CA (G.R. No.
137873. April 20, 2001)]

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If a party does not object to hearsay evidence,

the same is admissible, as a party can waive his
right to cross-examine [People v. Ola (G.R. No.
L-47147 July 3, 1987)]

REMEDIAL LAW

The second class includes the following:

(1) Statement of a person showing his state of
mind, that is, his mental condition,
knowledge, belief, intention, ill will and
other emotions;
(2) Statements of a person which show his
physical condition, as illness and the like;
(3) Statements of a person from which an
inference may be made as to the state of
mind of another, that is, the knowledge,
belief, motive, good or bad faith, etc. of the
latter; d. Statements which may identify the
date, place and person in question; and e.
Statements showing the lack of credibility
of a witness. [Estrada v. Desierto (supra)]

Repeated failure to cross-examine is an implied

waiver [Savory Luncheonette v. Lakas ng
Manggagawang Pilipino (G.R. No. L-38964
January 31, 1975)]

G.2. MEANING OF HEARSAY

It is an out-of-court statement which is offered
by the witness in court to prove the truth of the
matters asserted by the statement.
It is any evidence, whether oral or documentary,
if its probative value is not based on personal
knowledge of witness but on knowledge of
some other person not on witness stand
[Regalado 11th ed.]

G.4. REASON FOR

HEARSAY EVIDENCE

EXCLUSION

OF

The underlying rule against hearsay are serious

concerns about the worth (trustworthiness,
reliability) of hearsay evidence. Because such
evidence:
(1) was not given under oath or solemn
affirmation; and
(2) was not subject to cross-examination by
opposing counsel to test the perception,
memory, veracity and articulateness of outof-court declarant or actor upon whose
reliability on which the worth of the out-ofcourt testimony depends. [Herrera, pg. 565]

G.3. DOCTRINE OF INDEPENDENTLY

RELEVANT STATEMENTS
Statements or writings attributed to a person
not on the witness stand, which are being
offered not to prove the truth of the facts stated
therein, but only to prove that such were
actually made.
These are not covered by the hearsay rule
[People v. Cusi (G.R. No. L-20986. August 14,
1965)]

G.5. EXCEPTIONS TO THE HEARSAY RULE

(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

These are statements which are relevant

independently of whether they are true or not.
[Estrada v. Desierto (G.R. Nos. 146710-15. April 3,
2001)]
Two classes of independently relevant
statements:
(1) those statements which are the very facts in
issue, and
(2) those statements which are circumstantial
evidence of the facts in issue. [Estrada v.
Desierto (supra)]
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i. Dying declaration
Also known as antemortem statement or
statement in articulo mortis [Sec. 37, Rule 130]

REMEDIAL LAW

The admissibility of an ante mortem declaration

is not affected by the fact that the declarant
died hours or several days after making his
declaration. It is sufficient that he believe
himself in imminent danger of death at the time
of such declaration. [Herrera, pg. 600 citing
People v. Ericta 77 SCRA 199]

Requisites for Admissibility

(1) Declaration is one made by a dying person;
(2) Declaration was made under the
consciousness of an impending death;
(3) Declaration refers to cause and surrounding
circumstances of such death;
(4) Declaration is offered in any case wherein
his death is the subject of inquiry;
(5) Declarant is competent as a witness had he
survived [Geraldo v People (G.R. No. 173608.
November 20, 2008)]; and
(6) Declarant should have died. [People v.
Macandog (G.R. No. 129534 and 1411691,
June 6, 2001)]

Objections to the dying declaration

May be premised on any of the requisites for its
admissibility embodied in Sec. 37 of Rule 130.
Counsel who wants a dying declaration
excluded must have to deal with the primary
question of whether or not the evidentiary
foundations for the introduction where met.
[Riano]
Dying declarations are admissible in favor of the
defendant as well as against him. [US v.
Antipolo(37 Phil. 726, March 6, 1918)]

Rationale for Admissibility

As a general rule, when a person is at the point
of death, every motive to falsehood is silenced.
[People v Bacunawa (G.R. No. 136859. April 16,
2001)]

ii. Declaration against interest

Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) Declaration relates to a fact against the
interest of the declarant;
(3) At the time he made said declaration,
declarant was aware that the same was
contrary to his interest; and
(4) Declarant had no motive to falsify and
believed such declaration to be true [sec. 38,
Rule 130]

The law considers the point of death as a

situation so solemn and awful as creating an
obligation equal to that which is imposed by an
oath administered by the court. [People v.
Cerilla (G.R. No. 177147 November 28, 2007)]
If the declarants statement is made under
consciousness of impending death, a
subsequent belief in recovery before his actual
death does not bar admissibility of his
statement [Riano citing People v. Black (1979),
96 CA3d 846, 158 CR 449]

Inability to testify means that the person is dead,

mentally
incapacitated
or
physically
incompetent. Mere absence from the
jurisdiction does not make him ipso facto
unavailable. [Fuentes v. CA (G.R. No. 111692.
February 9, 1996)]

The foreboding may be gleaned from

surrounding circumstances, such as the nature
of the declarants injury and conduct that would
justify a conclusion that there was
consciousness of impending death. [People v.
Latayada (G.R. No. 146865. February 18, 2004)]

Declaration against interest made by the

deceased, or by one unable to testify, is
admissible even against the declarants

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successors-in-interest or even against third

persons [Sec. 38, Rule 130]

iii. Act or declaration about pedigree

Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) The pedigree is in issue or is relevant
thereto; [Herrera, pg. 641]
(3) Declarant must be related by birth or
marriage to the person whose pedigree is in
issue;
(4) Declaration was made before the
controversy; and
(5) Relationship between the declarant and the
person whose pedigree is in question must
be shown by evidence other than such
declaration. [Sec. 39, Rule 130]

Actual or real interest

It is essential that at the time of the statement,
the declarants interest affected thereby should
be actual, real or apparent, not merely
contingent, future or, conditional; otherwise the
declaration would not in reality be against
interest. (example: declarations regarding a
declarants inheritance are not admissible
because these are future interests) [Herrera, pg.
625]
Admissible against third persons
If all the requisites for admission of a
declaration against interest are present, the
admission is admissible not only against the
declarant but against third persons. [Herrera, pg.
626 citing Viacrusis v. CA, 44 SCRA 176]
As Distinguished from
Desierto (April 3, 2001)]
Admission by a party
(Rule 130.26)
Admitter is a party
himself, or in privity
with such party;
Admissible whether or
not
admitter
is
available as a witness
Can be made any
time, even during trial;
Admissible
only
against the admitter;
and
Admissible not as an
exception to any rule

REMEDIAL LAW

Pedigree includes
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected
with pedigree. [Sec. 39, Rule 130]

Admissions [Estrada v.
Declaration against
Interest (Rule 130.38)
Declarant is neither a
party nor in privity
with a party;
Admissible only when
declarant
is
unavailable
as
a
witness;
Must have been made
ante litem motam;
Admissible
even
against 3rd persons;
and
Admissible as an
exception
to
the
hearsay rule
Made against ones
pecuniary or moral
interest

Proof other than declaration

General Rule: Proof of relationship must be
shown in evidence other than the declaration.
Exception: The general rule does not apply
where the claim is sought to reach the estate of
the declarant himself, and not merely to
establish a right through his declarations to the
property of some other member of the family.
[Tison v. CA (G.R. No. 121027. July 31, 1997)]
Not applicable to adoption
The rule allowing proof of pedigree is not
applicable to adoption. The absence of proof of
an order of adoption by the court, as provided
by statute, cannot be substituted by parol
evidence that the child has lived with a person,

Made against ones

claim or defense,
although not moral or
pecuniary interest
Primary evidence
Secondary evidence

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not his parent, and was treated as child during

the latters lifetime. [Herrera, pg. 468 citing
Lazatin v. Campos (G.R. No. L-43955-56 July 30,
1979)]

REMEDIAL LAW

Distinguished from Declaration about Pedigree

[Herrera, pp. 662-663]
Sec. 39 Declaration
Sec. 40 Family
about Pedigree
Reputation or Tradition
There must be a The witness testifying
declarant
and
a to
the
family
witness
reputation
and
The witness need not tradition must be a
be a relative of the member of the family
person
whose member of the person
pedigree
is
in whose pedigree is in
question, it must be controversy.
the declarant.
Independent evidence The
witness
may
is needed to establish testify
on
the
relationship between relationship between
declarant and person such
relationship
whose pedigree is in himself. The author of
issue
the reputation need
not be established by
independent evidence.

Pedigree declaration by conduct

This rule may also consist of proof of acts or
conduct of relatives and the mode of treatment
in the family of one whose parentage is in
question. [Herrera, pg. 649]
iv. Family reputation or tradition regarding
pedigree
Requisites for Admissibility
(1) Witness must be a member, by
consanguinity or affinity, of the same family
as the subject; and
(2) Such reputation or tradition must have
existed in that family ante litem motam.
[sec. 40, Rule 130]

v. Common Reputation

Other Admissible Evidence

(1) Entries in family bibles or other family
books;
(2) Charts;
(3) Engravings on rings;
(4) Family portraits and the like [Sec. 40, Rule
130]

Requisites for Admissibility

(1) Reputation pertains to:
(a) facts of public or general interest
more than 30 years old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem
motam. [Sec. 41, Rule 130]

This enumeration, by ejusdem generis, is limited

to "family possessions," or those articles which
represent, in effect, a family's joint statement of
its belief as to the pedigree of a person. [Jison v.
CA (G.R. No. 124853. February 24, 1998)]

Other Admissible Evidence

(1) Monuments
(2) Inscriptions in public places [sec. 41, Rule
130]
Pedigree may be established by reputation in
the family, but not in the community. [Rule 130,
Secs. 40-41]

A persons statement as to his date of birth and

age, as he learned of these from his parents or
relatives, is an ante litem motam declaration of
a family tradition. [Gravador v. Mamigo (G.R. No.
L-24989 July 21, 1967)]

Common reputation is hearsay like any other

exception to the hearsay rule, but is admissible
because of trustworthiness. [Riano citing Reg. v.
Bedforshire, 4 E & B 535, 82 ECL 535, 542]

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Reputation has been held admissible as

evidence of age, birth, race, or race-ancestry,
and on the question of whether a child was born
alive. [In re: Florencio Mallare (A.M. No. 533
September 12, 1974)]

REMEDIAL LAW

(2) Verbal acts - Statements, which accompany

an equivocal act material to the issue and
give it a legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the
equivocal act
(d) Statement gives legal significance
to equivocal act [Talidano v. Falcom
Maritime (2008)]
(e) Must be made at the time, not after,
the equivocal act was being
performed

Unlike that of matters of pedigree, general

reputation of marriage may proceed from
persons who are not members of the family
the reason for the distinction is the public
interest that is taken in the question of the
existence of marital relations. (In re: Florencio
Mallare (supra)]
vi. Part of the res gestae
Res Gestae (meaning)
This expression signifies merely transactions
or things done and is used in common law as
meaning the circumstances which are
automatic and undersigned incidents of the
particular act in issue, and which are admissible
in evidence when illustrative and explanatory of
the act. [Herrera, pg. 683]

A dying declaration can be made only by the

victim after the attack while a statement as part
of the res gestae may be that of the killer
himself after or during the killing. [People v.
Reyes]
A statement not admissible as dying
declaration because it was not made under
consciousness of impending death, may still be
admissible as part of res gestae if made
immediately after the incident. [People v.
Reyes]

Admissible Statements
(1) Spontaneous statements - Statements
made by a person while a startling
occurrence is taking place or immediately
prior or subsequent thereto, with respect to
the circumstances thereof:
(a) Principal act be a startling
occurrence
(b) Statement made before declarant
had opportunity to contrive
[Talidano v. Falcom Maritime
(2008)]
(c) Statement refer to occurrence in
question
and
attending
circumstances (Sec. 42, Rule 130) or
that the statements must concern
the occurrence in question and its
immediate attending circumstances
[Talidano v. Falcom Maritime
(2008)]

vii. Entries in the course of business

Requisites for Admissibility
(1) Entries were made at, or near the time of
the transactions referred to;
(2) Such entries were made in the ordinary or
regular course of business or duty;
(3) Entrant was in a position to know the facts
stated in the entries;
(4) Entrant did so in his professional capacity,
or in the performance of duty and in the
regular course of business; and
(5) Entrant is now dead or unable to testify.
[Northwest Airlines v. Chiong (2008)]
If the entrant is available as a witness, the
entries will not be admitted, but they may
nevertheless be availed of by said entrant as a
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memorandum to refresh his memory while

testifying on the transactions reflected therein.
[Cang Yui v. Gardner (1916)]

Entries in a police blotter are not conclusive

proof of the truth of such entries. [People v.
Cabuang (G.R. No. 103292 January 27, 1993)]

Business records are exempt from the hearsay

rule. [Rule 8, sec. 1, Rules on Electronic Evidence]

Baptismal certificates or parochial records of

baptism are not official records. [Fortus v.
Novero (G.R. No. L-22378 June 29, 1968)]

Entries in the payroll, being entries in the course

of business, enjoy the presumption of regularity
[Sapio v. Undaloc Construction (2008)]

ix. Commercial lists and the like

Reason for rule

The duty of the employees to communicate
facts is of itself a badge of trustworthiness of
the entries [Security Bank and Trust Company v.
Gan (2006)]

Requisites for Admissibility

(1) Statements of matters of interest to persons
engaged in an occupation; [Herrera, pg. 758]
(2) Such statements are contained in a list;
(3) Compilation is published for use by persons
engaged in that occupation; and
(4) It is generally used and relied upon by them.

These entries are accorded unusual reliability

because their regularity and continuity are
calculated to discipline record keepers in the
habit of precision. [LBP v. Monets Export and
Manufacturing Corp. (2010)]

Need of preliminary proof of trustworthiness

There should be requirements of preliminary
proof of trustworthiness before such lists are
rendered admissible. Some proof must be
shown how or in what manner it was made up,
where the information it contained was
obtained, or whether the quotation of prices
made were derived from actual sales or
otherwise. [Herrera, pg. 760]

viii. Entries in official records

Requisites for Admissibility
(1) Entries were made by a public officer in the
performance of his duties or by a person in
the performance of a duty specially enjoined
by law [Sec. 44, Rule 130];
(2) Entrant must have personal knowledge of
the facts stated by him or such facts
acquired by him from reports made by
persons under a legal duty to submit the
same [Barcelon, Roxas Securities v. CIR
(2006)]; and
(3) Entries were duly entered in a regular
manner in the official records.

x. Learned Treatises
Requisites for Admissibility
(1) Published treatise, periodical or pamphlet is
on a subject of history, law, science, or art;
and
(2) Court takes either:
(a) judicial notice of it, or
(b) witness expert in the subject
testifies that the writer of the
statement in the treatise, periodical
or pamphlet is recognized in his
profession or calling as expert in the
subject

Entries in official records, just like entries in the

course of business, are merely prima facie
evidence of the facts therein stated. [Secs. 4344, Rule 130]

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xi. Testimony or deposition at a former trial

REMEDIAL LAW

Expert witness is one who has made the subject

upon which he gives his opinion a matter of
particular study, practice or observation and he
must have particular and special knowledge on
the subject. [People v. Dekingco, (G.R. No. 87685
September 13, 1990)]

Requisites for Admissibility [Sec. 47, Rule 130;

Manliclic v. Calaunan (G.R. No. 150157 January
25, 2007)]
(1) Witness is dead or unable to testify;
(2) His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
(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 the opportunity to crossexamine the witness in the former case.

Expert evidence is the testimony of one

possession in regard to a particular subject or
department of human activity not usually
acquired by other persons. [Herrera, pg. 787]
Question in admitting expert testimony
Whether the opinion called for will aid the fact
finder in resolving an issue, or whether the jury
or the judge is as well qualified as the witness to
draw its own or his own deductions from the
hypothetical facts. [Herrera, pg. 787]

Inability to testify (meaning and standard)

The inability of the witness to testify must
proceed from a grave cause, almost amounting
to death, as when the witness is old and has lost
the power of speech. Mere refusal shall not
suffice. [Tan v. CA (G.R. No. L-22793 May 16,
1967)]

Court discretion to exclude or include expert

evidence
If men of common understanding are capable of
comprehending the primary facts and drawing
correct conclusions from them, expert testimony
may be excluded by the Court. [Herrera pg. 787]
Competency of witness is a preliminary question
before testimony is admitted
It must be shown that the witness is really an
expert; determination of competency is a
preliminary question. [Herrera, pg. 790]

H. OPINION RULE
General Rule: The opinion of witness is not
admissible [Sec. 48, Rule 130]
Exceptions [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness [Rule 130, sec. 49]
(2) Ordinary witness [Rue 130, sec. 50]

Mode of examination of expert witness

He may base his opinion either on a first-hand
knowledge of the facts or on the basis of
hypothetical questions where the facts are
presented to him hypothetically, and on the
assumption that they are true, formulates his
opinion on this hypothesis. [Herrera, pg. 793]

H.1. OPINION OF EXPERT WITNESS [SEC.

49, RULE 130]
The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he shown to possess, may be received in
evidence.

Test of hypothetical questions

Fairness is the ultimate test of hypothetical
questions. The Court shall reject a question
which unfairly selects parts of the facts proved
or omits material facts. If it omits facts, it may
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be opposed on the ground that it is misleading.

[Herrera, pg. 798]

REMEDIAL LAW

person. He may only draw on the knowledge

which he already has and which enables him to
recognize the handwriting.

Admissibility of hypothetical question

Admissibility of hypothetical questions depends
on whether it furnishes the tribunal with the
means of knowing upon what premises of fact
the conclusion is based. [Herrera citing Magiore
v. Sheed (195 A. 392, 173 Md 33)]

Only experts are allowed to give conclusions

from the comparison of samples of handwriting
of a person whose handwriting he is not familiar
with. [Herrera, pg. 825]
Mental sanity of a person with whom he is
sufficiently acquainted
These are allowed where the witness can
adequately describe the actions, looks or
symptoms of a persons sanity or insanity which
is impossible for the court to determine.
[Herrera, pg. 825]

H.2. OPINION OF ORDINARY WITNESS

[SEC. 50, RULE 130]
(1) If proper basis is given, and
(2) Regarding:
(a) Identity of a person about whom he
has adequate knowledge;
(b) Handwriting with which he has
sufficient familiarity;
(c) Mental sanity of a person with
whom he is sufficiently acquainted;
and
(d) Impressions of the
(i) emotion,
(ii) behavior,
(iii) condition, or
(iv) appearance of a person

Impressions of the emotion, behavior, condition

or appearance of a person
The rule recognizes instances when a witness
may be permitted to state his inferences that
are drawn from minute facts and details which
the witness cannot fully and properly describe
in court. Such expressions are expressed to the
countenance, the eye and the general manner
and bearing of the individual; appearance which
are plainly enough recognized by a person of
good judgment, but which he cannot otherwise
communicate by an expression of results in the
shape of an opinion. [Herrera citing US case
Hardy v. Merill]

Identity of a person about whom he has

adequate knowledge
Statements of a witness as to identity are not to
be rejected because he is unable to describe
features of the person in question. [Herrera, pg.
824]

I. CHARACTER EVIDENCE
General Rule [Sec. 51, Rule 130]: Character
evidence is not admissible.

Identification by voice is recognized by the

courts, especially in a case where it was
impossible to see the accused but the witness
has known the accused since their childhood.
[Herrera, pp. 824-825 citing US v. Manabat (G.R.
No. 3093, 7 Phil. 209)]

Exceptions
(1) Criminal cases [Sec. 51(a), Rule 130]
(2) Civil case [Sec. 51 (b), Rule 130]
(3) In the case provided for in Rule 132, Sec. 14.

Handwriting with which he has sufficient

familiarity
The ordinary witness must be acquainted with
the characteristics of the handwriting of a

Character evidence (definition)

The aggregate of the moral qualities which
belong to and distinguish an individual person;
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the general result of ones distinguishing

attributes. [Herrera citing Blacks Law
Dictionary, pg. 834]

REMEDIAL LAW

In rape cases, the character of a woman may be

relevant and admissible on the question of the
presence or absence of her consent. While in
homicide and assault cases, it may be used as
evidence of the victims character for turbulence
and violence warranting the response of the
accused. [Herrera pg. 837 and 839]

Character distinguished from reputation

Character is what a man is and depends on
attributes he possesses. It signifies reality.

I.2. CIVIL CASES

Reputation is what he is supposed to be in what

people say he is, it depends on attributes which
others believe one to possess. It signifies what is
accepted to be reality at present. [Herrera citing
Blacks Law Dictionary, pg. 834]

Moral character is admissible only when

pertinent to the issue of character involved in
the case. [Sec. 51(b), Rule 130]
Evidence of the witness good character is not
admissible until such character has been
impeached. [Sec. 14, Rule 130]

I.1. CRIMINAL CASES

(1) Accused May prove his good moral
character, which is pertinent to the moral
trait involved in the offense charged.
(2) Prosecution May not prove the bad moral
character of the accused, except in rebuttal.
(3) Offended Party His/her good or bad moral
character may be proved if it tends to
establish in any reasonable degree the
probability or improbability of the offense
charged.

J. RULE ON EXAMINATION OF A
CHILD WITNESS (A.M. NO. 004-07-SC)
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, maybe
admitted in evidence in any criminal or noncriminal proceeding subject to the following
rules:

Good moral character of accused

The purpose of presenting evidence of good
moral character is to prove the improbability of
his doing the act charged. The accused may
prove his good moral character only if it is
pertinent to the moral trait involved in the
offense charged. [Herrera, pg. 835]

(1) Before such hearsay statement may be

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. 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 crossexamination by the adverse part. When the
child is unavailable, the fact of such
circumstance must be proved by the
proponent.
(2) In ruling on the admissibility of such
hearsay statement, the court shall consider
the time, content and circumstances thereof
which provide sufficient indicia of reliability.
It shall consider the following factors:

Bad moral character of accused in rebuttal

Unless and until the accused gives evidence of
his good moral character the prosecution may
not introduce evidence of his bad character.
[Herrera citing People v. Rabanes (G.R. No.
93709 May 8, 1992)]
Good or bad moral character of offended party
This is usually offered in rape cases and where
the accused invokes the defense of self-defense.

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J.2.MEANING OF CHILD WITNESS [SEC.

4 (A)]

(a) Whether there is a motive to lie;

(b) The general character of the
declarant child;
(c) Whether more than one person
heard the statement;
(d) Whether the statement was
spontaneous;
(e) The timing of the statement and the
relationship between the declarant
child and witness;
(f) Cross-examination could not show
the lack of knowledge of the
declaration child;
(g) The possibility of faulty recollection
of the declarant of child is remote;
and
(h) The circumstances surrounding the
statement are such that there is no
reason to suppose the declarant
child
misrepresented
the
involvement of the accused.
(3) The child witness shall be considered
unavailable under the following situations:
(a) Is deceased, suffers from physical
infirmity, lack of memory, mental
illness, or will be exposed to severe
psychological injury; or
(b) Is absent from the hearing and the
proponent of his statement has
been unable to procure his
attendance by process or other
reasonable means.

(1) Any person who at the time of giving

testimony is less than 18 years;
(2) In child abuse cases a child includes one
over 18 years,
(a) But is found by the court as:
(i) Unable to fully take care
of himself, or
(ii) Protect himself from
abuse, neglect, cruelty,
exploitation,
or
discrimination
(b) Because of a physical or mental
disability or condition.

J.3. COMPETENCY OF CHILD WITNESS

Presumption of competence
Every child is presumed qualified to be a
witness. To rebut the presumption of
competence enjoyed by a child, the burden of
proof lies on the party challenging his
competence. [Sec. 6(b)]
Requisites of competency of a child as witness
[People v. Mendoza (G.R. No. 113791. February 22,
1996)]
(1) Capacity of observation;
(2) Capacity of recollection; and
(3) Capacity of communication.
When the court 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, a competency exam shall
be conducted.

When the child witness is unavailable, his

hearsay testimony shall be admitted only if
corroborated by other admissible evidence.

J.1. APPLICABILITY OF THE RULE

Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses.
[Sec. 1]

The age of the child by itself is not a sufficient

basis for a competency examination. [Sec. 6(a)]
The court has the duty of continuously
assessing the competence of the child
throughout his testimony. [Sec. 6(f)]

The ROC provisions on deposition, conditional

examination of witnesses and evidence shall be
applied suppletorily. [Sec. 32]
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J.4. EXAMINATION OF A CHILD WITNESS

REMEDIAL LAW

The trauma must be of a kind which would

impair the completeness/truthfulness of the
childs testimony.

(1) In open court [Sec. 11]

(2) Alternative Modes
(a) Live-Link TV Testimony, in Criminal
Cases where Child is a Victim or a
Witness [Sec. 25]
(i) 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.
(ii) Trauma must be of a kind
which would impair the
completeness
or
truthfulness of the childs
testimony.
(b) Videotaped Deposition of a Child
Witness [Sec. 27]
(i) 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.
(ii) 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.

If it is necessary for the child to identify the

accused at trial, the court may allow the child to
enter the courtroom for the limited purpose of
identifying the accused, or the court may allow
the child to identify the accused by observing
the image of the latter on a television monitor.
ii. Videotaped deposition of a child witness [Sec.
27]
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.
The rights of the accused during trial, especially
the right to counsel and to confront and crossexamine the child, shall not be violated during
the deposition.
Admissibility of videotaped and audiotaped indepth investigative or disclosure interviews in
child abuse cases [Sec. 29]
Requisites for admissibility:
(1) The child witness is unable to testify in
court on grounds and under conditions
established under section 28 (c) which
are:
(a) Is deceased, suffers from
physical infirmity, lack of
memory, mental illness, or will
be
exposed
to
severe
psychological injury; or
(b) Is absent from the hearing and
the proponent of his statement
has been unable to procure his
attendance by process or other
reasonable means.
(2) The interview of the child was
conducted by duly trained members of a
multi-disciplinary
team
or
representatives of law enforcement or

i. Live-link TV testimony of a child witness [Sec.

25]
Live-link television testimony, in criminal cases
where the child is a victim or a witness
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.

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J.5. HEARSAY EXCEPTION IN CHILD

ABUSE CASES [SEC. 28]

child protective services in situations

where child abuse is suspected so as to
determine whether child abuse occurred.
(3) The party offering the videotape or
audiotape must prove that:
(a) the videotape or audiotape
discloses the identity of all
individuals present and at all
times includes their images and
voices;
(b) the statement was not made in
response
to
questioning
calculated to lead the child to
make a particular statement or
is clearly shown to be the
statement of the child and not
the product of improper
suggestion;
(c) the videotape and audiotape
machine or device was capable
of recording testimony;
(d) the person operating the device
was competent to operate it;
(e) the videotape or audiotape is
authentic and correct; and
(f) it has been duly preserved.

Proponent of hearsay statement shall make

known to the adverse party the intention to offer
such statement and its particulars.
If the child is available, court shall require the
child to be present at the presentation of the
hearsay statement for cross-examination by the
adverse party.
If unavailable, the fact of unavailability must be
proved by the proponent and his hearsay
testimony must be corroborated by other
admissible evidence.

J.6. SEXUAL ABUSE SHIELD RULE

General Rule [Sec. 30(a)]: The following are
inadmissible in any criminal proceeding
involving alleged child sexual abuse:
(1) Evidence offered to prove that the
alleged victim engaged in other sexual
behavior;
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception [Sec. 30(b)]: 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.

The individual conducting the interview of the

child shall be available at trial for examination
by any party. Before the videotape or audiotape
is offered in evidence, all parties shall be
afforded an opportunity to view or listen to it
and shall be furnished a copy of a written
transcript of the proceedings.

Protective orders
Video/audio tapes that are part of the court
record may be viewed only by parties, their
counsel, their expert witness and the guardian
ad litem. [Sec. 31(b)]

The fact that an investigative interview is not

videotaped or audiotaped as required by this
section shall not by itself constitute a basis to
exclude from evidence out-of-court statements
or testimony of the child. It may, however, be
considered in determining the reliability of the
statements of the child describing abuse.

The court may issue additional orders to protect

the childs privacy. [Sec. 31(c)]
Publication (or causing it) in any format any
identifying information of a child who is or is
alleged to be a victim/accused of a crime or a
witness thereof, or an immediate family of the
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child, shall be liable for contempt of court. [Sec.

31(d)]

the testimony, the court must consider the

testimony.

A child has a right at any court proceeding not

to testify regarding personal identifying
information that could endanger his physical
safety or his family. [Sec. 31(e)]

The provisions of the ROC on the inclusion on

appeal of documentary evidence or exhibits in
the records, cannot be stretched as to include
such pleadings or documents not offered at the
hearing of the case [Candido v. CA, G.R. No.
107493. February 1, 1996)]

VI. Offer and Objection

When formal offer is not required

(1) In a summary proceeding because it is a
proceeding where there is no full-blown
trial;
(2) Documents judicially admitted or taken
judicial notice of;
(3) Documents, affidavits, and depositions used
in rendering a summary judgment;
(4) Documents or affidavits used in deciding
quasi-judicial or administrative cases
[Bantolino v. Coca Cola Bottlers (G.R. No.
153660. June 10, 2003)]
(5) Lost objects previously marked, identified,
described in the record, and testified to by
witness who had been subjects of crossexamination in respect to said objects
[Tabuena v. CA, (G.R. No. 85423 May 6, 1991)
citing People v. Napat-a, (G.R. No. 84951
November 14, 1989)] [Riano]

A. OFFER OF EVIDENCE
Rule: Court shall consider no evidence which
has not been formally offered. (Rule 132, Sec.
34)
Purpose: The purpose for which the evidence is
offered must be specified.
As Distinguished from Identification of
Documentary Evidence [Interpacific Transit v.
Aviles (G.R. No. 86062 June 6, 1990)]
Identification of
Formal Offer of Exhibit
Documentary Evidence
Done in the course of Done only when the
the
trial
and party rests his/her
accompanied by the case
marking
of
the
evidence

Waiver of right to make a formal offer

It is deemed waived by a party if it fails to
submit within a considerable period of time its
formal offer. [Heirs of Pasag v. Parocha (G.R. No.
155483 April 27, 2007)] In this case, the court
did not allow the petitioners to present their
formal offer 10 years after resting its case. In an
earlier case of Constantino v. CA (G.R. No.
116018, November 13, 1996), the Court did not
allow a formal offer even only after three
months because such would, condone an
inexcusable laxity if not non-compliance with a
court order which, in effect, would encourage
needless delays and derail the speedy
administration of justice.

Why formal offer is needed

There is a need for a formal offer of evidence
because without such offer, the court cannot
determine whether the evidence is admissible or
not. [Riano]
No evidentiary value can be given to pieces of
evidence not formally offered. [Dizon v. CTA
(G.R. No. 140944 April 30, 2008)]
However, where the absence of an offer of a
testimonial evidence was not objected to as
when the witness was cross-examined by the
adverse party despite failure to make an offer of
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Excluding inadmissible evidence

(1) One has to object to the evidence;
(2) The objection must be timely made; and
(3) The grounds for the objection must be
specified. [Herrera, pg. 321]

B. WHEN TO MAKE AN OFFER [SEC.

35, RULE 132]
Kind of evidence
Testimonial
Documentary
and Object

REMEDIAL LAW

When to offer
At the time the witness is
called to testify
After the presentation of a
partys testimonial evidence

Purposes of objection [Riano]

(1) Made to keep out inadmissible evidence
that would cause harm to clients cause
(rules of evidence are not selfoperating)
(2) To protect the record (for future appeal)
(3) To protect witness from being
embarrassed or harassed
(4) To expose adversarys unfair tactics
(5) To give 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; and
(6) To avoid a waiver of inadmissibility

Offer shall be done orally unless allowed by the

court to be done in writing.
Absence of an offer is a defect which is waived
when a party fails to object when the ground
became reasonably apparent, as when the
witness is called to testify without any prior offer.
[Catuira v. CA (G.R. No. 105813 September 12,
1994)]
The defect caused by the absence of formal
offer of exhibits can be cured by the
identification of the exhibits by testimony duly
recorded and the incorporation of the said
exhibits in the records of the case. [People v.
Mate (G.R. No. L-34754 March 27, 1981)]

Objections must be specific enough to

adequately inform the court the rule of evidence
or of substantive law that authorizes the
exclusion of evidence [Riano]

The defendant cannot offer his evidence before

the plaintiff has rested. [Herrera citing Engersail
v. Malabon Sugar Co., 53 Phil. 7450]

General Objections do not clearly indicate to the

judge the ground upon which the objections are
predicated. In cases where the incompetency of
the evidence is so palpable that a mere general
objection is deemed sufficient and where the
portion of the evidence objected to is clearly
pointed out, and its illegality is apparent on its
face, then the objection must be allowed.
[Riano]

C. OBJECTION [SEC. 36, RULE 132]

Concept
What to object to
Testimonial evidence

When to object
Immediately
after
offer is made
Question propounded As soon as the
in the course of oral grounds
become
examination
reasonably apparent
Offer done in writing
Within 3 days after
notice of the offer,
unless a different
period is allowed by
the court
The grounds for objection must be specified in
any case.

Formal v. Substantive Objections [Riano]

Formal one directed against the alleged
defect in the formulation of the question
Substantive objections made and directed
against the very nature of the evidence

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Waiver of objection
When the party should have objected but did
not. The failure to point out a defect, irregularity
or wrong in the admission or exclusion of
evidence. [Riano]

Por lo que puedo valer principle

The Supreme Court encourages the admission
or borderline evidence for whatever it is worth or
por lo que puedo valer. [Prats & Co. v. Phoenix
Insurance (52 Phil. 807 February 25, 1930)]

Effect of waiver
A waiver of objection should not be construed
as an admission that the evidence is credible.
The scope of the waiver is only either on the
relevance or competence of the evidence.
[Riano]

No express ruling needed

The trial court need not make an express ruling
admitting the exhibits if there is no objection
interposed to their admission. [Herrera, pg. 336
citing Boix v. Rivera, CA Rep. 2d 104]
The ruling of the court is required only when
there is an objection to a question or to the
admission of an exhibit. [Herrera, pg. 336]

D. REPETITION OF AN OBJECTION
[SEC. 37, RULE 132]

F. STRIKING OUT AN ANSWER [SEC.

39, RULE 132]

A court may, motu proprio, treat the objection

as a continuing one. [Keller v. Ellerman &
Bucknall Steamship (G.R. No. L-12308
August 28, 1918)]

Motion to strike
(1) Court may sustain an objection and order
the answer given to be stricken off the
record if:
(a) witness answers the question before
the adverse party had the
opportunity to object, and
(b) such objection is found to be
meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
(a) incompetent,
(b) irrelevant or
(c) otherwise improper.

An objection must be seasonably made at the

time it is formally offered. Objection prior to the
formal offer is premature and could not be
considered by the Court as basis for a
continuing one. [Interpacific Transit v. Aviles
(supra)]

E. RULING ON THE OBJECTION [SEC.

38, RULE 132]
The ruling should be given immediately after
the objection is made, unless the court desires
to take a reasonable time to inform itself on the
question presented.
The reason for sustaining or overruling an
objection need not be stated. However, if the
objection is based on two or more grounds, a
ruling sustaining the objection on one or some
of them must specify the ground/s relied upon.

Other cases when motion to strike is proper

(1) When the answer of the witness is
unresponsive;
(2) When the witness becomes unavailable
for cross-examination through no fault
of the cross-examining party;
(3) When the testimony is allowed
conditionally and the condition for its
admissibility was not fulfilled; [Riano]
(4) Where evidence has been properly
received, and its effect has been

Reservation of a ruling by the court on an

objection to the admissibility of evidence,
without subsequently excluding the same,
amounts to a denial of an objection. [People v.
Tavera (G.R. No. L-23172 March 17, 1925)]
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EVIDENCE

REMEDIAL LAW

destroyed by other evidence, or its

admissibility has afterward become
apparent; [Herrera, pg. 340]
Rationale
(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
(2) even if he is not convinced to reverse his
earlier ruling, the tender is made to
create and preserve a record for appeal
[Riano]

A motion to strike out goes to admissibility and

not to weight; evidence should not be stricken
out because of its little probative value. [Herrera,
pg. 340]
Motion to strike out should specify objection
A motion to strike out should specify the
objection as well as the portion of the evidence
which is objected to. [Herrera, pg. 340]

Two Methods of making the Tender: [Riano]

(1) Where the counsel tells the court what
the proposed testimony would be;
(2) By using the question and answer form

G. TENDER OF EXCLUDED EVIDENCE

[SEC. 40, RULE 132]
Documents marked as exhibits during the
hearing but which were not formally offered in
evidence cannot be considered as evidence nor
shall they have evidentiary value. [Vda. De
Flores v. Workmens Compensation Commission
(G.R. No. L-43316 July 21, 1977)]

Erroneous Way of Making Tender

To make a mere general offer of proof without
producing the witness or stating the evidence
where by the fact in issue is to be proved.
[Riano]

How to Tender Evidence

Kind of
How to tender the evidence
evidence
Documentary Offeror may have the same
attached or made part of the
record
Testimonial
Offeror may state for the record
the name and other personal
circumstances of the witness
and the substance of the
proposed testimony

The SC had advised trial courts to allow the

rejected [documentary] evidence to be attached
to the record to enable the appellate court to
examine the same and determine whether the
exclusion of the same was proper or not.
[Herrera citing Banez v. CA, (G.R. No. L-30351
September 11, 1974)]
Harmless error rule [People v. Teehankee (G.R.
Nos. 111206-08 October 6, 1995)]
In dealing with evidence improperly admitted in
trial, we examine its damaging quality and its
impact to the substantive rights of the litigants.
If the impact is slight and insignificant, we
disregard the error as it will not overcome the
weight of the properly admitted evidence
against the prejudiced party.

433

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

REMEDIAL LAW

REMEDIAL LAW
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

I. Scope and Applicability

of the Rule

REMEDIAL LAW

(15) R.A. No. 7942, Philippine Mining Act;

(16) R.A. No. 8371, Indigenous Peoples Rights
Act;
(17) R.A. No. 8550, Philippine Fisheries Code;
(18) R.A. No. 8749, Clean Air Act;
(19) R.A. No. 9003, Ecological Solid Waste
Management Act;
(20)
R.A. No. 9072, National Caves and Cave
Resource Management Act;
(21) R.A. No. 9147, Wildlife Conservation and
Protection Act;
(22)
R.A. No. 9175, Chainsaw Act;
(23)R.A. No. 9275, Clean Water Act;
(24)
R.A. No. 9483, Oil Spill Compensation
Act of 2007; and
(25)
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
(26)
Rules of Procedure for Environmental
Cases 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. [Rule 1, Sec. 3]

These Rules shall govern the procedure in

(1) civil,
(2) criminal and
(3) special civil actions
Involving enforcement or violations of
environmental and other related laws, rules and
regulations such as but not limited to the
following:
(1) Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees;
(2) P.D. No. 705, Revised Forestry Code;
(3) P.D. No. 856, Sanitation Code;
(4) P.D. No. 979, Marine Pollution Decree;
(5) P.D. No. 1067, Water Code;
(6) P.D. No. 1151, Philippine Environmental
Policy of 1977;
(7) P.D. No. 1433, Plant Quarantine Law of
1978;
(8) P.D.
No.
1586,
Establishing
an
Environmental Impact Statement System
Including
Other
Environmental
Management Related Measures and for
Other Purposes;
(9) 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;
(10) R.A. No. 4850, Laguna Lake Development
Authority Act;
(11) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
(12) R.A. No. 7076, Peoples Small-Scale Mining
Act;
(13) R.A. No. 7586, National Integrated
Protected Areas System Act including all
laws, decrees, orders, proclamations and
issuances establishing protected areas;
(14) R.A. No. 7611, Strategic Environmental Plan
for Palawan Act;
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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

II. Civil Procedure

REMEDIAL LAW

environment. [Annotation to the Rules of

Procedure for Environmental Cases, Supreme
Court Sub-Committee]

Who May File

Any real party in interest, including the
government and juridical entities authorized by
law, may file a civil action involving the
enforcement or violation of any environmental
law. [Rule 2, Sec.4]

Procedure
Filing of verified Complaint accompanied by
(1) documents, affidavits, and/or objects to
prove cause of action and
(2) certification against forum shopping

Referral/Assignment by raffle to branch of

court

Issuance of Temporary Environmental

Protection Order [TEPO], when proper,
effective for 72 hours from receipt and,
during the same period, conduct of a
summary hearing for the extension of the
effectivity of the TEPO

Service of Summons

Filing of verified Answer within 15 days from

receipt of summons

Issuance of Notice of Pre-trial within 2 days

from filing of Answer

Submission of Pre-Trial briefs 3 days before

pre-trial

Referral to Mediation, Mediation and

Mediation Report

Preliminary Conference

Pre-trial Conference/s

Pre-trial Order

Continuous Trial

Judgment and Execution

Citizen Suit Any Filipino citizen in

representation of others, including minors or
generations yet unborn, may file an action to
enforce
rights
or
obligations
under
environmental laws. Upon the filing of a citizen
suit, the court shall issue an order which shall
contain a brief description of the cause of action
and the reliefs prayed for, requiring all
interested parties to manifest their interest to
intervene in the case within fifteen days from
notice thereof. The plaintiff may publish the
order once in a newspaper of a general
circulation in the Philippines or furnish all
affected barangays copies of said order.
Citizen suits filed under R.A. 8749 (Clean Air
Act) and R.A. 9003 (Ecological Solid Waste
Management Act) shall be governed by their
respective provisions. [Rule 2, Sec. 5]

A.
PROHIBITION
AGAINST
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Except the Supreme Court, 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. [Rule 2, Sec. 10]
Where the issuance of a TEPO is premised on
the violation of an environmental law or a
threatened damage or injury to the environment
by any person, even the government and its
agencies, the prohibition against the issuance of
a TRO or preliminary injunction is premised on
the presumption of regularity on the
government and its agencies in enforcing
environmental laws and protecting the
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REMEDIAL LAW

motion of the plaintiff, shall receive evidence ex

parte and render judgment based thereon and
the reliefs prayed for. [Rule 2, Sec. 15]

B. TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO)
B.1. GROUND FOR ISSUANCE

D.
PRE-TRIAL
CONSENT DECREE

If it appears from the complaint that

(1) the matter is of extreme urgency and
(2) the applicant will suffer grave injustice and
irreparable injury [Rule 2, Sec. 8]

CONFERENCE;

The judge shall put the parties and their

counsels under oath, and they shall remain
under oath in all pre-trial conferences.

B.2. PERIOD OF EFFECTIVITY

The judge shall exert best efforts to persuade

the parties to arrive at a settlement of the
dispute. 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.

Seventy-two (72) hours from date of the receipt

of the TEPO by the party or person enjoined
[Rule 2, Sec. 8]

B.3. DUTY OF COURT

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.
[Rule 2, Sec. 8]

Evidence not presented during the pre-trial,

except newly-discovered evidence, shall be
deemed waived. [Rule 3, Sec.5]

The judge shall report any action taken on a

TEPO, EPO, TRO or a preliminary injunction,
including its modification and dissolution, to the
Supreme Court, through the Office of the Court
Administrator, within ten days from the action
taken. [Rule 2, Sec. 11]

Consent decree refers to a judicially-approved

settlement between concerned parties based on
public interest and public policy to protect and
preserve the environment. [Rule 1, Sec. 4(b)]

B.4. GROUND TO DISSOLVE TEPO

The following pleadings or motions shall not be

allowed:
(1) Motion to dismiss the complaint;
(2) Motion for a bill of particulars;
(3) Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed fifteen days;
(4) Motion to declare the defendant in default;
(5) Reply and rejoinder; and
(6) Third party complaint. [Rule 2, Sec. 2]

E. PROHIBITED
MOTIONS

A TEPO may be dissolved if it appears after

hearing that its issuance or continuance would
cause irreparable damage to the party or
person enjoined while the applicant may be
fully compensated for such damages as he may
suffer and subject to the posting of a sufficient
bond by the party or person enjoined. [Rule 2,
Sec. 9]

C. DECLARATION OF DEFAULT MOTU

PROPRIO

PLEADINGS

AND

F. PERIOD TO TRY AND DECIDE

The court shall have a period of one year from
the filing of the complaint to try and decide the
case. Before the expiration of the one-year

Should the defendant fail to answer the

complaint within the period provided, the court
shall declare defendant in default and upon
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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

period, the court may petition the Supreme

Court for the extension of the period for
justifiable cause.

REMEDIAL LAW

H. PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS

The court shall prioritize the adjudication of

environmental cases. [Rule 4, Sec. 5]

In the judgment, the court may

a) convert the TEPO to a permanent EPO OR
b) issue a writ of continuing mandamus
directing the performance of acts which
shall be effective until the judgment is fully
satisfied [Rule 5, Sec. 3]

G. JUDGMENT AND EXECUTION;

RELIEFS IN A CITIZEN SUIT
G.1. RELIEFS IN A CITIZEN SUIT
If warranted, the court may grant to the plaintiff
proper reliefs which shall include
(1) the
protection,
preservation
or
rehabilitation of the environment and
(2) the payment of attorneys fees, costs of suit
and other litigation expenses

Continuing mandamus is a writ issued by a

court in an environmental case directing any
agency or instrumentality of the government or
officer thereof to perform an act or series of acts
decreed by final judgment which shall remain
effective until judgment is fully satisfied [Rule 1,
Sec. 4(c)]

The court may also require the violator

(1) to submit a program of rehabilitation or
restoration of the environment, the costs of
which shall be borne by the violator or
(2) to contribute to a special trust fund for that
purpose subject to the control of the court
[Rule 5, Sec. 1]

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.
[Rule 5, Sec.3]

G.2. NO DAMAGES CAN BE AWARDED IN

A CITIZEN SUIT
This measure is in line with the policy that a
citizen suit is filed in the public interest, and in
effect, it is the environment which is vindicated
in the action. The only recourse of a party or
person who wishes to recover damages for
injury suffered is to file a separate action under
Sec. 4, Rule 2. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]

I. STRATEGIC LAWSUIT AGAINST

PUBLIC PARTICIPATION (SLAPP)
SLAPP refers to 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. [Rule 6, Sec. 1]

G.3. JUDGMENT NOT STAYED BY APPEAL

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.
[Rule 5, Sec. 2]

The SLAPP provisions apply not only to suits

that have been filed in the form of a countersuit,
but also to suits that are about to be filed with
the intention of discouraging the aggrieved
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REMEDIAL LAW

I.3. RESOLUTION OF THE DEFENSE OF A

SLAPP

person from bringing a valid environmental

complaint before the court.

(1) If action is dismissed, dismissal is with

prejudice
(2) If defense is rejected, action will proceed
and evidence adduced during the summary
hearing shall be treated as evidence of the
parties on the merits of the case [Rule 6, Sec.
4]

Illustrations:
(1) X files a complaint in an environmental case
against A [violator of environmental laws]
and the A retaliates by filing a complaint for
damages against X;
(2) X is a witness in a pending environmental
case against A and A retaliates by filing a
complaint for damages or libel against X; or
(3) X is an environmental advocate who rallies
for the protection of environmental rights
and a complaint for damages is filed
against him by A. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]

III. Special Civil Actions

A. WRIT OF KALIKASAN
A.1. WHO MAY FILE
(1) natural or juridical person,
(2) entity authorized by law,
(3) 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 violatedinvolving
environmental damage of such magnitude
as to prejudice the life, health or property of
inhabitants in two or more cities or
provinces.

I.1. SLAPP AS A DEFENSE

If the suit is a SLAPP, such may be raised as an
affirmative defense in the Answer along with
other defenses.
If SLAPP is interposed as a defense, it is
mandatory for adverse party to file an
Opposition [Rule 6, Sec. 2]
The hearing on the defense of a SLAPP shall be
summary in nature and shall be resolved within
30 days after the summary hearing [Rule 6, Secs.
3 & 4]

A.2. ACTS COVERED BY THE WRIT

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. [Rule 7, Sec.1]

I.2. QUANTUM OF EVIDENCE

Party asserting that claim is a SLAPP must
prove such with substantial evidence.
If the court finds a SLAPP defense valid, the
plaintiff is required to prove the following:
(1) that the case is not a SLAPP; and
(2) the merits of the case
with preponderance of evidence. [Rule 6, Sec.3]

A.3. WHERE TO FILE

The petition shall be filed with the Supreme
Court or with any of the stations of the Court of
Appeals. [Rule 7, Sec.3]

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A.4. PROCEDURE

C.1. OCULAR INSPECTION

Purpose: to order any person in possession or
control of a designated land or other property to
permit entry for the purpose of inspecting or
photographing the property or any relevant
object or operation thereon.

Filing of verified Petition with Certificate

Against Forum Shopping

Issuance of Writ of Kalikasan within 3 days

from filing of petition

Service of the Writ

Filing of a verified Return within a nonextendible period of ten [10] days after
service of the writ

Hearing [Court may call for preliminary

conference]

Judgment

B. PROHIBITED
MOTIONS

REMEDIAL LAW

PLEADINGS

C.2. Production or inspection of documents

and things
Purpose: to 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.

D. APPEAL

AND

Within fifteen days from the date of notice of

the adverse judgment or denial of motion for
reconsideration, any party may appeal to the
Supreme Court under Rule 45 of the Rules of
Court. The appeal may raise questions of fact.
[Rule 7, Sec. 16]

The following pleadings and motions are

prohibited:
(1) Motion to dismiss;
(2) Motion for extension of time to file return;
(3) Motion for postponement;
(4) Motion for a bill of particulars;
(5) Counterclaim or cross-claim;
(6) Third-party complaint;
(7) Reply; and
(8) Motion to declare respondent in default.
[Rule 7, Sec. 9]

E. WRIT OF CONTINUING MANDAMUS

E.1. WHEN AVAILABLE
(1) An agency or instrumentality of the
government or officer thereof either:
a) 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 regulation or
a right therein or
b) unlawfully excludes another from the
use or enjoyment of such right
(2) there is no other plain, speedy and
adequate remedy in the ordinary course of
law [Rule 8, Sec.1]

C. DISCOVERY MEASURES
The following discovery measures are available
to all parties to the writ:
(1) Ocular Inspection
(2) Production or inspection of documents and
things [Rule 7, Sec.12]
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.
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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

E.2. WHERE TO FILE

Kalikasan
more
cities
provinces.

REMEDIAL LAW

Continuing Mandamus
or there is no other plain,
speedy and adequate
remedy in the ordinary
course of law.
Who May File
(1)
natural
and
juridical persons, (2)
entities authorized
by law, (3) POs,
NGOs,
PIG,
on
Person
personally
behalf of
aggrieved
by
the
persons whose right
unlawful act or omission
to a balanced and
healthful ecology
is
violated
or
threatened to be
violated
Respondent
May be public or
Government
or
its
private individual or
officers
entity
Docket Fees
Exempted
Exempted
Venue
1]
RTC
exercising
SC or CA
territorial jurisdiction, 2]
CA, 3] SC
Discovery Measures
Ocular
Inspection
and Production or None
Inspection Order
Damages
None
Allowed

(1) Regional Trial Court exercising jurisdiction

over the territory where the actionable
neglect or omission occurred
(2) Court of Appeals
(3) Supreme Court [Rule 8, Sec. 2]

E.3. PROCEDURE
File a verified Petition with prayer that
respondent be ordered to do an act or series
of acts until the judgment is fully satisfied,
and to pay damages + Certification Against
Forum Shopping

Issuance of Writ of Continuing Mandamus

and Order to Comment

Filing of Comment within 10 days after

receipt of Order

Summary Hearing

Judgment

Return of the Writ

E.4. DISTINCTIONS BETWEEN WRIT OF

KALIKASAN AND WRIT OF CONTINUING
MANDAMUS
Kalikasan

Continuing Mandamus
Subject Matter
Available against an Directed
unlawful
against [a] the unlawful
act or omission of a neglect
in
the
public official or performance of an
employee, or private act specifically enjoined
individual or entity, by law in connection
involving
with the enforcement/
environmental
violation of an envtl rule
damage of such or [b] the unlawfully
magnitude as to exclusion of another
prejudice the life, from
the
use
or
health or property of enjoyment of such right
inhabitants in two or and in both instances,
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IV. Criminal Procedure

REMEDIAL LAW

(2) 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.

A. WHO MAY FILE

(1) Offended party;
(2) Peace officer;
(3) Public officer charged with the enforcement
of an environmental law [Rule 9, Sec. 1]

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. [Rule 11, Sec.1]

B. INSTITUTION OF CRIMINAL AND

CIVIL ACTION
When a criminal action is instituted, the civil
action for the recovery of civil liability arising
from the offense charged, shall be deemed
instituted with the criminal action unless the
complainant waives the civil action, reserves the
right to institute it separately or institutes the
civil action prior to the criminal action.

D. STRATEGIC LAWSUIT AGAINST

PUBLIC PARTICIPATION [SLAPP]
The manner by which to allege that a criminal
action is a SLAPP is through a motion to dismiss
rather than a motion to quash. A motion to
dismiss allows the action to be challenged as a
SLAPP, while a motion to quash is directed at
the Information. Moreover, granting a motion to
dismiss bars the refiling of a SLAPP in
accordance with the law of the case. In contrast,
the grant of a motion to quash does not bar the
filing of a subsequent Information. [Annotation
to the Rules of Procedure for Environmental
Cases, Supreme Court Sub-Committee]

Unless the civil action has been instituted prior

to the criminal action, the reservation of the
right to institute separately the civil action shall
be made during arraignment.
In case civil liability is imposed or damages are
awarded, the filing and other legal fees shall be
imposed on said award in accordance with Rule
141 of the Rules of Court, and the fees shall
constitute a first lien on the judgment award.
The damages awarded in cases where there is
no private offended party, less the filing fees,
shall accrue to the funds of the agency charged
with the implementation of the environmental
law violated. The award shall be used for the
restoration
and
rehabilitation
of
the
environment adversely affected. [Rule 10, Sec. 1]

E. PROCEDURE IN THE CUSTODY AND

DISPOSITION OF SEIZED ITEMS
The applicable rules and regulations of the
concerned government agency shall be
followed.
In the absence of such rules and regulations,
the following procedure shall be observed:
(1) Inventory. 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.

C. ARREST WITHOUT WARRANT,

WHEN VALID
(1) When, in his presence, the person to be
arrested has committed, is actually
committing or is attempting to commit an
offense; or
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(2) Return. The apprehending officer shall

submit to the issuing court the return of the
search warrant within five days from date of
seizure or in case of warrantless arrest,
submit within five days from date of seizure,
the inventory report, compliance report,
photographs, representative samples and
other pertinent documents to the public
prosecutor for appropriate action.
(3) Sale Upon Motion. 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,
paraphernalia,
tools
or
instruments of the crime were seized.
(4) Disposition of Proceeds. The proceeds shall
be held in trust and deposited with the
government depository bank for disposition
according to the judgment. [Rule 12, Sec. 2]

REMEDIAL LAW

(3) 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. [Rule 13, Sec. 2]
If the court grants bail, the court may issue a
hold-departure order in appropriate cases. [Rule
13, Sec.1]

G. ARRAIGNMENT AND PLEA

G.1. WHEN
The court shall set the arraignment of the
accused within fifteen [15] days from the time it
acquires jurisdiction over the accused, with
notice to the public prosecutor and offended
party or concerned government agency that it
will entertain plea-bargaining on the date of the
arraignment. [Rule 15, Sec. 1]

G.2. PLEA-BARGAINING
On the scheduled date of arraignment, the
court
shall
consider
plea-bargaining
arrangements.
Where the prosecution and offended party or
concerned government agency agree to the
plea offered by the accused, the court shall:
(1) Issue an order which contains the pleabargaining arrived at;
(2) Proceed to receive evidence on the civil
aspect of the case, if any; and
(3) Render and promulgate judgment of
conviction, including the civil liability for
damages. [Rule 15, Sec. 2]

F. BAIL
Written Undertaking by Accused
(1) To appear before the court that issued the
warrant of arrest for arraignment purposes
on the date scheduled, and if the accused
fails to appear without justification on the
date of arraignment, accused waives the
reading of the information and authorizes
the court to enter a plea of not guilty on
behalf of the accused and to set the case for
trial;
(2) To appear whenever required by the court
where the case is pending; and

H. PRE-TRIAL
After the arraignment, the court shall set the
pre-trial conference within thirty (30) days. It
may refer the case to the branch clerk of court, if
warranted, for a preliminary conference to be
set at least three days prior to the pre-trial.
[Rule 16, Sec. 1]

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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

Parties are required to be under oath in pre-trial

in order to obviate the use of false or misleading
statements at this stage. [Annotation to the
Rules of Procedure for Environmental Cases,
Supreme Court Sub-Committee]

REMEDIAL LAW

Standards for Application of the Precautionary

Principle
(1) Threats to human life or health;
(2) Inequity to present or future generations;
(3) Prejudice to the environment without legal
consideration of the environmental rights of
those affected. [Rule 20, Sec. 2]

I. SUBSIDIARY LIABILITIES
In case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under judgment, enforce such subsidiary
liability against a person or corporation
subsidiary liable under Article 102 and Article
103 of the Revised Penal Code. [Rule 18, Sec. 1]

B. DOCUMENTARY EVIDENCE
B.1. PHOTOGRAPHIC,
SIMILAR
EVIDENCE
AUTHENTICATED

VIDEO
MUST

AND
BE

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
(1) the person who took the same
(2) some other person present when said
evidence was taken, or
(3) any other person competent to testify on the
accuracy thereof. [Rule 21, Sec.1]

V. Evidence
A. PRECAUTIONARY PRINCIPLE
Precautionary principle states that when human
activities may lead to threats of serious and
irreversible damage to the environment that is
scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that threat.
[Rule 1, Sec. 4(b)]

B.2. ENTRIES IN OFFICIAL RECORDS AS

PRIMA FACIE EVIDENCE
Entries in official records made in the
performance of his duty by a public officer of the
Philippines, or by a person in performance of a
duty specially enjoined by law, are prima facie
evidence of the facts therein stated. [Rule 21,
Sec. 2]

When there is a lack of full scientific certainty in

establishing a causal link between human
activity and environmental effect, the court
shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt. [Rule 20, Sec.1]

444