Final RemRev ClassNotes

Remedial Law Review Class Notes 2017 – Dean Jara
MIDTERMS determined, without regard to technicalities, and in the most

expeditious and inexpensive manner.
CIVIL PROCEDURE Ø Q: Can you still amend your petition even if it is already dismissed? Can you
still continue on with a dismissed case? Isn’t that absurd?
First meeting: Dec. 10, 2016 o YES, the plaintiff can still amend the petition notwithstanding the
fact that the RTC has already dismissed the case.
Q: In an Accion Reinvidicatoria, which court has proper jurisdiction? o Reason: the RTC’s judgment has not yet become final and executory
Ø It depends upon the ASSESSED VALUE of the real property: until the lapse of 15 days. Thus, the plaintiff can still amend his
Ø If the assessed value exceeds 20,000 outside Metro Manila or 50,000 within petition before the lapse of 15 days from the time he has received
Metro Manila à RTC. Otherwise, jurisdiction is with the MTC the decision of the RTC dismissing his petition
Ø Q: What if you are the plaintiff and you file your Accion Reinvidicatoria with o Section 2, Rule 36. Entry of judgments and final orders. — If no
the RTC. However, you fail to allege the assessed value, is there something appeal or motion for new trial or reconsideration is filed within the
wrong with your complaint? time provided in these Rules, the judgment or final order shall
o YES. There is an inadequacy in the allegations in order to determine forthwith be entered by the clerk in the book of entries of
which court has jurisdiction to the case. judgments. The date of finality of the judgment or final order shall
Ø Q: Can the RTC motu propio dismiss your complaint? be deemed to be the date of its entry. The record shall contain the
o YES. Under Sec. 1, Rule 9, lack of jurisdiction over the subject-matter dispositive part of the judgment or final order and shall be signed by
is one of the non-waivable defense. The court can dismiss the case the clerk, within a certificate that such judgment or final order has
on its own without waiting for the defendant to file a Motion to become final and executory.
Dismiss. Ø Q: Amendment is either a matter of right on the plaintiff or matter of
o 4 non-waivable defenses: discretion on the part of the court. Does the plaintiff need the permission of
1. Lack of jurisdiction over the subject-matter the court to amend his petition?
2. Litis Pendentia o NO. The plaintiff can amend his petition as a matter of right because
3. Res Judicata a responsive pleading has not yet been filed. He does not need the
4. Prescription court’s permission. He can amend it as a matter of right only once.
Ø Q: Assuming the RTC dismissed your petition on the ground of lack of o Section 2, Rule 10. Amendments as a matter of right. — A party may
jurisdiction. What is your remedy? amend his pleading once as a matter of right at any time before a
o Popular answer: REFILE the case with the proper court. The dismissal responsive pleading is served or, in the case of a reply, at any time
is not one of those WITH PREJUDICE to refilling under Rule 16 within ten (10) days after it is served.
Ø Q: Can you file an appeal?
o NO. Sec. 1, Rule 41, appeal is not allowed from an order dismissing Q: In a complaint for unlawful detainer, the plaintiff failed to allege that there is a
an action without prejudice. It is one of those enumerated as prior demand. Is this a jurisdictional defect? When is the lack of a demand a
unappealable jurisdictional issue? When is it not?
o A Special Civil Action may be filed under Rule 65 if there is grave Ø Generally, the lessor must make a prior demand against the lessee to vacate
abuse of discretion amounting to lack or excess of jurisdiction the premises. In such case, prior demand is jurisdictional.
Ø Q: Can you think of any other remedy? Ø Section 2, Rule 70. Lessor to proceed against lessee only after demand. —
o AMEND the petition under Rule 10. Unless otherwise stipulated, such action by the lesser shall be commenced
o Section 1, Rule 10. Amendments in general. — Pleadings may be only after demand to pay or comply with the conditions of the lease and to
amended by adding or striking out an allegation or the name of any vacate is made upon the lessee, or by serving written notice of such demand
party, or by correcting a mistake in the name of a party or a upon the person found on the premises if no person be found thereon, and
mistaken or inadequate allegation or description in any other the lessee fails to comply therewith after fifteen (15) days in the case of land
respect, so that the actual merits of the controversy may speedily be or five (5) days in the case of buildings.
Michael Angelo Escudero Filart 1

Ø Q: Under the Civil Code, when is demand to vacate not jurisdictional? o NO. Jurisdiction over the complaint should be based upon the
o Dean J: When the contract of lease has already expired and the allegations of the complaint and not on the defense raised by the
lessee continues possessing the property, the lessor need not make defendant
a demand before he can file a case for unlawful detainer. Ø Q: In the complaint for unlawful detainer, can the MTC rule on the issue of
o Civil Code provisions on lease: ownership?
§ Art. 1671. If the lessee continues enjoying the thing after o YES, but only in a provisional manner to determine the main issue of
the expiration of the contract, over the lessor's objection, possession
the former shall be subject to the responsibilities of a o MTC’s jurisdiction under B.P. 129:
possessor in bad faith. § (2) Exclusive Original Jurisdiction over cases of forcible
§ Art. 1673. The lessor may judicially eject the lessee for any entry and unlawful detainer: Provided, That when, in such
of the following causes: cases, the defendant raises the question of OWNERSHIP in
(1) When the period agreed upon, or that which is fixed his pleadings and the question of possession cannot be
for the duration of leases under Articles 1682 and 1687, resolved without deciding the issue of ownership, the
has expired; issue of ownership shall be resolved only to determine the
(2) Lack of payment of the price stipulated; issue of possession.
(3) Violation of any of the conditions agreed upon in the
contract; Q: What is the meaning of actions “incapable of pecuniary estimation”
(4) When the lessee devotes the thing leased to any use or Ø In determining whether an action is one the subject matter of which is not
service not stipulated which causes the deterioration capable of pecuniary estimation this Court has adopted the criterion of first
thereof; or if he does not observe the requirement in No. 2 ascertaining the nature of the principal action or remedy sought. If it is
of Article 1657, as regards the use thereof. primarily for the recovery of a sum of money, the claim is considered capable
Ø This does not apply when an implied new lease has been created. It is as if the of pecuniary estimation, and whether the jurisdiction is in the municipal
contract of lease was renewed by implication courts or in the courts of first instance would depend on the amount of the
o Art. 1670. If at the end of the contract the lessee should continue claim. However, where the basic issue is something other than the right to
enjoying the thing leased for fifteen days with the acquiescence of recover a sum of money, where the money claim is purely incidental to, or a
the lessor, and unless a notice to the contrary by either party has consequence of, the principal relief sought, this Court has considered such
previously been given, it is understood that there is an implied new actions as cases where the subject of the litigation may not be estimated in
lease, not for the period of the original contract, but for the time terms of money, and are cognizable exclusively by courts of first instance.
established in Articles 1682 and 1687. The other terms of the (Singsong vs. Isabela Sawmill)
original contract shall be revived. Ø Q: Which court has jurisdiction over actions incapable of pecuniary
Ø Q: Assuming the lease has expired, and the lessor files a motion to dismiss estimation?
the case for lack of jurisdiction since the lessor did not make a prior demand o Under B.P. 129, RTC has exclusive original jurisdiction over actions
to vacate the premises. Will the motion prosper? incapable of pecuniary estimation
o NO. Prior demand is not necessary when the contract of lease has Ø Q: In all cases where the action is incapable of pecuniary estimation, does
expired the RTC always have jurisdiction?
Ø Q: Suppose the defendant asserts that he is the true owner of the property in o NO, not all. The following are some EXCEPTIONS:
question. Assuming that the property has an assessed value of 100,000, can 1. Annulment of judgment of RTC à cognizable by the CA
the defendant move to dismiss the complaint of unlawful detainer filed with 2. Annulment of arbitral award by the barangay court acting as an
the MTC on the ground of lack of jurisdiction since the same should be filed arbitral body à cognizable by the MTC as provided by the LGC
with the RTC considering that the issue involves ownership of real property 3. Certiorari, Prohibition, Mandamus à not exclusively by the RTC
within the RTC’s jurisdiction? Ø Q: in annulment of judgment, which court has jurisdiction?
o It depends.

o CA has jurisdiction over petitions for annulment of the judgment of o Exceptionally, however, the LGC provides that the MTC has
the RTC jurisdiction over the arbitral awards rendered by the Barangay Court
o RTC has jurisdiction over petitions for annulment of the judgment of sitting as an arbitrator
the MTC § Section 416, LGC. Effect of Amicable Settlement and
Ø Q: What is your legal basis for saying so? Arbitration Award. - The amicable settlement and
o Under B.P. 129, CA has exclusive original jurisdiction over petitions arbitration award shall have the force and effect of a final
for annulment of judgment of the decision of the RTC judgment of a court upon the expiration of ten (10) days
o Under Sec. 10, Rule 47, RTC should try petitions for annulment of from the date thereof, unless repudiation of the
MTC settlement has been made or a petition to nullify the
§ Section 10, Rule 47. Annulment of judgments or final award has been filed before the proper city or municipal
orders of Municipal Trial Courts. — An action to annul a court.
judgment or final order of a Municipal Trial Court shall be Ø Q: Is the Barangay Court a quasi-judicial body?
filed in the Regional Trial Court having jurisdiction over the o Generally, NO. Under the Katarungang Pambarangay Law, its duty is
former. to conduct mediation and conciliation. It cannot resolve disputes
Ø Q: But the Rules of Court cannot provide for jurisdiction to a court. This is o Exception: When the parties agree in writing to submit the
substantive law. What is your basis for saying that RTC has jurisdiction over controversy to arbitration with the Barangay Court, then the latter
annulment of judgment of the MTC? acts as an arbitral body exercising quasi-judicial functions. It can now
o The substantive law which provides for jurisdiction in this case is B.P. resolve the dispute.
129. However, it does not expressly provide that the RTC has o The decision rendered by the Baranagay Court is called an arbitral
jurisdiction in this case. Rather, jurisdiction is conferred to RTC by award. It is akin to a final judgment in civil cases
implication à General Jurisdiction of the RTC Ø Q: What is the available remedy under the LGC from the decision of the
o General Jurisdiction of the RTC as provided for under B.P. 129: Barangay Court? Civil Procedure remedies like Appeal or MR cannot be
§ (6) In all cases not within the exclusive jurisdiction of any availed of because the Barangay Court is not a typical court attached to the
court, tribunal, person or body exercising jurisdiction or judiciary.
any court, tribunal, person or body exercising judicial or o There are 2 remedies available from an Amicable Settlement
quasi-judicial functions; rendered by the parties OR Arbitral Award rendered by the
Ø Q: How about the CA, can the judgment of the CA be annulled? Baranagay Court sitting as an arbitral body:
o NO. There is only annulment of judgment of RTC’s decision and § 1. Repudiation of the settlement OR
MTC’s decision under the Rule 47. However, the CA’s judgment is § 2. A petition to nullify the award with the MTC
not totally immune from annulment. Thru petition for certiorari • Both within 10 days from the date of the
under Rule 65, the decision of the CA can be set aside by the SC in settlement/award
the exercise of its equity jurisdiction. o Section 416, LGC. Effect of Amicable Settlement and Arbitration
Ø Q: How about quasi-judicial bodies, can their judgment be annulled? QJ Award. - The amicable settlement and arbitration award shall have
bodies are generally of the same rank as that of the RTC. the force and effect of a final judgment of a court upon the
o NO. Rule 47 only provides for 2 cases of annulment of judgment in expiration of ten (10) days from the date thereof, unless repudiation
civil cases: annulment of judgment of RTC’s decision and MTC’s of the settlement has been made or a petition to nullify the award
decision. However, the judgment of the QJ is not immune from has been filed before the proper city or municipal court.
annulment. The CA or SC can annul the judgment of QJ bodies thru a Ø Q: Does the LGC tell us the grounds to repudiate an amicable settlement?
petition for certiorari. Since QJ bodies are generally of the same rank o YES, the LGC makes use of similar grounds under the Civil Code:
as that of the RTC, the latter cannot annul the former’s judgment where the consent is vitiated by fraud, violence, or intimidation
o Section 418, LGC. Repudiation. - 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 difficulty in disposing the losing party of his real property. They are
sworn to before him, where the consent is vitiated by fraud, not averse in the Rules of Court
violence, or intimidation. Such repudiation shall be sufficient basis Ø Q: What is the remedy of the victor if: (1) the losing party has no personal
for the issuance of the certification for filing a complaint as property; or (2) his personal property is insufficient?
hereinabove provided. o Go to the MTC for execution.
Ø Q: Assuming that an amicable settlement was entered into by the parties or o There are 2 instances wherein the settlement or arbitral award
an arbitral award was rendered by the Barangay Court. How can the victor rendered by the Barangay Court may be executed by the MTC:
collect, say the amount of 100,000, from the losing party? § 1. After the lapse of 6 months without execution with the
o If the losing party will pay as agreed upon or as ordered by the barangay; and
Barangay Court, that’s fine § 2. When the Barangay Court cannot execute the
o If he refuses to pay, however, the LGC provides that the Barangay settlement/award. Here, there is no need to wait.
Court can execute the amicable settlement or arbitral award within Ø Q: What if the losing party has real property amounting to over 50,000, will
6 months. execution be done with the RTC?
o Section 417, LGC . Execution. - The amicable settlement or o NO. MTC has jurisdiction to execute the settlement/award rendered
arbitration award may be enforced by execution by the lupon within by the Barangay Court as provided for in the LGC. Even if the value
six (6) months from the date of the settlement. After the lapse of of the property is in the billions, the MTC still has jurisdiction to
such time, the settlement may be enforced by action in the execute in this case.
appropriate city or municipal court. Ø Q: Is there no conflict between BP 129 and LGC?
Ø Q: What is the procedure in this execution? How is it different from execution o No conflict. The LGC will prevail. Both are laws. Laws confer
under Rule 39? jurisdiction. As between a general and special provision of law, the
Execution in Barangay Court Execution in Regular Courts latter shall prevail.
Execution must be done within 6 With respect to regular courts, Ø Q: Suppose the contestants were able to amicably settle the debt of 1M to
months from judgment. execution must be done within 5 years 500,000 payable on installments within the next 2 years. They signed the
Only personal property may be Both personal and real property may be agreement. However, the debtor ignored the agreement. The Barangay
executed upon executed upon Court has the authority to execute the settlement with respect to the amount
Take note of those property which cannot be executed. This applies in both cases of 500,000. What if the creditor decided that he wants to get the whole
amount of 1M. He was pissed since the debtor could not satisfy the
o Essentially they are the same. The Barangay will levy on execution agreement despite the fact that he condoned already half of the debt. Can
the personal property of the losing party within 6 months the creditor ignore the settlement and seek recovery of 1M?
o See page 607 of memaid o GR: the effect of a compromise agreement: just like any other
Ø Q: Can you conceive of a good reason why the LGC provides that the contract, it is valid an binding between the parties. It is the law
Barangay Court can only execute personal properties and not real property? between them
o Dean J: There is a strong possibility that the Barangay Court will not o EXPN: Civil Code under the title of comprises and arbitration
be able to resolve certain issues if it is allowed to make a levy on provides that the party can insist on his original demand if the other
Real Property party refuses to abide by the agreement
o Under Rule 39, a big problem arises when real property is executed § Art. 2041. If one of the parties fails or refuses to abide by
upon: the problem of Redemption. The Lupon is not composed of the compromise, the other party may either:
lawyers to know the intricacies of the Rules of Court. They will have 1. Enforce the compromise or
a hard time 2. Regard it as rescinded and insist upon his original
o Another problem that may arise is that if real property is executed demand.
upon and is later sold on public auction, the Lupon will have

Ø Q: Barangay Conciliation is a condition precedent which must be complied which may be enforced in any part of their respective
with in proper cases otherwise it would give rise to a motion to dismiss under regions; and
Rule 16. Is this ground a non-waivable ground? o Thus, the original jurisdiction of these courts gives rise to
o NO. It is a waivable ground CONCURRENT JURISDICTION
Ø Q: Can the court on its own dismiss the case on this ground? Ø Q: Does this mean that the plaintiff has prerogative to choose which court to
o NO file his petition for certiorari?
Ø Q: Is Barangay Conciliation the only condition precedent to a case? o NO. The concurrence in jurisdiction of these 3 courts is subject to
o NO, there are others the rule on Hierarchy of Courts
Ø Q: Give examples of other conditions precedent the non-observance of which Ø Q: Is this principle of ‘Hierarchy of Courts’ embodied in our Rules of Court?
will give rise to a ground for dismissal o YES, under Rule 65
1. Tender of payment is required before making consignation o Section 4, Rule 65. When and where petition filed. — The petition
2. Exhaustion of administrative remedies shall be filed not later than sixty (60) days from notice of the
3. Prior resort to barangay conciliation judgment, order or resolution. In case a motion for reconsideration
4. Earnest efforts towards a compromise must be undertaken when the suit or new trial is timely filed, whether such motion is required or not,
is between members of the same family and if no efforts were in fact the sixty (60) day period shall be counted from notice of the denial
made, the case must be dismissed of said motion.
a. Except: earnest efforts not needed in special proceedings o (PRINCIPLE OF HIERARCHY OF COURTS) The petition shall be filed in
5. Arbitration may be a condition precedent when the contract between the the Supreme Court or, if it relates to the acts or omissions of a lower
parties provides for arbitration first before recourse to judicial remedies court or of a corporation, board, officer or person, in the Regional
Trial Court exercising jurisdiction over the territorial area as defined
Q: Which court has jurisdiction over petitions for Certiorari, Prohibition, and by the Supreme Court. It may also be filed in the Court of Appeals
Mandamus? whether or not the same is in aid of its appellate jurisdiction, or in
Ø Under the Constitution: the Sandiganbayan if it is in aid of its appellate jurisdiction. If it
o SC involves the acts or omissions of a quasi-judicial agency, unless
§ Section 5. The Supreme Court shall have the following otherwise provided by law or these Rules, the petition shall be filed
powers: in and cognizable only by the Court of Appeals.
§ Exercise (ORIGINAL JURISDICTION) over (1) cases affecting o No extension of time to file the petition shall be granted except for
ambassadors, other public ministers and consuls, and over compelling reason and in no case exceeding fifteen (15) days.
(2) petitions for certiorari, prohibition, mandamus, quo o If you go to SC directly, the case may be dismissed but not on the
warranto, and habeas corpus. ground of lack of jurisdiction because the SC indeed has jurisdiction
Ø Under BP 129: over petition for certiorari
o CA o A certiorari court always has discretion to accept or dismiss the
§ ORIGINAL JURISDICTION to issue writs of mandamus, petition if it is not sufficient in form or substance
prohibition, certiorari, habeas corpus, and quo warranto, o Section 8, Rule 65. Proceedings after comment is filed. — After the
and auxiliary writs or processes, whether or not in aid of its comment or other pleadings required by the court are filed, or the
appellate jurisdiction; time for the filing thereof has expired, the court may hear the case
o RTC or require the parties to submit memoranda. If after such hearing or
§ ORIGINAL JURISDICTION in other cases. – Regional Trial submission of memoranda or the expiration of the period for the
Courts shall exercise original jurisdiction: filing thereof the court finds that the allegations of the petition are
(1) In the issuance of writs of certiorari, prohibition, true, it shall render judgment for the relief prayed for or to which
mandamus, quo warranto, habeas corpus and injunction the petitioner is entitled.

o The court, however, may DISMISS the petition if it finds the same and enforcement of constitutional rights, pleading,
to be: practice and procedure in all courts, the admission to the
§ 1. Patently without merit, practice of law, the Integrated Bar, and legal assistance to
§ 2. Prosecuted manifestly for delay, or the underprivileged:
§ 3. That the questions raised therein are too unsubstantial o Under the Constitution:
to require consideration. § Sec. 5(5) of Article VIII of the Constitution:
§ (RULE-MAKING POWER) Promulgate rules concerning the
Q: What is the appellate jurisdiction of the SC? (1) Protection and enforcement of constitutional rights,
Ø Section 5. The Supreme Court shall have the following powers: pleading, practice, and procedure in all courts;
xxxxx (2) The admission to the practice of law, the integrated
1. (APPELLATE JURISDICTION) Review, revise, reverse, modify, or affirm on bar, and
appeal or certiorari, as the law or the Rules of Court may provide, final § (3) Legal assistance to the under-privileged
judgments and orders of lower courts in: o Q: What are the limitations to the Rule-making power of the SC?
a. All cases in which the constitutionality or validity of any treaty, § (1) Such rules shall provide a simplified and inexpensive
international or executive agreement, law, presidential decree, procedure for the speedy disposition of cases,
proclamation, order, instruction, ordinance, or regulation is in § (2) Shall be uniform for all courts of the same grade, and
question. § (3) Shall not diminish, increase, or modify substantive
b. All cases involving the legality of any tax, impost, assessment, or toll, rights.
or any penalty imposed in relation thereto. Ø Q: In Rule 115, Criminal Procedure, Rule 115 pertains to “Rights of the
c. All cases in which the jurisdiction of any lower court is in issue. Accused”. Should this NOT be contained in the ROC? Isn’t it in violation of the
rd
d. All criminal cases in which the penalty imposed is reclusion perpetua 3 limitations that the Rules shall not diminish increase, or modify
or higher. substantive rights?
rd
e. All cases in which only an error or question of law is involved. o NO, it is not violative of the 3 limitation. These rights are already
Ø Q: Is the SC the only court allowed to take cognizance of appeals in which provided for in the Constitution. The inclusion was merely to comply
only an error or question of law is involved? and compress these rights into the ROC.
o NO. The jurisdiction of the SC is appellate but not exclusive
o When the case filed with the MTC is a pure question of law, the Q: Every civil case must contain a cause of action. What is a cause of action?
appeal should be filed with the RTC Ø Section 2, Rule 2 provides: a cause of action is
o When the RTC renders a decision in aid of its appellate jurisdiction, (1) the act or omission
and the appeal involves a pure question of law, the appeal should (2) by which a party violates
be filed with the CA (3) a right of another.
o When the RTC renders a decision in its original jurisdiction, and the Ø Q: Is it necessary that a violation of a right must be committed before a
appeal involves a pure question of law, the appeal should be filed cause of action may arise? Must the plaintiff wait for a violation always?
with the SC o NO, we do not always need a violation before a cause of action may
o Thus, it is error to say that only the SC can take cognizance of a arise.
appeals involving pure questions of law o Under the definition of Section 2, Rule 2, a cause of action must
Ø Q: The rules of court is a product of the SC. Where did the SC get its authority violate the right of another. However, if we look at Section 3, Rule 1,
to promulgate the rules of court? a civil action may be brought for the PREVENTION or REDRESS of a
o Prefatory statement of the ROC: wrong.
§ Pursuant to the provisions of Section 5 (5) of Article VIII of o We must read Sec. 2, Rule 2 together with Sec. 3, Rule 1.
the Constitution, the Supreme Court hereby adopts and
promulgates the following rules concerning the protection

o Also, a special proceeding may be brought to establish a status, a (2) Deny the Motion (thereby prompting the defendant to file his
right, or a particular fact. This is different from a civil action. It does answer)
not necessarily require a violation (3) Order the plaintiff to amend the complaint to include the
Ø Q: Give an example of an action which may be brought to prevent a wrong, indispensible party (otherwise, the court will have the
such as if there is a threat to do a certain act against another. authority to dismiss the complaint under Section 17)
o Petition for INJUNCTION (4) (Dean J) Refer the matter to arbitration or prior barangay
conciliation
Q: Who between the right-holder and the violator of the right is an indispensable Ø Q: If the old rule allows dismissal on the ground of failure to state a cause of
party to a civil action? action and the new rule allows dismissal due to the fault of the plaintiff, isn’t
Ø BOTH are indispensable. If there are only 2 of them, plaintiff and defendant, the effect the same? Why did the court still modify the rule and bother
then both must be part of the action. It is only when the parties compose plaintiffs to implead indispensible parties? Why did the court prejudice the
more than 2 persons that the Rules on indispensable and necessary parties defendant by taking away the court’s right to dismiss the case outrightly?
come into play o The effect is not these same since the 2 dismissals are not the same.
Ø Q: Who is an indispensable party? o Under Rule 16, the dismissal is one WITHOUT PREJUDICE
o INDISPENSIBLE PARTY – parties in interest without whom no final o Under Rule 17, Section 3, “This dismissal shall have the effect of an
determination can be had. adjudication upon the merits, unless otherwise declared by the
o Section 7, Rule 3. Compulsory joinder of indispensable parties. — court”. This is a dismissal WITH PREJUDICE and will gives rise to Res
Parties in interest without whom no FINAL DETERMINATION can be Judicata or the barring of the filing of another complaint based on
had of an action shall be joined either as plaintiffs or defendants. the same cause of action.
Ø Q: When the court renders a decision without an indispensable party being § EXCEPTION: Unless otherwise declared by the court. Thus,
impleaded, what is the effect? the court may declare in its decision that the dismissal is
o Still the court has jurisdiction. It may still render a decision. There without prejudice to the plaintiff refilling the case. If the
can still be determination. However, the determination can never be decision is silent, the general rule will apply and the
final. The judgment will never become final and executory dismissal is with prejudice to refilling.
Ø Q: What is the effect of non-pleading an indispensible party?
o OLD RULE: The well-settled rule is that the plaintiff could file a Q: Who is a necessary party?
motion to dismiss on the ground that the complaint does not state a Ø NECESSARY PARTY - parties in interest without who ought to be joined as
cause of action under Rule 16. Outright dismissal was allowed. The party to obtain complete relief or complete determination/settlement of the
reason is that a judgment in a case in the absence of an claim
indispensible party is null and void. It deprives the party of his right o Section 8, Rule 3. Necessary party. — A necessary party is one who is
to be heard. not indispensable but who ought to be joined as a party if COMPLETE
o NEW RULE: However, the Supreme Court held in a new line of cases RELIEF is to be accorded as to those already parties, or for a
that the court shall first order the plaintiff to amend the complaint complete determination or settlement of the claim subject of the
to include all indispensible parties. Outright dismissal is not allowed. action.
It is only when the plaintiff fails to comply with the order when the Ø Q: What is the sanction for not pleading of a necessary party? Is there any
same will the same give rise to a dismissal by the court on a procedural defect?
dismissal due to the fault of the plaintiff for failure to comply with o DUTY OF THE PLAINTIFF: If the principal party fails to plead a party,
the order of the court pursuant to Section 3, Rule 17. he shall state the name of the party and his reason for not
o So in effect, the court has 3 options to act upon a motion to dismiss impleading him. If the court finds the reason to be meritorious,
on the ground of failure to state a cause of action under Rule 16, to that’s fine.
wit: o SANCTION
(1) Grant the Motion (dismiss the action)

§ GENERAL RULE: If the court finds his reason o (c) Where the causes of action are between the same parties but
unmeritorious, then the principal party shall be deemed to pertain to different venues or jurisdictions, the joinder may be
have WAIVED his claim against the party not pleaded. allowed in the RTC provided one of the causes of action falls within
§ EXCEPTION: Of course if there is no claim against the the jurisdiction of said court and the venue lies therein; and
party, then there is no waiver, therefore no sanction is to o (d) Where the claims in all the causes action are principally for
be imposed recovery of money, the aggregate amount claimed shall be the test
o There is no procedural defect. The non-inclusion of a necessary of jurisdiction
party does not prevent the court from proceeding in the action, and Ø It is encouraged because it saves time and resources, and helps declog the
the judgment rendered therein shall be without prejudice to the court dockets
rights of such necessary party Ø Q: A complaint for unlawful detainer is within the jurisdiction of the inferior
o Regardless of the not-so-serious sanction, a necessary parties must courts. The jurisdiction over Accion Reinvindicatoria will depend upon the
be joined as much as possible since they are required for complete assessed value of the real property: if more than 20,000 or 50,000 in Metro
relief to be sought in order to put an end to the controversy Manila, it is with RTC. Otherwise, it is with the MTC. Can unlawful detainer
o Regardless of whether or not the necessary parties are impleaded, and Accion Reinvindicatoria be joined in the same action?
the court’s decision is still final and executory (unlike if we do not o NO. Although both causes may be cognizable by the MTC, they
implead an indispensable party) cannot be joined. The joinder shall not include special civil actions or
o Section 9, Rule 3. Non-joinder of necessary parties to be pleaded. — actions governed by special rules.
Whenever in any pleading in which a claim is asserted a necessary o 2 reasons:
party is not joined, the pleader shall set forth his name, if known, § Unlawful detainer is a Special Civil Action. Accion
and shall state why he is omitted. Should the court find the reason Reinvindicatoria is an Ordinary Civil Action. SCA cannot be
for the omission unmeritorious, it may order the inclusion of the joined with OCA
omitted necessary party if jurisdiction over his person may be § Accion Reinvindicatoria is governed by ordinary
obtained. proceedings while unlawful detainer is governed by
o The failure to comply with the order for his inclusion, without summary procedure. We cannot join causes of action
justifiable cause, shall be deemed a waiver of the claim against such which are governed by different rules of procedure
party. (Take note of this when discussing Rule 17. This serves as an Ø Q: Can you join 2 special civil actions?
EXPN to the GR that failure to comply with an order of the court by o ???
the plaintiff gives rise to dismissal under Rule 17) o Suggested answer: YES. Special Civil Actions are governed by
o The non-inclusion of a necessary party does not prevent the court ordinary rules primarily but subject to specific rules under the ROC.
from proceeding in the action, and the judgment rendered therein Thus, the Rule on Joinder of Action under Rule 2 may be applied
shall be without prejudice to the rights of such necessary party when both actions are SCA.
o Alternative answer: NO. Rule 2 provides that: The joinder shall not
Q: What is the rule on Permissive Joinder of Actions? What are the 4 conditions? include special civil actions or actions governed by special rules;
Ø Under Section 5, Rule 2 – Joinder of Actions: A party may in one pleading Even if both actions are SCA, still they are governed by different
assert, in the alternative or otherwise, as many causes of action as he may rules. The ROC provide for specific rules designated upon the various
have against an opposing party, subject to the following conditions: SCA which are provided for under Rules 62 to 71.
o (a) The party joining the causes of action shall comply with the rules o Alternative, alternative answer: IT DEPENDS.
on joinder of parties (this element is required when there are 2 or § If both SCA are governed by the same rule, i.e. 2 actions
more parties); for interpleader governed by Rule 62, then they may be
o (b) The joinder shall not include special civil actions or actions joined.
governed by special rules;

§ If both SCA are governed by different rules, i.e. action for Ø Q: Why can’t ordinary proceedings be mixed with summary proceedings or
interpleader is governed by Rule 62 and unlawful detainer small claims cases?
is governed by Rule 70, then the cannot be joined o Rule 2 provides that: The joinder shall not include special civil
Ø Q: For example, unlawful detainer and interpleader, they are both special actions or actions governed by special rules. We cannot join causes
civil actions. Can there be joinder between the 2? of action which are governed by different rules of procedure.
o NO. We cannot join unlawful detainer or interpleader. Unlawful
detainer is a case within the MTC as provided for under the Rule on Assignment: up to Rule 38
Summary Procedure. Interpleader is not governed by ordinary
procedure subject of special rules under the rules of court. We
cannot join causes of action which are governed by different rules of
procedure
Ø Q: Why, what is the procedure in interpleader if it is not summary like
unlawful detainer? What makes them inconsistent with each other?
o ???
Ø Q: Can the complaint for unlawful detainer and a money claim for the
amount of 50,000 be joined in the same action?
o NO. A SCA and OCA cannot be joined in 1 action
o Unlawful Detainer is a SCA governed by summary procedure within
MTC’s jurisdiction
o A money claim is an OCA governed by the rule on small claims within
MTC’s jurisdiction
o They are subject of different rules. For example, a decision in small
claims is not appealable whereas in summary procedure it is
appealable.
Ø Q: What if the plaintiff has 2 separate money claims: 50,000 and 200,000.
The 50,000 claim is governed by small claims. The 200,000 claim is governed
by summary procedure. Both are OCA. Can they be joined in one action?
o ???
o NO. We cannot join causes of action which are governed by different
rules of procedure.
Ø Q: Assuming we can join the 2 actions, do we take the amount as a whole
(250,000) or separately in order to determine which court has jurisdiction
over the case?
o We will take the amount as a whole as provided for in the totality
test.
o TOTALITY TEST - where there are several claims or causes of action
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 causes of action, IRRESPECTIVE of whether the
causes of action arose out of the same or different transactions (BP
129)


Second Meeting: January 2, 2017 3. Res Judicata

4. Prescription
Q: Explain the concept of splitting a cause of action. Ø Q: What is the effect of a non-waivable defense?
Ø Section 4, Rule 2: If two or more suits are instituted on the basis of the same o It can be raised at any time of the proceedings and even on appeal.
cause of action, the filing of one (litis pendentia) or a judgment upon the It can be relied upon by the court to dismiss the case motu propio
merits (res judicata) in any one is available as a ground for the dismissal of the
others. Q: What is the effect of non-payment of docket fees?
Ø Q: What is a cause of action? How do you determine whether a party has Ø The court will not acquire jurisdiction over the complaint. The case may be
one or more causes of action? dismissed on the ground of lack of jurisdiction over the complaint
o Section 2, Rule 2 provides: a cause of action is Ø Q: Even without a motion, can the court dismiss the complaint?
(1) the act or omission o YES. Under Sec. 1, Rule 9, lack of jurisdiction over the subject-matter
(2) by which a party violates is one of the non-waivables grounds which the court may use to
(3) a right of another. dismiss a case motu propio.
Ø Q: For instance, a debtor defaulted in his loan obligation to pay his creditor 1 o (Mikee: is it proper to treat lack of jurisdiction over the complaint
million pesos plus interest. How many causes of action are there? Are there lack the same as lack of jurisdiction over the subject matter?)
separate causes of action over the principal, the interest, and a third cause of Ø Q: What if the court has discovered that the plaintiff has not paid the
action for attorney’s fees and costs? necessary docket fees and dismissed the case. What is the remedy of the
o Only one cause of action over the principal amount of the loan plaintiff?
together with the interest and attorney’s fees. The creditor cannot o The plaintiff can just refile the case because dismissal on the ground
file separate complaints over the single cause of action, otherwise of lack of jurisdiction is a dismissal without prejudice under Rule 16.
there would be splitting the cause of action. Appeal is not available to a dismissal without prejudice under Rule
Ø Q: Can the principal, interest, and attorney’s fees be subject to a joinder of 41
actions? Ø Q: But refilling entails the payment of more docket fees. Assuming the
o NO. Joinder of actions presupposes that there are many causes of plaintiff does not want to refile, Does he have any recourse from the
action. In this case, there is only one cause of action. dismissal of the case? The plaintiff cannot insist that his case be retained
Ø Q: Supposing the creditor filed a complaint for the collection of the principal. notwithstanding dismissal.
He then filed another complaint for the interest. Can this be done? o Before the judgment is entered after the expiration of 15 days from
o NO. There will be a violation of the rule on splitting of actions. the receipt of judgment, the dismissal has not yet become final and
Ø Q: What happens if the debtor keeps quiet about the fact that the creditor executory. Thus, the plaintiff can pay the docket fees within the 15
filed another case over the same cause of action and files his respective day period thereby reinstating his original complaint
answers in the 2 cases. Can both cases still proceed?
o NO. The case should be dismissed on the ground of Litis Pendentia. Q: For example, the debtor in a promissory note has the obligation to pay the creditor
Ø Q: Do we always need a motion before the case can be dismissed? for the amount of 1 million pesos in 4 equal annual installments. The first installment
o NO. The court can dismiss the case motu propio of 250,000 becomes due. Can the creditor recover the entire obligation of 1 million
Ø Q: What is your basis for saying so? pesos?
o Under Sec. 1, Rule 9, lack of jurisdiction over the subject-matter is Ø Generally, no
one of the non-waivable defenses. The court can dismiss the case on Ø Q: Which court has jurisdiction to try the case?
its own without waiting for the defendant to file a Motion to o MTC. It has jurisdiction over money claims over 300,000, 400,000 as
Dismiss. the case may be.
o 4 non-waivable defenses: Ø Q: What is the jurisdiction of the MTC under BP 129?
1. Lack of jurisdiction over the subject-matter o (1) EXCLUSIVE ORIGINAL JURISDICTION over civil actions and
2. Litis Pendentia probate proceedings, testate and intestate, including the grant of

provisional remedies in proper cases (so even the MTC’s may grant In personal actions, it is where the plaintiff or defendant resides. But there is
provisional remedies. Take note of this later on when discussing a rule of a higher degree. What is this primary rule on venue?
provisional remedies), where the value of the personal property, o Venue may be stipulated or agreed upon by the parties, provided all
estate, or amount of the demand does not exceed P300,000 or the requisites are present.
P400,000 in Metro Manila where such personal property, estate, or o Section 4, Rule 4. When Rule not applicable. — This Rule shall not
amount of the demand does not exceed P300,000 or P400,000 in apply.
Metro Manila xxx (a) In those cases where a specific rule or law provides otherwise; or
o (2) Exclusive Original Jurisdiction over cases of forcible entry and (b) Where the parties have validly agreed in writing before the filing
unlawful detainer: Provided, That when, in such cases, the of the action on the exclusive venue thereof.
defendant raises the question of ownership in his pleadings and the Ø Q: What are the 3 essentials for a valid stipulation on venue?
question of possession cannot be resolved without deciding the (WEB)
issue of ownership, the issue of ownership shall be resolved only to 1. Stipulation is written
determine the issue of possession. 2. Stipulation has the feature of exclusivity
o (3) Exclusive Original Jurisdiction in all civil actions which involve title 3. Stipulation must have been entered into before the commencement of the
to, or possession of, real property, or any interest therein where the action
assessed value of the property or interest therein does not exceed Ø Q: In our earlier action for the collection of the first installment of 250,000,
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro supposing there is no such agreement as to venue. Where shall the case be
Manila, where such assessed value does not exceed Fifty thousand filed?
pesos (P50,000.00) exclusive of interest, damages of whatever kind, o In the MTC where the parties reside
attorney's fees, litigation expenses and costs: Provided, That value Ø Q: What if the parties reside in different places, for instance the plaintiff
of such property shall be determined by the assessed value of the resides in Calamba and the defendant resides in Manila. Where do you file
adjacent lots. the action?
Ø Q: In forcible entry or unlawful detainer, do we not take into account the o In the MTC where the plaintiff or the defendant resides, at the
assessed value of the property considering that they are real actions? Isn’t it election of the plaintiff. This is the rule on venue when it comes to
the standard under B.P. 129 for actions involving real property is that we personal action
take into consideration the assessed value? Ø Q: Suppose after the case was filed the parties agree that the venue shall be
o NO. B.P. 129 provides that the MTC has Exclusive Original in the MTC of Quezon City. Will the case still prosper considering that one of
Jurisdiction over cases of forcible entry and unlawful detainer the 3 essentials to stipulating venue is lacking?
without regard to the assessed value of the property o YES, the case will still prosper. The court which acquired jurisdiction
Ø Q: MTC of which locality? There are MTC’s everywhere. to the case shall exercises its jurisdiction to the exclusion of all other
o In real actions, the venue of actions involving real property is the courts until the case has been resolved with finality. This is the
MTC where the real property or any portion thereof is located Principle of Adherence of Jurisdiction
o Section 1, Rule 4. Venue of real actions. — Actions affecting title to Ø Q: In the MTC, there are varying rules of procedure which apply (i.e. ordinary
or possession of real property, or interest therein, shall be procedure, small claims, summary procedure). In our case, the MTC will have
commenced and tried in the proper court which has jurisdiction over to observe a particular procedure. What procedure will apply?
the area wherein the real property involved, or a portion thereof, is o Ordinary procedure, not small claims, not summary procedure
situated Ø Q: What is your understanding about ordinary procedure?
o Forcible entry and detainer actions shall be commenced and tried in o The Rules of Court shall apply
the municipal trial court of the municipality or city wherein the real Ø Q: I guess summons will have to be issued regardless of what procedure
property involved, or a portion thereof, is situated. apply. What is the difference between ordinary procedure and other kinds of
Ø Q: But in ascertaining where the complaint shall be filed, this is not the procedure?
primary rule. In real actions, it will depend upon where the property is found.

o Ordinary procedure and small claims/summary procedure are Ø Q: When the plaintiff is ordered to present evidence ex parte, can the
different and one difference is that in small claims/summary defendant still participate? Can he be allowed to cross-examine? To object to
procedure, there are prohibited pleadings/motions which are the presentation of evidence?
allowed in ordinary procedure, to wit: o NO. The defendant has already lost personality in the case
o Prohibited pleadings and motions. — The following pleadings, Ø Q: In summary procedure, can the defendant be declared in default? Are we
motions or petitions shall not be allowed in the cases covered by not going to punish the defendant for not answering? Does this mean that
this Rule: (DBN-REM-CD-DIRT) summary procedure is more liberal than ordinary procedure?
(a) Motion to dismiss the complaint or to quash the complaint or o NO, the defendant cannot be declared in default. A declaration of
information default simply means that the defendant loses personality in court.
§ EXPN: MTD is allowed on the ground of lack of jurisdiction This sanction is harsh, but the sanction in summary procedure is
over the subject matter, or failure to comply with worse. The defendant is not treated with liberality. Since default is
barangay conciliation); not allowed (see prohibited motions), the court cannot order the
(b) Motion for a bill of particulars; plaintiff to present evidence ex parte. The court will render a
(c) Motion for new trial, or for reconsideration of a judgment, or for decision right away and you can expect that the defendant has a
opening of trial; very slim chance of winning. The allegations of the plaintiff may be
(d) Petition for relief from judgment; considered as true
(e) Motion for extension of time to file pleadings, affidavits or any Ø Q: How about in small claims?
other paper; o In small claims, the procedure is more complex. The non-answering
(f) Memoranda; defendant may not be declared in default, the case will be set for
(g) Petition for certiorari, mandamus, or prohibition against any hearing and if the defendant fails to respond and fails to appear, the
interlocutory order issued by the court; court may now render decision. But just like in summary procedure,
(h) Motion to declare the defendant in default; the court is not authorized to order the plaintiff to present evidence
(i) Dilatory motions for postponement; ex parte
(j) Reply; Ø Q: If you were the defendant, would you rather be declared in default or
(k) Third party complaints; have a judgment be rendered right away?
(l) Intervention. o Although the chances of winning in either is slim, it is better to be
Ø Q: Do you know what is the directive by the court to the defendant contained declared in default because judgment will not be rendered right
in the summons? away. There is a chance that there will be a one-sided trial if the
o To file an answer within the prescribed period from the service of court orders the plaintiff to present evidence ex parte
summons. In ordinary procedure, it is 15 days. In summary o More importantly, there are remedies still available to a defaulting
procedure or small claims, it is 10 days. party
Ø Q: Why is the filing of an answer important? Ø Q: What is the remedy given to a party declared in default?
o Because if the defendant does not answer, their will be sanctions o He may file a motion to set aside the order in default (a.k.a. motion
depending upon what rules of procedure apply: to lift order of default)
o In ordinary procedure, the defendant may be declared in default § Timeframe: before judgment is rendered
upon motion of the plaintiff. The effect of this is that he can still win § Grounds: FAME - fraud, accident, mistake, excusable
the case, although the chances are slim. The court can either render negligence
a judgment or order the plaintiff to present evidence ex parte o Section 3, Rule 9. xxx
o In summary procedure, the court may now render judgment (b) Relief from order of default. — A party declared in default may at
o In small claims, the court will set the case for hearing. If the any time after notice thereof and before judgment file a motion
defendant does not appear on the date set for hearing, the court under oath to set aside the order of default upon proper showing
may now render judgment that his failure to answer was due to fraud, accident, mistake or

excusable negligence and that he has a meritorious defense. In such Ø Q: How about petition for CPM under Rule 65?
case, the order of default may be set aside on such terms and o With respect to summary procedure à Generally, NO. Appeal is
conditions as the judge may impose in the interest of justice. available
Ø Q: Must the motion to set aside default be heard? o With respect to small claims à YES. Appeal is not available
o YES. Motion to lift order of default must also be heard. Every motion § Reason: Rule 65 may be resorted to provided that there is
must comply with Rule 15 – Motions. Under this Rule, all motions grave abuse of discretion amounting to lack or excess of
shall be set for hearing except those which do not prejudice the jurisdiction, there is no appeal or no plain adequate
rights of the adverse party speedy remedy at law
o Section 4, Rule 15. Hearing of motion. — Except for motions which Ø Q: Which is better, appeal or Rule 65?
the court may act upon without prejudicing the rights of the adverse o Appeal is better because it has a greater advantage: it is treated as
party, every written motion shall be set for hearing by the applicant. the continuation of the old case. The judgment by the court a quo
o Every written motion required to be heard and the notice of the (court of origin) is NOT yet final and executory. Whereas in Rule 65,
hearing thereof shall be served in such a manner as to ensure its the court a quo is not precluded from executing its judgment upon
receipt by the other party at least three (3) days before the date of motion
hearing, unless the court for good cause sets the hearing on shorter
notice. Mikee: In relation to summons, the difference between the 3 kinds of procedure are as
Ø Q: What if the motion is heard and the default order is lifted. What will you follows:
tell the defendant to do? Ordinary Procedure Summary Procedure Small Claims
o The defendant must now file his answer. He was declared in default Period to file answer: 15 Period to file answer: 10 Period to respond: 10 days,
because of his non-answering. Now, he must file answer and days days, without extension without extension
interpose his defenses therein EFFECT IF THE EFFECT IF DEFENDANT EFFECT IF DEFENDANT DOES
o In summary procedure or small claims, there is no default order that DEFENDANT DOES NOT DOES NOT ANSWER: the NOT RESPOND: the court will
maybe lifted. The court will only hand a copy of the decision to the ANSWER (Rule 9): upon court, motu proprio, or on set the case for hearing and
defendant which will most likely be ruled against him motion of the plaintiff, motion of the plaintiff, the defendant must appear
Ø Q: Since he is not declared in default which may be lifted later on, can the the defendant can be shall render judgment as • Should the defendant
defendant who lost in small claims or summary procedure file a motion for declared in default. may be warranted by the appear on the date set
reconsideration or new trial? When this happens, the facts alleged in the for hearing, the court
o NO. they are prohibited motions court may: complaint and limited to shall ascertain what
Ø Q: How about appeal? 1. Proceed to render what is prayed defense he/she/it has to
o With respect to summary procedure à YES. Judgment is not yet final judgment granting offer which shall
and executory until the lapse of period to file an appeal the claimant such constitute his/her/its
§ However, it would be difficult because there is nothing relief as his Response, and proceed to
contained in the records since no trial was held. Chances pleading may hear or adjudicate the
are the defendant will lose warrant, or case on the same day as if
o With respect to small claims à NO. Judgment in small claims cases is 2. Unless the court in a Response has been
final, immediately executory and unappealable its discretion filed.
Ø Q: How about Petition for Relief? requires the
o NO. It is one of the prohibited pleadings claimant to submit EFFECT IF THE DEFENDANT
Ø Q: How about annulment of judgment? evidence (ex DOES NOT APPEAR: the effect
o YES, but it would be difficult because there is nothing contained in parte). Such will be the court shall render
the records since no hearing was held. Chances are the defendant reception of decision on the same day as
will lose evidence may be may be warranted by the facts

delegated to the alleged in the Statement of Ø Q: For instance, 2 installments become due. Can the defendant file a case
clerk of court. Claim/s recovering the entire amount of 1 million pesos?
No verification is Required to attach affidavits of witnesses and other o GR: NO. He can only claim 500,000 since only the first 2 installments
required unless evidence in the Complaint/Statement of Claim. have become due. They are considered as one cause of action. The
rd th
otherwise specifically 3 and 4 are separate causes of action that have not yet accrued
provided under the Complaint/Statement of the Claim must be verified. (A until they are due
rules. No requirement pleading is verified by an affidavit that the affiant has read o EXPNs:
to attach evidence in the pleading and that the allegations therein are true and 1. When there is a violation of an acceleration clause, or
complaint. correct of his knowledge and belief) § This is a clause in a contract payable in installments where
Thus, if the court is to render decision right away, the court the parties stipulate that in case of default of a certain
Thus, if the court is to may rely upon the affidavits and other evidence which are number of installments (or even just one), the entire
render a decision right attached to the complaint/statement of claim (and not rely obligation becomes due
away, the only basis it solely upon the allegations of the complaint). 2. When there is an anticipatory breach of contract
has to render judgment § Even if the obligations are not yet due but the debtor has
shall be the allegations Plus, the complaint is always verified. Effect of verification is expressed his desire not to pay, then it is an anticipatory
of the pleadings that anything alleged in the document is practically breach against the debtor to collect the entire obligation
testimony. The Court can render judgment based on the § Reason: where the contract is entire, and the breach is
verified complaint. total, there can only be one action. The plaintiff cannot
REMEDY: motion to lift REMEDY: Appeal, REMEDY: Rule 65, Annulment split the same cause of action. Here, the obligation is
order of default Annulment of Judgment of Judgment INDIVISIBLE
Ø Q: What is the rule on anticipatory breach of contract?
o If the breach is complete and total for a continuous contract and the
debtor is has no more intention of complying with its terms, the
Q: Going back to our earlier example, the defendant files a case to collect the first creditor may no longer compel him to continue complying with the
installment amounting to 250,000. Since this amount is outside the threshold under contract
summary procedure or small claims, we apply ordinary procedure. We apply the ROC. o if the creditor files an action to recover for damages this is a bar to
After pre trial à trial à judgment. Does the creditor have a cause of action when the filing another action for damages.
st
1 installment became due and demandable? Ø Q: What is this equivalent principle in civil law which accelerates an
Ø YES obligation?
Ø Q: There are 4 installments in total. The first already became due. How many o Under the Civil Code with respect to the provisions on Obligations
causes of action are there? with a Period, the following are:
o Every installment is an independent cause of action. So there are 4 o GR: Article 1193 provides: Obligations for whose fulfillment a day
independent causes of action in this case (although it can also be certain has been fixed, shall be demandable only when that day
said that there are NO causes of action that have accrued if no comes.
installments have become due) § The period shall be for the benefit of BOTH debtor and
o If several installments are already due, they will be considered as 1 creditorà Art. 1196: Whenever in an obligation a period is
cause of action designated, it is presumed to have been established for the
o If 2 installments are already due when the defendant files his benefit of both the creditor and the debtor, unless from
complaint, he only has one cause of action. the tenor of the same or other circumstances it should
rd
o If the 3 installment becomes due pending the case, that is a appear that the period has been established in favor of
separate cause of action one or of the other.

o EXPN: Article 1198. The debtor shall lose every right to make use of provided one of the causes of action falls within the jurisdiction of said court
the period: (In these cases, there is already an anticipatory breach) and the venue lies therein; and
o (1) When after the obligation has been contracted, he becomes (d) Where the claims in all the causes action are principally for recovery of
insolvent, unless he gives a guaranty or security for the debt; money, the aggregate amount claimed shall be the test of jurisdiction
o (2) When he does not furnish to the creditor the guaranties or Ø Q: For example, 2 OCA’s accion reinividicatoria and action to recover
securities which he has promised; defaulted loan. Alothough they are from different COAs, can they be joined?
o (3) When by his own acts he has impaired said guaranties or o YES
securities after their establishment, and when through a fortuitous Ø Q: How about 2 SCA’s, can they be joined together in 1 complaint?
event they disappear, unless he immediately gives new ones equally o GR: NO. For example unlawful detainer and interpleader cannot be
satisfactory; joined in one complaint
o (4) When the debtor violates any undertaking, in consideration of § EXPN: If the 2 SCA are the same kind of complaint. i.e. 2
which the creditor agreed to the period; and complaints for unlawful detainer joined in one complaint –
o (5) When the debtor attempts to abscond Mikee
Ø Q: The period under civil law gives the benefit of the period to both parties. Ø Q: Why, what makes SCA so special? Why can’t they be joined with OCAs?
What does this mean? Both are governed by ordinary procedure after all
o Before the expiration of the period: o Although both OCA and SCA are governed by ordinary procedure,
§ à The debtor can benefit from the period and cannot be the ROC provide for specific rules designated upon the various SCA
compelled to pay which are provided for under Rules 62 to 71. This is also why we
§ à The creditor can benefit from the period and cannot be cannot join 2 SCA governed by different rules
compelled to accept payment. This is important for profit Ø Q: Can you join unlawful detainer and accion reinvidactoria?
earning organization because if the debtor is allowed to o NO. They do not comply with joinder of actions. 2 reasons:
make earlier payment, then he can ask for discount. But 1. Unlawful detainer is an OCA and Accion renividicatoria is an OCA
since the creditor may also benefit from the period, he can 2. Unlawful detainer is subject to summary procedure while Accion
contend that he cannot be compelled to accept the Reinvindicatoria is governed by ordinary procedure. Thus, they are
payment subject to different rules
o They are treated equally. It is only when the instances under Sec. Ø Q: Can you join unlawful detainer and a complaint for unpaid loan of
1198 arise that the debtor shall lose his right to make a period, 150,000 both of which arise from the same transaction? Isnt joinder of
thereby making the entire obligation due and demandable parties a limitation? Both are governed by summary procedure anyway
o ???
Q: Explain the concept of Permissive Joinder of Actions. What are the limitations to the o NO, they cannot be joined because unlawful detainer is a SCA while
rule? unpaid loan is an OCA. They are subject to different rules. Despite
Ø This is the opposite of splitting of causes of actions. It is encouraged because it the fact that they arise from the same transaction, the reliefs sought
saves time and resources, and helps declog the court dockets are of a different nature: UD is for possession while the other is a
Ø Under Section 5, Rule 2 – Joinder of Actions: A party may in one pleading complaint for sum of money. Joinder of parties as a limitation
assert, in the alternative or otherwise, as many causes of action as he may merely requires that if there are several plaintiffs/defendants, there
have against an opposing party, subject to the following conditions: must be a common question of fact or law to all
(a) The party joining the causes of action shall comply with the rules on joinder Ø Q: Can you join a SCA under Rule 65 and habeas corpus, a special proceding?
of parties (this element is required when there are 2 or more parties); o YES. This is the ruling of the SC in People vs. Galvez, to wit:
(b) The joinder shall not include special civil actions or actions governed by The writs of habeas corpus and certiorari may be ancillary to each
special rules; other where necessary to give effect to the supervisory powers of
(c) Where the causes of action are between the same parties but pertain to the higher courts. A writ of habeas corpus reaches the body and the
different venues or jurisdictions, the joinder may be allowed in the RTC jurisdictional matters, but not the record. A writ of certiorari reaches

the record but not the body. Hence, a writ of habeas corpus may be § 1. Misjoinder is not raised as an issue and the trial court
used with the writ of certiorari for the purpose of has already decided upon the case; and
review. However, habeas corpus does not lie where the petitioner § 2. As long as the court has jurisdiction over all causes of
has the remedy of appeal or certiorari because it will not be action that are misjoined in the same complaint
permitted to perform the functions of a writ of error or appeal for o For example, unlawful detainer and accion reinvidicatoria is joined in
the purpose of reviewing mere errors or irregularities in the one complaint and filed with the MTC. There is misjoinder because
proceedings of a court having jurisdiction over the person and the the 2 are subject to different rules. However, if the defendant does

subject matter. not object to the misjoinder, and the MTC has jurisdiction to try
Ø Q: What is a special proceeding? both cases, then the MTC may decide upon the case and its decision
o Under Section 3, Rule 1, the following are the kinds of actions: will remain valid. The defendant can no longer challenge the
(a) A Civil Action is one by which a party sues another for the misjoinder since he has already waived his right to oppose the same
enforcement or protection of a right, or the prevention or redress of Ø Q: There is also what is called consolidation of cases. How is this different
a wrong; from joinder of causes of actions?
(b) A Criminal Action is one by which the State prosecutes a person o Section 1, Rule 31. Consolidation. — When actions involving a
for an act or omission punishable by law; common question of law or fact are pending before the court, it may
(c) A Special Proceeding is a remedy by which a party seeks to order a joint hearing or trial of any or all the matters in issue in the
establish (1) a status, (2) a right, or (3) a particular fact; actions; it may order all the actions consolidated, and it may make
Ø Q: Why can the a SCA for certiorari and special proceeding of habeas corpus such orders concerning proceedings therein as may tend to avoid
be joined? SCA is adversarial whereas special proceedings are not. SCA have unnecessary costs or delay.
causes of action whereas special proceedings do not o Consolidation – several complaints are filed but only hearing or trial
o Habeas corpus is the only special proceeding which has a cause of is done. It will result to joinder of actions, depending upon what
action. Thus, it is adversarial. There is a fight between the parties. It mode of consolidation is applied
can be joined with Certiorari as held in the case of People vs. Galvez o Joinder of actions – several causes of actions are joined in one
Ø Q: What is the effect if one of the limitations of joinder of actions is not complaint
complied with? Q: What are the 3 recognized modes of consolidations according to the SC?
o There will be Misjoinder of Actions. The following are examples of Ø (1) Recasting – This is a reshaping of several cases into one case. Initially,
misjoinder: there are many docket numbers which are later lost, leaving only 1 docket
1. When there are several causes of action but the court has no number left.
jurisdiction over one of them o Since several complaints will be transformed into 1 complaint, it will
2. When an Ordinary Civil Action is joined with a Special Civil Action. result into joinder of actions thru amending the complaint
The reason for this is because different rules apply to each kind of Ø (2) Consolidation proper – Many cases are heard jointly and a joint decision
action will be made. The cases still retain their respective docket number
3. When one cause if governed by ordinary rules of procedure but o Will not result to joinder of actions
another cause is governed by summary procedure, despite the fact Ø (3) Test case method – This is when one case is tried and the decision will be
that they both fall within the jurisdiction of the same court binding upon all other cases.
o GR: The sanction for misjoinder is that upon motion or motu propio, o Will not result to joinder of actions
the court will have the misjoined cause of action SEVERED and Ø In all these cases, there are 2 or more cases. But (2) and (3) are similar in that
instituted separately. the cases still remain independent of each other.
o EXPN: If the misjoined Cause of Action, if not severed upon motion Ø Q: The plaintiff might not like the idea in recasting because in recasting some
or motu propio, may be adjudicated with the other Causes of Action, complaints will be dismissed and only 1 will be retained. For example, A vs. B
provided that: and X vs. Y. one of the cases will be dismissed because there is a common

question of law or fact. X will resist the idea that his case will be dismissed. indispensable nor necessary parties to the case. The solidary debtor
As counsel of X what will you tell him who pays the whole amount will have the right of reimbursement,
o ??? but that is an altogether different cause of action which is not part
o Some of the cases will be dismissed/disappear. If I were the counsel of the original complaint. It will not be barred by whatever decision
for one of the plaintiffs whose case has disappeared, l will move for that the first case may have since they are separate causes of action
the inclusion of the plaintiff in the case and there will be an Ø Q: Assuming that an indispensable party is not impleaded, what is the
amendment of the complaint. The rules of Joinder of Causes of effect?
Action and Joinder of Parties should be applied. Amendment under o OLD DOCTRINE: dismiss the case for lack of cause of action because
Rule 10 can either be a matter of right or discretion. Before a the decision will never become final and executory
responsive pleading is filed, amendment is a matter of amendment. o NEW DOCTRINE: non-joinder of parties as provided under Rule 3 is
If a responsive pleading has already been filed, it is a matter of never a ground to dismiss the action. Moreover, it is not a ground
discretion under Rule 16. Instead, the court will order amendment of the
complaint by the plaintiff to include the indispensable party.
Q: Who is an indispensible party? Ø Q: What if the plaintiff does not follow the order for amendment?
Ø Section 7, Rule 3. Compulsory joinder of indispensable parties. — Parties in o The court motu propio or upon motion of the defendant may
interest without whom no FINAL DETERMINATION can be had of an action dismiss the case under Sec. 3, Rule 17 for failure to comply with the
shall be joined either as plaintiffs or defendants. order of the court. This is worse than dismissal under Rule 16
Ø INDISPENSABLE PARTY – parties in interest without whom no final because it is a dismissal with prejudice. It is an adjudication upon the
determination can be had merits. He can no longer refile the complaint. But he may appeal the
Ø The concept of indispensable parties will arise when the complaint is a multi- same
party complaint Ø Q: Who is a necessary party?
Ø Q: Give an example of indispensable parties o NECESSARY PARTY - parties in interest without who ought to be
Ø Q: For example there are 2 creditors and 2 borrowers. The amount involved joined as party to obtain complete relief or complete
is 2 million. Who among the lenders or borrowers are indispensable? determination/settlement of the claim
o First, make a distinction as to whether the obligation is joint or o Section 8, Rule 3. Necessary party. — A necessary party is one who is
solidary. Since there is a general presumption that an obligation is not indispensable but who ought to be joined as a party if COMPLETE
joint unless otherwise provided, the obligation in this case should be RELIEF is to be accorded as to those already parties, or for a
treated as joint complete determination or settlement of the claim subject of the
o Second, since there is no mention as to the amount claimed for each action.
party, they are all presumed to be equal à each creditor is entitled Ø Q: What is the sanction for not pleading of a necessary party? Is there any
to 1 million. Each debtor is indebted for the amount of 1 million. procedural defect?
o Thus, creditor 1 can file a complaint for debtor 1 for the amount of 1 o DUTY OF THE PLAINTIFF: If the principal party fails to plead a party,
million. They are both indispensable parties. The other parties are he shall state the name of the party and his reason for not
not indispensible since a final determination may be had without impleading him. If the court finds the reason to be meritorious,
them being impleaded that’s fine.
o However, if creditor 1 wants to claim the whole amount of 1 million, o SANCTION
he must implead debtor 2 since he is a necessary party without § GR: If the court finds his reason unmeritorious, then the
whom complete relief cannot be had principal party shall be deemed to have WAIVED his claim
Ø Q: Lets change the facts a little. There are 2 solidary creditors and 2 solidary against the party not pleaded.
debtors, who among them are indispensable? § EXPN: Of course if there is no claim against the party, then
o Either creditor can claim the whole amount against either debtor there is no waiver, therefore no sanction is to be imposed
since the obligation is solidary. The other parties are not

o There is no procedural defect. The non-inclusion of a necessary

party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the
rights of such necessary party
o Regardless of the not-so-serious sanction, a necessary parties must
be joined as much as possible since they are required for complete
relief to be sought in order to put an end to the controversy
Ø Q: Give an example of a necessary party
Ø Q: What if the plaintiff does not have a claim against the necessary party,
does this mean that there is nothing to be waived?
o ???
o Since a necessary party is one whom no 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, we
can assume that the plaintiff indeed has a claim against the
defendant who is a necessary party if not impleaded will not result
to complete relief/complete determination of the claim of the
plaintiff.
o So, if it is the defendant who has a claim against another party, he
must be the one to implead him as a necessary party in his answer.
Otherwise, he may be deemed to have waived his claim

Assignment: Study Rule 3 together with Rule 39


Third meeting: January 14, 2017 o YES. Under Rule 47 – annulment of judgment, estoppel is a
recognized exception of the general rule that lack of jurisdiction may
Q: What again are the 4 non-waivable defenses? be raised at any time of the proceeding, even on appeal
Ø Under Sec. Rule 9, the 4 non-waivables are: o Section 3, Rule 47. Period for filing action. — If based on extrinsic
1. Lack of jurisdiction over the subject-matter fraud, the action must be filed within four (4) years from its
2. Litis Pendentia discovery; and if based on lack of jurisdiction, before it is barred by
3. Res Judicata laches or estoppel.
4. Prescription Ø SOLIVEN VS. FASTFORMS – ESTOPPEL IN PAIS (or Estoppel by Conduct)
Ø Q: What are the implications if a defense is non-waivable? o While it is true that jurisdiction may be raised at any time, “this rule
o The court can dismiss the same motu propio presupposes that estoppel has not supervened.” The Court has
o The defense can be raised at any stage of the proceedings, even on constantly upheld the doctrine that while jurisdiction may be
appeal. It is not subject to the Omnibus Motion Rule, which assailed at any stage, a litigant’s participation in all stages of the
provides that if a ground to dismiss a complaint is not included in a case before the trial court, including the invocation of its authority in
motion to dismiss, then the party is deemed to have waived such asking for affirmative relief, bars such party from challenging the
ground. court’s jurisdiction. A party cannot invoke the jurisdiction of a court
Ø Q: Is there a conflict between Rule 15 which provides for the omnibus motion to secure affirmative relief against his opponent and after obtaining
rule and Rule 9 which provides for the non-waivable defenses? or failing to obtain such relief, repudiate or question that same
o NO. Rule 15 provides that it is “subject to the provisions of Sec. , jurisdiction. The Court frowns upon the undesirable practice of a
Rule 9 party participating in the proceedings and submitting his case for
o Section 8, Rule 15. Omnibus motion. — Subject to the provisions of decision and then accepting judgment, only if favorable, and
section 1 of Rule 9, a motion attacking a pleading, order, judgment, attacking it for lack of jurisdiction, when adverse.
or proceeding shall include all objections then available, and all o Unlike Tijam case which was promulgated before the 1997 Rule of
objections not so included shall be deemed waived. Court, Soliven was promulgated thereafter.
Ø Q: Is there any exception to the rule which provides that the non-waivable o In Tijam, 15 years have already elapse so as to give rise to estoppel
defenses may be raised t any time even on appeal? by laches. In the soliven, however, there is only a lapse of 5 years.
o YES. If the party is barred from raising these defenses by reason of But because the defendant actively participated and even sought for
Estoppel by Laches or Estoppel by Conduct (aka Estoppel in Pais) affirmative relief from the court, thus giving rise to estoppel in pais
Ø Note: Read the cases of Tijam v. Sibonghanoy, Soliven v. Fastforms, and People o ESTOPPEL BY IN PAIS/BY CONDUCT – Active participation in a case
v. Figueroa because Dean will ask if you know the summary of the cases will bar a party from raising a defense in issue belatedly for the first
Ø TIJAM VS. SIBONGHANOY – ESTOPPEL BY LACHES time
o In the case at bar, the assailing party participated actively in the § By voluntarily submitting a cause and encountering an
proceedings (by conduct) and even filed the motion to dismiss on adverse decision on the merits, it is too late for the loser
the ground of lack of jurisdiction 15 years late (by laches) to question the jurisdiction or power of the court. The law
o ESTOPPEL BY LACHES – Negligence to raise a defense in issue for an abhors the "undesirable practice" of a party submitting his
unreasonable length of time. case for decision and then accepting the judgment, only if
§ The failure to do something which should be done or to favorable, and attacking it for lack of jurisdiction, when
claim or enforce a right at a proper time or a neglect to do adverse.
something which one should do or to seek or enforce a Ø Q: Can we apply these 2 doctrines in criminal cases?
right at a proper time. o NO
Ø Q: However, Tijam vs. Sibonghabnoy was promulgated even before the rules Ø FIGUEROA VS. PEOPLE – estoppel does not bar raising the lack of jurisdiction
of court. Is there any rule affirming the doctrine laid down in Tijam? in criminal cases

o First, because estoppel was not applicable since it was not Ø Q: If the case would just be refilled all over again, this would be more
sufficiently established that the party effectively abandoned the burdensome for the accused. So should the accused be allowed instead to
right to assail the jurisdiction of the court. Estoppel should be bargain with the prosecution? Can he not ask to be convicted to lower
applied sparingly because jurisdiction is a matter of law. offense instead and then ask for probation instead? Can the accused ask for
o Second, the case was a criminal action wherein no affirmative relief probation pending appeal?
can be sought unlike in the fast forms case. You cannot file an o If the conviction was rendered without jurisdiction, the judgment is
answer with counterclaim in a criminal action void. Double jeopardy will not attach.
Ø Q: In criminal prosecutions for criminal negligence, which court has o The court cannot apply the Soliven case. The accused is not barred
jurisdiction? by reason of estoppel in pais to assail the court’s jurisdiction. The
o BP 129 provides that the MTC has jurisdiction over criminal cases reason is because he cannot ask for affirmative relief. Also, the
involving damage to property accused should be protected because he has rights under the
o MTC’s criminal jurisdiction under BP 129: Exclusive Original constitution. Criminal cases are serious insofar as the accused can be
Jurisdiction over all offenses punishable with imprisonment not deprived of his liberty if he is found guilty.
exceeding six (6) years irrespective of the amount of fine, and o Thus, the case is dismissed. And since double jeopardy will not
regardless of other imposable accessory or other penalties, including attach, the case can be filed anew with the proper court.
the civil liability arising from such offenses or predicated thereon, o Generally, probation is not allowed on appeal except if the appeal is
irrespective of kind, nature, value, or amount thereof: Provided, to assail that the penalty imposed by the court a quo was the wrong
however, That in offenses involving damage to property through penalty
criminal negligence they shall have exclusive original jurisdiction
thereof. Q: What are the non-waivable defenses in criminal procedure?
o With respect to all other cases of criminal negligence, we have to Ø Rule 117 – Motion To Quash
look first at the imposable penalty which is the standard in Ø Section 9, Rule 117. Failure to move to quash or to allege any ground therefor.
determining which court has jurisdiction — The failure of the accused to assert any ground of a motion to quash before
o Criminal negligence resulting to death, under Art. 365 of the RPC, is he pleads to the complaint or information, either because he did not file a
punishable with a penalty of prision correccional medium to motion to quash or failed to allege the same in said motion, shall be deemed a
maximum. This does not exceed 6 years. Thus, it is cognizable with waiver of any objections except those based on the grounds provided for in
the MTC paragraphs (a), (b), (g), and (i) of section 3 of this Rule.
o In the Figueroa case, the information for reckless imprudence Ø Section 3, Rule 117. Grounds. — The accused may move to quash the
resulting to homicide was erroneously filed with the RTC. However, complaint or information on any of the following grounds:
the defendant failed to file a motion to quash and the RTC tried the (a) That the facts charged do not constitute an offense;
case just the same. The judge should have known better and (b) That the court trying the case has no jurisdiction over the offense
dismissed the case for lack of jurisdiction which is a non-waivable charged;
defense in criminal procedure. The RTC convicted the accused and it (g) That the criminal action or liability has been extinguished;
was only after conviction did the accused assail the jurisdiction of (i) That the accused has been previously convicted or acquitted of the
the RTC. When the case was elevated to the SC, the court did not offense charged, or the case against him was dismissed or otherwise
apply the Soliven case since this only applies to civil cases. So we terminated without his express consent
must take note of this difference between civil and criminal cases. Ø Q: In civil law, what is the effect of prescription to an action?
Ø Q: Considering that the accused was already acquitted by the SC, can he be o The obligation, although not necessarily extinguished, can no longer
charged again? be enforced in a court of law. It is transformed into a natural
o YES. If the ground for dismissal is lack of jurisdiction, the accused can obligation. The debtor in the case is still a debtor. The creditor is still
st
still be charged again. Double jeopardy does not set in if the 1 case a creditor. The only problem is that the creditor can no longer sue
was dismissed under this ground the debtor in court but must rely the debtor to comply with his

obligation on his own. The reason is that by prescription, a civil Ø Q: For instance, A entered into a loan with B. However, there is no document
obligation is transformed into a natural one to prove the document. Assuming that A defaulted in paying B. Can B run
o The equivalent of prescription as a non-waivable ground in criminal after A despite the fact that there is no document evidencing the
procedure is that the criminal action or liability has been transaction?
extinguished; o Yes. Under civil law, contracts may be made orally or in writing.
Ø Q: What is the difference between the non-waivables in criminal and civil However, there are instances wherein if the contract is not made in
procedure? Are they the same? writing it is unenforceable which means that it cannot be recovered
o There are 3 which are the same/similar by filing a case in the court
o Litis pendentia is a waivable defense in criminal cases Ø Q: What if the loan is evidence by a written document. Usually it is thru a
o Failure to state a cause of action is the equivalent of ‘the facts do promissory note. Then B files a collection suit against A but does not
not constitute an offense’. It is a waivable ground in civil cases incorporate the promissory note in his complaint. Can he still prosecute his
Civil Procedure (Sec. 1, Rule 9) Criminal Procedure (Sec. 9, Rule 117) claim?
Lack of jurisdiction over the subject Lack of jurisdiction over the offense charged o NO. The rules provide for certain requirements in pleading an
matter actionable document
Prescription The criminal action/liability has been extinguised o There are 2 ways of pleading an actionable document:
Res Judicata Double Jeopardy 1. The plaintiff must set forth the substance of the actionable
Litis Pendentia - document in the form of a pleading and he must attach the
- The facts charged do not constitute an offense document or a copy thereof in his pleading
Ø Q: Give an example of a civil case which does not state a cause of action. 2. The plaintiff can copy the entire actionable document verbatim
o A borrowed money from B. Before the arrival of the maturity date, B (word for word) to his pleading
already filed a collection suit with the court. o ACTIONABLE DOCUMENT - The rules do not provide for a definition,
o The elements of a cause of action are: but we can infer under Sec. 7, Rule 8 that an actionable document is
1. A right in favor of the plaintiff is granted by law a document which can be made as basis for an action or defense.
2. The defendant has the obligation to respect or not to violate such o Section 7, Rule 8. Action or defense based on document. —
right; and Whenever an action or defense is based upon a written instrument
o 3. The defendant commits an act or omission violative of the right of or document, the substance of such instrument or document shall
the plaintiff be set forth in the pleading, and the original or a copy thereof shall
o There is no cause of action in the example above because the 3
rd be attached to the pleading as an exhibit, which shall be deemed to
element is not present. The defendant A has not yet violated B’s be a part of the pleading, or said copy may with like effect be set
right since the debt is not yet due and demandable considering that forth in the pleading.
the maturity date has not yet arrived and B did not yet demand for Ø Q: What is the effect if B does not comply with the requirements in pleading
payment an actionable document?
Ø Q: What if in the same example, the obligation does not state the date in o The complaint can be dismissed on the ground of failure to state a
which payment is to be made. What is the effect? What does civil law cause of action
provide?
o Under civil law, if an obligation does not contain a maturity date, it is Q: What is motion for bill of particulars?
presumed that the obligation is immediately due and demandable. Ø It is filed by the defendant asking the plaintiff to clarify his complaint or a
All that is needed to be done is that the defendant makes a demand matter thereof because it does not state with sufficient definiteness or
from the payment to pay. If the defendant proves that the plaintiff particular so that he may properly prepare his answer
does not pay upon demand, the defendant can now file a case in Ø Section 1, Rule 12. When applied for; purpose. — Before responding to a
court because he already has cause of action against the plaintiff pleading, a party may move for a definite statement or for a bill of particulars
of any matter which is not averted with sufficient definiteness or particularity

to enable him properly to prepare his responsive pleading. If the pleading is a Ø Section 7, Rule 6. Compulsory counterclaim. — A compulsory counterclaim is
reply, the motion must be filed within ten (10) days from service thereof. Such one which,
motion shall point out the defects complained of, the paragraphs wherein 1. Being cognizable by the regular courts of justice,
they are contained, and the details desired. 2. Arises out of or is connected with the transaction or occurrence constituting
Ø Q: What is the directive of the court to the plaintiff? the subject matter of the opposing party's claim and
o The plaintiff must submit a bill of particulars or a more definite 3. Does not require for its adjudication the presence of third parties of whom
statement in his complaint the court cannot acquire jurisdiction.
o Section 3, Rule 12. Compliance with order. — If the motion is 4. Such a counterclaim must be within the jurisdiction of the court both as to
granted, either in whole or in part, the compliance therewith must the amount and the nature thereof, except that in an original action before
be effected within ten (10) days from notice of the order, unless a the Regional Trial Court, the counter-claim may be considered compulsory
different period is fixed by the court. The bill of particulars or a more regardless of the amount.
definite statement ordered by the court may be filed either in a Ø A permissive counterclaim is one which lacks any of the requisites of a
separate or in an amended pleading, serving a copy thereof on the compulsory counterclaim
adverse party. o The nature of a permissive counterclaim is that it is effectively a
Ø Q: What if the plaintiff disobeys the court, what is the effect? complaint filed by the defendant despite the fact that the court does
o The court may order the striking out of: not have jurisdiction over the counterclaim
1. The portions of the pleading to which the order was directed Ø When the principal action is dismissed, the compulsory counterclaim is
2. The entire pleading to which the order was directed; or dismissed along with it. However, with respect to permissive counterclaim,
3. Make such other order as it deems just when the principal action is dismissed, the permissive counterclaim survives
o Section 4, Rule 12. Effect of non-compliance. — If the order is not Compulsory Counterclaim Permissive Counterclaim
obeyed, or in case of insufficient compliance therewith, the court If not set up in the action, it is barred. It is not barred if not set up in the action
may order the striking out of the pleading or the portions thereof to
which the order was directed or make such other order as it deems Section 2, Rule 9. Compulsory
just. counterclaim, or cross-claim, not set up
Ø Q: When the defendant moves for a bill of particulars, it presupposes that barred. — A compulsory counterclaim, or
the complaint is defective because it is not definite. If the court orders it to a cross-claim, not set up shall be barred.
be stricken out for failure of complying its order, then it becomes even more It is not an initiatory pleading. Thus, there It is an initiatory pleading. Thus, there is
defective. What is the effect if the pleading is stricken out? is no need to pay docket fees or file a need to pay docket fees or file a
o If it is the complaint of the plaintiff, it will be dismissal of the case certification of non-forum shopping certification of non-forum shopping in
o If it is the answer of the defendant, he can be declared in default for order for the court to acquire jurisdiction
failure to file the answer as contemplated under the rules over the case
Ø Q: What is the ground for dismissal if the plaintiff does not comply with the
order of the court? Q: What are the grounds for a motion to dismiss under Rule 16?
o Sec. 3, Rule 17 – failure to comply with the order of the court. This is Ø Section 1, Rule 16. Grounds. — Within the time for but before filing the
a dismissal with prejudice answer to the complaint or pleading asserting a claim, a motion to dismiss
may be made on any of the following grounds:
Q: In the Soliven case, the SC relied heavily on the fact that the defendant filed a (a) That the court has no jurisdiction over the person of the defending party;
counterclaim. What is a counterclaim? What are the kinds? What is the difference (b) That the court has no jurisdiction over the subject matter of the claim;
between the 2? (c) That venue is improperly laid;
Ø Section 6, Rule 6. Counterclaim. — A counterclaim is any claim which a (d) That the plaintiff has no legal capacity to sue;
defending party may have against an opposing party. (e) That there is another action pending between the same parties for the
same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of o (i) That the claim on which the action is founded is enforceable
limitations; under the provisions of the statute of frauds;
(g) That the pleading asserting the claim states no cause of action; Ø Q: If appeal is not available with respect to dismissals without prejudice,
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, what is the remedy of a losing party?
waived, abandoned, or otherwise extinguished; o Refile the case
(i) That the claim on which the action is founded is enforceable under the o Under Rule 41, there is another remedy:
provisions of the statute of frauds; and Section 1, Rule 41. xxx
(j) That a condition precedent for filing the claim has not been complied with No appeal may be taken from:
Ø Q: What are the options of the court in deciding a motion to dismiss? xxx
o Section 3 Rule 16. Resolution of Motion. — After the hearing, the (h) An order dismissing an action without prejudice.
court may dismiss the action or claim, deny the motion, or order the In all the above instances where the judgment or final order is not
amendment of the pleading. appealable, the aggrieved party may file an appropriate special civil
1. Grant the motion, if meritorious à leading to dismissal of the case action under Rule 65
2. Deny the motion, if unmeritorious à thereby compelling the defendant to Ø Q: What happens if the dismissal is one with prejudice, thus it is appealable,
file his answer, otherwise he may be declared in default and a party avails of Rule 65 as his remedy, what is the effect?
3. Order the plaintiff to amend his complaint à if the plaintiff disobeys the o The case may be dismiss the case outright
order of the court, the case may be dismissed under Sec. 3, Rule 17 which is a o Section 8, Rule 65. xxx
dismissal with prejudice The court, however, may dismiss the petition if it finds the same to
o This is the remedy when a plaintiff does not implead an be patently without merit, prosecuted manifestly for delay, or that
indispensable party, not dismissal on the ground of lack of cause of the questions raised therein are too unsubstantial to require
action consideration
4. Aside from the 3 options as provided under the rules, we can add a fourth o It must be remembered that Rule 65 can only be availed of if there is
option which is provided for under SC circulars: Referral of the case to no appeal, or any plain, speedy, and adequate remedy in the
barangay conciliation or to arbitration, (especially if there is an arbitration ordinary course of law
clause) mediation or conciliation Ø Q: If the case is dismissed since Rule 65 is the wrong remedy, is the party
o The purpose is that these are conditions precedent before a case now precluded from appealing?
may be filed in court o NO. Appeal and Rule 65 are 2 distinct independent remedies. They
Ø Q: What is the remedy if a case is dismissed? are not inclusive of each other. They are not alternative in such a
o It depends upon the kind of dismissal way that if one is availed the other will now be barred. At the outset,
o If it is a dismissal with prejudice – appeal there is no law which prohibits a party from availing one after the
o If it is a dismissal without prejudice – refile the case other
§ Reason: Rule 41 provides that dismissals without prejudice o However, if a party avails of Rule 65, practically he cannot appeal
are NOT appealable. anymore. Reason: the reglementary period would have already
Ø Q: What are those dismissals with prejudice under Rule 16? lapsed. The period to appeal is 15 days. The period under Rule 65 is
o Section 5, Rule 16. Effect of dismissal. — Subject to the right of 60 days. There is a likelihood that if a party will avail of Rule 65, say
th
appeal, an order granting a motion to dismiss based on paragraphs on the 50 day, the period to appeal has already lapsed. And it must
(f), (h) and (i) of section 1 hereof shall bar the refiling of the same be noted that the rules on appeal must be strictly applied because
action or claim. appeal is a statutory right. Upon the lapse of 15 days, the decision of
o (f) That the cause of action is barred by a prior judgment or by the the court is already final and executory. It is immutable.
statute of limitations; § But if it were in the reverse, if the party first appeals but
o (h) That the claim or demand set forth in the plaintiff's pleading has the same was dismissed, he has a greater chance of
been paid, waived, abandoned, or otherwise extinguished;

availing of Rule 65 because of the relatively long period of Ø Q: How about in small claims, does the small claims court have the
60 days prerogative to dismiss the statement of the claim outright?
o NO, unlike in summary procedure wherein there may be outright
Q: Do we apply Rule 16 in summary procedure? dismissal. There is no similar provision under small claims
Ø YES. Ø Q: Can the defendant file a motion to dismiss in small claims?
Ø Q: As an exception? o Yes. Same rules applicable summary procedure
o NO. It is the general rule o GR: Motion to dismiss is prohibited
Ø Q: How? o EXPN: Motion to dismiss on the ground of lack of jurisdiction over
o The court can dismiss the case motu propio under any of the the subject matter or failure to comply with barangay conciliation
grounds provided for under Rule 16 Ø Q: So we have the same problem we had earlier. There are only 2 grounds to
o A motion to dismiss due to lack of jurisdiction over the subject dismiss the case but there are 4 non-waivable defenses under Rule 9. The
matter and the failure to comply with barangay conciliation may be rules of court should also apply to small claims suppletorily. The difference,
filed by the defendant however, is that in summary procedure the court can dismiss the case motu
Ø Q: What are those motions to dismiss that are allowed? propio but not in small claims. Should we still allow the defendant to file a
o GR: Motion to dismiss is prohibited MTD on the other non-waivable grounds?
o EXPN: Motion to dismiss on the ground of lack of jurisdiction over o YES. Same reasons as why it is allowed under Summary Procedure.
the subject matter or failure to comply with barangay conciliation Substantive law must prevail over Procedural Law
Ø Q: Is there a conflict between the grounds allowed for a motion to dismiss in
summary procedure and the non-waivables under ordinary procedure? Q: What are the ways that the plaintiff can dismiss his complaint?
o YES. There are only 2 grounds allowed under summary procedure: Ø DISMISSAL BY NOTICE – before service of the answer or of a motion for
motion to dismiss on the ground of lack of jurisdiction over the summary judgment
subject matter or failure to comply with barangay conciliation. Ø Section 1, Rule 17. Dismissal upon notice by plaintiff. — A complaint may be
However, there are 4 non-waivables: lack of jurisdiction, dismissed by the plaintiff by filing a notice of dismissal at any time before
st
prescription, res judicata, and litis pendentia. With respect to the 1 , service of the answer or of a motion for summary judgment. Upon such notice
there is no problem. However, the last 3 are not included under the being filed, the court shall issue an order confirming the dismissal. Unless
rules on summary procedure. Thus, there is a conflict otherwise stated in the notice, the dismissal is without prejudice, except that
Ø Q: Should the defendant not be allowed to avail of these 3 other grounds in a notice operates as an adjudication upon the merits when filed by a plaintiff
his motion to dismiss considering that they are non-waivable under ordinary who has once dismissed in a competent court an action based on or including
procedure? the same claim.
o Summary procedure does not exclude the application of ordinary Ø Q: What kind of dismissal is a dismissal by notice of the plaintiff?
procedure. The ROC applies suppletorily to cases governed by o First dismissal by notice
summary procedure. If there is a conflict between the 2 summary § GR: WITHOUT PREJUDICE
procedure applies § EXPN: Unless it is otherwise stated in the notice that it is
o Sec. 22, Revised Rules on Summary Procedure. Applicability of the with prejudice
regular rules. — The regular procedure prescribed in the Rules of o Second dismissal by note = Two dismissal rule will apply. The
Court shall apply to the special cases herein provided for in a dismissal is an “adjudication upon the merits” which means it is
suppletory capacity insofar as they are not inconsistent herewith always WITH PREJUDICE
o However, we must take note that substantive law prevails over Ø Q: So if it is the first dismissal by notice, does the plaintiff have the freedom
procedural law. Prescription is a matter of substantive law. Thus, the to state that the dismissal is with prejudice? If that is what he wants then
defendant must not be precluded from being raised by the why will we question him
defendant in a MTD o Yes. Sec. 3 provides that “unless otherwise stated in the notice, the
dismissal is without prejudice.” Thus if the plaintiff states in his

notice that it is with prejudice, then there can be no objection counterclaim has been pleaded by a defendant prior to the service
thereto. The rules do not prohibit the plaintiff from making this upon him of the plaintiffs motion for dismissal, the dismissal shall be
qualification in his notice limited to the complaint. The dismissal shall be without prejudice to
nd
Ø Q: What if it is already his 2 dismissal by notice? This means that the 2 the right of the defendant to prosecute his counterclaim in a
dismissal rule applies. The second dismissal is one with prejudice. Does the separate action unless within fifteen (15) days from notice of the
plaintiff have the right to qualify it as a dismissal without prejudice? motion he manifests his preference to have his counterclaim
o NO. The rules say that “a notice operates as an adjudication upon resolved in the same action. Unless otherwise specified in the order,
the merits when filed by a plaintiff who has once dismissed in a a dismissal under this paragraph shall be without prejudice. A class
competent court.” Thus, the plaintiff is not allowed to qualify in this suit shall not be dismissed or compromised without the approval of
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case. Since it is with prejudice, he can no longer refile a 3 case the court.
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Ø Q: Suppose the plaintiff files a 3 case. When filing a case, the plaintiff only Ø Q: What are the grounds which the plaintiff can dismiss his case? Why will
deals with the cashier and the clerk of court. He does not talk with the judge. the plaintiff dismiss his own case after the defendant has answered? This is
So no one yet objects. Is the plaintiff precluded from filing the case? highly unusual considering he has already paid docket fees and troubled the
o No. The act of filing a third complaint is not prohibited. However, defendant? What is worse is if the defendant will resist the motion to
nd
the case is dismissible because of the 2 dismissal is already with dismiss. We have here 2 crazy individuals: the plaintiff wants to dismiss a
prejudice. Thus, the defendant must file a motion to dismiss on the case he filed and the defendant trying to resist this. What could be a good
ground of res judicata. The court may even dismiss the case motu reason?
propio because it is one of the non-waivable grounds o Reason: because dismissal by motion of plaintiff is without
Ø Q: For instance, the plaintiff filed his complaint in the court which has no prejudice. He can refile the case against the defendant. Thus, the
jurisdiction to try the case. Upon realizing that he filed it with the wrong defendant must object. He must argue that the dismissal must be
court, he decided to dismiss his complaint by notice under Rule 17. He files with prejudice so that the court will dismiss it with prejudice.
nd
the case anew. However, he now changes his mind and dismisses the 2 o GR: dismissal upon motion of the plaintiff, if granted, is without
case again by notice. Is the dismissal with or without prejudice? prejudice
o The dismissal is without prejudice because the 2 dismissal rule does o EXPN: unless otherwise specified in the order that it is with
not apply. This is because res judicata is not present since the 1st prejudice
court does not have jurisdiction over the case (an essential element Ø Q: Assuming that the defendant filed a counterclaim together with his
of res judicata). Therefore, the dismissal is without prejudice. This is answer. Then the plaintiff moves the dismissal of the case. Naturally,
an exception to the 2-dismissal rule wherein the second dismissal by defendant will object so that the court will make the dismissal with
notice is one without prejudice prejudice. Isn’t this to the detriment to the counterclaim of the defendant?
Ø Q: Must a dismissal by notice comply with Rule 15 as to the general rules on o NO. Sec. 2 provides that the dismissal shall be without prejudice to
motions? the right of the defendant to prosecute his counterclaim in a
o No. The dismissal is merely by notice which is confirmed by the separate action unless within fifteen (15) days from notice of the
court. Hearing is not required and the defendant need not motion he manifests his preference to have his counterclaim
participate. However, Sec. 2 must comply with Rule 15 since it is a resolved in the same action.
dismissal by motion § Sec. 2 does not distinguish whether the counterclaim is
Ø Q: Can a plaintiff file a motion to dismiss? compulsory or permissive. Thus it applies to either
o DISMISSAL UPON MOTION – after service of the answer or of a o Thus, the general rule that a (compulsory) counterclaim is dismissed
motion for summary judgment. together with the principal action does not apply. Sec. 2 is the
o Section 2, Rule 17. Dismissal upon motion of plaintiff. — Except as exception
provided in the preceding section, a complaint shall not be o GR: A compulsory counterclaim relies its existence upon the
dismissed at the plaintiff's instance save upon approval of the court principal action
and upon such terms and conditions as the court deems proper. If a

o EXPN: If the principal action is dismissed upon notice of the plaintiff, are in, the deputy clerk of court can set the case for pre-trial if the
the compulsory counterclaim survives and may stand on its own plaintiff does not do so. The burden to do so is upon both of them
Ø Q: How about crossclaim, can it stand on its own despite dismissal upon Ø Q: What kind of dismissal does Sec. 3 provide?
notice of the plaintiff? o With prejudice or adjudication upon the merits, unless otherwise
o NO. A crossclaim is only an incident of the principal action. Rule 17 declared by the court
only provide counterclaim can stand on its own. It does not make o Remedy: appeal
mention of crossclaim. Ø Q: Suppose the case has already been set for trial. However, the plaintiff did
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Ø Q: What is the 3 kind of dismissal? not appear for the presentation of his evidence in chief. The defendant file a
o DISMISSAL DUE TO FAULT OF THE PLAINTIFF motion to dismiss. The court dismissed the same, which is a dismissal with
o Section 3, Rule 17. Dismissal due to fault of plaintiff. — If, for no prejudice under Sec. 3, Rule 17. Can the plaintiff assail the validity of the
justifiable cause, the plaintiff fails to appear on the date of the dismissal on the grounds that it is not a valid judgment or final order under
presentation of his evidence in chief on the complaint, or to Rule 36?
prosecute his action for an unreasonable length of time, or to o No.
comply with these Rules or any order of the court, the complaint o There are 5 essential requisites of a valid judgment
may be dismissed upon motion of the defendant or upon the court's o Section 1, Rule 36. Rendition of judgments and final orders. — A
own motion, without prejudice to the right of the defendant to judgment or final order determining the merits of the case shall be:
prosecute his counterclaim in the same or in a separate action. This (1) In writing
dismissal shall have the effect of an adjudication upon the merits, (2) Personally and directly prepared by the judge,
unless otherwise declared by the court (3) Stating clearly and distinctly the facts and the law on which it is
Ø Q: What are the grounds to this kind of dismissal? based,
o For no justifiable cause: (4) Signed by him, and
1. Failure to appear on the date of the presentation of his evidence (5) Filed with the clerk of the court.
in chief on the complaint, or o GR: A judgment is on the merits is based upon findings of fact
2. Failure o prosecute his action for an unreasonable length of time, o EXPN: There are instances wherein a judgment is on the merits
or although there is no findings of fact. Under Rule 17, there is the 2
3. Failure to comply with these Rules or any order of the court, dismissal rule, Nolle Prosequi, Failure to comply with court order.
Ø Q: What is the scenario contemplated in the first ground? What is meant by Under Rule 18, There is failure to appear during pre-trial or failure to
evidence in chief? submit a pre-trial brief.
o Both plaintiff and defendant presents evidence in chief. The Ø Q: Do we apply Rule 17 in summary procedure or in small cases?
opposite of evidence in chief is rebuttal evidence. Such that if the o Yes, the Rules of Court suppletorily apply insofar as it is not in
plaintiff is not appear during the presentation of the rebuttal conflict with summary procedure/small claims
evidence of the defendant, it is not a ground for dismissal. Instead,
we assume that the plaintiff waives his right to object thereto Difference between the 3 kinds of dismissal under Rule 17 are:
Ø Q: What scenario is contemplated in failure to prosecute or nolle prosequi? Dismissal by Notice Dismissal upon Motion of Dismissal due to fault of
How can the court or the defendant accuse the plaintiff of committing this Plaintiff plaintiff
ground? As to kind of dismissal
o If the plaintiff does not set the case for pre-trial GR: Without prejudice, Without prejudice, unless Adjudication upon the
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o Note: this could also fall under the 3 ground: failure to comply with unless otherwise provided otherwise specified in the merits (with prejudice),
the Rules because Rule 18 provides that the plaintiff must set the in the notice order unless otherwise declared
case for pre-trial when all pleadings are in EXPN: 2-dismissal rule by the court
o But there is an amendatory circular that provides that although the àWith prejudice
plaintiff has the duty to set the case for pre-trial after all pleadings As to timeframe

Before answer or motion After answer or motion for See grounds o Yes. In judgment on the pleadings, there is no pre-trial as well as
for summary judgment summary judgment trial. Although there is an answer, it does not tender an issue or
As to who initiates admits the material allegations of the complaint
Plaintiff Plaintiff Defendant or motu propio o Section 1, Rule 34. Judgment on the pleadings. — Where an answer
As to grounds fails to tender an issue, or otherwise admits the material allegations
No need for justifiable Needs approval of the For no justifiable cause, of the adverse party's pleading, the court may; on motion of that
reason court and upon such terms the plaintiff fails to appear party, direct judgment on such pleading. However, in actions for
and conditions as the court on the date of the declaration of nullity or annulment of marriage or for legal
deems proper presentation of his separation, the material facts alleged in the complaint shall always
evidence in chief on the be proved
complaint, or to prosecute Ø Q: How about summary judgment?
his action for an o ???
unreasonable length of Ø Q: What are the instances wherein pre-trial is not mandatory?
time, or to comply with 1. Pre-trial and trial are skipped when the defendant is declared in default
these Rules or any order of under Rule 9. The court may directly declare judgment or order the plaintiff to
the court, present evidence ex parte. GR: Pre-trial is mandatory. EXPN: When the
W/N the defendant’s counterclaim is extinguished upon dismissal defendant is declared in default
Extinguished Without prejudice to the Without prejudice to the 2. Pre-trial and even trial are skipped when the parties submit to a stipulation
right of the defendant to right of the defendant to of facts
prosecute his counterclaim prosecute his counterclaim o Section 6, Rule 30. Agreed statement of facts. — The parties to any
in the same or in a action may agree, in writing, upon the facts involved in the litigation,
separate action and submit the case for judgment on the facts agreed upon, without
the introduction of evidence.
Q: When should the case be set for pre trial? 3. Pre-trial and trial are skipped in judgment of the pleadings because the
Ø Section 1, Rule 18. When conducted. — After the last pleading has been answer of the defendant does not tender an issue or admits the material
served and filed, if shall be the duty of the plaintiff to promptly move ex allegations of the complaint
parte that the case be set for pre-trial Ø Q: Is it proper to have several pre-trials or only one pre-trial for the entire
Ø Q: Is there pre trial in civil cases? Criminal cases? Summary procedure? Small case? If it is the first, then there will be pre-trial of between the plaintiff and
claims? the defendant, another one for the counterclaimant and the other party,
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o Yes to all. In summary procedure and small claims, it is called another for the cross-claimant and the other party, and another for the 3
rd
preliminary conference. party plaintiff and 3 party defendant and we will require all of them to file
Ø Q: Is pre-trial mandatory? pre-trial briefs. Otherwise, there will just be 1 pre-trial
o Yes. We cannot do away with pre-trial. Otherwise, the proceedings Ø Q: What is the pre-trial brief? What is the timeframe to file pre-trial brief?
will be void o Section 6, Rule 18. Pre-trial brief. — The parties shall file with the
Ø Q: Relate this with Rule 9, a judgment by default. Rule 9 does not mention court and serve on the adverse party, in such manner as shall ensure
Pre-trial. Is pre-trial mandatory still in this case? their receipt thereof at least three (3) days before the date of the
o No. It is in a way an exception to the rule that pre-trial is mandatory. pre-trial, their respective pre-trial briefs which shall contain, among
Reason: Under Rule 9, the defendant has not answered. That is why others:
he is being declared in default. Rule 18 contemplates a case where (a) A statement of their willingness to enter into amicable
all pleadings have already been filed, including an answer. settlement or alternative modes of dispute resolution, indicating the
Ø Q: What about judgment on the pleadings? There is already an answer in desired terms thereof;
this case. Can the court render judgment despite absence of pre-trial? (b) A summary of admitted facts and proposed stipulation of facts;

(c) The issues to be tried or resolved;

(d) The documents or exhibits to be presented stating the purpose
thereof;
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners;
and
(f) The number and names of the witnesses, and the substance of
their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure
to appear at the pre-trial
Ø Q: What is the punishment if a party fails to appear during pre-trial or fail to
file pre-trial brief?
o Section 5, Rule 18. Effect of failure to appear. — The failure of the
plaintiff to appear when so required pursuant to the next preceding
section shall be cause for dismissal of the action. The dismissal shall
be with prejudice, unless other-wise ordered by the court. A similar
failure on the part of the defendant shall be cause to allow the
plaintiff to present his evidence ex parte and the court to render
judgment on the basis thereof.
Ø Q: Will the defendant who does not appear or fails to file his pre-trial brief
be declared in default?
o No. The consequence is that the plaintiff will be allowed to present
evidence ex parte. He cannot be declared in default anymore
because an answered has already been filed. The SC already
abandoned the doctrine which provides that a defendant who does
not appear during pre-trial shall be declared in default


Monday Class – January 23, 2017 presentation of affidavits or a deposition, the latter of which refers
to a mode of discovery. This could lead to a summary judgment
RULE 23-29 – MODES OF DISCOVERY upon motion of either the plaintiff or the defendant. Thus, we do
Q: Explain the use of the modes of discovery? away with a full-blown trial.
Ø Generally, it is a device employed to obtain information relevant in a case Ø Q: So you just need to illustrate a scenario wherein the pleadings have
from an adverse party or a prospective adverse party in preparation for trial. It already been submitted. Thus, issues have already arisen. However, one of
is likened to a fishing expedition for information (not only evidence) the parties moves for a summary judgment because he thinks that there are
Ø Q: By using the modes of discovery, can it prevent the parties from having a no genuine issues involved. How do you convert a genuine issue to a non-
full blown trial? genuine issue?
o One of the purposes of these modes is to do away with trial o For instance, you are the plaintiff in a complaint for sum of money.
completely, or if we cannot do away with trial, then it will at least be The defendant alleges payment. You want to convert the alleged
shortened considerably if we make use of these payment into a non-genuine issue, by using a mode of discovery. In
o If you relate these modes with summary judgment, you can come up relation to substantive law, payment is usually demonstrated by the
with a good example. debtor by the asking for a receipt. The plaintiff can either use
Deposition or Interrogatories to parties or admission in order to
MOD IN REL. TO SUMMARY JUDGMENT prove that there is no receipt issued.
Q: Relate modes of discovery to summary judgment. o The plaintiff must choose the mode of discovery which needs
Ø Q: Tell us first what you know about a summary judgment. permission of the court because it is less burdensome
o In summary judgment a.k.a. accelerated judgment, the ground is Ø Q: What takes place in admission?
that there is no genuine issue. A motion is filed by either the plaintiff o The plaintiff will serve a communication to the defendant requesting
or defendant. in summary judgment there is no presentation of him to deny or admit certain documents.
evidence. The court forgoes regular trial. The presentation of o Permission of the court is not necessary in admission to parties
evidence by summary hearing is only for the purpose of determining o Section 1, Rule 26. Request for admission. — At any time after
whether or not there is a genuine issue. issues have been joined, a party may file and serve upon any other
o So there is no genuine issue but there is an issue. The role of the party may file and serve upon any other party a written request for
mode of discovery is to convince the court that the issue is not really the admission by the latter of the genuineness of any material and
genuine in order to ascertain whether or not there is a need to go relevant document described in and exhibited with the request or of
into full-blown trial or just to shorten the trial. The concept of a the truth of any material and relevant matter of fact set forth in the
summary judgment explains why. And if you are going talk about the request. Copies of the documents shall be delivered with the
concept of summary judgment, you must relate this first with a rule request unless copy have already been furnished
on evidence which is called Evidence on Motion, the last section of Ø Q: What if we use interrogatories to parties. If we use this against the
the last rule on evidence. defendant, will the defendant be compelled to respond? Or is he given
Ø Q: What does the last section of the last rule on evidence provide? discretion not to respond? If he is not bound to respond, there will be no use
o Section 7, Rule 133. Evidence on motion. — When a motion is based of this mode and it will be ineffectual. What are the sanction provided for
on facts not appearing of record the court may hear the matter on under Rule 29?
affidavits or DEPOSITIONS presented by the respective parties, but o Ask the court to issue an order to compel the other party to answer
the court may direct that the matter be heard wholly or partly on § Section 1, Rule 29. Refusal to answer. — If a party or other
oral testimony or depositions. deponent refuses to answer any question upon oral
o Under this provision, a motion must be set for hearing. During this examination, the examination may be completed on other
hearing, we really do not observe a trial contemplated under Rule matters or adjourned as the proponent of the question
30. What is conducted here is a summary hearing of a motion. In may prefer. The proponent may thereafter apply to the
presenting evidence to support a motion will just be in the form of proper court of the place where the deposition is being

taken, for an order to compel an answer. The same Q: The judgment usually resulted to after availing of a mode of discovery coul be
procedure may be availed of when a party or a witness summary judgment or it could even be a judgment on the pleadings. What is a
refuses to answer any interrogatory submitted under summary judgment under the Rules? Why is it called a summary judgment?
Rules 23 or 25. Ø Summary judgment by the plaintiff:
Ø Q: What happens if the defendant does not obey the court order, what is the o Section 1, Rule 35. Summary judgment for claimant. — A party
sanction? seeking to recover upon a claim, counterclaim, or cross-claim or to
o Contempt of court obtain a declaratory relief may, at any time after the pleading in
§ Section 2, Rule 29. Contempt of court. — If a party or answer thereto has been served, move with supporting affidavits,
other witness refuses to be sworn or refuses to answer depositions or admissions for a summary judgment in his favor upon
any question after being directed to do so by the court of all or any part thereof.
the place in which the deposition is being taken, the Ø Summary judgment upon by the defendant:
refusal may be considered a contempt of that court. o Section 2, Rule 35. Summary judgment for defending party. — A
Ø Q: What is the more grave sanction if a party fails to obey the order of the party against whom a claim, counterclaim, or cross-claim is asserted
court? There are relative sanctions under Rule 29. The rule provides for a or a declaratory relief is sought may, at any time, move with
grave sanction to the defendant and also an equivalent sanction on the supporting affidavits, depositions or admissions for a summary
plaintiff who disobeys. judgment in his favor as to all or any part thereof.
o If it is the plaintiff who disobeys the court: Ø Q: What is the difference between the 2?
§ Dismissal of the case with prejudice Summary judgment by the plaintiff Summary judgment upon by the
o If it is the defendant who disobeys the court: defendant
§ The striking out of the answer of the defendant or any May be availed of after the defendant files May be availed of at any time (thus, the
part thereof or enter; an answer defendant does not need to answer)
§ The entry of a judgment by default
o Either party can also ask for the payment of reasonable expenses o Regardless if it is applied for by the plaintiff or defendant, the
including attorney’s fees requisite that the issue is not genuine. The proof will be affidavits or
o Section 5, Rule 29. Failure of party to attend or serve answers. — If deposition or some other documents.
a party or an officer or managing agent of a party wilfully fails to Ø Q: If we relate motion for summary judgment with the general rule on
appear before the officer who is to take his deposition, after being motions, all motions generally will be heard. Will we apply this to summary
served with a proper notice, or fails to serve answers to judgment? Should we always hear this motion?
interrogatories submitted under Rule 25 after proper service of such o YES.
interrogatories, the court on motion and notice, may strike out all or o GR: All motions must be set for hearing under Rule 15.
any part of any pleading of that party, or dismiss the action or § EXPN: Except for motions which the court may act upon
proceeding or any part thereof, or enter a judgment by default without prejudicing the rights of the adverse party
against that party, and in its discretion, order him to pay reasonable o RULE 15:
expenses incurred by the other, including attorney's fees. § Section 4. Hearing of motion. — Except for motions which
Ø Q: Distinguish judgment by default under Rule 9 and Rule 29. the court may act upon without prejudicing the rights of
Rule 9 Rule 29 the adverse party, every written motion shall be set for
Premised upon the failure of the defendant to Even if the defendant files an hearing by the applicant.
file an answer answer, it is still possible that the § Every written motion required to be heard and the notice
court will render a judgment by of the hearing thereof shall be served in such a manner as
default for disobeying an order of to ensure its receipt by the other party at least three (3)
the court days before the date of hearing, unless the court for good
cause sets the hearing on shorter notice.

o Q: What do we call a motion which is not heard? o The court might not hear the motion. It may compel the plaintiff to
§ A motion that is not heard is called a Pro Forma Motion first set the motion for hearing as required under the Rules
which is a motion which does not comply with the rules. Ø Q: Generally, there must be a prior 3-day notice before hearing of a motion.
Ø Q: On what day? Does this also apply to motions for summary judgment?
o The movant (not the court) must set the case for hearing and the o No. Rule 35 provides for a longer period of 10 days to serve a notice
hearing is usually set on Friday. Fridays in courts are called motion to the adverse party before a motion for summary judgment may be
day. heard.
Ø Q: Since every week has a Friday, can the movant choose a Friday of any o Section 3, Rule 35. Motion and proceedings thereon. — The motion
week? shall be served at least 10 days before the time specified for the
o If the Friday is a non-working day, the hearing will be held on the hearing. The adverse party may serve opposing affidavits,
afternoon of the next working day depositions, or admissions at least 3 days before the hearing. After
o Section 7. Motion day. — Except for motions requiring immediate the hearing, the judgment sought shall be rendered forthwith if the
action, all motions shall be scheduled for hearing on Friday pleadings, supporting affidavits, depositions, and admissions on file,
afternoons, or if Friday is a non-working day, in the afternoon of the show that, except as to the amount of damages, there is no genuine
next working day. issue as to any material fact and that the moving party is entitled to
Ø Q: But the movant must not be given too much latituted in selecting which a judgment as a matter of law
Friday. For example, the motion was filed on january but the movant wants Ø Q: Why does the rules fix a longer period?
to set the hearing on a Friday in December. So to place a limitation, what do o Because in summary judgment there is no presentation of evidence.
the rules provide? There is a restriction on the part of the movant to set the The court forgoes regular trial. Instead, the adverse party is given a
hearing on a motion day chance to oppose the motion thru affidavits, depositions, or
o FIRST RESRICTION: there must be a prior 3-day notice before the admissions. Evidence by summary hearing is only for the purpose of
hearing. So if our motion day is this coming Friday, the movant must determining whether or not there is a genuine issue
give a notice, or serve a copy of the motion 3 days before by sending Ø Q: If the court finds merit in the motion for summary judgment, either by the
it thru mail on or before Tuesday plaintiff or defendant, will the court always render summary judgment that
§ Section 4. Hearing of motion. — Except for motions which will put an end to the case with finality?
the court may act upon without prejudicing the rights of o Not necessarily. The title of Rule 35 is misleading. The rules call it
the adverse party, every written motion shall be set for “summary” judgment but if you go into the provisions of summary
hearing by the applicant. judgment, there is a possibility that what we call a summary
§ Every written motion required to be heard and the notice judgment may be interlocutory. It is not a judgment, it is only an ad
of the hearing thereof shall be served in such a manner as interim order.
to ensure its receipt by the other party at least three (3) Ø Q: When will a summary judgment be treated as an interlocutory order
days before the date of hearing, unless the court for good according to the rules?
cause sets the hearing on shorter notice. o When the issues of the case are not completely adjudicated upon,
o SECOND RESTRICTION: the hearing must not be later that 10 days we have what is called Partial Summary Judgment
after the filing of the motion o There must be a complete summary judgment. Otherwise, a partial
§ Section 5. Notice of hearing. — The notice of hearing shall summary judgment will only be an interlocutory order
be addressed to all parties concerned, and shall specify the o Section 4, Rule 35. Case not fully adjudicated on motion. — If on
time and date of the hearing which must not be later than motion under this Rule, judgment is not rendered upon the whole
ten (10) days after the filing of the motion. case or for all the reliefs sought and a trial is necessary, the court at
Ø Q: If the movant does not comply with this rule, what are the options the hearing of the motion, by examining the pleadings and the
availble to the court? evidence before it and by interrogating counsel shall ascertain what
material facts exist without substantial controversy and what are

actually and in good faith controverted. It shall thereupon make an not even signed by the pleader. It is signed by the lawyer. How then can the
order specifying the facts that appear without substantial court assume that all the allegation in the complaint are correct?
controversy, including the extent to which the amount of damages o ??? (Student: the decisions of the court are presumed correct unless
or other relief is not in controversy, and directing such further otherwise disputed)
proceedings in the action as are just. The facts so specified shall be o GR: Pleadings need not be verified
deemed established, and the trial shall be conducted on the § Section 4. Verification. — Except when otherwise
controverted facts accordingly specifically required by law or rule, pleadings need not be
Ø Q: What is the effect if the summary judgment is interlocutory? under oath, verified or accompanied by affidavit.
o It is not appealable. The court must render judgment to the § A pleading is verified by an affidavit that the affiant has
remaining issues in the case not yet decided upon read the pleading and that the allegations therein are true
and correct of his knowledge and belief.
JUDGMENTS § A pleading required to be verified which contains a
Ø Q: Judgment must comply with certain essential under Rule 36. What are verification based on "information and belief", or upon
these essential requisities? "knowledge, information and belief", or lacks a proper
o Section 1, Rule 36. Rendition of judgments and final orders. — A verification, shall be treated as an unsigned pleading.
judgment or final order determining the merits of the case shall be: o EXPN: Except when otherwise required by law or rule
(WPFSC) § Examples: Revised Rules on Summary Procedure:
(1) In writing • Civil Cases
(2) Personally and directly prepared by the judge, • Sec. 3. Pleadings. — A. Pleadings allowed. —
(3) Stating clearly and distinctly the facts and the law on which it is The only pleadings allowed to be filed are the
based, complaints, compulsory counterclaims and
(4) Signed by him, and cross-claims' pleaded in the answer, and the
(5) Filed with the clerk of the court. answers thereto.
o Rule 36 is just in compliance with the constitutional requirement B. Verifications. — All pleadings shall be
that every decision must be distinctly state the facts and law on verified
which it is based § Mikee: however, there is no similar provision provided for
Ø Q: Do these essentials apply to all judgments under the rules like summary in Criminal Cases governed by Summary Procedure
judgment, judgment on the pleadings? § Also, the pleadings allowed must be verified under the
o Yes Revised Rules on Small Claims
Ø Q: How about judgments in summary judgment or small claims, do they need Ø Q: What are the other judgments mentioned under Rule 36?
to comply with Rule 36? o SEVERAL JUDGMENTS - Applies when there are many defendants
o Yes § Section 4, Rule 36. Several judgments. — In an action
Ø Q: What about a judgment on default? How can you expect the court to against several defendants, the court may, when a several
render a judgment by default which states the FACTS and LAW on which the judgment is proper, render judgment against one or more
decision is based when in fact there is no answer by the defendant? of them, leaving the action to proceed against the others.
o In a judgment by default, the court will consider only one pleading, o SEPARATE JUDGMETS - Applies when there are many claims for
based on the allegations of the complaint of the plaintiff relief
Ø Q: Isn’t that a one-sided judgment? Why does the court given the authority § Section 5, Rule, 36. Separate judgments. — When more
to render a one-sided judgment? It would be easier to understand if the than one claim for relief is presented in an action, the
pleading is verified because they are made under oath. But generally court, at any stage, upon a determination of the issues
pleadings are NOT verified, such as the plaintiff’s complaint. The pleading is material to a particular claim and all counterclaims arising
out of the transaction or occurrence which is the subject

matter of the claim, may render a separate judgment court. Reason: the decision of the trial court is disputably presumed
disposing of such claim. The judgment shall terminate the correct (this is a rule on evidence).
action with respect to the claim so disposed of and the Ø Q: There is another enumeration of decisions in Rule 41. Of course, these
action shall proceed as to the remaining claims. In case a judgments must also comply with Rule 36 also. What are they?
separate judgment is rendered the court by order may stay o 1. JUDGMENT BY CONSENT - a decision rendered based on the
its enforcement until the rendition of a subsequent terms and conditions agreed upon by the parties
judgment or judgments and may prescribe such conditions § Timeframe: ?
as may be necessary to secure the benefit thereof to the o 2. JUDGMENT BY CONFESSION – decision rendered when a party
party in whose favor the judgment is rendered. agrees to the claims of the other party
Ø Q: Aside from these, we also what is called in appeals as memorandum § Timeframe: ?
decision. What is your understanding of a memorandum decision? It § This is different from Judgment upon the pleadings. After
o MEMORANDUM DECISION – a decision rendered by the appellate an answer is filed, if the answer does not tender an issue,
court merely adopting the findings of fact and law of the trial court. the judgment is called judgment on the pleadings. Section
§ It is considered a decision on the merits despite that it 1, Rule 34. Judgment on the pleadings. — Where an
merely affirms the lower court’s decision. It is compliant answer fails to tender an issue, or otherwise admits the
with the essentials with Rule 36 material allegations of the adverse party's pleading, the
o Section 40, B.P. 129. Form of decision in appealed cases. – Every court may; on motion of that party, direct judgment on
decision of final resolution of a court in appealed cases shall clearly such pleading.
and distinctly state the findings of fact and the conclusions of law on § This is also different from Summary judgment which is
which it is based, which may be contained in the decision or final rendered when there is no genuine issue
resolution itself, or adopted by reference from those set forth in § If there are issues, the judgment is called Judgment upon
the decision, order, or resolution appealed from. the merits
o Section 5, Rule 51. Form of decision. — Every decision or final § Q: can there be an instance wherein the defendant in a
resolution of the court in appealed cases shall clearly and distinctly case confesses his liability and judgment will be rendered
state the findings of fact and the conclusions of law on which it is right away? NO. Our rules provide for a system of
based, which may be contained in the decision or final resolution pleadings. We can insert the idea of judgment by
itself, or adopted from those set forth in the decision, order, or confession during the stage wherein we can have a
resolution appealed from. judgment by confession à During Pre-Trial. It is during this
Ø Q: Why is there a need to make a specific mention that memorandum stage that the parties can admit liability. As opposed to
decisions? Why do the rules give importance to memorandum decision? compromised which can be entered into at any stage of
o Generally, every decision must distinctly state the fact and law on the trial
which it is based. It is not enough that a court decides in this o 3. JUDGMENT ON COMPROMISE - a decision rendered on the basis
manner: “I render a decision in favor of defendant or plaintiff”. It of a compromise agreement between the parties
must specifically state the facts and law on which it is based § Timeframe: The parties can still enter into a compromise
o Both decision by the trial court and the appellate court must comply agreement at any stage of the trial even after the court
with Rule 36 has rendered a decision and it will be valid
o What makes a memorandum decision from the other decisions is § A judgment based on stipulation of facts during pre-trial is
that B.P. 129 provides that the appellate court may adopt by a judgment on compromise
reference from those set forth in the decision, order, or resolution § See definition of compromise in Civil Code
appealed from. In other words, the appellate court only needs to o Any of these 3 judgments are not appealable. They are immediately
copy the decision appealed from. The appellate court does not need executory
to make its own findings, but can affirm the findings of the trial

o Under Rule 41, an order denying a motion to set aside these appealable, this means that they may not yet be executed pending
judgments is unappealable. the lapse of the period within which to appeal withou an proper
o RULE 41, Section 1. xxx appeal being perfected
No appeal may be taken from: o EXPN: The 3 judgments under Rule 41 are not appealable. The
(e) An order denying a motion to set aside a judgment by consent, reason is that these judgments are already final and executory. They
confession or compromise on the ground of fraud, mistake or are immediately executory under the Civil Code
duress, or any other ground vitiating consent; § Art. 2037. A compromise has upon the parties the effect
xxx and authority of res judicata; but there shall be no
In all the above instances where the judgment or final order is not execution except in compliance with a judicial
appealable, the aggrieved party may file an appropriate special civil compromise.
action under Rule 65. § Art. 2038. A compromise in which there is mistake, fraud,
Ø Q: What if there is a judgment and a compromise agreement, which shall violence, intimidation, undue influence, or falsity of
prevai? documents, is subject to the provisions of Article 1330 of
o The Civil Code provides that a compromise is a contract which does this Code.
not need to be converted into a judgment xxx
o SC: if there is a conflict between the judgment and compromise § The same rule apples in judgment by consent and
agreement, the compromise agreement shall prevail confession
§ Reason: upon executing a compromise agreement, there is § See also: Gadrinab vs. Salamanca (2014): “It is well settled
a novation of the obligation. In novation, the original that a judicial compromise has the effect of res judicata
obligation is extinguished. Thus, the obligation in the and is immediately executory and not appealable unless
judgment is extinguished if the parties enter into a set aside [by mistake, fraud, violence, intimidation, undue
comrpomise agreement influence, or falsity of documents that vitiated the
Ø Q: Can the compromise agreement be executed udner Rule 39? compromise agreement]”
o Not anymore. What will govern is the compromise agreement. And Ø Q: What are the remedies of a party from any of these 3 judgments?
since it is not submitted to the court, the original judgment can no o 1. Motion to set aside
longer be executed. The parties must go to another court instead o 2. Special Civil Action under Rule 65
Ø Q: Under the civil code, the parties must first be given a chance to enter into Ø Q: What are the grounds for a motion to set aside?
an amicable settlement beforee a barangay court. Supposing the parties o Fraud, mistake or duress, or any other ground vitiating consent.
were able to enter into a compromise agreement. Will the barangay render These are based on civil law
a judgment on comrpomise? Ø Q: Are these grounds found under Rule 37?
o No. The barangay court is not a court of justice. It cannot render o Rule 37 is a remedy against under a judgment. The grounds
judgment mentioned in 41 are not the same under Rule 37. They are based on
o Instead, the barangay court can go on with execution. But this substantive law (i.e. force, intimidation, violence, undue influence,
execution is limited to personal properties only violence)
o If the party ignores the Compromise Agreement, it shall be o RULE 37 - New Trial or Reconsiderations
considered rescinded and will make a case for breach of o Section 1. Grounds of and period for filing motion for new trial or
compromise agreement. The creditor will be liable under the old reconsideration. — Within the period for taking an appeal, the
obligation aggrieved party may move the trial court to set aside the judgment
Ø Q: Why does the SC need to single out these 3 judgments as non-appealable? or final order and grant a new trial for one or more of the following
o GR: judgments are appealable, this means to say that they are not causes materially affecting the substantial rights of said party:
final. Although they may be considered as final in the sense as to
who is the winning party and the losing party. But if they are

o (a) Fraud, accident, mistake or excusable negligence which ordinary Civil Code. If the contract assumes the form of a
prudence could not have guarded against and by reason of which Compromise Agreement between the parties in a civil case,
such aggrieved party has probably been impaired in his rights; or then a judgment rendered on the basis of such covenant is
o (b) Newly discovered evidence, which he could not, with reasonable final, unappealable, and immediately executory. If one of
diligence, have discovered and produced at the trial, and which if the parties claims that his consent was obtained through
presented would probably alter the result. fraud, mistake, or duress, he must file a motion with the
Ø Q: Can you file a motion for new trial/reconsideration from any of the 3 trial court that approved the compromise agreement to
judgments? reconsider the judgment and nullify or set aside said
o NO. If a judgment is immediately executory, then motions for new contract on any of the said grounds for annulment of
trial/reconsideration are prohibited because these 2 ideas are contract within 15 days from notice of judgment. Under
inconsistent with each other. The remedy is a motion to set aside on Rule 37, said party can either file a motion for new trial or
the grounds of fraud, mistake or duress, or any other ground reconsideration. A party can file a motion for new trial
vitiating consent based on fraud, accident or mistake, excusable negligence,
Ø Q: What is the timeframe for motion to set aside under Rule 41? or newly discovered evidence.
o The rules or the SC will always fix a period if it provides for a remedy. § On the other hand, a party may decide to seek the recall or
The period to file an appeal is 15 days. The period to file a motion to modification of the judgment by means of a motion for
dismiss is before an answer is filed or within 15 days from the reconsideration on the ground that the decision or final
complaint (Except, of course, motion to dismiss on any of the 4 non- order is contrary to law if the consent was procured
waivable defenses which may be raised on any stage of the trial through fraud, mistake, or duress. Thus, the motion for a
even for the first time on appeal). The period to file a SCA under new trial or motion for reconsideration is the readily
Rule 65 is not later than 60 days from receipt of the judgment or available remedy for a party to challenge a judgment if the
order assailed from 15-day period from receipt of judgment for taking an
o However, Rule 41 is silent as to motion to set aside. But since there appeal has not yet expired. This motion is the most plain,
is no appeal available with respect to these 3 judgments, there is no speedy, and adequate remedy in law to assail a judgment
specific period for a motion to set aside. There must be an a period based on a compromise agreement which, even if it is
fixed, otherwise, it may be subject of abuse between the parties, immediately executory, can still be annulled for vices of
thus it will render inneffectual the Civil Law rule that compromises consent or forger”
are immediately executory. Dean J: jurisprudence says that the Ø Q: If the motion to set aside is granted, what happens?
period to file a motion to set aside a judgment upon o There is no more judgment to speak of. It is vacated. The parties can
compromise/consent/confession is 5 DAYS from the receipt of the either agree to a new compromise or ???
decision in order not to defeat the susbtantive law provisions (or 5 Ø Q: If the motion to set aside is denied, what is the remedy of the aggrieved
days from the execution of the compromise) party?
o Mikee: the only relevant jurisprudence I found on this matter is: o Rule 65 can be availed of. This must be filed within a non-extendible
Domingo Realty vs. CA (2007) period of 60 days from the receipt of the denial. It will not stay the
§ “The preliminary issue involves the query of what proper execution of the compromise agreement
remedy is available to a party who believes that his Ø Q: Why cannot we stay the execution of the compromise agreement?
consent in a compromise agreement was vitiated by o Because it is immediately executory
mistake upon which a judgment was rendered by a court Ø Q: Can we appeal?
of law. o No. Again, the denial of a motion to set aside a judgment by
§ There is no question that a contract where the consent is compromise is not appealable under Rule 41
given through mistake, violence, intimidation, undue Ø Q: Can we not make use of relief from judgment under Rule 38?
influence, or fraud is voidable under Article 1330 of the o No. Under the Civil Code, the judgment is immediately executory

entered into in any stage of the proceedings. The effect of the

ENTRY OF JUDGMENT compromise on the judgment is that the judgment will be novated.
Ø Q: In the normal course of things, a judgment on the merits is rendered. The Novation is a mode of extinguishment of an obligation. Thus, the
losing party has 15 days within which to make an appeal. After the lapse of obligation in the judgment is extinguished
the 15 day period with no appeal having been perfected, what happens? Ø Q: What if, after the compromise, one of the parties do not comply with the
o The judgment becomes final and executory and the judgment will agreement, what is the effect? Can the other party enforce now the
now be entered judgment rendered by the court
Ø Section 2, Rule 36. Entry of judgments and final orders. — If no appeal or o No. The obligation in the judgment is already extinguished
motion for new trial or reconsideration is filed within the time provided in Ø Q: So what is the remedy of creditor now? Can he file a new case?
these Rules, the judgment or final order shall forthwith be entered by the o No, that might have the effect of res judicata
clerk in the book of entries of judgments. The date of finality of the judgment Ø Q: So that the creditor will avoid a novation of the judgment, does he have
or final order shall be deemed to be the date of its entry. The record shall any recourse at all? Suggest a remedy to the creditor
contain the dispositive part of the judgment or final order and shall be signed o Tell the creditor that because the parties have a compromise, he
by the clerk, within a certificate that such judgment or final order has become should submit it to the court which will be the basis of the judgment
final and executory. upon compromise which will prevail over the old judgment
Ø Q: If our judgment is now entered, the effect is what?
o Under Rule 39, it may now be executed as a matter of right RULE 34 – JUDGMENT ON THE PLEADINGS
Ø Q: What does execution as a matter of right mean? Ø Q: What is a judgment on the pleadings?
o It may be executed upon motion. So if there is a motion for o Section 1, Rule 34. Judgment on the pleadings. — Where an answer
execution, then the court will grant such motion because it is its fails to tender an issue, or otherwise admits the material allegations
ministerial duty. of the adverse party's pleading, the court may; on motion of that
§ If execution by motion, it is within 5 years from the entry party, direct judgment on such pleading. However, in actions for
of judgment declaration of nullity or annulment of marriage or for legal
Ø Q: What does execution by discretion mean? separation, the material facts alleged in the complaint shall always
o It may only be executed by independent action be proved
§ If execution by independent action (which is known as a o This judgment is initiated upon motion of the plaintiff. It may be
petition for Revival of Judgment), this is filed after 5 years filed after an answer has been made by the defendant and based on
has passed from the entry of judgment but not exceeding the answer, there is no issue or the defendant admits the material
5 years thereafter. allegations. However, under Rule 18, the court can also render
o Section 6, Rule 39. Execution by motion or by independent action. — judgment even without a motion.
A final and executory judgment or order may be executed on motion o Here, trial and even pre-trial may be bypassed.
within five (5) years from the date of its entry. After the lapse of Ø Q: Can the defendants move for the JOTP?
such time, and before it is barred by the statute of limitations, a o YES.
judgment may be enforced by action. The revived judgment may o The plaintiff can move for JOTP when the answer of the defendant
also be enforced by motion within five (5) years from the date of its fails to tender an issue or admits material allegations of the
entry and thereafter by action before it is barred by the statute of complaint
limitations o The defendant can move for JOTP when the answer of the plaintiff
Ø Q: After judgment and execution upon motion, may the parties may still to the counterclaim of the defendant fails to tender an issue or
enter into a compromise agreement? admits material allegations of the claim. The rules do not prohibit
o Yes. That is a prerogative granted to the parties under the Civil Code. the defendant from moving for JOTP.
Compromise agreement will not be consistent with the judgment, o If the JOTP is granted, it will be granted in favor of the movant,
but the former will still prevail. Reason: the compromise can be whether to the plaintiff or defendant

Ø Q: If the plaintiff does not answer permissive counterclaim, can there be a o The defendant will file a motion for demurrer after the plaintiff
motion for judgment by default filed by the defendant? rests.
o YES. It will be against the plaintiff if he files no answer Ø Q: Is this available only to a defendant?
Ø Q: Is a JOTP on a permissive counterclaim appealable? Can the plaintiff file o YES. A dismissal under Rule 33 may only be availed of the defendant
an appeal from this judgmenbnt? after presentation of evidence by the plaintiff on the ground of
o YES. Under Rule 41, An appeal may be taken from a judgment or insufficiency of evidence
final order that completely disposes of the case. So generally, there Ø Q: Should the defendant only rely on Rule 16, a motion to dismiss?
can be no appeal from a several or separate judgment since the o NO. The defendant may file a demurrer to evidence which has only
whole case is not yet completely disposed of unless the court allows one ground: insufficiency of evidence
an appeal therefrom. Ø Q: Is the defendant allowed to file a demurrer to evidence based on the
o Section 1, Rule 41. Subject of appeal. — An appeal may be taken ground of improper venue?
from a judgment or final order that completely disposes of the case, o NO.
or of a particular matter therein when declared by these Rules to be Ø Q: Why can’t defendant make use of “improper venue”? Isn’t this also a
appealable. groud for dismissal of a case? Or even any of the other grounds under Rule
o No appeal may be taken from: 16
o (g) A judgment or final order for or against one or more of several o The only ground of a demurrer to evidence is insufficiency of
parties or in separate claims, counterclaims, cross-claims and third- evidence.
party complaints, while the main case is pending, unless the court o The reason why the grounds under Rule 16 may no longer be used in
allows an appeal therefrom; a demurrer to evidence because the defendant has already deemed
Ø Q: Does Rule 41 allow an appeal from the JOTP from permissive counterclaim to have WAIVED under Sec. 1, Rule 9 which embodies the OMNIBUS
even though the principal action, a case on the merits, is still pending? Do we MOTION RULE (EXPN: the non-waivable defenses. i.e. venue is
need to wait for a case on the merits before an appeal on the permissive waivable while jurisdiction a non-waivable defense)
counterclaim may be allowed? § Section 1, Rule 9. Defenses and objections not pleaded. —
o GR: A judgment or final order for or against one or more of several Defenses and objections not pleaded either in a motion to
parties or in separate claims, counterclaims, cross-claims and third- dismiss or in the answer are deemed waived. However,
party complaints, while the main case is pending, is UNAPPEALABLE when it appears from the pleadings or the evidence on
o EXPN: unless the court allows an appeal therefrom; record that the court has no jurisdiction over the subject
matter, that there is another action pending between the
RULE 33 – DEMURRER TO EVIDENCE same parties for the same cause, or that the action is
Ø Q: What is a judgment on demurrer to evidence? barred by a prior judgment or by statute of limitations, the
o Section 1, Rule 33. Demurrer to evidence. — After the plaintiff has court shall dismiss the claim.
completed the presentation of his evidence, the defendant may o Note, however, that if the defendant fails to raise such waivable
move for dismissal on the ground that upon the facts and the law defenses in a motion to dismiss, he may still raise them by pleading
the plaintiff has shown no right to relief. If his motion is denied he them as affirmative defenses in his answer
shall have the right to present evidence. If the motion is granted but § Section 6, Rule 16. Pleading grounds as affirmative
on appeal the order of dismissal is reversed he shall be deemed to defenses. — If no motion to dismiss has been filed, any of
have waived the right to present evidence the grounds for dismissal provided for in this Rule may be
o Here, there is already a presentation of evidence by the plaintiff, pleaded as an affirmative defense in the answer and, in
there is already a one-sided trial. The ground is that the plaintiff fails the discretion of the court, a preliminary hearing may be
to prove his claim by the quantum if evidence required. In other had thereon as if a motion to dismiss had been filed.
words, there is an insufficiency of evidence. xxx

Ø Q: So if the defendant fails to include in his motion the ground of improper o ORDINARY APPEAL – an appeal by notice of appeal or record on
venue, then he is deemed to have waived the same. What if the defendant appeal from a judgment or final order of a lower court on a
does not file a motion to dismiss at all, is he still deemed to have waived his questions of fact and law
right to raise improper venue later on? § Rule 40 – appeal from MTC à RTC
o YES. The Omnibus Motion Rule also covers a scenario wherein there § Rule 41 – appeal from RTC à CA
is a failure to file a motion to dismiss on time and it will also lead to Ø Q: Appeal is not constitutional right. It is a statutory right which requires
a waiver of those waivable defenses under Rule 16 (EXPN: the non- stirct application before it is allowed. What are the requisites of an ordinary
waivable defenses) appeal?
Ø Q: If for example the plaintiff already presents evidence. Is the defendant o 1. By filing a notice of appeal or record on appeal (the latter is
still allowed to file a motion to dismiss on the ground of lack of jurisdiction? required: in special proceedings and other cases of multiple or
o YES, because it is one of the non-waivable defenses under Sec. 1, separate appeals where law on these Rules so require) à with the
Rule 9 court of origin (MTC/RTC).
o EXPN: if the defendant is barred by Estoppel by Conduct (or § Notice of appeal must indicate:
Estoppel in Pais) because he has actively participated during the trial 1. Name of parties
and he availed affirmative reliefs from the trial court such as filing a 2. Judgment or final order appealed from
counterclaim together with his answer thereby acquiescing to the 3. Material dates showing the timeliness of the
jurisdiction of the court (Soliven vs. Fastforms). It is difficult for the appeal (Material Data Rule)
concept of Estoppel by Laches to apply if there is no considerable o 2. Copies of the notice of appeal or record shall be served to the
length of time for the defendant to be deemed to have slept on his appellee
rights (Tijam vs. Sibonghanoy) o 3. Docket fees and other lawful fees in full shall be paid to the clerk
Ø Q: If the court grants the defendant’s demurrer to evidence what happens to of court of the MTC/RTC
the case? o 4. Must file within the reglementary period of 15 days after notice of
o If the Demurrer to Evidence is granted à the case is dismissed and judgment (non-extendible); or within 30 days where a record on
this will have the effect of an adjudication on the merits. appeal is required (extendible)
o If the Demurrer to Evidence is denied à the defendant shall now Ø Q: Can you appeal the RTC’s decision to the SC?
push through with the presentation of evidence. The implication of o YES. From the decision of the RTC, it is possible that a party can
this denial is that the evidence of the plaintiff is sufficient appeal to the SC directly: In cases where the RTC exercises its
Ø Q: Is the dismissal by demurrer to evidence considered a final judgment original jursidiction and the case involves purely questions of law,
under Rule 41? the proper mode is thru a Petition for Review under Rule 45
o YES because it is a judgment or final order that completely disposes o Sec. 2, Rule 41. Xxx
of the case, or of a particular matter therein. Thus, it is appealable o (c) Appeal by certiorari. — In all cases where only questions of law
Ø Q: The plaintiff should appeal to what court? are raised or involved, the appeal shall be to the Supreme Court by
o From decision of the MTC à appeal with the RTC petition for review on certiorari in accordance with the Rule 45.
§ Raising questions of law or fact or both Ø Q: Is there any advantage if the party first appeals to the CA rather than the
o From decision of the RTC exercising its original jurisdiction à appeal SC? So if he appeals to CA generally it is thru notice of appeal. If he appeals
with the CA directly to the SC he needs to file a petition for review. Is there any
§ Raising questions of law and fact. (Otherwise, if the appeal procedural advantage if he appeals to the CA rather than the SC?
would raise only questions of law, it should be filed directly o YES
st
with the SC under Rule 45) o Ordinary Appeal à Appeal is a Matter of Right since it is the 1
Ø Q: What mode of appeal? appeal, the CA has no discretion to deny the notice of appeal or
record on appeal if it complies with the jurisdictional requirements
of an appeal.

o Petition for Review à Review of a decision is a Matter of Discretion. Reason: double jeopardy appellate court, it will decide
The CA (in this case, the SC) may require the appellee to file a sets in the case on the basis of the
comment on the petition within 10 days from notice OR outright plaintiff’s evidence with the
dismiss the appeal if it is patently without merit/manifestly for consequence that the
delay/questions are too insubstantial to consider defendant already loses his
Ø Q: Do we also have demurrer to evidence in criminal cases? How is it right to present evidence
different from civil cases? Ø Q: If the CA reversed reverses the granting by the RTC of the demurrer to
Criminal Case Civil Case evidence, the implication is that the evidence is sufficient. Can the defendant
Ground Insufficiency of evidence just ask the CA to allow him to present evidence on appeal since the waiver
Party Accused or defendant to present evidence is waiver to present it in the trial court? Isn’t that a good
Timeframe After the prosecution or plaintiff rests argument? Can the CA admit evidence in the first place?
Quantum of Evidence Proof beyond reasonable Preponderance of evidence o The argument is invalid
doubt o Generally, the CA may receive evidence and perform all acts to
Requirement of Leave The defendant must file a There is no need for leave of resolve factual issues whether in the exercise of its original or
of Court motion for leave of court court appellate jurisdiction
before filing a motion for § Sec. 9, B.P. 129: The Court of Appeals shall have the power
demurrer to evidence to try cases and conduct hearings, receive evidence and
Effect if Leave of Court If LOC is not obtained and No waiver of right to present perform any and all acts necessary to resolve factual issues
is not obtained the demurrer is denied, the evidence if demurrer is raised in cases falling within its original and appellate
accused can no longer denied jurisdiction, including the power to grant and conduct new
present his evidence. He is trials. xxx
deemed to have waived his o However, in order to arrive at the conclusion that the CA cannot
right to present evidence admit evidence on appeal from a dismissal by a demurrer to
Upon motion or motu The court can dismiss the There must always be a evidence, we must make use of the rules on appeal. The appellant is
propio case motu propio after motion (demurrer to duty-bound to submit an appellant’s brief. In his brief, he must
giving the prosecution a evidence) filed by defendant. include an assignment of errors committed that were committed by
chance to present evidence The court cannot dismiss the trial court. In fact, failure to file a brief or to include assignment
motu proprio after the of errors is a ground for dismissal of the appeal. (Reason:
plaintiff rests presumption that the findings of the trial court are correct in the
Effect If demurrer is granted, the If demurrer is granted, the absence of errors)
accused is acquitted which is case is dismissed. If denied, § Section 7, Rule 44. Appellant's brief. — It shall be the
final and executory. If the defendant must present duty of the appellant to file with the court, within forty-
denied, does not necessarily his evidence five (45) days from receipt of the notice of the clerk that all
guarantee conviction. the evidence, oral and documentary, are attached to the
Accused may present his record, seven (7) copies of his legibly typewritten,
evidence depending upon mimeographed or printed brief, with proof of service of
w/n he obtained LOC two (2) copies thereof upon the appellee.
Availability of appeal The people of the Plaintiff can appeal the § Section 13, Rule 44. Contents of appellant's brief. — The
Philippines represented by dismissal appellant's brief shall contain, in the order herein
the prosecutor cannot indicated, the following:
appeal. If the plaintiff appeals and the xxx
judgment is reversed by the

(b) An assignment of errors intended to be urged, which Ø Q: Are all of these remedies available regardless of the procedure observed
errors shall be separately, distinctly and concisely stated by the trial court?
without repetition and numbered consecutively; o NO
o Furthermore, CA can try factual and legal issues as provided that he o In SUMMARY PROCEDURE:
includes in his assignment of error that such issues were raised in § Motions for new trial, reconsideration, or for reopening of
the trial court trial and petition for relief are all prohibited pleadings
§ Section 15, Rule 44. Questions that may be raised on § The only remedy available is to appeal the judgment
appeal. — Whether or not the appellant has filed a motion § Annulment of judgment or Rule 65 may also be availed of
for new trial in the court below he may include in his if the essentials are present
assignment of errors any question of law or fact that has o In SMALL CLAIMS:
been raised in the court below and which is within the § Motions for new trial, reconsideration, or for reopening of
issues framed by the parties trial and petition for relief are all prohibited pleadings
o BUT IN THIS CASE, THE APPELLEE (DEFENDANT) CANNOT MAKE AN § Appeal is not allowed. The judgment is immediately
ASSIGNMENT OF ERRORS BECAUSE HE ALREADY WON THE CASE. executory and unappelable
THE APPELLANT (PLAINTIFF) MERELY APPEALS THE TRIAL COURT’S § Annulment of judgment or Rule 65 may also be availed of
ORDER DISMISSING THE CASE DUE TO THE DEMURRER TO EVIDENCE if the essentials are present
FILED BY THE DEFENDANT Ø Q: So in small claims, Rule 65 (aside from Rule 47) is the only recourse left.
o Therefore, the CA really has only 2 options on appeals by the We have a situation wherein the winning party has filed a motion for
plaintiff from a dismissal due to demurrer to evidence: to reverse execution before the trial court and a petition for certiorari is filed with a
the trial order or dismiss the case. The CA cannot admit evidence. If higher court. Do you think that the trial court can go on with execution
the CA reverses the trial court, then the defendant is deemed to pending the petition on certiorari? Can the MTC comply with its ministerial
have waived his right to present evidence before the court. duty grant the execution even if there is a petition for certiorari in the RTC?
o Note: this is peculiar to a case when the plaintiff appeals and not the o GR: Yes. The mere commenecement of the petition for certiorari will
defendant. If plaintiff appeals and the defendant appeals, both can not deter the MTC from executing the judgment
make an assignment of errors in his appellant’s brief o EXPN: The RTC issues TRO or writ of preliminary injunction under
Rule 65 restraining the MTC from executing the judgment provided
POST-JUDGMENT REMEDIES that the losing party files an injunctive bond under Rule 58
Ø Q: A judgment is rendered by the court. In that judgment there is a losing o Section 7, Rule 65. Expediting proceedings; injunctive relief. — The
party and a winning party. On the part of the winning party, all that he court in which the petition is filed may issue orders expediting the
needs to do is what? proceedings, and it may also grant a temporary restraining order or
o File a motion for execution when the time comes. The time will ripen a writ of preliminary injunction for the preservation of the rights of
only when the decision becomes final and executory upon entry of the parties pending such proceedings. The petition shall not
judgment interrupt the course of the principal case unless a temporary
Ø Q: But insofar as the losing party is concered, what are the remedies under restraining order or a writ of preliminary injunction has been issued
the Rules? against the public respondent from further proceeding in the case.
o Rule 37: Motion for new trial/ Reconsideration – within 15 days Ø Q: If there is a TRO issued by the certiorari court, the MTC is now prevented
o Rule 38: Relief from judgment from executing the judgment. But supposing that the creditor wants
o Rule 40-46: Appeal – within 15 days execution. Does the judgment creditor have any remedy considering that
o Rule 47: Annulment of judgment there is already an injunctive relief issued by the RTC?
o Reopening of the case o The judgment creditor can file a counter-bond so that execution will
o Rule 65: SCA for CPM push thru. However, it will NOT automatically set aside the TRO or
preliminary injunction. Mere posting of a counter-bond will not set

aside injunctive relief. The court should still conduct a hearing on Ø (f) The parties may then respectively adduce rebutting evidence only, unless
the proprietary of the lifting or dissolving of the injunctive relief. the court, for good reasons and in the furtherance of justice, permits them to
o Section 6, Rule 58. Grounds for objection to, or for motion of adduce evidence upon their original case; and
dissolution of, injunction or restraining order. — The application for xxx
injunction or restraining order may be denied, upon a showing of its o Ground: for good reasons and in the furtherance of justice, the court
insufficiency. The injunction or restraining order may also be denied, will permit the party to adduce evidence upon their original case
or, if granted, may be dissolved, on other grounds upon affidavits of o Who may avail: either party or may be done by court’s initiative
the party or person enjoined, which may be opposed by the o Timeframe: May properly be presented only after either or both the
applicant also by affidavits. It may further be denied, or if granted, parties have formally offered and closed their evidence. In other
may be dissolved, if it appears after hearing that although the words, after trial and before judgment is rendered
applicant is entitled to the injunction or restraining order, the o The court has discretionary power of the court to reopen a trial for
issuance or continuance thereof, as the case may be, would cause the introduction of additional evidence to clarify doubts on material
irreparable damage to the party or person enjoined while the points. This discretionary power is subject to no rule other than the
applicant can be fully compensated for such damages as he may paramount interest of justice and will not be reviewed on appeal
suffer, and the former files a bond in an amount fixed by the court unless th exercise thereof is abused (Algere vs. Reyes) - See p. 130 of
conditioned that he will pay all damages which the applicant may memaid)
suffer by the denial or the dissolution of the injunction or restraining Ø Q: Interest of justice is a broad term. Is it the trial court who will determine
order. If it appears that the extent of the preliminary injunction or this?
restraining order granted is too great, it may be modified. Ø Q: If judgment is already rendered, does this mean that reopening is lost
Ø Q: Are there provisional remedies which could be easily defeated by a forever?
counter-bond? Any case wherein if there is a counter-bond the court will be Ø Q: What is the rule in criminal procedure?
bound to dissolve or set aside the provisional remedy? o Reopening is available after judgment of conviction has been
o In case of Replevin, Preliminary Attachment, it can be automatically rendered but before it becomes final
dissolved by a counter-bond o If the judgment is one of acquittal, reopening cannot be availed of.
o Ground: to avoid a miscarrage of justice
REOPENING OF TRIAL o Who may avail: motu proprio or upon motion of the convicted
Ø Q: What is the reopening of trial in civil cases? What are the grounds will you accused
use? o Timframe: After judgment of conviction but before finality
o This remedy is not expressly provided under civil procedure. o Section 24, Rule 119. Reopening. — At any time before finality of
However, it is expressly recognized in criminal procedure after the judgment of conviction, the judge may, motu proprio or upon
conviction of the accused. It is prohibited in summary procedure and motion, with hearing in either case, reopen the proceedings to avoid
small claims. It is allowed in ordinary procedure. The rule that would a miscarrage of justice. The proceedings shall be terminated within
justify its existence is Sec. 5(f), Rule 30 because it allows the thirty (30) days from the order grating it
reception of evidence-in-chief during the stage of trial where only Ø Q: Why is it that in reopening of a case in civil case may be availed of by
rebuttal eveidence should be presented either party but in a criminal case it can be availed of only by the accused?
Ø Section 5, Rule 30. Order of trial. — Subject to the provisions of section 2 of o In civil cases, there has yet to be a rendition of judgment. In criminal
Rule 31, and unless the court for special reasons otherwise directs, the trial cases, reopening may be availed of only after a judgment of
shall be limited to the issues stated in the pre-trial order and shall proceed as conviction. Thus, only the accused may avail of the same. There is
follows: good sense that if there is acquittal, the Rule does not recognize
xxx reopening of case because it is founded upon the principal of double
jeopardy. If the accused is already acquitted, the prosecution can no
longer appeal. It becomes final and executory.

Ø Q: What are the grounds for reconsideration?

RULE 37 – MOTION FOR RECONSIDERATION/NEW TRIAL o Section 1, Rule 37. Within the same period, the aggrieved party may
Ø Q: Motion for reconsideration or new trial is available within the period to also move for reconsideration upon the grounds:
file an appeal. What is the period to file an appeal? (1) That the damages awarded are excessive,
o 15 days or 30 days from notice of the judgment. (2) That the evidence is insufficient to justify the decision or final
Ø GR: 15 days apply with respect to appeals filed by a notice of appeal order, or
Ø EXPN: 30 days apply to appeals that require a record on appeal, to wit: in (3) That the decision or final order is contrary to law.
special proceedings and other cases of multiple or separate appeals where law Ø Q: Aside from the clear difference between the 2 insofar as the grounds are
on Rules of Court so require concerned, state other differences between the 2 remedies.
o Section 39. Appeals. – The period for appeal from final orders, Motion for New Trial Motion for Reconsideration
nd
resolutions, awards, judgments, or decisions of any court in all cases As to rule on 2 motion Allowed, so long as based Second motion from the
shall be fifteen (15) days counted from the notice of the final order, on grounds not existing same party is prohibited
resolution, award, judgment, or decision appealed from: Provided or available at the time
st
however, That in habeas corpus cases, the period for appeal shall be the 1 motion was made
forty-eight (48) hours from the notice of the judgment appealed (newly discovered
from. evidence)
o No record on appeal shall be required to take an appeal. In lieu As to effect of granting The original judgment or If court finds excessive
thereof, the entire record shall be transmitted with all the pages final order will be damages have been awarded
prominently numbered consecutively, together with an index of the vacated. The case stands or that the judgment or final
contents thereof. for trial de novo and will order is contrary to evidence
o This section shall not apply in appeals in special proceedings and in be tried anew or law, it may amend such
other cases wherein multiple appeals are allowed under applicable judgment or final order
provisions of the Rules of Court. When available Available even on appeal Available against the
Ø Q: What about special civil actions like interpleader or certiorari, what is the but only on the ground of judgments or final orders of
period to appeal? They are not special proceedings. They are civil actions, newly discovered both the trial appellate
they are also special evidence courts
o The general rule shall still apply or within 15 days from rendition of When not allowed Both are prohibitedmotions under summary procedure
judgment or final order. Notwithstanding this, we must take also and smal claims
into consideration the non-appelable judgments/order under Sec. 1
Rule 41 Ø Q: Do we apply the omnibus motion rule for both motion for reconsideration
Q: What are the grounds for new trial? and new trial?
Ø Section 1, Rule 37. Grounds of and period for filing motion for new trial or nd
o It is applied to motion for reconsideration. Reason: a 2 MR is not
reconsideration. — Within the period for taking an appeal, the aggrieved party allowed
may move the trial court to set aside the judgment or final order and grant a nd
o It is not always applied in motion for new trial. Reason: a 2 MNT is
new trial for one or more of the following causes materially affecting the allowed so long as it is based on grounds not existing/available at
substantial rights of said party: st
the time the 1 motion was made, provided that the motions for
(1) Fraud, accident, mistake or excusable negligence which ordinary prudence new trial are based on different grounds
could not have guarded against and by reason of which such aggrieved party o Section 5, Rule 37. Second motion for new trial. — A motion for new
has probably been impaired in his rights (FAMEN); or trial shall include all grounds then available and those not so
(2) Newly discovered evidence, which he could not, with reasonable diligence, included shall be deemed waived. A second motion for new trial,
have discovered and produced at the trial, and which if presented would based on a ground not existing nor available when the first motion
probably alter the result.

was made, may be filed within the time herein provided excluding Ø (b) Execution of several, separate or partial judgments. — A several, separate
the time during which the first motion had been pending. or partial judgment may be executed under the same terms and conditions as
o No party shall be allowed a second motion for reconsideration of a execution of a judgment or final order pending appeal.
judgment or final order o Ground: good reasons
Ø Q: Why can’t we file 2 successive motions for reconsiderations? What if they o Timeframe: GR: after entry of judgment. EXPN: even before
are based on different grounds, is a second motion for reconsideration still expiration of period to appeal, provided that the trial court still has
not allowed? Why is it allowed in new trial but not in reconsideration? jurisdiction over the case and is in possession of either the original
o Reason: all the grounds for MR are available when the decision is record or the record on appeal
st
rendered whereas ain MNT they are not all available when the 1 Ø Q: What is the ground available for discretionary execution?
motion was filed. MNT o In discretionary execution, the winning party will just the same file a
Ø Q: In MNT, the movant is the losing party. Is it possible that in a civil case motion for execution, but Rule 39 provides that it may only issue
that both parties, plaintiffs and defendants, will consider themselves as upon good reasons to be stated in a special order after due hearing.
losing parties? Ø Q: What is the timeframe?
o If both are considerd as losing parties, meaning if they both are not o If a judgment has already been entered (meaning the period to
satisfied with the decision of the court despite the fact that one appeal already expired), the ordinary periods will apply
prevail over the other (i.e. the complaint for damages was granted § Execution by motion within 5 years counted from the
but the amount was reduced consideraby). entry of judgment
o However, Rule 37 is a remedy available to an “aggrieved party”. This § Petition for revival of judgment within 5 years thereafter
means, and also based on the grounds of MR or MNT, that they are o However, discretionary execution may be availed of even before the
remedies available only to the losing party. expiration of the period to appeal, while the trial court has
Ø Q: After a party has won but is not satisfied with the court’s decision, does jurisdiction over the case and is in possession of either the original
he have a remedy under the law? We can forget about Rule 37, 38 , appeals, record or the record on appeal
47. Can he make use of Rule 39? Is that a good advice? o You have to relate this what is referred to as Residual Jurisdiction of
o YES, although the judgment has not yet been rendered. Generally, if the trial court in appeals mentioned in Rule 41 or 42
a court rendered a judgment and the winning party seeks to execute o RESIDUAL JURISDICTION - the authority of the trial court to rule on
the judgment, the court has the ministerial duty to grant it because certain matters even if appeal is already perfected.
it is a matter of right. § With respect to ordinary appeals, Residual Jurisdiction
o However, there is such a thing as Discretionary Execution. In this lasts until the time the records are transmitted
case, the winning party insists that he is entitled to execution of an § With respect to petitions for review, Residual Jurisdiction
award different from that granted by the court. The court may or lasts until the Court of Appeals gives due course to the
may not grant it. appeal
Ø Section 2, Rule 39. Discretionary execution. — § Even if Rule 40 does not mention it, the MTC may exercise
(a) Execution of a judgment or final order pending appeal. — On motion of the Residual Jurisdiction while the case is on appeal with the
prevailing party with notice to the adverse party filed in the trial court while it RTC. Rule 41 by extension applies.
has jurisdiction over the case and is in possession of either the original record o Section 9, Rule 41. xxx
or the record on appeal, as the case may be, at the time of the filing of such o In either case (appeal by notice or by record), prior to the
motion, said court may, in its discretion, order execution of a judgment or transmittal of the original record or the record on appeal, the court
final order even before the expiration of the period to appeal. may issue orders for the protection and preservation of the rights
Ø After the trial court has lost jurisdiction the motion for execution pending of the parties which do not involve any matter litigated by the
appeal may be filed in the appellate court. appeal, approve compromises, permit appeals of indigent litigants,
Ø Discretionary execution may only issue upon good reasons to be stated in a order execution pending appeal in accordance with 2 of Rule 39,
special order after due hearing. and allow withdrawal of the appeal.

o Thus, a motion for execution may be granted even pending appeal

as long as there are good reasons and as long as the trial court still
has possession of the original record or record on appeal because if
they are already transmitted by the clerk of court to the appellate
court, the trial court loses its residual jurisdiction
Ø Q: When does the trial court lose jurisdiction over the case?
o Appeals by notice of appeal à upon filing of the notice in due time
in due time and expiration of period to appeal
o Appeals by record on appeal à upon approval of the record and
filed in due time and expiration of period to appeal
o Note: this is notwithstanding the trial court’s residual jurisdiction as
discussed above
o Section 9, Rule 41. Perfection of appeal; effect thereof. — A party's
appeal by notice of appeal is deemed perfected as to him upon the
filing of the notice of appeal in due time.
o A party's appeal by record on appeal is deemed perfected as to him
with respect to the subject matter thereof upon the approval of the
record on appeal filed in due time.
o In appeals by notice of appeal, the court loses jurisdiction over the
case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
o In appeals by record on appeal, the court loses jurisdiction only over
the subject matter thereof upon the approval of the records on
appeal filed in due time and the expiration of the appeal of the other
parties.
o xxx


Monday Class – January 30, 2017 o If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
RULE 39 – EXECUTION motion of the judgment obligee, submitting therewith certified true
Ø Q: You are the judgment creditor in a complaint for sum of money. You won copies of the judgment or judgments or final order or orders
the case and the court ordered the defendant to pay you 1 million pesos. You sought to be enforced and of the entry thereof, with notice to the
have secured from the Supreme Court an affirmation of the judgment adverse party.
appealed from. How do you recover the 1 million from the defendant? o The appellate court may, on motion in the same case, when the
o Move for the execution of the judgment interest of justice so requires, direct the court of origin to issue the
Ø Q: With what court? writ of execution
o From the court of origin Ø Q: If you move for execution in the SC, what advantage do you achieve?
Ø Q: In the example, what is the court of origin? o The SC will direct the court of origin to issue a writ of execution
o RTC because it has jurisdiction over money claims exceeding 300,000 without waiting for the records of the case to be returned
or 400,000 as the case may be. § Ground: when interest of justice so requires
Ø Q: For purposes of venue, your trial court should have been, where? Ø Q: Will the SC execute the judgment?
o A complaint for sum of money is a personal action. Under Rule 4, the o NO. The SC will merely direct the court of origin to execute the
venue for personal action is where the plaintiff or defendant resides, judgment
at the option of the plaintiff. In this case, it is the RTC where the Ø Q: So if you will file a motion for execution, you will eventually end up still in
plaintiff filed the complaint the trial court, is that it?
Ø Q: So for purposes of execution, will you file a motion with the court of o YES
origin? Why not with the SC? After all, the case reached the SC? Can the SC Ø Q: Can’t the SC execute the judgment without depending on the trial court?
grant execution? Won’t it take a considerable length of time since the court o ?
records were elevated to the SC and will take a while before they are Ø Q: Supposing during the pendency of the complaint, you were able to obtain
returned to the trial court? a writ of preliminary attachment. Will that help you in your quest for
o GR: The motion for execution should be filed with the COURT OF execution?
ORIGIN o ?
§ The SC shall not grant the execution. Appellate courts like Ø Q: After the case is decided, will the preliminary attachment become a final
the CA and SC do not usually execute judgment attachment automatically when the case is terminated and execution
§ So that you do no need to wait for the records to go be o ?
returned to the court of origin à Remedy under Rule 39: Ø Q: So you will be left with this option: to run after the properties subject to
the appellate court will simply issue a Certified True Copy preliminary attachment? Isn’t that putting limitations on your client’s right
of the entry of judgment which shall be submitted to the to enforce? An attachment must over an identified property of the
court of origin in order to be a basis of the granting of the defendant. If you limit the execution to that property, it means to say that
order of a motion for execution. This is enough proof that other properties of the debtor cannot be touched by the plaintiff anymore. Is
there really is a final and executory decision. this correct?
o EXPN: The winning party can file a motion with the APPELLATE o ?
COURT to direct the court of origin to issue the writ of execution o NO
when the interest of justice so requires o Discuss preliminary attachment
o Section 1, Rule 39. Execution upon judgments or final orders. — o Such attached property, if it is not sufficient to satisfy the execution,
Execution shall issue as a matter of right, or motion, upon a then the court may order execution of other property.
judgment or order that disposes of the action or proceeding upon o Example
the expiration of the period to appeal therefrom if no appeal has
been duly perfected.

Ø Q: If there is a third person who during the existence of the preliminary by the Solicitor General and if held liable therefor, the actual
attachment and informs the court that he holds the property, will that damages adjudged by the court shall be paid by the National
deprive the plaintiff of preliminary attachment? Treasurer out of such funds as may be appropriated for the purpose
o ? Ø Example:
Ø Q: What are the remedies provided for under the rules available to a third o For example, there is a car in the debtor’s garage. The same car was
party claimant? levied and executed. The sheriff was able to obtain possession of the
o 1. Summary hearing before the court which authorized the car. However, it turns out that debtor is not the true owner of the
execution car, but rather it is his neighbor’s. The neighbor can now file a third-
§ This is not expressly provided for under Rule 39 party claim
o 2. Terceria or third party claim filed with the sheriff o This is not the third-party complaint which is a pleading, but merely
o 3. Action for damages on the bond posted by judgment creditors requires the filing of the Affidavit of Third-Party Claim, proving that
o 4. Independent reinvidcatory action his title or interest in the property. He just submits an affidavit to
the court telling the court do not touch the property because I own
THIRD PARTY CLAIM the property
Ø Q: Discuss third party claim o The effect of the third party claim is that the sheriff is no longer
o A third person may file a Third Party Claim also known as Terceria bound to keep the property, and may deliver it to the third party
o Section 16, Rule 39. Proceedings where property claimed by third Ø RULES:
person. — If the property levied on is claimed by any person other o Third party claim is available if the property is LEVIED upon and a
than the judgment obligor or his agent, and such person makes an third person other than the judgment debtor is claiming title to or
AFFIDAVIT of his title thereto or right to the possession thereof, possession thereof.
stating the grounds of such right or title, and serves the same upon § If the property is levied, this means that property is in
the officer making the levy and copy thereof, upon the judgment custodial legis. The levying officer will take/keep the
obligee, the officer shall not be bound to keep the property, unless property for purposes of execution later on
RD
such judgment obligee, on demand of the officer, files a BOND o EFFECT IF A 3 PARTY CLAIM IS FILED:
approved by the court to indemnity the third-party claimant in a sum o GR: the executing officer is no longer bound to take or keep the
rd
not less than the value of the property levied on. In case of property. He may deliver it to the 3 party
rd
disagreement as to such value, the same shall be determined by the § If the officer takes/keeps it despite the 3 party claimà
rd
court issuing the writ of execution. No claim for damages for the he shall be liable for any damage suffered by the 3 party
taking or keeping of the property may be enforced against the claimant
bond unless the action therefor is filed within one hundred twenty o EXPN: unless the judgment creditor upon demand files a bond
(120) days from the date of the filing of the bond. approved by the court. The officer is now bound to keep the
o The officer shall not be liable for damages for the taking or keeping property. The bond shall answer for damages suffered by the 3rd
of the property, to any third-party claimant if such bond is filed. party claimant.
Nothing herein contained shall prevent such claimant or any third § If he takes or keeps the property, the 3rd party can file a
person from vindicating his claim to the property in a separate claim for damages suffered due to the keeping of the
action, or prevent the judgment obligee from claiming damages in property, provided: that the action is filed within 120 days
the same or a separate action against a third-party claimant who from the date of the filling of the bond
filed a frivolous or plainly spurious claim. § If the officer takes/keeps it: he shall not be liable for
o When the writ of execution is issued in favor of the Republic of the damages to any third-party claimant if such bond is filed
Philippines, or any officer duly representing it, the filing of such Ø Q: Will that issue be tried by the same court that tried your case?
bond shall not be required, and in case the sheriff or levying officer o NO. The affidavit is merely served upon:
is sued for damages as a result of the levy, he shall be represented 1. The officer making the levy

2. The judgment creditor o The pleadings in the Rules will not be made of use because the trial
o Rule 39 does not say that it is filed with the executing court has already been conducted and a judgment is already rendered.
rd
Ø Q: Do you need a separate case in 3 party claim? o Complaint-in-intervention is out of the question because the case
rd
o No. The 3 party claim is exclusive of the remedy by the claimant or has already been terminated. Moreover, Rule 19 will still require
of filing a separate action in order to vindicate his claim to the leave-of-court
rd
property Ø Q: Is the 3 party claimant a party to the case?
Ø Q: Insofar as the trial court is concerned, the preliminary attachment will o No, he is a stranger to the case who has right to possession or title
subsist. Is that it? over the property levied
rd
o Yes, it will still subsist Ø Q: Where else is the remedy of 3 party claim available?
rd
o The effect of a 3 -party party claim will not set aside a preliminary o Rule 57 – Preliminary Attachment
attachment. There is nothing stated in Rule 39 to that effect o Rule 60 – Replevin
Ø Q: When can the preliminary attachment be set aside? Who will order the Ø Q: What is the difference between the 3?
setting aside? o They are substantially the same. Third party claim in Rules 57 and 60
o ? are patterned over Rule 39
Ø Q: So if the preliminary attachment has not been set aside, can you go ahead o In Rule 39, there is already judgment and a writ is issued for Levy on
with execution? Or will execution be suspended? execution
o ? o In Rule 57, levy on attachment may be applied anytime and the
Ø Q: If execution will still be allowed to push through despite the fact that the same shall remain in the custody of the sheriff
rd rd
3 party has filed a third party claim, the effect would be that the 3 party o In Rule 60, there is 5 day holding period
claim will be ignored, is that it? o In Rule 57, the applicant will file an attachment bond. The defendant
rd
o No. Execution may still push through. But if a 3 party is subject to a can file a counter bond in the amount of the attachment bond
preliminary attachment, the officer will no longer be bound to keep o In Rule 60, the replevin bond of the applicant is double the value of
the property. Thus, he will have to look for other properties the property. The defendant can file a counterbond double the value
Ø Q: If execution will still push thru, this means that we are foreclosing a of the property WITHIN 5 DAYS while the same is in custody of the
remedy from a third party claim. If it is real property, there will be a sale on sheriff (so that’s what the holding period is for)
rd
public auction. Can the third-party avail of redemption? Ø Q: Can the judgment creditor just ignore the 3 -party claim and go on with
o No. This is available only to the judgment debtor or his assigns or the execution?
any party who has an encumbrance over the property Ø Q: Is it the execution court which shall ultimately resolve the merit of a third-
o The third party claimant does not have an encumbrance over the party claim? Will the trial court conduct a hearing in order to determine the
property. He claims to be the owner of the property validity of a 3 party claim? Remember the case has already been decided and
Ø Q: In personal property, is redemption allowed? has become final and executory. Why should the court conduct another
rd
o No. Redemption is not allowed to recover personal property series of hearings for the purpose of determining the validity of the 3 party
Ø Q: How about appeal is it a remedy? claim
rd
o No. Appeal is only available to the parties. The 3 party claimant is a o NO, the third party claim is not filed with the court. The court will
non-litigant. not conduct hearings as to whether or not it is meritorious. Not even
o There is no final order or judgment to appeal from the levying officer may determine the propriety of a third party
rd
Ø Q: Is this 3 party claim is a pleading? What pleading will the claimant use? claim
rd
Does he use the pleadings in the Rules like a complaint-in intervention? o The court’s role in a 3 party claim is limited: if the officer requires
rd
o NO. The 3 party claimant is merely required to make an AFFIDAVIT the judgment creditor is to file a bond to indemnity the third-party
stating the grounds to his right or title and serve the same upon the claimant, the bond must be approved by the court in a sum not less
levying officer and a copy to the judgment creditor. than the value of the property levied on. In case of disagreement as

to such value, the same shall be determined by the court issuing the judicata res judicata
writ of execution.
o The trial court cannot resolve the issue on ownership or any other Ø Q: Which court has jurisdiction over the separate complaints?
issue for that matter because this is not the issue raised in the o Recover of personal property: under B.P. 129, it will depend on the
pleadings. It cannot conduct another hearing ymore since the case is value of the personal property. If it does not exceeding 300,000
already terminated (outside Metro Manila) or 400,000 (within Metro Manila), it is the
rd
Ø Q: What are the REMEDIES of the 3 party if the officer keeps the property MTC. If it exceeds 300,000 (outside Metro Manila) or 400,000
rd
under the rules notwithstanding a 3 party claim? (within Metro Manila), then it is the RTC. The amount
rd
o 1. File an action for damages against the officer for the unlawful levy declared/alleged by the 3 party claimant will be the value in
of the property determining which court has jurisdiction.
o 2. This is notwithstanding the remedy of the third party is to § Petition for replevin
vindicate his claim in a separate action (i.e. Accion publiciana, Accion o Recovery of real property: It will depend on the ASSESSED VALUE of
reinvidicatoria for recovery of real property or a petition for replevin the real property. If it does not exceeding 20,000 (outside Metro
for personal property) Manila) or 50,000 (within Metro Manila), it is the MTC. If it exceeds
Ø Q: But if the claim is filed in another court, isn’t that barred by res judicata? 20,000 (outside Metro Manila) or 50,000 (within Metro Manila),
o No. The elements of res judicata are: then it is the RTC.
§ 3 essential elements: § Accion Publiciana/Reinvidicatoria
1. Identity of parties   Ø Q: But replevin is just a provisional remedy under the rules, isn’t it? Is it
2. Identity of causes of action   possible to be filed as a principal action? Is it possible to be both a principal
3. Identity of subject matter   action and a provisional remedy? If you make use of replevin as a principal
§ Besides these identity elements, there should also be: action, can you still make use of replevin as a provisional remedy?
1. A competent court;   o Generally, the rules consider it as a provisional remedy. There is a
2. An adjudication on the merits; and   main case
3. The decision must have become final and executory. o ?
 
o In this case, the third party claim will not result to res judicata. Its EXECUTION AS A MATTER OF RIGHT VS. AS A MATTER OF DISCRETION
effect is that the sheriff is not bound to keep the property levied. Ø Q: If the execution court makes a levy on real or personal property,
There is no identity of parties, causes of action or subject matter. simultaneously, is that allowed under Rule 39?
Also, there is no adjudication upon the merits Ø Q: How do you expect the sheriff or the creditor to make an ascertainment
§ Assuming that the third party claimant availed of a that the levy on real or personal property will not be sufficient to have full
summary hearing, this does not constitute an adjudication satisfaction of the claim?
upon the merits Ø Q: So there will be no end to levy of property of the debtor until the
o If a separate case is filed in another court, this is a new issue judgment is fully satisfied?
altogether for the possession or recovery of the property. There is Ø Q: Do we apply literally apply the civil code provision which says that the
no re-litigation. Res Judicata does not set in. debtor is liable to pay his creditor with ALL his present and future properties?
rd
3 party claim Separate complaint That is what the civil code provides when a person has an indebtedness
rd
Filed by 3 party with the levying sheriff
rd
Filed by 3 party with a court o No. While it is true that both present and future properties of the
debtor may be executed upon, there are certain properties of the
The sheriff will not resolve issue on The court can resolve the issue on
debtor that cannot be touched by the court. They are exempt from
possession or ownership. Effect is that he possession or ownership
execution
is not bound to keep the property
Sheriff will not render a judgment. No res Court can render a judgment. Gives rise to

o Section 13, Rule 39. Property exempt from execution. — Except as § This is execution AS A RIGHT. It is the ministerial duty of
otherwise expressly provided by law, the following property, and no the court to issue a writ of execution. It cannot deny
other, shall be exempt from execution: otherwise it will act improperly. If the court denies the
o (a) The judgment obligor's family home as provided by law, or the motion, the judgment creditor can file a petition for
homestead in which he resides, and land necessarily used in Mandamus under Rule 65
connection therewith; o If execution by independent action (which is known as a petition for
o (b) Ordinary tools and implements personally used by him in his Revival of Judgment) à filed after 5 years has passed from the entry
trade, employment, or livelihood; of judgment but not exceeding 5 years thereafter.
o (c) Three horses, or three cows, or three carabaos, or other beasts of o Under the civil code, the prescriptive period to execute a judgment
burden, such as the judgment obligor may select necessarily used by is 10 years. The rules of court in effect divided this period.
him in his ordinary occupation; o Section 6, Rule 39. Execution by motion or by independent action.
o (d) His necessary clothing and articles for ordinary personal use, — A final and executory judgment or order may be executed on
excluding jewelry; motion within five (5) years from the date of its entry. After the
o (e) Household furniture and utensils necessary for housekeeping, lapse of such time, and before it is barred by the statute of
and used for that purpose by the judgment obligor and his family, limitations, a judgment may be enforced by action. The revived
such as the judgment obligor may select, of a value not exceeding judgment may also be enforced by motion within five (5) years from
one hundred thousand pesos; the date of its entry and thereafter by action before it is barred by
o (f) Provisions for individual or family use sufficient for four months; the statute of limitations.
o (g) The professional libraries and equipment of judges, lawyers, Ø Q: Isn’t that contrary to civil law? Under civil law, a person has 10 years to
physicians, pharmacists, dentists, engineers, surveyors, clergymen, execute a judgment AS A RIGHT. But why does Rule 39 provide for a 5 year
teachers, and other professionals, not exceeding three hundred period to execute as a right? Does this in effect lessen the substantive rights
thousand pesos in value; of a creditor? How do you reconcile this?
o (h) One fishing boat and accessories not exceeding the total value of o What Rule 39 has provided was to divide the 10 years into two parts;
one hundred thousand pesos owned by a fisherman and by the the first five years, and the second five years. Meaning, the first five
lawful use of which he earns his livelihood; years, we can execute the judgment via a motion for execution.
o (i) So much of the salaries, wages, or earnings of the judgment After the lapse of the first five year period, the judgment creditor
obligor for his personal services within the four months preceding cannot file a motion for execution. If he does so, the court will deny
the levy as are necessary for the support of his family; the motion since the court will no longer have the authority to grant
o (j) Lettered gravestones; the motion of execution. The second 5-year period is designed to
o (k) Monies, benefits, privileges, or annuities accruing or in any force the judgment creditor to file a separate independent action to
manner growing out of any life insurance; revive the judgment. So the motion for execution should be filed
o (l) The right to receive legal support, or money or property obtained within the first five years of the 10-year period
as such support, or any pension or gratuity from the Government; Ø Q: Is there no instance wherein the denial of a motion for execution filed
o (m) Properties specially exempted by law. within the 5-year period is allowed as an exception according to
o But no article or species of property mentioned in this section shall jurisprudence?
be exempt from execution issued upon a judgment recovered for its o GR: Issuance of a writ for execution is the ministerial duty of the
price or upon a judgment of foreclosure of a mortgage thereon court
Ø Q: Does the creditor enjoy an uninterrupted period of time to exercise his o EXPNs: Issuance of a writ is discretionary according to jurisprudence
right to ask for execution? (in these cases, the court will deny the motion):
o No. He does not have an unlimited period of time to ask for 1. If the judgment has become dormant - this means the first five
execution AS A RIGHT years for executing the judgment has already lapsed. The
o If execution by motion à within 5 years from the entry of judgment execution of the final judgment cannot be granted via a motion.

The judgment creditor must avail of the independent action of REVIVAL OF A DORMANT JUDGMENT (SEC. 6, RULE 39)
revival of judgment to revive a dormant judgment. Ø Q: With what court do we file a revival of judgment?
2. When the parties enter into a compromise agreement after o RTC because it is incapable of pecuniary estimation
the judgment has become final and executory. If there is a Ø Q: Will the same rules on venue applied in the old case between the debtor
compromise agreement signed by both parties whose terms and creditor apply in the petition for revival
are not consistent with the award given, the effect will be o Yes
novating the judgment. The court will no longer grant a motion o If the original action is a real action, the action to revive that
for execution since there is nothing to execute. The parties may judgment will also be a real action. Since it is a real action, in Rule 4,
agree to change the terms of the dispositive portion of the the venue of the action will now be determined by the place where
judgment. This is an application of novation being a mode of the property is located. Thus, the revival of action will be filed in the
extinguishment of an obligation under the NCC court having jurisdiction over the place where the property is
3. Dean J: When the execution sought is not In accordance with situated.
the tenor of the judgment. I.e. if the judgment of the court o If the original action is personal action, the action to revive the
says that A and B are liable for 1M pesos. If we rely on the judgment will also be a personal action subject to the Rule 4
tenor of the judgment and apply civil law, the liability of A and Ø Q: Is the revival court different from the court which rendered the judgment?
B will be joint. But if the writ of execution says that A and B Wont this affect the validity of the proceedings?
should pay 1M as solidary debtors, that will change the tenor of o Yes, they could be different courts.
the judgment. This is void. The execution court must only Ø Q: Can the revival court deny a final and executory judgment? Or will it be
execute the dispositive portion of the judgment. (Note: this is the ministerial duty of the court to revive? How do you call the judgment
actually a ground to quash the writ of execution that has that needs revival?
already been issued) o Yes
o A Motion to Quash may be filed to quash the writ of execution o The Rules do not provide if revival of a dormant judgment is a
already filed on the following grounds: ministerial or discretionary. However, there may be instance
1. When the writ of execution varies the judgment; wherein the court dismiss the case
2. When there has been a change in the situation of the parties o Dormant Judgment – one that is not executed by motion as a
making the execution inequitable or unjust; matter of right within 5 years from the entry of judgment
3. When execution is sought to be enforced against a property Ø Q: Can the revival court resolve the in favor of the defendant? Can it Dismiss
exempt from execution; the case? For example, the plaintiff (the judgment creditor) files an action for
4. When it appears that the controversy has never been revival but fails to prosecute for an unreasonable length of time, can it be
submitted to the judgment of the court; dismissed under Rule 17?
5. When the terms of the judgment are not clear enough and o The petition in the ‘revival court’ is not really a revival of the old
there remains room for interpretation thereof; action. It is an independently new action altogether
6. When it appears that the writ of execution has been o The court can dismiss the case under Rule 17 (or Rule 16 or Rule 18)
improvidently issued; When it appears that the writ of for that matter. Otherwise, we will have a case that will be immune
execution is defective in substance, or is issued against the from the applicability of these rules which are applicable to all civil
wrong party, or that the judgment debt has been paid or actions.
otherwise satisfied or the writ is issued without authority. o In other words, the revival of judgment is subject to all the
o Under Sec. 2, Rule 39, there are two instances of Discretionary provisions on ordinary civil cases so that there is nothing wrong if
Execution: the court dismisses the complaint
1. Execution of a judgment or final order pending appeal. o Therefore, the case can be dismissed in if any of the grounds under
2. Execution of several, separate or partial judgment the Rules are present, such as:
§ If any of the grounds to dismiss under Rule 16 are present

§ If any of the instances to dismiss the complaint under Rule Ø Q: What are the other remedies of the creditor under Rule 39? In a case to
17 arise recover the amount of 1,000,000. The creditor was only able to recover
§ If he does not submit the pre-trial brief, fails to appear in 500,000. Are there remedies still available aside from the remedy of revival
the pre-trial under Rule 18 of judgment?
o Note: in revival of judgment, since there is a new case and the rules o 4 remedies if the judgment is NOT fully satisfied:
of court will apply, there will be pre-trial, trial, judgment. Thus, o 1. Revival of judgment – we should not resort to this right away
execution is no longer a matter of right but it is a matter of o 2. Examination of the judgment debtor when judgment unsatisfied
discretion § Section 36, Rule 39. Examination of judgment obligor
Ø Q: If the trial court issues a writ of execution, for example a claim of money, when judgment unsatisfied. — When the return of a writ
that writ of execution will be valid for how many years? of execution issued against property of a judgment
o ? obligor, or any one of several obligors in the same
o 5 years. judgment, shows that the judgment remains unsatisfied,
Ø Q: So within that 5 years, the sheriff can enforce the writ? in whole or in part, the judgment obligee, at any time after
o ? such return is made, shall be entitled to an order from the
o Yes court which rendered the said judgment, requiring such
Ø Q: If the sheriff fails to enforce the writ within the 5-year period, does this judgment obligor to appear and be examined concerning
mean that the sheriff is liable for non-enforcement of the writ? Are we going his property and income before such court or before a
to make him shoulder the amount of paying the creditor? If not, what is the commissioner appointed by it at a specified time and
remedy? place; and proceedings may thereupon be had for the
o Also revival of judgment application of the property and income of the judgment
o If the rules give to the creditor the remedy of revival, this remedy obligor towards the satisfaction of the judgment. But no
will never be lost. Because if there is a revived judgment, we follow judgment obligor shall be so required to appear before a
again the two 5-year periods. First 5 years by motion, second 5-years court or commissioner outside the province or city in
by independent action. Reason: since a revival of judgment is a new which such obligor resides or is found
case, the resulting judgment that follows is a new decision which will o 3. Examination of the debtor of a judgment debtor
be given the right to execute a new in accordance with the two 5- § Section 37, Rule 39. Examination of obligor of judgment
year periods obligor. — When the return of a writ of execution against
o So this is a case of revival of a revived judgment. It is possible that the property of a judgment obligor shows that the
there will be no end to execution. judgment remain unsatisfied, in whole or in part, and upon
Ø Q: Is there a limitation under the rules about the number of revivals that can proof to the satisfaction of the court which issued the writ,
be filed by the same creditor against the debtor? that a person, corporation, or other juridical entity has
o OLD RULE: decisions promulgated by the Supreme Court prior to the property of such judgment obligor or is indebted to him,
ROC are to the effect that there is a limit: only allowed as to the first the court may, by an order, require such person,
revival of judgment. This is no longer applicable corporation, or other juridical entity, or any officer, or
o NEW RULE: There is no such limitations as to number of revivals member thereof, to appear before the court or a
under the Rules. And the rules cannot give a a limitations. Reason: commissioner appointed by it, at a time and place within
the revived judgment is an altogether new judgment. Thus, the the province or city where such debtor resides or is found,
number of times that a party can revive a case is unlimited, as the and be examined concerning the same. The service of the
Rules are presently worded order shall bind all credits due the judgment obligor and
all money and property of the judgment obligor in the
REMEDIES WHEN EXECUTION DOES NOT FULLY SATISFY THE JUDGMENT DEBT possession or in the control of such person corporation, or
juridical entity from the time of service; and the court may

also require notice of such proceedings to be given to any Ø Q: Explain how annulment of judgment can cause a delay in the execution
party to the action in such manner as it may deem proper. under Rule 39 and that delay in turn will justify the extension of the period to
(39a) more than 5 years
o 4. Appointment of receiver o In Rule 47, a party can move for the injunction even though the
§ Section 41, Rule 39. Appointment of receiver. — The court judgment is already final and executory provided that it is filed
may appoint a receiver of the property of the judgment within the time frame which is 4 years with respect to extrinsic fraud
obligor; and it may also forbid a transfer or other and before estoppel. Because 4 years is covered under the 5 year
disposition of, or any interference with, the property of period to file a motion for execution, it is valid. The annulling court
the judgment obligor not exempt from execution. (43a) will be CA or RTC as the case may be. Injunction is valid although
Ø Q: So aside from the revival of judgment, there are 3 other remedies. Is there execution is a matter of right
no inconsistency now? Since the Rules provide for a second 5-year period and o If the executing court is MTC, the RTC where the petition for
then it talks about other remedies such us examination of a judgment annulment is filed may issue the injunction
debtor. What do we tell the creditor which remedy to use? We cannot tell o If the executing court is RTC, the CA where the petition for
the creditor to make us of all, isn’t it? There will confusion as to the remedy annulment is filed will issue the injunction
in the execution proceedings o Mere filing of a petition for annulment will NOT stay the execution
o ? in the trial. Injunction must be applied for in the petition for
o First 5 years – avail of the other remedies annulment (you cannot file injunction separate from the main
o Second 5 years – avail of revival petition otherwise you will commit splitting of COA).
Ø Q: Is the 5-year period within which to file a motion for execution Notwithstanding the fact that in the procedure for annulment the
extendible/flexible? For example the period can be extended to say 6, 7, 8 trial court will be served a copy of the petition and will have a good
years to file a motion for execution without the necessity of filing an reason not to push through with execution pending the petition for
independent action for revival of judgment? How is that possible? The rules annulment, still an injunction must always be applied for with the
do not provide for any extension court where the petition is filed. Injunction here is not a principal
o It is an accepted doctrine that the 5-year execution period can be relief, but a provisional remedy which must satisfy the requirements
extended under Rule 58
o The SC justifies the extension only in certain instances o Section 9, Rule 47. Relief available. — The judgment of annulment
o Levy done within the 5-year period - according to the SC, the first 5- may include the award of damages, attorney's fees and other relief.
year period does not require that the actual levy and sale of o If the questioned judgment or final order or resolution had already
property on public auction must be done within the first five years. been executed the court may issue such orders of restitution or
What is important is that within the first 5 years, there must be an other relief as justice and equity may warrant under the
actual levy of the properties of the judgment debtor, even if the circumstances.
auction sale was conducted in the sixth year. Levy is the actual act of o In Rule 38, petition for relief, the petitioner can also move for the
carrying out the judgment. issuance of writ of injunction despite the judgment is final and
o Injunction - one way of extending is by Injunction. This is difficult executory. The injunction will be directed to the sheriff of the court
because when a judgment becomes final and executory, execution is o Section 5, Rule 38. Preliminary injunction pending proceedings. —
a matter of right which is compellable by mandamus. Why is it that The court in which the petition is filed may grant such preliminary
injunction is that injunction will extend the period? injunction as may be necessary for the preservation of the rights of
§ Rule 47 in rel. to Rule 58– injunction in annulment of the parties, upon the filing by the petitioner of a bond in favor of the
judgment adverse party, conditioned that if the petition is dismissed or the
§ Rule 38 in rel. to Rule 58 – injunction in petition for relief petitioner fails on the trial of the case upon its merits, he will pay
o Revival of a judgment under 34 the adverse party all damages and costs that may be awarded to him
by reason of the issuance of such injunction or the other

proceedings following the petition, but such injunction shall not § Old rule: as long as the case is pending
operate to discharge or extinguish any lien which the adverse party § New rule: SC circular provides an amendment to Rule 58 .
may have acquired upon, the property, of the petitioner. If the TRO/Injunction is issued by the MTC, RTC, CA, it will
Ø Q: So what are the requirements that you have to comply with in Rule 58 in be their duty to make sure that the principal action will be
order that you may seek for an injunction as a provisional remedy to the resolved within 6 months to determine whether the
principal action of either Rule 47 or Rule 38? preliminary injunction will be a permanent injunction or
o TRO – prohibitory in character will be set aside
o Writ of preliminary injunction – 1. To prohibit. 2. To compel o The trial court, the Court of Appeals, the Sandiganbyan or the Court
(preliminary mandatory injunction) of Tax Appeals that issued a writ of preliminary injunction against a
o Usually, you avail of both TRO and preliminary injunction lower court, board, officer, or quasi-judicial agency shall decide the
o Procedure: Sec 5., Rule 58 main case or petition within six (6) months from the issuance of the
o GR: In Injunction, there is always requirement for hearing writ. (Sec. 5, Rule 58, as amended by A.M. 07-7-12-SC)
o EXPN: Ex parte issuance if there is continuing damage
§ The law authorizes Ex parte issuance ONLY WITH RESPECT REVIVAL OF JUDGMENT ALREADY EXECUTED (SEC. 34, RULE 39)
TO TRO. The exception does not apply to P.I. Ø Q: Explain the scenario of a revival of judgment under Sec. 34
§ The TRO shall issue ex parte if there is irreparable injury o For example, the judgment awarding 1 million was executed thru
which requires immediate action. It is good for 20 days sale by public auction. A emerged as the highest bidder and paid 1
counted from the time of issuance. There is a requirement million. The money was delivered to the creditor. However, the
for a posting of a bond. Within this 20-day period, the highest bidder was not able to acquire possession of the purchased
court is expected to conduct hearing to determine WON property because of the reasons enumerated under Sec. 34. Thus,
P.I. will be issued the sale is not effective.
o TRO’s purpose: opportunity to determine the issuance of P.I. is o When the sale was not effective, there are 2 remedies under Sec.
proper. The period of TRO is ‘short-lived’ because its life is only for 34. The purchaser may either:
20 days counted from the time that the relief is granted 1. File a motion in the same action or file a separate action to
§ GR: 20 day period is inextendible, otherwise it will become recover the purchase price from the judgment creditor; or
in effect a P.I. which REQUIRES A HEARING 2. File a motion for Revival of Judgment in his name for the
§ EXPN: The TRO may be issued for more than 20 days only purchase price against the judgment debtor
if it is issued by the CA, it is 60 days inextendible. If it is a. The judgment so revived shall have the same force
issued by the SC, the TRO is effectively a preliminary and effect as an original judgment would have as of
injunction because its may be effective until further orders the date of the revival and no more.
since SC is the author of the ROC. However, the SC should Ø Section 34, Rule 39. Recovery of price if sale not effective; revival of
see to it that the main action must be resolved within 6 judgment. — If the purchaser of real property sold on execution, or his
months. successor in interest, fails to recover the possession thereof, or is evicted
• In sum: therefrom, in consequence of irregularities in the proceedings concerning the
• TRO: sale, or because the judgment has been reversed or set aside, or because the
o MTC/RTC - 20 days property sold was exempt from execution, or because a third person has
o CA – 60 days vindicated his claim to the property, he may on motion in the same action or
o SC – effective until further orders in a separate action recover from the judgment obligee the price paid, with
• PI: interest, or so much thereof as has not been delivered to the judgment
o All courts à 6 months obligor, or he may, on motion, have the original JUDGMENT REVIVED in his
o If the issuance of a Preliminary Injunction is proper, it will be valid name for the whole price with interest, or so much thereof as has been
for a period of: delivered to the judgment obligor. The judgment so revived shall have the

same force and effect as an original judgment would have as of the date of acquire the property
the revival and no more. purchased at the auction sale
Ø Q: Why don’t you just tell the highest bidder to file an replevin or accion even if he already paid the
publiciana or reinvidicatoria and not revival of judgment? price to the judgment creditor
o Because revival of judgment is a better remedy since it is done by
mere motion
Ø Q: Are we still in the first 5-year period or are we in the second 5-year period
under Sec. 34?
o First 5-year period
Ø Q: Why is the highest bidder the person who avails of the remedy and not
the judgment creditor?
o Because the judgment creditor has already recovered the judgment
debt paid by the highest bidder. The highest bidder steps into the
shoes of the judgment creditor and revives the judgment against the
judgment debtor
Ø Q: The judgment revived shall have the same force and effect as an original
judgment. Isn’t this a more tedious process? Once there is judgment there
will be execution all over again isn’t it? What do you expect the highest
bidder to do if the judgment is revived?
o If the judgment is revived in his favor, he will now be entitled to the
purchase price that he paid with interest. He will recover the money
paid by simply executing the judgment all over again
Ø Q: What now is the difference between revival of judgment under Sec. 6 and
Sec. 34?
Revival of Judgment - Sec. 6 Revival of Judgment – Sec. 34
As to commencement By independent action for By mere motion for revival of
revival of judgment judgment before the court
which rendered the judgment
As to execution of After the lapse of 5 years Judgment of revival wherein
judgment by mere from entry of judgment execution was made within 5
motion because execution by years from entry
motion is no longer allowed
As to person who Judgment creditor, his The highest bidder in the
avails the remedy assigns, or successors-in- public auction sale (he may or
interest à against the may not be the judgment
judgment debtor creditor) à against the
judgment debtor
As to purpose Filed to revive a dormant Filed to revive judgment in
judgment the name of the highest
bidder so that he may recover
from the judgment debtor
since he wasn’t able to

o Ask to the court where the deponent has no viatory right to issue a
subpoena ad testificandum to compel him to be deposed. Such court
Fourth meeting: February 4, 2017 will be the one to depose the person
o Example: Court is in Manila. But the deponent lives in Cebu City.
MODES OF DISCCOVERY (RULE 23-29) Apply to the courts in Cebu to depose the person.
Ø Q: Do you need leave of court before availing of the modes of discovery? o Dean J: this time the applicant will need LOC so that the deposing
o GR: It depends. Before an answer is filed, you need LOC. But after an court will take a deposition where the deponent has no viatory right
answer is filed, you no longer need LOC. Ø Q: What are the protective mechanisms given to a deponent?
o EXPN: There are 3 MOD which always need LOC before they can be o ORDER FOR PROTECTION OF PARTIES AND DEPONENTS – purpose:
availed of, to wit: to protect the party or witness from annoyance, embarrassment, or
1. Production and inspection of documents or things oppression.
2. Physical or mental examination of persons § Section 16, Rule 23. Orders for the protection of parties
3. Deposition of prisoners and deponents. — After notice is served for taking a
Ø Q: Do we use these modes in all cases? deposition by oral examination, upon motion seasonably
o Yes made by any party or by the person to be examined and
Ø Q: Can you make use of them also in criminal cases? for good cause shown, the court in which the action is
o Yes, but its availment and use are more restricted. Ex: X, the accused pending may make an order:
cannot be compelled by the prosecution to be deposed. Otherwise, 1. That the deposition shall not be taken, or
his constitutional right against self-incrimination will be violated. 2. That it may be taken only at some designated place
Ø Q: Can you compel X’s wife to be deposed? other than that stated in the notice, or
o No, with respect to confidential privilege. This is covered under the 3. That it may be taken only on written interrogatories,
evidentiary rule on Marital Privilege or
Ø Q: Can you compel the children of X to be deposed? 4. That certain matters shall not be inquired into, or that
o No. This is covered under the evidentiary rule on Filial Privilege the scope of the examination shall be held with no
one present except the parties to the action and their
RULES 23 & 24 – DEPOSITIONS officers or counsel, or
Ø The testimony of any person, whether a party or not, may be taken, at the 5. That after being sealed the deposition shall be
instance of any party, by deposition upon: opened only by order of the court, or
1. Oral examination or 6. That secret processes, developments, or research
2. Written interrogatories need not be disclosed, or that the parties shall
Ø Q: If a party is deposed, can he still be compelled to testify later on? simultaneously file specified documents or
o YES. Deposition will not preclude the taking of testimony later on. information enclosed in sealed envelopes to be
The purpose of deposition is to obtain information relevant to a case opened as directed by the court or
whereas testimony is for the purpose of taking evidence 7. The court may make any other order which justice
o A person can only be excused from testifying if he has a viatory requires to protect the party or witness from
right annoyance, embarrassment, or oppression.
o VIATORY RIGHT – the right of the person not to be deposed if he o MOTION TO TERMINATE OR LIMIT EXAMINATION – ground: the
resides more than 100KM from the place of deposition by the examination is being conducted in bad faith or in such manner as
ordinary means of travel (this means travel by land) unreasonably to annoy, embarrass, or oppress the deponent or
Ø Q: How can you defeat a viatory right? party
§ Section 18, Rule 23. Motion to terminate or limit
examination. — At any time during the taking of the

deposition, on motion or petition of any party or of the o If they are formally offered, then they may form part of the evidence
deponent, and upon a showing that the examination is of a party. They are admissible, if they are relevant to the fact in
being conducted in bad faith or in such manner as issue, and that they are competent, meaning that they are not
unreasonably to annoy, embarrass, or oppress the excluded by the law or rules (I.e. excluded because they are
deponent or party, the court in which the action is pending privileged)
or the Regional Trial Court of the place where the o Section 3, Rule 128. Admissibility of evidence. — Evidence is
deposition is being taken may order the officer conducting admissible when it is Relevant to the issue and is not excluded by
the examination to cease forthwith from taking the the law of these rules. (Competent)
deposition, or may limit the scope and manner of the Ø Q: For instance, when the deposition is offered as evidence, the adverse
taking of the deposition, as provided in section 16 of this party objects it on the ground that it is hearsay. What is the effect?
Rule. If the order made terminates the examination, it o The question and answer which is objected as hearsay and is
shall be resumed thereafter only upon the order of the sustained shall not be considered in evidence because it is
court in which the action is pending. Upon demand of the inadmissible without, however, affecting the other questions and
objecting party or deponent, the taking of the deposition answers which are not objectionable
shall be suspended for the time necessary to make a
notice for an order. In granting or refusing such order, the RULE 25 – INTERROGATORIES TO PARTIES
court may impose upon either party or upon the witness Ø Any party desiring to elicit material and relevant facts from any adverse
the requirement to pay such costs or expenses as the parties shall file and serve upon the latter written interrogatories to be
court may deem reasonable. answered by the party served or, if the party served is a public or private
Ø Q: Deposition will be more problematic if the person to be deposed is a corporation or a partnership or association, by any officer thereof competent
resident of a foreign country, i.e. Taiwan. Can he still be deposed? to testify in its behalf
o YES. Section 11, Rule 23. Persons before whom depositions may be Ø Q: Does this apply only to a party to a case?
taken in foreign countries. — In a foreign state or country, o YES. It can only be availed of by a party to the case against the
depositions may be taken (a) on notice before a secretary of opposing party
embassy or legation, consul general, consul, vice-consul, or consular Ø Q: Can the parties compel one another to be witnesses against each other?
agent of the Republic of the Philippines, (b) before such person or o Civil cases – YES
officer as may be appointed by commission or under letters o Criminal cases – NO. Reason: Constitutional right against self-
rogatory; or (c) the person referred to in section 14 hereof. incrimination
Ø Q: What are the 2 ways? Ø Q: So there is no reason to compel him to testify since the party can always
o 1. COMMISSION – an order against an appointed officer (See: Sec. avail of interrogatories?
11) in the foreign country Ø Q: If the defendant does not answer or say that he is willing to answer, what
o 2. LETTERS ROGATORY – a mere request addressed to the judicial is the effect?
authorities in the foreign country o He can object
o Section 12, Rule 23. Commission or letters rogatory. — A o Section 3, Rule 25. Objections to interrogatories. — Objections to
commission or letters rogatory shall be issued only when necessary any interrogatories may be presented to the court within ten (10)
or convenient, on application and notice, and on such terms, and days after service thereof, with notice as in case of a motion; and
with such direction as are just and appropriate. Officers may be answers shall be deferred until the objections are resolved, which
designated in notices or commissions either by name or descriptive shall be at as early a time as is practicable.
title and letters rogatory may be addressed to the appropriate Ø Q: What if the defendant refuses to answer what is the remedy of the
judicial authority in the foreign country plaintiff?
Ø Q: What is the evidentiary value of a deposition? Are they admissible? o ORDER TO COMPEL AN ANSWER

§ Section 1, Rule 29. Refusal to answer. — If a party or other o Section 3, Rule 29. Other consequences. — If any party or an officer
deponent refuses to answer any question upon oral or managing agent of a party refuses to obey an order made under
examination, the examination may be completed on other section 1 of this Rule requiring him to answer designated questions,
matters or adjourned as the proponent of the question or an order under Rule 27 to produce any document or other thing
may prefer. The proponent may thereafter apply to the for inspection, copying, or photographing or to permit it to be done,
proper court of the place where the deposition is being or to permit entry upon land or other property or an order made
taken, for an order to compel an answer. The same under Rule 28 requiring him to submit to a physical or mental
procedure may be availed of when a party or a witness examination, the court may make such orders in regard to the
refuses to answer any interrogatory submitted under refusal as are just, and among others the following:
Rules 23 or 25. § Note: these consequences arise if Rules 23, 25, 27, or 28
§ Note: this remedy is available both in Deposition before are not complied with.
action and Interrogatories of parties o (a) An order that the matters regarding which the questions were
o If GRANTED + refusal is not justified à ask for REASONABLE asked, or the character or description of the thing or land, or the
EXPENSES + ATTYS. FEES contents of the paper, or the physical or mental condition of the
§ If the application is granted, the court shall require the party, or any other designated facts shall be taken to be established
refusing party or deponent to answer the question or for the purposes of the action in accordance with the claim of the
interrogatory and if it also finds that the refusal to answer party obtaining the order;
was without substantial justification, it may require the o (b) An order refusing to allow the disobedient party to support or
refusing party or deponent or the counsel advising the oppose designated claims or defenses or prohibiting him from
refusal, or both of them, to pay the proponent the amount introducing in evidence designated documents or things or items of
of the reasonable expenses incurred in obtaining the testimony, or from introducing evidence of physical or mental
order, including attorney's fees. condition;
§ If the application is denied and the court finds that it was o (c) An order striking out pleadings or parts thereof, or staying
filed without substantial justification, the court may further proceedings until the order is obeyed, or dismissing the
require the proponent or the counsel advising the filing of action or proceeding or any part thereof, or rendering a judgment
the application, or both of them, to pay to the refusing by default against the disobedient party; and
party or deponent the amount of the reasonable expenses o (d) In lieu of any of the foregoing orders or in addition thereto, an
incurred in opposing the application, including attorney's order directing the arrest of any party or agent of a party for
fees. disobeying any of such orders except an order to submit to a
o CONTEMPT OF COURT physical or mental examination.
§ Section 2, Rule 29. Contempt of court. — If a party or Ø Q: So we have another instance of judgment default here. What is the
other witness refuses to be sworn or refuses to answer difference between Rule 29 and Rule 9?
any question after being directed to do so by the court of o Rule 9 – no answer has been filed
the place in which the deposition is being taken, the o Rule 29 – an answer may or may not have an answer
refusal may be considered a contempt of that court.
Ø Q: What if a party does not comply with the order of the court to answer to a RULE 26 – ADMISSION BY ADVERSE PARTY
deposition or interrogatory, what is the effect? This is a graver sanction Ø A party may file and serve upon any other party may file and serve upon any
compared to the others other party a written request for the admission by the latter of the
o If PLAINTIFF does not comply à dismissal of action genuineness of any material and relevant document described in and
o If DEFENDANT does not comply à judgment by default exhibited with the request or of the truth of any material and relevant matter
o Either party à order striking out pleadings of fact set forth in the request

Ø Q: Does admission refer requests to admit the genuineness of a DOCUMENT good reasons for the denial or that admissions sought
only? were of no substantial importance, such order shall be
o No. It also covers the request of the truth of any material or issued.
relevant matter of fact § Note: the graver sanction of dismissal does not apply in
Ø Q: The adverse party will most likely ignore the request for admission since this mode
the parties are not friends at all ah. They are enemies. Can the addressee of
the request complain that he is harassed by the party requesting for RULE 30 – TRIAL
admission? Is there any relief provided for under the Rules? Ø Q: Does the law mandate that that the court will proceed with trial in all
o He can ask to be excused from responding the admission cases?
o Note: However, there is nothing under Rule 26 provides reliefs o No. In some instances, trial is skipped.
similar to that of depositions under Rule 23 such as an Order for Ø Q: What is the document you use to ascertain if the case will be set for trial?
Protection of parties/deponents or Motion to Terminate or Limit o Pre-Trial Order
Examination Ø Q: Why is the PTO useful in relation to trial? What is it supposed to contain?
Ø Q: What if the addressee really does not want to respond, what are the o It is important because the PTO will state if there are triable issues. If
consequences? there are triable issues, then trial ensues. If not, then trial can be
o Insofar as the document or truth requested to be admitted: skipped
§ GR: the genuineness and due execution are DEEMED o Section 2, Rule 18. Nature and purpose. — The pre-trial is
ADMITTED. There is no need to authenticate the mandatory. The court shall consider:
document anymore or prove the fact. This is similar to the o (a) The possibility of an amicable settlement or of a submission to
rule on actionable document under Rule 8 alternative modes of dispute resolution;
§ EXPN: Unless otherwise allowed by the court for good o (b) The simplification of the issues;
cause shown and to prevent a failure of justice o (c) The necessity or desirability of amendments to the pleadings;
§ Section 5, Rule 29. Effect of failure to file and serve o (d) The possibility of obtaining stipulations or admissions of facts
request for admission. — Unless otherwise allowed by the and of documents to avoid unnecessary proof;
court for good cause shown and to prevent a failure of o (e) The limitation of the number of witnesses;
justice a party who fails to file and serve a request for o (f) The advisability of a preliminary reference of issues to a
admission on the adverse party of material and relevant commissioner;
facts at issue which are, or ought to be, within the o (g) The propriety of rendering judgment on the pleadings, or
personal knowledge of the latter, shall not be permitted summary judgment, or of dismissing the action should a valid
to present evidence on such facts. ground therefor be found to exist;
o Other consequences under Rule 29: Reasonable expenses including o (h) The advisability or necessity of suspending the proceedings; and
attys. fees o (i) Such other matters as may aid in the prompt disposition of the
§ Section 4. Expenses on refusal to admit. — If a party after action
being served with a request under Rule 26 to admit the Ø Q: Assuming there are triable issues. Can the parties still do away with trial?
genuineness of any document or the truth of any matter o Yes?
of fact serves a sworn denial thereof and if the party Ø Q: What is the concept of a reverse order of trial?
requesting the admissions thereafter proves the o Normally, the order of trial is that the Plaintiff first presents his
genuineness of such document or the truth of any such evidence followed by the Defendant. If the answer of the defendant
matter of fact, he may apply to the court for an order admits the material allegations of the complaint, the court may
requiring the other party to pay him the reasonable order reverse order of trial, that is the Defendant will be the first
expenses incurred in making such proof, including one to present evidence
attorney's fees. Unless the court finds that there were

Ø Example: For example A borrowed money from B. B defaulted. A filed a case

RULE 36 – JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF against B. In B’s answer, he merely denies the allegations of A, such as “I do
Ø Q: What are the essentials of a valid judgment? not owe A money”. This is a general denial which is deemed an judicial
(WJ-FaSC) admission because B failed to specifically deny the allegations of A. He failed
1. In writing to set forth the matters that he thinks were the truth. Such denial is a judicial
2. Personally and directly prepared by the judge admission. Thus, B admits the allegation of A’s complaint. A may now file a
3. Stating clearly the facts and the law on which it is based motion for judgment on the pleadings
4. Signed by him Ø Q: Is the motion ex parte?
5. Filed with the Clerk of Court o No. This motion must comply with the general rule on motions
o Section 1, Rule 36. Rendition of judgments and final orders. — A under Rule 15 in that it must be heard
judgment or final order determining the merits of the case shall be o The purpose of hearing is to give the defendant time to rectify the
in writing personally and directly prepared by the judge, stating error made in his answer
clearly and distinctly the facts and the law on which it is based, Ø Q: How will the defendant rectify the error?
signed by him, and filed with the clerk of the court. o He will file an amended answer this time making the proper
Ø Q: What are the requirements of a judgment once there is rendition already? allegations in his answer
o The court must have authority to render a judgment, jurisdiction Ø Q: How will he amend his answer?
over the parties or the res, they were allowed to produce evidence, o Before an answer is filed: no need Leave of Court
and the judgment was based on law o After an answer Is filed: needs Leave of Court
Ø Q: What if the decision contains only the dispositive portion such as when Ø Q: Will the court grant the motion based on the original answer filed?
the court merely states that the case is dismissed under Rule 17 for failure of o No. The court should base it on the amended answer. The amended
the plaintiff to prosecute, is this a valid judgment? answer supersedes the old answer. Thus, the defendant’s problem is
o No. The decision must state the facts and the law on which it is rectified. We can’t do anything about it.
based as mandated by the Constitution no less and reiterated by the Ø Q: Assuming the defendant does not amend his answer, can the plaintiff now
ROC move for JOTP?
o See: Shimizu vs. Magsalin o Yes
Ø Q: So what do you expect the court to do so that in may dismiss the case on Ø Q: If the court renders a JOTP, is that judgment on the merits?
such ground? o Yes. It is one that satisfies the essential under Rule 36
o The court must clearly state the law and facts on which it is based. Ø Q: What is the remedy of the defendant against a judgment on the merits?
o With respect to dismissal under Rule 17 for failure to prosecute, the o Appeal
court could have stated the date when the case was filed, the date Ø Q: How about the defendant, is he allowed to move for JOTP?
of the answer, and the failure to set the case for pre-trial which o Yes. If he files a permissive counterclaim against the plaintiff and the
amounted to an unreasonable length of time plaintiff’s answer does not tender an issue or admits the material
allegations of the counterclaim
KINDS OF JUDGMENTS o Dean J: the latest jurisprudence on this matter provides that even if
Ø Q: What is a judgment upon a compromise? Where do we find this under the the answer of the defendant tenders an issue and he then moves for
Rules JOTP, he is deemed to have ABANDONED his answer. Thus, it is not
Ø Q: What is a judgment nunc pro tunc? advisable for a defendant who filed an answer to move for JOTP.

RULE 34 – JUDGMENT ON THE PLEADINGS RULE 35 – SUMMARY JUDGMENTS
Ø In JOTP, there is no presentation of evidence at all. There is an answer but it Ø Ground: There is no genuine issue as to any material fact and that the moving
but it fails to tender an issue or otherwise admits the allegations of the party is entitled to a judgment as a matter of law.
pleading of the adverse party o Except: as to the amount of DAMAGES

Ø Q: Who is the movant? Ø Q: Can a defendant move for summary judgment? Why will the defendant
o It can either be the claimant (i.e. plaintiff) or defending party (i.e. move for summary judgment?
defendant) o Yes, Rule 35 provides that the defending party can move for
Ø Q: With respect to SJ by the claimant, is it required that an answer is already summary judgment at any time
filed? o He can probably move for summary judgment if the answer of the
o Yes. It is availed by filing a motion for SJ after the answer is filed and plaintiff to a counterclaim does not tender a genuine issue
it is shown that there is no genuine issue Ø Q: Is it possible that even before an answer is filed, there can be an issue?
Ø Q: What is a non-genuine issue? o Yes. Exceptionally, there can be an issue even if there is no answer if
o It is an issue not worth trying, it is a sham issue, not a ‘trustworthy’ there is a claim for unliquidated damages. Reason: if the plaintiff
issue, not a credible defense claims for unliquidated damages, the Rules provide that they
Ø Q: How do you convert a genuine issue into a non-genuine issue? deemed controverted by thed defendant. (Sec. 11, Rule 8)
o For example, under the CC payment is a mode of extinguishment. A o In this instance, there is no need for an answer to be filed yet before
filed a case against B for a sum of money. B filed an answer alleging an issue has arisen.
he already made payment. A contends that B did not make payment. o This is another instance wherein the defendant can move for
Under substantive law, a proof of payment could be the issuance of summary judgment: if the plaintiff claims for unliquidated damages,
a receipt. B, the debtor, naturally would demand a receipt especially there is an issue even before an answer is filed. What the defendant
of the amount involved is in the millions. Or if he paid it thru check, will do is to prove that the plaintiff is not entitled to unliquidated
the evidence of payment could be the returned check. A can argue damages. Thus, the issue is converted from genuine to a non-
that there was no payment made since B cannot show that a receipt genuine issue
was issued or he has in his possession a returned check. If B cannot Ø Q: What are unliquidated damages?
prove the same, the initially genuine issue of payment is now o Under Civil Law, Liquidated Damages are those which are fixed by
converted into a non-genuine issue. the parties in case of breach by a party of the agreement.
Ø Q: How will the movant prove that there is a non-genuine issue? Unliquidated Damages are those which are not yet fixed.
o He must make use of the Modes of Discovery. Under Rule 35, he the o A claim for unliquidated damages are considered denied by
movant can make use of Affidavits, Depositions, and Admissions operation of law
§ Dean J: the movant can use interrogatories
o See: last section of last rule RULE 33 – DEMURRER TO EVIDENCE
o The motion shall be served at least ten (10) days before the time Ø Q: Supposing there are other claims, can we still have demurrer to evidence?
rd rd
specified for the hearing. The movant must make us of MOD during For instance, there is a 3 party complaint. What is 3 party complaint
the 10 day period and must set the motion for hearing within such again?
rd rd
time. o 3 party complaint is commenced by the defendant (3 party
rd
Ø Q: What if the court grants the motion? plaintiff) against a person who is not a party (3 party defendant)
o The court will now render summary judgment. This is a final for: Contribution, Indemenity, Subrogation, or any Other relief
rd
judgment which is considered one on the merits. It is appealable o If A files a complaint for sum of money against B. B can file a 3
Ø Q: Is it possible to have an interlocutory summary judgment? party claim against his debtor C
rd
o Yes. This is sometimes what is referred to a “intrelocutory o If there is a demurrer addressed to a 3 party complaint and the
rd
judgment”. This arises when the court renders a partial summary court grants the same, the dismissal of the 3 party complaint will
partial summary judgments. In this instance, the court will render not carry with it the dismissal of the original complaint. However, if
judgment only to some aspects of a case and without prejudice to it will be the other way around, if a demurrer is filed against the
other parts still pending. Thus, the court must wait for the whole original complaint, the dismissal of the original complaint will carry
rd
case to be decided before the court can proceed with execution with it the dismissal of the 3 party complaint

rd
§ Reason: the 3 party complaint is ancillary to the original Ø Q: Why can’t the defendant present evidence anymore if the CA reversed the
complaint. The original complaint does not rely for its dismissal of the trial court on a demurrer to evidence?
rd
existence the 3 party complaint o The defendant is deemed to have waived his right to present
Ø Q: If a case is dismissed due to demurrer to evidence, do we consider that the evidence in this scenario
complaint has no cause of action? Ø Q: What then is the remedy of the defendant if he can no longer present
o No. A dismissal due to a demurrer to evidence only means that evidence because the CA reversed the dismissal of the trial court on a
evidence presented by the plaintiff is not sufficient. The evidence is demurrer?
not preponderant o MR with CA or file an petition for review on certiorari to the SC via
Ø Q: Are we talking about the plaintiff’s evidence in chief or rebuttal evidence? Rule 45
o Only evidence in chief. Rebuttal of evidence will only take place after Ø Q: Why is the defendant at a great disadvantage in this scenario?
the presentation of evidence by both plaintiff and defendant. If a o Because there is no evidence presented for the defendant in the
defendant seeks to dismiss the complaint under Rule 33, he must do record which is the only basis for the SC to decide the appeal.
so after the plaintiff presents evidence but before he (the Generally, the SC can only determine pure questions of law
defendant) presents evidence o The only question that the SC can decide is whether the evidence is
Ø Q: Is the demurrer in a form of a Motion to Dismiss? insufficient. This is a pure question of law
o No. The proper motion is a Motion for Judgment on Demurrer to
Evidence Q: What are the judgments with prejudice? Judgments which are not appealable?
Ø Q: In such motion, can the defendant raise the ground of lack of jurisdiction? Ø WITH PREJUDICE (thus, appealable):
o Yes. Although the demurrer should only be based on one ground o Judgment by default
(insufficiency of evidence) the court will not hesitate the motion if it o Judgment on the pleadings
raises lack of jurisdiction o Summary Judgment
o Reason: Lack of jurisdiction is a non-waivable defense under Sec. 1, o Judgment on demurrer to evidence
Rule 9. Ø WITHOUT PREJUDICE (not appealable):
o Instead of denying the demurrer, the court will just treat the o Judgment by consent, compromise, or confession
demurrer as effectively a motion to dismiss with 2 grounds: lack of o GR: Several or separate judgment
jurisdiction and insufficiency of evidence § EXPN: Unless the court allows an appeal therefrom
Ø Q: If the court decides to grant the motion above, is the dismissal with or
without prejudice?
o It is a dismissal with prejudice (??)
o It is a final judgment which is appealable
Ø Q: Aside from appeal, can the plaintiff avail of Rule 65?
o No. Rule 65 applies only to an interlocutory order where no appeal is
available. Here, appeal is still available
Ø Q: For example, the RTC dismissed the case upon a demurrer to evidence
filed by the defendant. The dismissal was appealed to the CA. Can the CA still
admit evidence?
o No.
o Under BP 129, the CA has the authority to admit evidence whether it
is in the exercise of it original or appellate jurisdiction. However, this
is predicated in the event that the CA conducts a new trial only.
o Thus, the CA in this case can no longer admit evidence


o Appeals on several or separate judgments, when allowed

o Other instances as when required by law
Ø Q: Are there instances where we can have different appeals emanating from
the same case?
o Yes. In cases where there are different stages such that the court
can render several decisions which are final, such as:
§ Judicial foreclosure of mortgage
§ Partition
§ Expropriation
Fifth Meeting – February 11, 2017 Ø Q: What is the effect if a the party chooses the wrong mode of appeal?
o IMPRORER APPEAL
APPEAL o It may or may not be dismissed
Ø Q: What are the modes of appeal? o If a Petition for Review is filed instead of a Notice of appeal, it is ok
o Ordinary Appeal because the PFR satisfies the requirements of a notice of appeal
§ Appeal by notice o The danger here, however, is that the party risks losing the period to
§ Record on appeal appeal
o Petition for review Ø Q: What if the wrong issue is raised in the appellate court?
o Appeal by certiorari o ERRONEOUS APPEAL
Ø Q: Can you change your mind and pick a different mode of appeal? o If the SC is the appellate court, it will refer it to the proper court à
Ø Q: What if the trial court is the MTC. Is it possible that the appellate court CA
will be the CA? o If the CA is the appellate court, it will dismiss the case
o Yes. If the MTC is exercising its delegated jurisdiction over cadastral o If the RTC is the appellate court, it will ignore the error and instead
and land registration cases, it is sitting as an RTC. BP 129: Their try the case as if it was filed with the RTC
decisions in these cases shall be appealable in the same manner as Ø Q: When the appeal is with the Court of Appeals, the appeal is a matter of
decisions of the Regional Trial Courts. discretion, unlike appeals with the RTC where appeal is a matter of right. The
Ø Q: What does the phrase “appealable in the same manner as decisions of the CA can dismiss outrightly the appeal. What are the grounds to dismiss the
RTC” mean? appeal under Rule 50?
o This means that the MTC is acting as RTC so that the proper appeal o Section 1, Rule 50. Grounds for dismissal of appeal. — An appeal
of the decision of MTC acting as RTC is to the Court of Appeals. This may be dismissed by the Court of Appeals, on its own motion or on
is an exception to the “ladder approach” in appeals that of the appellee, on the following grounds:
Ø Q: What is the delegated jurisdiction of the MTC? o (a) Failure of the record on appeal to show on its face that the
o Cadastral or land registration cases assigned by the SC covering lots appeal was taken within the period fixed by these Rules;
which are: o (b) Failure to file the notice of appeal or the record on appeal within
§ UNCONTESTED – meaning there is no controversy or the period prescribed by these Rules;
opposition over such lot; or o (c) Failure of the appellant to pay the docket and other lawful fees
§ CONTESTED, provided, the value of the lot does not as provided in section 5, Rule 40 and section 4 of Rule 41;
exceed P100,000 o (d) Unauthorized alterations, omissions or additions in the approved
Ø Q: When is the 30 days to appeal applicable? record on appeal as provided in section 4 of Rule 44;
o When a record on appeal is required o (e) Failure of the appellant to serve and file the required number of
Ø Q: When is a record on appeal? copies of his brief or memorandum within the time provided by
o Special proceedings these Rules;
o Multiple appeals

o (f) Absence of specific assignment of errors in the appellant's brief, Ø Q: Does this mean in no case shall the SC determine questions of fact?
or of page references to the record as required in section 13, o GR: The SC can determine only pure questions of law
paragraphs (a), (c), (d) and (f) of Rule 44; o EXPN: Jurisprudence provides for exceptions wherein SC can
Ø Q: The first grounds have to do with the appeal not showing on its face that determine questions of fact. There are around 15 at present
the appeal is taken within the reglementary period under the Rules. What do Ø Q: What are these exceptions?
you call this rule? (a) When the findings are grounded entirely on speculation, surmises or
o Material Data Rule conjectures;
Ø Q: Another ground is failure to include assignment of errors. What are the (b) When the inference made is manifestly mistaken, absurd or impossible;
documents which must contain assignment of errors? (c) When there is grave abuse of discretion;
o Appellant’s brief or Appeal memorandum, as the case may be (d) When the judgment is based on misapprehension of facts;
Ø Q: Who commits these errors in the assignment of errors? (e) When the findings of facts are conflicting;
o The court a quo (f) When in making its findings, the CA went beyond the issues of the case, or
Ø Q: Is it not the duty of the court to look for errors? its findings are contrary to the admissions of both the appellant and the
o No. This is the duty of the appellate. Otherwise, the appeal is appellee;
dismissed (g) When the findings are contrary to the trial court;
o Reason: rule on evidence that a decision rendered by courts are (h) When the findings are conclusions without citation of specific evidence on
disputably presumed to be correct. It is the appellant’s duty to which they are based;
destroy this presumption (i) When the facts set forth in the petition as well as in the petitioner‘s main
Ø Q: Another ground is the failure to file docket fees. Why will this dismiss the and reply briefs are not disputed by the respondent;
appeal? (j) When the findings of fact are premised on the supposed absence of
o The court will not acquire jurisdiction over the appeal evidence and contradicted by the evidence on record; and
Ø Q: In the appellate court, will there be a hearing all over again? (k) When the Court of Appeals manifestly overlooked certain relevant facts
o No. The appeal will rely solely on the record taken by the trial court. not disputed by the parties, which, if properly considered, could justify a
We have courts of record. There is no more presentation of different conclusion.
evidence anymore Ø Q: There are more exceptions provided under SC circulars. What are these?
Ø Q: But BP 129 provides that the CA can admit evidence, isn’t it? o Petitions for Habeas Corpus, Writ of Amparo, and Writ of Kalikasan.
o Under BP 129, CA can admit, hear, accept evidence in relation to When these cases are brought to the SC thru appeal by certiorari,
conducting a new trial. The ground is newly discovered evidence the SC can try both questions of fact and law
o GR: Rely on record
§ EXPN: Newly discovered evidence PROVISIONAL REMEDIES
o (Look for the rule rule which contains motion for new trial with the Ø Q: What are the provisional remedies under the Rules?
CA) o Rule 57 – Preliminary Attachment
Ø Q: Can a motion for reconsideration be filed from the decision of the CA? o Rule 58 – Preliminary Injunction
o Yes. Although there is no rule for this which provides for the o Rule 59 – Receivership
corresponding grounds, jurisprudence provides that MR from the o Rule 60 – Replevin
decision of the CA shall be the same as that under Rule 37. It is only o Rule 61 – Support Pendente Lite
motion for new trial which is limited to the ground of newly Ø Q: Aside from the rules there are provisional remedies in special circulars of
discovered evidence the SC. What are they?
Ø Q: What is the difference between motion for new trial or MRT with CA vs. o Amparo – interim reliefs
RTC? o Environmental cases
Ø Q: Is this motion for new trial available if the SC is the appellate court? o Marriage-related cases – provisional orders
o No. The SC is not a trier of facts Ø Q: Is preliminary attachment also allowed in environmental cases?

o Yes. It is one of the provisional remedies. But it is not the § There is no other sufficient security for the claim sought to
preliminary attachment under Rule 57 that applies but rather Rule be enforced by the action; and
127, under criminal procedure. Thus, Preliminary Attachment only § The amount due to the applicant, or the value of the
apples in environmental cases which are criminal in nature property the possession of which he is entitled to recover,
Ø Q: How about amparo, aside from the provisional remedies under the is as much as the sum for which the order is granted above
circular, is it a provisional remedy in itself? all legal counterclaims
o Yes. It may either be availed of as a main action or an ‘interim relief’ o 3. The applicant must post a bond executed to the adverse party, in
Ø Q: If amparo is instituted as a main case, can it still be availed of as an the amount fixed by the court in its order, granting the issuance of
interim relief? the writ
o No. If amparo is instituted as a criminal case, amparo as an interim o 4. The affidavit and the bond must be duly filed with the court
relief can no longer be availed of before the writ of attachment issues
o This is the same rule that is applied in habeas data Ø Section 3, Rule 57. Affidavit and bond required. — An order of attachment
Ø Q: What are the ‘provisional orders’ in marriage-related cases? shall be granted only when it appears by the affidavit of the applicant, or of
o Custody, Visitation, Guardianship, Hold-Departure Order, Support, some other person who personally knows the facts, that a sufficient cause of
Administration action exists, that the case is one of those mentioned in section 1 hereof, that
o Protection orders there is no other sufficient security for the claim sought to be enforced by the
Ø Q: How about ADR laws/circulars, what are the provisional remedies action, and that the amount due to the applicant, or the value of the property
available? the possession of which he is entitled to recover, is as much as the sum for
Ø Q: What is the commonality of these provisional remedies? which the order is granted above all legal counterclaims. The affidavit, and the
o They are availed of during the pendency and as an incident to a bond required by the next succeeding section, must be duly filed with the
principal action for the protection of a party/person court before the order issues.
Ø Q: Should the applicant inform the other party of the hearing on the PA?
RULE 57 – PRELIMINARY ATTACHMENT o Yes. The general rule on motions under Rule 15 is that parties to a
Ø Q: What is the purpose of PA? case must be notified and a hearing must be had
o To provide for security of to the plaintiff by attaching properties Ø Q: Cannot we hear the motion ex parte?
which may be executed upon if he wins the case o Yes
Ø Q: Is there such a thing as a final attachment? Ø Q: But won’t there be the obstacle of not yet acquiring jurisdiction over the
o Yes. Under Rule 39 person of the defendant which might lead to a void decision?
o Levy on attachment à Preliminary Attachment o No, so long as Rule 57 is complied insofar as the rule on Prior or
§ Purpose: to provide for a security Contemporaneous Service of Summons. If this is complied with,
o Levy on execution à Final Attachment then jurisdiction over the defendant is acquired and ex parte hearing
§ Purpose: to satisfy a judgment may be had
Ø Q: Can the debtor still sell his properly subject to preliminary attachment? o When available: This is allowed only if court grants motion for
o Yes. The debtor is still the owner of the property. preliminary attachment ex parte
Ø Q: What must be contained in that application? o Purpose: designed to cure the defect of the court not acquiring
o 1. Applicant must file a motion ex parte or with notice to parties in jurisdiction over the person of the adverse party. Without such, the
the court where the action is pending or in the CA or SC attachment is not valid
o 2. The applicant or person who knows personally the fact, must Ø Q: A verified application must filed. What allegations must be contained?
show by affidavit that o Affidavit
§ A sufficient COA exists Ø Q: If a property is mortgaged already in favor of the applicant, can the
§ The case is mentioned in Sec. 1 applicant still ask for a writ of PA?

o Yes. At the back of the title, there is an annotation that the property o Yes. The defendant can still be declared in default even if an
is mortgaged. This is a warning that the person who holds the independent action of Rule 65 is filed
property is not the absolute owner. Ø Q: Does the defendant have any other remedy to life the PA?
o PA is still allowed notwithstanding mortgage in a situation wherein Ø Q: If the case is dismissed, what happens to the PA?
the security in the mortgage is insufficient to cover the entire claim o It is released. It is only for security purposes. If the principal action is
of the applicant. So the court can allow him to avail of additional dismissed, provisional orders which are collaterals to the principal
securities. But this time he can ask for securities only with respect to action are also dismissed
other properties since there is an existing security over the Ø Q: Can the defendant recover damages? This means that he already won the
mortgaged property case
Ø Q: How will the court implement the levy on attachment? o Yes, on the ground that the PA was improperly issued
o Real property – the title will be annotated. The possessor is not Ø Q: Can the defendant file a separate complaint?
driven out o No, the defendant must file it in the principal action, preferably in a
o Personal property – seizure or personal property and will be in compulsory counterclaim. Reason why compulsory counterclaim:
custodia legis the counterclaim arises out of the same transaction
o Money – garnishment accounts of the other party will be frozen Ø Q: There is an attachment bond which is designed as a security for damages
meaning he will not be allowed to withdraw that can be incurred by the defendant. Can the be award be for an amount
Ø Q: If PA is issued, the business of the party can be hampered which can lead greater than that of the bond? I.e. the attachment bond is of the amount of
to financial problems. Does he have a remedy? 500 and the damages claimed is 800. Can the defendant recover for the
o File a counter bond in the amount fixed by the court entire amount of 800?
Ø Q: Shouldn’t the counter bond be the same amount as that of the applicant’s o Yes. The bonding company will be liable for the 500,000. The
attachment bond balance will come from the plaintiff. The defendant can avail of
Ø Q: Suppose the party has no funds to post a counter bond, does he have any execution under Rule 39
other remedy? Ø Q: Suppose you file a separate case for damages?
o Motion to lift order o No. This will result in res judicata
Ø Q: But there is no assurance that it will be granted. Supposing it is denied.
Can the party appeal from the denial? RULE 58 – PRELIMINARY INJUNCTION
o No. It is an interlocutory order. Under Sec. 1, Rule 41, an Ø Q: In PA, there is already enumeration of what must be the principal action.
interlocutory order is not appealable In PI, what must be the principal action?
Ø Q: What is the remedy from denial? o Rule 65
o Rule 65 o Rule 47
Ø Q: But in Rule 65 the court may deny outright. Supposing the court denies, o Rule 38
does the court have any other recourse? o Rule 70
o No more Ø Q: Both PA and PI must be in a verified application. What must be contained
Ø Q: Which court is the certiorari court? in the verified application?
o It depends Ø Q: PI can be composed of 2 parts: TRO and PI. Can they be issued ex parte?
Ø Q: Will the mere filing of certiorari stop the lower court from implementing a o TRO, yes. PI, no. PI will always need a summary hearing
PA or will it stop the proceedings? Ø Q: What are the instances wherein TRO can be issued ex parte?
o No. Certiorari is an independent action from the original action. Both o Grave or irreparable injury or injustice
can continue independently of the other o Extreme injury
§ EXPN: if the certiorari court issues injunction Ø Q: Explain ex parte issuance of TRO if the principal case is Rule 65
Ø Q: Should the defendant answer the complaint notwithstanding the fact that o The higher court (RTC, CA, SC, or B) will issue a TRO restraining a
a petition for certiorari is filed? lower court

Ø Q: Rule 58 distinguishes whether the court is single sala or multi sala. RULE 60 – REPLEVIN
Explain the procedure in each Ø Q: What is the principal case in replevin?
o If it is a single sala court, the judge will issue TRO o Recovery of personal property. Replevin can be availed of as a
o If it is a multi sala court – the executive judge will issue a TRO good principal action and a provisional remedy
for 72 hours. The case will be raffled to the branch which will handle o Replevin with replevin. The correct denomination is Replevin with
the case. The presiding judge of that judge will determine whether warrant of seizure
the TRO will be extended for up to 17 days more (20 days in total). Ø Q: When can replevin be availed of as provisional remedy?
The period is determine whether or not a PI shall be issued o Rule 60 – Before the defendant answers
Ø Q: PI cannot be issued ex parte. What must be done in order for a PI to be o Rule 57 – At any time before the entry of judgment.
issued? o Rule 58
o During the 20-day period of the TRO, the applicant will ask the court o This means that PA and PI may be issued even on appeal. The same
to set the application for summary hearing. Both parties will be rule does not apply to Replevin
heard. If the court decides to issue PI, it will be good until the Ø Q: Does this mean that it replevin will take place only in the trial court?
termination of the case o Yes. It is availed of only when the court is in the exercise of its
Ø Q: So if the case drags on for 2 years, the PI will be good for 2 years? original jurisdiction
o No. According to amendment of Rule 58 by a SC circular, upon Ø Q: The principal action is to recover personal property. Which court has
issuance of the PI, the court has the duty to settle the case within 6 jurisdiction?
months. Reason: to avoid that the injunction court will take too long o It depends upon the value of the personal property alleged in the
in deciding the case complaint. The discretion is given to the plaintiff
o Note: this applies only to the CA. The SC will decide the case until § Exceeding 300,000/400,000 à RTC
the PI is finally lifted. The amendment does not cover SC. Thus, the § Not exceeding 300,000/400,000 à MTC
PI can exist indefinitely Ø Q: Can replevin be issued ex parte?
o The amendment also provides that the period of TRO with the CA is o Yes. Summary hearing is not required
60 days Ø Q: There will be problem that will arise. The defendant may have not been
Ø Q: If the case is dismissed, what happens to the PI? served with notice. This will result into a void judgment because the
o The dismissal will carry with it the dismissal of the injunction defendant is an indispensable party. What is the remedy?
Ø Q: What happens if the case is granted? o Remedy is comply with the rule on Prior/Contemporaneous service
o The preliminary injunction will be converted into a final attachment of summons
Ø Q: What if the adverse party wants to set aside the PI? Ø Q: In replevin a bond must be filed. What is the amount of the bond?
o In PA, the PA can easily be defeated by the other party by mere filing o Double the value of the personal property
of counterbond Ø Q: Why is the amount double?
o In PI, it is not the same. Mere posting of counter bond is not o Sufficient to answer for the property and damages
sufficient. The other party must file a motion to set aside the PI Ø Q: If the essentials for replevin are complied with and the court issues the
together with the filing of a counter bond. There will be hearing first writ of replevin, what happens next?
Ø Q: In the Kalikasan Circular, TEPO is the equivalent of injunction. What is the o The sheriff will confiscate the personal property and will keep it for 5
difference between the Injunction and TEPO? days. At the lapse of the 5-day holding period, he will deliver the
Injunction TEPO same to the applicant
Applicant must file an injunction bond Applicant does not need to file a bond o The purpose of the 5-day holding period is to allow the other party
to assail the value of the bond for insufficiency or to allow third
Oppositor must file a counter bond Only oppositor needs to file a counter party claimants to file their affidavits
bond if he want to lift TEPO Ø Q: Does the same rule apply in PA?


o No. The sheriff in PA will keep the property until lifting of the PA or § Other judgments as may be declared immediately
judgment is rendered executory (i.e. UD and FE if in favor of the plaintiff)
Ø Q: Why does the sheriff keep the property in attachment but in replevin o Diff. between judgments immediately executory in Rule 39 and
there is only a 5 day holding period? Rule 70:
o The contents of the verified application of replevin states under oath § Rule 39 – regardless of whether judgments in favor of
that the applicant is the owner or rightful possessor pleaintiff or defendant
o In Replevin, the applicant is the owner or rightful possessor. In PA, § Rule 70 – must be rendered in favor of the plaintiff to be
the property is only for purposes of security immediately executory
Ø Q: The property can only get possession of the property if it is in possession o Thus, if an appeal is filed from these judgments, executory may still
of a defendant or a party to the case. What should the applicant do so that push thru
property of a person who is a stranger to a case may be subject of replevin? Ø Q: What is the difference between UD and FE?
o Remedy is to implead person in the complaint Unlawful Detainer Forcible Entry
o If the defendant who is in possession of the property is not known, Possession initially lawful became illegal Possession was unlawful from inception
the case should be filed against 2 defendants: the defendant and the
unnamed defendant who is unknown but in possession of the Demand is jurisdictional Demand is not necessary
property
Ø Q: What is the alternative judgment in replevin? Ø GR: Demand is jurisdictional in UD
o The judgment could be in the alternative either for the delivery of o EXPN: If lease has already expired based on the date stipulated in
the property itself or in lieu thereof the value of the property the contract of lease, there is no need to demand. The tenant has to
vacate. Otherwise, the rightful owner/possessor can file a complaint
SPECIAL CIVIL ACTIONS for UD
Ø Q: What are SCA? o EXPN to EXPN: In case of Implied New Lease (SC: ‘tacita
o It is a civil action which is subject to specific rules. It is primarily reconducion’). If the lessee is allowed to possess the property for 15
governed by ordinary procedure but subject to specific rules days after expiration of the lease without objection of the lessor, the
civil code provides that the lease is considered renewed by the
RULE 70 – UNLAWFUL DETAINER AND FORCIBLE ENTRY parties. The terms will NOT be that of the original contract. Rather, it
Ø Q: Which court has jurisdiction of UD and FE? will have a term depending upon the payment under the original
o MTC contract if it is from year to year, month to month, week to week,
Ø Q: What rules govern? or day to day. In this case, possession is now lawful. In order for the
o Summary procedure lawful owner or possessor to file a case of UD, demand to vacate
Ø Q: In ordinary procedure, when do we execute a judgment? must first be complied with
o After entry of judgment under Rule 39 Ø Q: Aside from demand, what other conditions precedent can we add?
Ø Q: With respect to UD and FE, when do we execute the judgment? o Prior barangay conciliation
o Immediately after rendering judgment, provided that the decision is Ø Q: Assuming the landlord makes a demand to his tenant to surrender the
rendered in favor of the plaintiff. Under Rule 39, there are possession of the property since the lease has already expiration. The tenant
judgments which are immediately executory says that he will first pay 100,000 as back rentals. The landlord accepts the
o Aside fro UD and FE, the following are also immediately executory: money can he still file a complaint for UD?
§ Receivership o Yes. The demand by the landlord is 2 parts: 1. Pay rentals; and 2.
§ Injunction Vacate the property. If the tenant only pays rentals, there is still a
§ Accounting breach
§ Support Ø Q: Since UD is governed by summary procedure, how much time does the
defendant have to answer?

o 10 days
Ø Q: What are the pleadings allowed?
o Complaint
o Compulsory counterclaim
o Cross claim
o Answer
Ø Q: What are the prohibited pleadings?
Ø Q: If the defendant does not answer, is default allowed?
o No. Motion to declare defendant in default is a prohibited motion.
But instead the party can move for the rendition of judgment on the
pleadings and the court will decide based solely on the allegations
Ø Q: How can the defendant avoid being evicted under Rule 70?
o He can do 3 acts which are conditions precedent in order to avoid
being thrown out of the property (Sec. 19):
1. File a Supersedeas bond
2. Appeal
3. Deposit the current rentals with the appellate court (RTC
Ø Q: What happens if he does not comply with these 3 conditions?
o The judgment shall be executed. That is why UD and FE are special
civil actions. They may be executed right away if decision is in favor
of the plaintiff.
o The defendant will now be evicted
o Read last section of Rule 70
Ø Q: Can we ask for injunction with the CA for TRO/Injunction to avoid being
thrown out?
o Yes. Rule 70 does not disallow provisional remedies but only
requires the posting of an injunction bond


FINALS o If there are no eye witnesses available, then we must present

witnesses who are familiar with the handwriting of the testator
SPECIAL PROCEEDINGS Ø Q: Are you allowed to impeach your own witness?
o With respect to wills, yes. But with respect to other documents, you
First Meeting. are not allowed to impeach your own witness

From Jolo and Dugs: TABLE: EVIDENCE REQUIRED TO SUPPORT A WILL
Notarial Will Holographic Will
Purpose of probate when testator is still alive. UNCONTESTED 1. Testimony of at least 1 of subscribing 1. At least 1 witness who
witnesses may be allowed knows the handwriting
Is a Notarial will a public document? Because according to the law, notarized • If such witness testifies that the and signature of the
documents are considered as public documents. will was executed as is required by testator explicitly declare
Ø Rules on Evidence law that the will and signature
are in the handwriting of
Advantage of public documents over private documents 2. If all subscribing witnesses reside out the testator
Ø Presumption of regularity and validity. outside the province – deposition is
allowed and the court may authorize 2. In the absence of such
Before a document be admitted before the court (not notarized) what is further photographic copy of the will to be competent witness, and if
required. made and presented to the witness on the court deem it
Ø Proof of authenticity his examination necessary, expert
testimony may be
How do you authenticate a document 3. If the subscribing witnesses are dead, resorted to
Ø Signature is really the signature of the party. Call witnesses to testify insane, or none of the reside in the • It is not mandatory
Phils – the court may admit testimony that witnesses be
Who should be a witness to a will? Can you call non – subscribing witnesses of other witnesses to prove the sanity first presented
of the testator and due execution of the before expert
If your own witness testify against you? Can your will still be probated? will testimony may be
• As evid of the execution of the will, resorted to, unlike in
Duty of other witness is just to authenticate (not subscribing) it may admit proof of the notarial will. Reason:
Ø A proponent cannot impeach his own witness, you cannot impeach witnesses handwriting of the testator and of Holographic wills are
who testify against your stand. the subscribing witnesses or of any not required to be
Ø But this rule does not apply to probate of a will of them witnessed
CONTESTED 1. All subscribing witnesses and the 1. At least 3 witnesses
WITNESSES TO WILLS notary public before whom the will was who know the
Ø Q: How do you impeach a witness under the rules on evidence? acknowledged, if present in the Phils handwriting of the
o One mode: Prior Inconsistent Statements and not insane, must be produced and testator.
o Another mode: by calling other witness to testify against the examined
witness. First call out other witnesses. If there are none, then call • However, if any or all witnesses 1. 2. In their absence, and if
out expert witnesses to present testimony but only as a last resort Testify against the will’s due the court deems it
Ø Q: How do you authenticate a document? execution, 2. Do not remember necessary, testimony of an
o You must present an eyewitness. In a will, you must present one of attesting to the will, or 3. Are of expert witness may be
the subscribing witnesses to a will doubtful credibility, the will may resorted to

still be allowed if the court is § Render a true INVENTORY of all the real and personal
satisfied from the testimony of estate belonging to him as trustee which shall have come
other witnesses and evid to his possession or knowledge;
presented (impeach one’s own • When: Within 3 months from the issuance of the
witness) letters testamentary or letters of administration
and at such time as the court may order
§ MANAGE AND DISPOSE of all such estate, and faithfully
EXECUTOR AND ADMINISTRATOR discharge his trust in relation thereto, according to law
Ø Q: Assuming the will is proved to be genuine, the court will now be admitted and the will of the testator or the provisions of the
to probate. What is the next step? instrument or order under which he is appointed;
o Ask for the appointment of executor or administrator § Render a true ACCOUNTING of the property in his hands,
Ø Q: How is an executor or administrator appointed? and will render such other accounts as the court may
o You must petition for the appointment of executor who is order;
nominated in a will or the appointment of an administrator if there • When: at least once a year until his trust is
is no will or the executor refuses the trust or does not post a bond fulfilled, unless he is excused therefrom in any
o The petition is one that seeks the issuance of Letters Testamentary year by the court,
(If appointment of executor) or Letters of Administration (if § He will SETTLE HIS ACCOUNT in court and pay over and
appointment of administrator) deliver all the estate remaining in his hands, or due from
Ø Q: Is the executor appointed by the court or by the testator? him on such settlement, to the person or persons entitled
o The testator nominates an executor in his will and the court to thereto.
confirms the nomination if it deems it proper. It is the court who • When: at the expiration of his trust
nominates the executor, not the testator o Comply with all other orders of the settlement court
Ø Q: What are the powers and duties of the executor? Ø Q: Does the executor represent the court r the testator?
o RIGHTS: o He represents the court since he is an officer of the court
§ Shall have the right to the possession and management of
the properties of the decededent Ø Q: When may a probate court appoint a special administrator?
§ Have access to the books and papers relating to the 1. When there is DELAY in granting letters testamentary or of
partnership business, and make examine and make administration by any cause including an appeal from the allowance or
invoices of the property belonging to such partnership disallowance of a will, or
§ Within the approval of the court, an executor or 2. Executor is a claimant of the estate that he represents
administrator may enter into compromise agreement for a. Take note of this. This is the exception to the rule that when
the debt of the decedent there is already an executor or administrator, the court will no
o DUTIES longer appoint another one. But when the executor or
§ Maintain in tenable repair the houses and other administrator has a claim against the estate, in other words
structures and fences belonging to the estate, and deliver when he is a creditor, then a special administrator may be
the same in such repair to the heirs or devisees when appointed
directed so to do by the court.
o OTHER RESPONSIBILITES: CLAIMS AGAINST THE ESTATE; STATUTE OF NON-CLAIMS
§ Post a BOND and comply with the conditions therein Ø Q: The executor has the duty to notify the creditors. How is this done?
o CONDITIONS UNDER THE BOND: o Publication in a newspaper of general circulation
Ø Q: What is the creditor required to do?

o He must file his claim not more than 6 months but not less than 12 § Whether the same be due, not due,
months. He files his claim in the form of an affidavit § Absolute or contingent
Ø Q: Counted from what time? 2. All claims for funeral expenses and
o From the time of publication 3. Expense for the last sickness of the decedent, and
Ø Q: What is the effect if the creditor does not file his claim within this time? 4. Judgment for money against the decent
o He will be barred forever from filing his claim against the estate § Note: this list is exclusive
Ø Q: For instance, the creditor holds a promissory note executed by the o EXPN: except that they may be set forth as COUNTERCLAIMS in any
decedent during his lifetime, what is the prescriptive period to file an action action that the executor or administrator may bring against the
based on the promissory note? claimants.
o 10 years Ø Q: How about a lender with a mortgage, is his claim covered under the
Ø Q: Why 10 years? statute of non-claims?
o The Civil Code provides that an action based on a written document o NO. A creditor holding a claim against the decedent secured by a
is 10 years mortgage or a secured creditor has 3 options:
Ø Q: So which between the 2 period will prevail, the period provided for in the 1. Abandon the security and prosecute his claim against the
statute for non-claims or the prescriptive period under the Civil Code? estate in the same manner as an unsecured creditor
o The Statute of Non-claims prevails over the Statute of Limitations a. He is converted from a secured creditor to an
Ø Q: But isn’t this the statute of non-claims procedural law and the law on unsecured creditor
prescription is substantive law? Didn’t we say that as between procedural 2. He may Foreclose his mortgage and if there is a judgment for a
and substantive law, substantive law will prevail? Isn’t it that the deficiency after the sale of the mortgaged property he may
constitution provides that the Supreme Court shall not diminish increase or claim his deficiency judgment by filing a claim against the
modify substantive rights? estate
o Generally, substantive law prevails over procedural law. However, 3. He may rely upon his mortgage alone by foreclosing the same
this is a case wherein a rule of procedure will prevail over at any time within the period of the statute of limitations
substantive law that is the law on prescription. Reason: The statute without filing a claim against the estate for any deficiency
of non-claims is based on substantive law thereby abandoning the same
o The 1997 ROC was patterned from the Old Code of Civil Procedure o These remedies are alternative not cumulative
of 1964 which was in turn patterned from the 1940 ROC o Hence, secured creditors NEED NOT submit claims or participate in
§ 1940 à 1964 à 1997 the settlement of the estate (except, of course, in the second option
o The old ROC during the American regime was a source of both if the creditor wishes to recover the deficiency)
substantive and procedural law. It contained the concept of the Ø Q: If the mortgagor dies, does it not follow that the SPA given to the
statute for non-claims mortgagee to foreclose extra-judicially is extinguished?
o The Civil Code which was enacted in August 30, 1950. It did not o NO. When there is a mortgage, the mortgagor gives the mortgagee
repeal the old ROC. SPA to foreclose extra-judicially the mortgage.
o Therefore, the statute of non-claims, which was based on o Under the Civil Code, when the principal dies, the agency is
substantive law, was not repealed by the civil code provisions on extinguished.
prescription. Hence, the statute of non-claims prevails against the o However, the jurisprudence provides that when there is a secured
statute of limitations credit, the death of the principal does not extinguish the agency.
Ø Q: What are those covered by the statute of non-claims? This will fall under the principal of an agency coupled with an
o GR: The following claims must be filed within the time limited in the interest
notice; otherwise they are barred forever: o Hence, the agency continues and the mortgagee can still foreclose
1. All money claims against the decent, arising from contract, extra-judicially the mortgage
§ Express or implied,

Ø Q: What if the security is a pledge, not a mortgage. Does he also same preferred credit will get paid ahead of those not preferred. Credits
options that the mortgagee has? How does a pledgee foreclose a pledge? of the same class will be paid in proportion to their amount
o Under the Civil Code: Ø Q: If the creditors will not get paid because the estate is insolvent, can they
§ Article 2112. The creditor to whom the credit has not been not run after the heirs?
satisfied in due time, may proceed before a Notary Public o NO. They can only file a claim against the estate. The debt of the
to the sale of the thing pledged. This sale shall be made at deceased is not the debt of the heirs. The heirs only inherit
a public auction, and with notification to the debtor and whatever property remain after the claims are satisfied. So if the
the owner of the thing pledged in a proper case, stating creditors do not get paid, the heirs cannot inherit.
the amount for which the public sale is to be held. If at the Ø Q: Is dacien en pago allowed? Can the creditors be paid in property instead
first auction the thing is not sold, a second one with the of money?
same formalities shall be held; and if at the second auction o NO. The court must order the hard assets to be converted into liquid
there is no sale either, the creditor may appropriate the assets (cash) which will be used to pay of the claims of the creditors.
thing pledged. In this case he shall be obliged to give an The creditor cannot be paid in property
acquittance for his entire claim. Ø Q: For instance, the property of the decedent with tenants. The tenants
o It is just the notary public who sells the thing pledged at a public cannot pay. What is the remedy of the landlord?
auction sale. If he does not succeed in selling the thing pledged, a o Unlawful detainer
nd
2 sale on public auction will be had. If still unsuccessful, the Ø Q: But if the landlord dies, the building will form part of the estate. His
pledgee can now appropriate the thing pledged and this is not personality is continued in the estate. Can the settlement court order the
pactum commissorium. If there is a deficiency, the pledgee can no eviction of the tenants?
longer recover the deficiency unlike in mortgage o NO. The settlement court is not allowed to issue an order evicting
o Mikee: the question as to w/n a pledgee is considered a secured the tenants. It has limited jurisdiction: settling the estate of the
creditor with the same rights as a mortgagee. However, as to the decedent
second option of a secured creditor, Rule 86 provides: o The executor or administrator, since it is his duty to preserve and
§ Sec. 7, Rule 86 xxx manage the property of the decedent, should file the complaint for
§ 2. He may foreclose his mortgage or realize upon his unlawful detainer with the proper court
security, by action in court, making the executor or Ø Q: Can the court order the sale of the property of the decedent?
administrator a party defendant, and If there is a judgment o Yes, if it is for the purpose of satisfying the claims of the creditors.
for a deficiency, after the sale of the mortgaged premises, The order of preference is as follows:
OR THE PROPERTY PLEDGED, in the foreclosure or other § Sell the properties according to the provisions of the will, if
proceeding to realize upon the security, he may claim his any
deficiency judgment in the manner provided in the § Sell the personal properties
preceding section or § Sell, mortgage, or encumber the real properties
o Thus, by implication, the pledgee is considered a secured creditor o There is no timeframe in which to sell the properties
Ø Q: Is the sale public or private?
PAYMENTS OF THE DEBTS OF THE ESTATE o Depends on the discretion of the court
Ø Q: If the creditor was able to file a claim against the estate, does this mean Ø Q: Who will participate in the sale?
that he will surely get paid? o The executor or administrator will sell the property as directed by
o NO. It will depend whether the assets are sufficient or not. If the the court
estate is solvent, then all the creditors will get paid. If the estate is o The buyer will depend upon whether the sale is public or private. If it
insolvent, then the civil code provision on preference and is a sale by public auction, any person may bid. If it is a private sale,
concurrence of credit will apply. This means that a creditor with a those with an interest in the property
Ø Q: Is the sale one in cash or on installments?

o It can be either depending upon the order of the court o GR: No action upon a claim for the recovery of money or debt or
Ø Q: If it is a sale on installments, won’t this result in delay the proceedings interest thereon shall be commenced against the executor or
because it will take long time to sell the property? administrator;
o ? § Reason: it must be against the ESTATE
o EXPN: actions that survive the death of the decedent
DISTRIBUTION AND PARTITION OF THE ESTATE 1. To recover real or personal property, or
Ø Q: After the payment of the creditors, what is the next stage? 2. To recover an interest therein, from the estate, or
o Distribute the remainder of the estate to the heirs 3. To enforce a lien thereon, and
Ø Q: How will the court do this? 4. Actions to recover damages for an injury to person or property,
o The settlement court will determine who the heirs are; status of the real or personal, may be commenced against him.
heirs whether they are legitimate or illegitimate Ø Q: So if the claim is based on the contract, what is the proper action?
o The court will observe the provisions under the Civil Code on o File a claim against the estate under Rule 86
succession Ø Q: What if the claim is one for damages which is arises from tort?
o If there is a will, the court will follow the wishes of the testator, o This is an action which is not based on contract. File an action
provided that they do not deprive the compulsory heirs of their against the executor or administrator under Rule 87
legitime Ø Q: If we file an accion publiciana or reinvidicatoria against the executor or
o If there is no will, the court will determine the legitime and free administrator, is this correct?
portion. The free portion may be subject of partition by the heirs of o Yes. It is for recovery of real or personal property which is an action
the estate allowed to be filed against the executor under Rule 87
Ø Q: Can the heirs ask for partition of the remainder of the estate? o Q: With what court should the action be filed?
o Yes. They will submit a project of partition for the approval of the § The MTC or RTC where the property is located, depending
settlement court upon the assessed value of the property
Ø Q: Is this the partition in the concept of a Special Civil Action? Ø Q: What is the difference between a claim against the estate under Rule 86
o No. If there is a free portion of the estate left for the heirs, they will and an action against the executor/administrator under Rule 87?
just submit a project of partition and divide among themselves the o The former is a claim against the estate for money claims and debts;
remainder of the esate funeral expenses; expenses for last illness; and judgment for money
Ø Q: After the approval of the project of the estate, what happens if the against the decedent
executor or administrator does not comply with the order of the court, what § Must comply with the statute of non-claims
is the remedy of the heirs? o While the latter is against the executor or administrator for recovery
1. Ask the court to cite the executor or administrator for contempt of real or personal property or interest therein; enforcement of a
2. Ask for the removal of the executor or administrator and appointment of lien thereon; or action to recover damages due to tort
a new one § Need not comply with the statute of non-claims
Ø Q: Can they not ask for execution under Rule 39? How about the creditors Ø Q: What if the creditor’s promissory note is assigned to the heirs, is the heir
whose claim was approved by the court but the executor or administrator allowed to file an action against the executor or administrator
does not pay the claim, can’t they also ask for execution? What is the o No
remedy then of the creditors?
o Rule 39 cannot be availed of because it is only applicable in Ordinary CLOSURE OF SETTLEMENT PROCEEDINGS; REOPENING OF THE CASE
Civil Actions Ø Q: If the creditors are already paid and the heirs have already received their
distributive shares, what is the last step?
ACTIONS BY AND AGAINST THE EXECUTOR OR ADMINSTRATOR o The court will not issue an order of closure. This will terminate the
Ø Q: What are the actions which may be brought AGAINST the executor or end of the settlement proceedings
administrator?

Ø Q: If the settlement orders closure of the proceedings, can the creditors still Ø Q: If there is no executor or administrator, no one will notify the creditors,
recover if they did not participate in the proceedings? then there will be no statute of non-claims, is that it? How will the creditors
o No, they are already barred under the statute of non-claims. Also, file their claim? What is the device to protect the creditors under the rules?
the judgment is binding upon the whole world because it is a o The heirs will file a bond to be determined by the court
judgment in rem
Ø Q: How about the heirs? ESCHEAT
o Yes. If they been deprived from participating in the settlement Ø Q: Why is escheat a special proceeding?
proceedings, their remedy is to file for the Reopening of the Case Ø Q: What are the instances when we can have escheat?
Ø Q: Can they not institute their own settlement proceedings? 1. When a person dies intestate leaving no heir but leaving property in the
o NO. Petition for settlement of estate of deceased persons can only Philippines
be filed in one settlement court. It exercises jurisdiction to the a. Commenced by solicitor general as representative of the RP
exclusion of all other courts 2. Reversion proceedings – property is alienated in violation of the
Ø Q: So even if there is closure of the proceedings, does this mean that constitution
reopening is available at anytime? Should we not place a prescriptive 3. Unclaimed Balances Act – Dormant accounts for 10 years shall be
period? What is the use of calling the proceedings in rem if the proceedings escheated in accordance with Act no. 3936
can always be reopened? Should it not be binding upon the whole world? Ø Q: What is the difference between the 3?
o Suggested answer: YES. Reopening is available at any time. There is o In the first, the person leaving property is already dead. In the other
no period under the rules fixed for filing. This is a remedy of a 2, the owner of the funds/property alienated is still alive
deprived heir. This will not violate the in rem nature of the Ø Q: With respect to dormant accounts, what is the reason aside from the
proceedings since the in rem nature will only affect the creditors. policy under banking laws why the RP is allowed to confiscate the property?
Reason: personal notice to an heir is jurisdictional. Aside from Isn’t that expropriation which requires the payment of just compensation?
publication, all heirs must be notified thru registered mail in order to o No. It is an exercise of the police power of the state
acquire jurisdiction over them Ø Q: Is the owner of the funds impleaded?
o Alternative answer: The petition for reopening must be filed within o No, he is not a party defendant to the case
the reglementary period (See p. 299 of memaid) Ø Q: Once forfeited, what will the State do with the funds expropriated?
Ø Q: How about the republic of the Philippines, can it ask for reopening of the o It will be reverted to the national treasury and form part of the
case for non payment of taxes? It is not a compulsory heir. funds in general of the state
o Yes, but it must comply with the prescriptive periods of assessment Ø Q: What if the funds are escheated under the Rules of Court what will the
and collection under the Tax Code (know the periods) state do with the funds?
o 1. IF PERSONAL ESTATE – it shall be assigned to the municipality or
SUMMARY SETTLEMENT OF ESTATE city where he last resided in the Philippines,
Ø Q: There are 2 kinds of judicial settlement: regular judicial settlement and o 2. IF THE REAL ESTATE - to the municipalities or cities, respectively,
summary settlement of estates of small value. What is the difference in which the same is situated.
between the 2? o 3. If the deceased never resided in the Philippines - the whole
Regular Settlement Proceedings Summary Settlement of Estates of Small estate may be assigned to the respective municipalities or cities
Value where the same is located.
Exceeding 300,000/400,000 – RTC Not exceeding 10,000 – MTC o Q: Who are the beneficiaries of the estate escheated?
Not exceeding 300,000/400,000 – MTC § The estate shall be for the benefit of public schools, and
Need to appoint an executor or No need to appoint executor or public charitable institutions and centers in said
administrator while the case is pending administrator municipalities or cities.
Not summary Summary in nature o Note: the right to escheat may be waived expressly or impliedly

Ø Q: What about reversion? Will the RP file an OCA or a special proceeding? minor if the market value of the
Will there also be publication? property of the child or his
o Reversion is subject to the same rule as escheat. It is thru special annual income exceeds 50,000
proceeding. There will also be publication once a week for 6 weeks Who may file 1. Any relative 1. Any relative
in a NGC 2. Other person on behalf of 2. Friend
the minor 3. Other persons on
GUARDIANSHIP 3. Minor himself who is at behalf of resident
Ø Q: What are the 2 aspects of guardianship? least 14 years old incompetent
o 1. Guardianship over a minor à governed by the Rule on 4. Secretary of DSWD and without parents or
Guardianship of Minors (A.M. No. 03-02-05-SC) 5. Sec. of DOH in case of lawful guardians
§ Filed with the Family Court insane minor 4. DOH in case of
o 2. Guardianship over incompetent persons (who is not a minor) à insane person
governed by the ROC 5. Anyone interested
§ Filed with RTC in estate of a non-
Ø Q: Why do we have 2 governing rules on guardianship? resident
o Originally, the ROC was the sole governing rule. However, the incompetent
enactment of the Family Court Law vested exclusive original Grounds for 1. Death, incapacity, or
jurisdiction over guardianship of minors to the Family Court. appointment of continued absence of
Jurisdiction over incompetents who are not minors are retained with guardian parents
the MTC/RTC 2. Suspension, termination,
Ø Q: Who is an incompetent? deprivation of parental
o The word "incompetent" includes: authority
1. Persons suffering the penalty of civil interdiction or 3. Remarriage of surviving
2. Persons who are hospitalized lepers, parent
3. Prodigals 4. Best interest of minor so
§ Prodigal - spendthrift or person who spends or wastes his require
estate to expose himself or his family to want or suffering Order of preference 1. Surviving grandparent
or expose the town to charge or expense for the support 2. Oldest brother or sister over
for him or his family 21 unless unfit or
4. Deaf and dumb who are unable to read and write, disqualified
5. Those who are of unsound mind, even though they have lucid 3. Actual custodian over 21
intervals, and unless unfit or disq.
6. Persons not being of unsound mind, but by reason of age, disease, 4. Any other person for the
weak mind, and other similar causes, cannot, without outside aid, best interest of the minor
take care of themselves and manage their property, becoming Grounds for 1. Majority age of alleged 1. Competency of the
thereby an easy prey for deceit and exploitation. opposition/termination minor wards has been
Ø Q: Will the procedure be the same whether the ward is a minor or 2. Unsuitability of party whom judicially
incompetent? letters are prayed for determined
Guardianship of a minor Guardianship of an 2. Guardianship is no
incompetent longer necessary
Posting of a bond Posting of a bond is required by 3. Death of guardian
parents who are guardians of the 4. Death of ward

Ø Q: Procedure in DAL
Ø Q: What is the difference between a legal guardian and a judicial guardian? Ø Q: Procedure in ICAL
Ø Q: With respect to ordinary civil cases, do we need a special proceeding for Ø Q: Who is a legally free child in ICAL?
guardianship? Ø Q: Do we need to wait for a decree of adoption of foreign court before
o No. Courts have incidental powers to appoint a guardian ad litem bringing the adoptee abroad?
whether the court is MTC or RTC. Reason? Ø Q: What is the duty of a ICAB? A mere matchmaker?
o The extent of authority of guardian appointed by the court Ø Q: The adoptee is at the mercy of adopter when they are abroad. Is it not
Ø Q: Can the guardian ad litem enter into compromise agreement on behalf of ICAL promotes trafficking of children?
the ward? Ø Q: Why is it that in ICA, does it not promote illegal exportation of minors
o No. SPA is required before guardian can enter into amicable even before the issuance of decree of adoption?
settlements on behalf of the minor. The authority of the guardian is o Reason: there are penal provisions that deter illegal exportation
to preserve and manage the property and not enter into amiocable Ø Q: What are the deterrents provided in ICAL? Penal provisions
settlement which involves the disposition of his property or waiver Ø Q: Who can terminate adoption? On what grounds?
of rights which requires an SPA. Even lawyer needs SPA to enter into Ø Q: Is it too one sided that the adoptee can rescind while adopter can merely
compromise agreements. Otherwise, assistance of regular guardian inherit? Take note of construction of adoption laws
is needed Ø Q: What other special proceedings can be instituted together with adoption?
Ø Q: The trial in adoption is merely summary because there is no opposition.
Assignment: Up to Rule 109 and first half of crimpro But if we include Rule 108 to it, there shall be full blown hearing. Do we still
consider the best interest of the minor in that case?
Second meeting: March 11, 2017 Ø Q: What entries need correction in case of adoption?
Ø Q: What part of the name in change of name is sought to be changed?
From Daniel: Surname
ADOPTION Ø Q: In rescission of adoption, which court has jurisdiction? Is it a continuation
Ø Q: Who has jurisdiction in adoption? of the adoption proceedings?
Ø Q: What are the effects of adoption? o Not necessarily the adoption court who will hear the case. It is not a
Ø Q: What is the original exclusive jurisdiction of family courts? continuation of the adoption proceedings.
Ø Q: Why does the FC have jurisdiction over adoption? Why not RTC? o VENUE: Where the adoptee resides
o They are governed by special laws: Domestic Adoption Act and Inter-
Country Adoption Law. Both laws state FC has jurisdiction TRUST
Ø Q: Why is guardianship over minors is with the FC but with respect to Ø Q: What is this trust all about? Can we have a trust without a will being
guardianship over incompetents, it is the RTC? executed? We have trust In the ROC. If you read the GBL, there is a provision
o Reason: before, guardianship was vested under Juvenile Domestic which classifies trust as a business almost similar to banking. How does the
Something Act. Since wala na daw sa law na yun, the RTC has now Civil Code define trust?
jurisdiction over these cases by virtue of its general, jurisdiction o Article 1440. A person who establishes a trust is called the trustor;
Ø Q: Why is it that in guardianship the FC has jurisdiction on guardianship of one in whom confidence is reposed as regards property for the
minors, RTC has jurisdiction on guardianship of nonminors while in adoption benefit of another person is known as the trustee; and the person
FC has jurisdiction in adoption of minors AND nonminors? for whose benefit the trust has been created is referred to as the
Ø Q: Same question. In adoption, DAL and ICAL lumped to the FC the beneficiary.
jurisdiction in adoption of minors and nonminors. In guardianship, family Ø Q: It can be a business relationship, isn’t it? Theoretically there should be
courts law provided that FC shall have jurisdiction only on guardianship of parties. Who are they?
minors. When it comes to guardianship of nonminors, BP 129 applies. RTC o Trustor
shall have jurisdiction. o Trustee

o Beneficiary (Cestui Que Trust) o (13) To accept or repudiate an inheritance;

Ø TRUST RES – Property held in trust. Can be real property, personal property, o (14) To ratify or recognize obligations contracted before the agency;
or even money o (15) Any other act of strict dominion.
Ø The trust res can be given to the beneficiary. But there could be Ø Q: You will notice that these are acts of ownership. In these cases, without
cricumstances which could deter the trustor from giving the same to the SPA, the most that the agent can do is acts of ownership. Otherwise, he will
beneficiary. Instead, he will give it first to the trustee muna not bind the principal. On the other hand, if the owner will create a TRUST,
Ø Q: Why can’t they just enter into a contract of agency instead of entering to what is the effect of the creation of a trust?
a trust relation? The agent will hold the thing and all the income will be o In TRUST, on the other hand, if a trustor transfers his property to a
given to the beneficiary. Is that not a more simple arrangement? trustee, the title is transferred to a trustee. The trustee becomes the
rd
o Yes, agency is a simpler arrangement. However, agency and trust are owner of the legal title. So the trustee can effect contract with 3
not the same persons without authority necessary from the trustor because he
o In AGENCY, the agent can dispose of the property only if he is in appears to be the owner. But in truth, he is not really the true
possession of an SPA. The most that agent can do is to manage the owner. But because the title of the trustor is cancelled, the title that
property. He cannot dispose or convey the property. He needs SPA is left with the trustor is beneficial title.
to this. o Legal title à Trustee
Ø Q: Under the Civil Code, there is an enumeration of items which require SPA. o Beneficial title à Trustor
When is a power of attorney required for the validity of the act of the agent? o This is the difference between having an attorney-in-fact and a trust.
o Article 1878. Special powers of attorney are necessary in the The agent does not become owner whereas the trustee becomes
following cases: the owner of the legal title.
o (1) To make such payments as are not usually considered as acts of Ø In the ROC, the trust contemplated is one that instituted a will
administration; (testamentary trust). If we go to the GBL, trust is a business relation. The
o (2) To effect novations which put an end to obligations already in Monetary Board is the one that grants licenses to an entity that desires to
existence at the time the agency was constituted; conduct banking or trust business. There are separate licenses for the
o (3) To compromise, to submit questions to arbitration, to renounce respective businesses. Usually a trust agreement is entered into with the
the right to appeal from a judgment, to waive objections to the Bank. You will give your money to the bank and the bank will generate
venue of an action or to abandon a prescription already acquired; profits for you by investing it in stocks or other income-generating activities.
o (4) To waive any obligation gratuitously; The profits will go to the trustor but the bank will earn a percentage. If the
o (5) To enter into any contract by which the ownership of an bank collapses due to insolvency, the PDIC law will apply. The depositor is
immovable is transmitted or acquired either gratuitously or for a entitled to recover up to 500,000 of his deposit under the PDIC law. But this
valuable consideration; will only cover bank deposits and does not cover trust. This is the difference
o (6) To make gifts, except customary ones for charity or those made between trust and bank deposits
to employees in the business managed by the agent; Ø The trustee not need to go to court to sell the trust res
rd
o (7) To loan or borrow money, unless the latter act be urgent and Ø Q: If the trustee disposes the property to a third person, will the 3 person
indispensable for the preservation of the things which are under acquire ownership?
administration; o Yes. The trustee can sell the property without complication because
o (8) To lease any real property to another person for more than one he is the owner of the legal title
rd
year; Ø Q: Can the trustor run after the 3 person?
rd
o (9) To bind the principal to render some service without o No. He is no longer the owner. So long as the 3 person acts in GF
compensation; (he does not know about the trust), then the sale is valid.
o (10) To bind the principal in a contract of partnership; Ø This is NOT THE TRUST RELATIONSHIP UNDER THE ROC. The trust in ROC is
o (11) To obligate the principal as a guarantor or surety; testamentary trust
o (12) To create or convey real rights over immovable property; Ø Q: How is a testamentary trust constituted?

o Testator will create a trust in a last will. If he dies, the trust is not o MTC
immediately created. Under the Rules, the will must first be Ø Q: Insofar as SB is considered, what is your basis? It is not mentioned in the
admitted to probate. If it is admitted, there is a chance that the trust constitution or in B.P. 129. This is jurisdiction so the source must be
will be created substantive law
Ø Usually the beneficiary will be a charitable institution just like an orphanage o Sandiganbayan Law
(i.e. Hospicio de San Jose). Ø Q: How about the Family Court?
Ø The bank is the most trustworthy trustee because o Family Court Law
Ø In this case, there is a trust that needs to be created by court action. If the o But Habeas corpus involving minors must be in relation to a another
trustee resigns or dies, another action can be subject of court action proceeding. Habeas corpus involving minors in relation to the
Ø Trust can be constituted by agreement of the parties (contractual trust). custody of minors
Good example of trust agreement: memorial parks. This is an express trust Ø Q: How about inferior courts, do they have jurisdiction over Habeas Corpus
not created by the court. petitions?
Ø CONTRACTUAL TRUST NOT THE TRUST CONTEMPLATED UNDER THE RULES o Yes, under B.P. 129, pursuant to its special jurisdiction
BECAUSE IT IS NOT CREATED UNDER A WILL Ø Q: Why is it MTC it is so labelled as ‘special’ but not the same in RTC?
Ø Q: What can be possible liability by the bank incurred in the trust o The case is still filed with the RTC because it has jurisdiction over
relationship if the bank collapses and becomes insolvent? Who shoulders the Habeas Corpus. When the case is filed RTC but there are no RTC
liability? judges available, the RTC will transfer the records to the MTC and
o Res Perit Domino. Owner of the funds will bear the loss, not the the MTC will decide the case.
bank. Ø Habeas Corpus is either:
o Owner of funds bear the loss. Under the PDIC, the owner of funds o 1. Prerogative Writ
can recover up to 500k but that will only apply to a bank deposit and o 2. Peremptive Writ
not to a trust relationship. Ø Q: What do you mean when you say that habeas corpus is a prerogative
Ø Q: How can a court terminate a testamentary trust under ROC? Remember writ?
that the trusteeship court controls the trust. How will it put an end to the o It means that it must be attended to right away. We apply this
trust relationship? How is this compared to other special proceedings principle when the MTC acts upon the petition for habeas corpus
o In guardianship à closure of guardianship, when there are no RTC judges available
o In settlement à order of closure o If there are civil or criminal cases which are filed before the court
o In adoption à termination of the adoption if grounds to revoke the and a petition for habeas corpus is filed before it: The judge will
decree of adoption are present suspend all proceedings and will order the suspension of all pending
o The same is true in trust relationship if the court determines that it cases because there is a petition for habeas corpus. It takes
should be terminated. Order of closure will put an end to the precedence of all cases
proceedings Ø Q: What do you understand by the term peremptive writ?
o In a contractual trust, the parties will agree among themselves when o “PEREMPTORY” is used to describe an order command that you
to terminate the trust must comply without any questions.
§ In other words, dictatorial or decisive
HABEAS CORPUS Ø VILLAVICENCIO VS. LUKBAN
Ø Q: Cognizable by what court? o FACTS: Justo Lukban, Mayor of Manila, ordered the district of ill-
o SC repute women closed. 170 women were deported to Davao without
o CA their knowledge and consent. The women were received as laborers
o RTC in a banana plantation. Some of the women were able to escape and
o Sandiganbayan return to Manila. The attorney for the relatives and friends of a
o Family Court

considerable number of the deportees presented an application for o The parents leave the custody with the custody of grandparents
habeas corpus to the Supreme Court when they went abroad but upon coming back the grandparents do
o ISSUES: not want to return the custody of the child
1) Whether or not the respondents had authority to deport the Ø Q: But supposing the minor elopes with her boyfriend. Can the parents file
women to Davao; and for habeas corpus?
2) Whether or not the City of Manila has jurisdiction to issue a writ o Yes
of habeas corpus to Davao Ø Q: But isn’t the minor entitled to prerogative to leave the house whenever
o HELD: The respondents had no authority to deport the women. No she wants to? She can leave if she wants to. This is not a marriage anyway,
official, no matter how high, is above the law. The courts are the this is just like a trial marriage. In adoption we have trial custody now we
forum which function to safeguard liberty and to punish official have trial marriage
transgressors. The essential object and purpose of writ of habeas Ø Q: Will the issuance of Habeas Corpus grant the liberty of the detainee?
corpus is to inquire into all manner of involuntary restraint, and to o No
relieve a person therefrom if such restraint is illegal. If the mayor Ø Q: What then is the purpose of Habeas Corpus?
and the chief of police could deport the women, they must have the o The respondent must produce the detainee in court and explain to
means to return them from Davao to Manila. The respondents may the court the cause of the detention
not be permitted to restrain a fellow citizen of her liberty by forcing o The writ itself is not necessarily for the liberty of the detainee but an
her to change her domicile and to avow the act with impunity in the order to produce the detainee before the court
courts. The great writ of liberty may not be easily evaded. No one of Ø Q: But isn’t the purpose of Habeas Corpus it to attain freedom of the
the defense offered constituted a legitimate bar to the granting of detainee, why do we call it a ‘writ of liberty’ if it will not result into the
the writ of habeas corpus. liberty of the detainee
o DOCTRINE: Although they were not actually detained, restraint of o The writ of habeas corpus will not result into the liberty of the
liberty such as in this case will suffice to allow the issuance of a writ detainee
of habeas corpus o The court will have to issue another order
Ø Q: What was the sanction imposed upon by the court? Ø Q: What do you call the order?
o Contempt of court, because he could not produce the parties o Order of Discharge
Ø Q: What else was the respondent held liable for? o It is not correct to assume that the WRIT of habeas corpus will result
o Appropriate civil or criminal actions to the freedom of the detainee. Its function is to order the
Ø Q: The SC also said the respondent is liable for damages. Does this mean respondent to appear before the court and explain the cause of the
pwede sabay yung habeas corpus and damages? detention
o No. The claim for damages should be in an ordinary civil action, not Ø If the respondent complies with the order of the court and explain why he is
in a special proceedings. The sanction that the court can impose is detaining the person, the detainer will go back to the place with the
contempt which can lead to damages detainee. The detention continues until an Order of Discharge is issued.
o We cannot have habeas corpus + damages in one action Ø Q: If we file the petition for habeas corpus with RTC, can it issue within the
Ø Q: In the rules what is the purpose of habeas corpus? There are 2 purposes same day without notifying the other party?
allowed o Yes, the writ it is issued ex parte without hearing the party
o First purpose: illegal confinement or detention à deprivation of Ø Q: Can the court refuse the petition for habeas corpus?
liberty o If the petition is sufficient in form and substance, if there are enough
o Second purpose: when the rightful custody is withheld from the allegations of illegal deprivation, the court should naturally issue the
person entitled writ.
Ø Q: Example of the second purpose? o However, if there are instances wherein the court can believe that
the detention is lawful, then it may refuse to issue the writ

o For example, if the detention is by the Muntinlupa police, there is a Ø Q: What if the detainee only presents preponderant evidence, will the court
presumption that the detention is proper. If the court is convinced issue the writ?
that the detention is proper, it will not issue the writ o No
Ø Q: There is a process if the court does not believe that it should issue habeas Ø Q: If the evidence for the plaintiff and defendant are equal, what do you call
corpus. What is this process called? this situation in the rules of evidence?
o PRELIMINARY CITATION o Equiponderance (or Equipoise) of Evidence
o In contempt proceedings, instead of citing in contempt right away, Ø Q: If there is equipoise, who should win the case?
the court will issue show cause order. The equivalent of show cause o Respondent. The presumption of regularity is upheld
order in habeas corpus is preliminary citation Ø But this presumption will only apply if the respondent is a public officer. If
o The court, instead of issuing the writ, will issue a Preliminary the respondent is a private individual, he does not enjoy the same
Citation against the respondent to explain why the court should not presumption of regularity. The writ will normally issue if the private
issue a writ of habeas corpus. It is preparatory to the issuance of the individual does not prove by preponderant evidence that the detention is
writ itself. This is allowed under the rules correct
o If the court issues a preliminary citation, this means that the court is
not yet convinced that the detention is illegal AMPARO
o If the respondent proves that the detention is lawful and proper Ø Q: Is it a good suggestion to the petitioner to just file a petition of amparo
before the court instead? Can there be 2 cases subsisting? Can we tell the petitioner to file
Ø Q: If the respondent takes such a stand, justifying about the nature of the amparo instead since the quantum of evidence required is merely substantial
detention and it may be able to prove illegal deprivation, what the court will evidence? Is it possible to file the cases jointly and call the petition for
apply now is Sec. 13 which is a provision which works against the writ of habeas corpus and amparo considering amparo is a remedy which covers
habeas corpus habeas corpus?
o If the detainer is: o No. The 2 remedies are separate and distinct from each other
§ Public respondent – if he justifies that the detention is
lawful, this is considered a prima facie evidence (a Table: Advantages of writ of amparo as against habeas corpus
disputable presumption) that the detention is lawful. Habeas Corpus Amparo
§ Private individual – if he justifies = only a plea of the facts, Who may file Detainee, or Detainee
an affirmative defense which must be proven “Any party on his behalf” – Interested Parties
o Sec. 13. When the return evidence, and when only a plea. - If it This is not specifically defined Relative
appears that the prisoner is in custody under a warrant of unlike in amparo NGO other organizations
commitment in pursuance of law, the return shall be considered
prima facie evidence of the cause of restraint; but if he is restrained Quantum of Preponderant Evidence Substantial Evidence
of his liberty by any alleged private authority, the return shall be evidence required
considered only as a plea of the facts therein set forth, and the party Provisional remedies None Interim reliefs
claiming the custody must prove such facts. available TPO – temporary protection
Ø Q: Why is the disputable presumption bad for the detainee? order
o The detainee will have to prove evidence against the detention to IO – inspection order
destroy the presumption PO – production order
o The quantum of proof that is now required is clear and convincing WiPO
evidence and not preponderant evidence W/N general denial General denial allowed General denial not allowed
Ø Q: Why do we increase the evidence required? allowed
o Under the rules on evidence, the evidence required to destroy a
disputable presumption is clear and convincing evidence Ø Q: Will Amparo operate just like habeas corpus?

o Yes, it can also provide for the discharge of the detainee Ø Give an example of a general denial.
o It can even be more extensive than habeas corpus o I do not have this person in my custody
o If the respondent says: we do not have the custody. General denial Ø Quantum of evidence in Habeas corpus
is ALLOWED. Anyway we do not apply Ordinary Procedure which o Public officer – clear and convincing
disallows the general denial o Prep
o But this is not the same in amparo. If the respondent denies that he Ø Habeas corpus, respondent is public officer. There is a presumption that the
has custody of the person, it is the duty of the respondent to look detention is lawful, and he presents only preponderance of evidence
for the detainee, exert effort to look for him, and then report to the Ø Why don’t you allow the presumption of lawfulness to be defeated by
court the outcome. It is not enough for him to deny the allegations preponderant evidence?
unlike in habeas corpus o Presumption of regularity stands in the same footing as
Ø Q: But in amparo, there is one set back. What is that set back? preponderant evidence
o Government participation is indispensable Ø Equipoise rule in evidence. If the evidence of the prosecution and the defense
Ø NAVIA VS. PARDICO is equal, the accused will be acquitted
o DOCTRINE: For amparo to prosper, the petitioner must allege Ø If it were a civil case, the evidence for the plaintiff and the defendant, the
extralegal killings or enforced disappearance. In other words, it complaint will also be dismissed. Decision will be in favor of a defendant
conspiracy with the state is indispensable. So we always accuse the Ø In the event that the HB court grant the petition, will the detainee be
state. This is the essence of amparo. Without this allegation, the discharged?
petition will not prosper. This is not applicable in habeas corpus o No
Ø The writ is complied with if the respondent follows the order of the court, and
Dean J: according to the syllabus of the 2017 bar exams, the special proceedings that the court will still have to determine if the detainee should be discharged. It
will be covered are the following: will be the order of discharge that will accelerate the freedom.
- Habeas corpus Ø Do we have the same rule in amparo?
- Amparo Ø AMparo is meant to be an improvement to HB. The court has in mind to
- Habeas data introduce such and improve HBC. One innovation is that in habeas corpus, a
- Kalikasan general denial is allowed.
Ø In amparo it is not allowed.
Third Meeting: March 18, 2017 Ø In amparo, the respondent must make a specific denial, if not it is considered
a general denial. And the latter is not allowed. The amparo circular requires
From Jolo: the respondent to make a specific denial.
Ø HABEAS CORPUS Ø What else does the amparo court expect the respondent to state. The circular
Ø Habeas corpus v Amparo imposes another burden.
Ø Without evidence by plaintiff, how will the court decide. o Lawful defenses that the defendant did not violate the right to life,
o Insofar as the court is concerned the detention is lawful security, or liberty
o Action to determine the whereabouts of the aggrieved party
Ø The stand of the respondent is more lawful thhan that of the petitioner o All relevant info in the possession of the respondent
Ø If respondent is not a public officer what rule do you follow. o Action that will be taken to verify the identity of the aggrieved party
o There will be no presumption of regularity o Circumstance relating to the death and disappearance to aid in
o Stand of private respondent that the detention is lawful will not be a prosecution
responsible o Witness
o It will only be treated as a plea of the facts o Cause manner time of death and disappearance, pattern, practice
Ø The phrase is treated as a plea means that which brought about
o It will only be an allegation. An unproven allegation o Identify and apprehend suspect

o Bring the suspect to a competent court o “Remedy” nasa definition ng amparo. To protect right to life, liberty,
Ø Period to file a return in habeas corpus and security is violated or is threatened by violation of an unlawful
o No fixed period act. The writ shall cover extralegal killings and threats or
o It is up to the habeas corpus court disappearance thereof.
Ø Period in amparo Ø When there is violation or a threatened violation. This is considered as an
o May be cited in contempt improvement of habeas corpus. Habeas corpus does not contain a threat to
o 72 hrs life, liberty and security. Only actual violation of right liberty.
Ø Amparo and habeas data are remedies by SC. It is always part of procedural
Ø Period to file a return in amparo law, dahil remedy lang.
o 5 days from the receipt of the order of the court Ø What other improvements?
Ø Do we have summons in amparo? o Writ of habeas corpus, may be filed by aggrieved party or any
Ø Petition for HB, court can issue it right away. That is why it is a prerogative interested person on his behalf.
writ. When the petition is sufficient, it can be granted ex parte. o Amparo: Immediate family, relative within (consanguinity or affinity)
th
Ø That is the procedure even in amparo. Allegations in the petition are 4 civil degree
sufficient, the court can grant exparte the writ of amparo. o NGO accredited organizations
Ø The improvement in amparo, the return must be submitted in the period fixed o Should follow the order provided under the circular
in the circular. Ø In Habeas Corpus
Ø What do we expect the respondent to tell the court? o Only aggrieved party and any person interested in his behalf
o Steps taken to locate the whereabouts of the person. o More stringent
Ø May there be credible defenses that the respondent is allowed to set up? o Must prove interest in filing the same
o YES. What are some recognized by the amparo circular o Otherwise, case will not prosper. No standing
o Did not violate the right to life, liberty and security Ø Appeal:
o All relevant info. Pertaining to respondent o Habeas corpus, 48 hrs from final judgment (receipt)
o Respondent is public official or employee, actions taken and to be o Amparo: 5 days, mode of appeal. Rule 45
taken o Lengthy document daw, 5 days is too short.
Ø In habeas corpus, what is our competent court? o Longer than a petition for certiorari under rule 65, you need to
o RTC, CA, SC, sandiganbayan in aid of its appellate jurisdiction present factual statements, your arguments, you need to explain to
o Sandiganbayan: the court all the legal and factual issues.
o First level courts if RTC judge is not available Ø Is there something wrong in the appeal in amparo
o ^ Petition will first be filed with the RTC, pero I – aassign lang o Questions of facts and law are raised.
Ø In habeas corpus, tapos RTC, enforeceable lang sa judicial region Ø Will it not violate rule 45?
Ø Kapag Amparo o Ordinary rules apply suppletorily to rules on special proceedings
Ø AMPARO o Spec pro and amparo
o RTC, based on what. o Exception to the general rule that the Sc is not a trier of facts.
o Criticisms of Amparo circular, source is a circular of supreme court Ø In the circular on amparo, amparo can even be converted into an interim
and not 129. Jursdiction over subject matter must be provided by relief. How do we convert amparo into an interim relief
substantive law and not order by SC o Crim case is filed first.
o Can we give a good justification: Court of general jurisdiction is an o Just file a motion in the same court
adequate reason why RTC has jurisdiction over amparo. Ø What criminal case may be filed ahead of amparo with the same factual bg?
Ø Court of Appeals: o Murder committed by a public officer
Ø Rely on definition of Writ of Amparo to justify it as a procedural law: o Extralegal killings
Ø Why cannot he commence a separate proceeding for amparo?

o Under the rules, if a crim case is filed first, amparo shall only be a storing of data or information regarding the person, family, home
motion. and correspondence of the aggrieved party.
o If amparo is filed first, consolidation of crim case and amparo case. Ø Q: What is the competent court in this case?
Ø Procedure that will apply? o If filed with RTC: where the
o Crim aspect, crim pro 1. Petitioner or
o Amparo, procedure provided in the circular: specpro 2. Respondent resides; or that
Ø Will it not lead to confusion? Amparo as an interim relief. 3. Which has jurisdiction over the place where the data or
o Crim case: PBRD information is gathered, collected or stored, at the option of the
o Amparo: Substantial evidence parin petitioner;
Ø If we treat amparo as an independe proceedings, we have interim reliefs, can o SC, CA or SB when the action concerns public data files or
we use the same principle in habeas corpus proceedings? government offices.
o Inspection, production, temporary protection, witness protection Ø Q: Why do we need so many competent courts?
order o
Ø Why can’t we do the same in habeas corpus? Ø Q: Practically all institutions in gathering, collecting, or storing data such as
Ø Most practical thing to do is to file both Habeas corpus and amparo para a school or a bank. So does this mean practically all institutions which are
available mga remedies na nasa habeas corpus: engaged in business may be a respondent in a Habeas Data?
o SC allowed habeas corpus to be combined with certiorari, if we can o Yes
combine certiorari under 65, what will prevent us from combining o But although many institutions engage in gathering, collecting or
amparo and habeas corpus. storing data, such information must be regarding the person, family,
o It is just like rule 65, it involves 3 distinct petition. You can have home and correspondence of the aggrieved party. And in order to
certiorari w/o prohibition and mandamus. But if you are the fall within the ambit of Habeas Data, there must be a violation or
petitioner, you just copy rule 65. threatened violation of right to privacy to life, liberty, or security.
o In special proceedings we also learned that we can have a petition Ø Q: Is there anything wrong about giving away information about ourselves?
for adoption, a petition for correction of entries in the local civil Anyway you voluntarily give the information about yourselves. For example
registrar before you enter San Beda you disclose information about yourself
o Allowed 65 and HBC although both are governed by different o Information that is disclosed about a person, may violate his right to
procedures privacy in life, liberty in security
o SO, WE CAN COMBINE AMPARO AND HBC. As long as we go to the o For example, a person wouldn’t want San Beda to disclose my
court the exercise jurisdiction to both Amparo and HBC: e.g. RTC. address as this would threaten his security
Ø When we combine them and there is later on a decision, what rule on appeal Ø Q: So it is more of an injunctive relief?
will apply? o Generally, no. In asking for the issuance of writ of Habeas Data, the
o Follow rule 45? Yung sa amparo petitioner is not asking for injunctive relief. Exception: in case of
Ø Will the appeal process in Amparo be necessarily included in HBC? threats, the relief may include a prayer for an order enjoining the act
complained of
HABEAS DATA o In a Petition for Habeas Data, the RELIEFS prayed for may include:
Ø Q: What is the remedy of habeas data? Why can’t we apply the procedure in § The updating, rectification, suppression or destruction of
habeas corpus/amparo in habeas data? the database or information or files kept by the
o Habeas Data is a remedy available to any person whose right to respondent.
privacy in life, liberty or security is violated or threatened by an § In case of threats, the relief may include a prayer for an
unlawful act or omission of a public official or employee, or of a order enjoining the act complained of
private individual or entity engaged in the gathering, collecting, or Ø Q: Can we not seek a rectification or correction of the information kept by
the respondent? For instance, the institution has already disclosed the

information. Can you ask under a Petition for Habeas Data for the § The return shall contain a full statement of the
rectification of this error? proceedings under the writ and a complete inventory of
o Yes. This is one of the purposes of the writ of Habeas Data: the database or information, or documents and articles
rectification of the data or information kept by the respondent inspected, updated, rectified, or deleted, with copies
Ø Q: Who may file the petition? Do we follow the same rule in Habeas Corpus? served on the petitioner and the respondent
Or Amparo? § The officer shall state in the return how the judgment was
o GR: By the aggrieved party enforced and complied with by the respondent, as well as
o EXPN: However, in cases of extralegal killings and enforced all objections of the parties regarding the manner and
disappearances: regularity of the service of the writ.
§ Any member of the immediate family Ø Q: Do we also have an appeal mechanism in Habeas Data?
§ In default of the former, any ascendant, descendant, or o Same rule as applied in Amparo
collateral relative of the aggrieved party within the 4th o Rule 45 by petition for review on certiorari with peculiar features:
civil degree of consanguinity or affinity 1. Appeal may raise questions of fact or law or both;
o It is unlike habeas corpus wherein the petitioner can either be the 2. Period of appeal shall be 5 working days from the date of notice
detained person or the person with rightful custody; or in amparo of the adverse judgment;
where the petitioner can be an interested person provided that the 3. Same priority as habeas corpus cases
order of preference is followed. Habeas data is filed by the aggrieved o This is also an exception to the rule that SC is not a trier of fact but a
party and exceptionally filed by other interested persons in case of trier of law. In habeas data, the SC can try both factual and legal
extralegal killing or enforced disappearances issues
Ø Just like Habeas Corpus and amparo upon the filing of the petition, the court,
immediately order the issuance of the writ if on its face it ought to issue.
Ø The respondent shall file a verified return together with supporting affidavits
within 5 days from service of the writ. The return shall include: lawful
defenses (i.e. national security or state secrets, or when the data or
information cannot be divulged to the public due to its nature or privileged
character), the disclosure of data about the petitioner, the steps taken to
ensure confidentiality and security of the data, etc.
Ø In case respondent fails to return, the court, justice or judge shall proceed to
hear the petition ex parte, granting petitioner such relief as the petition may
warrant, unless the court in its discretion requires petitioner to submit
evidence.
Ø Q: In Amparo, it is easy to execute the judgment. But in Habeas Data, it is
difficult since it involves information storing. How do you expect the court to
execute the judgment judgment? For example, if the court orders the
rectification. How will the court know that the error is already rectified? Will
the writ of Habeas Data not required a continuing act? How will the court be
satisfied that it is obeyed?
o The court shall render judgment and grant the reliefs prayed for
o When the judgment becomes final, it shall be enforced by the sheriff
or any lawful officers as may be designated within 5 days
o The officer who executed the final judgment shall make a verified
return to the court within 3 days from its enforcement

CRIMINAL PROCEDURE BARANGAY CONCILIATION SHALL BE A CONDITION PRECEDENT

ONLY IN LIGHT OFFENSES.
CRIMINAL ACTIONS Ø Generally, the device in criminal procedure to acquire jurisdiction is to issue a
Ø Q: What is a criminal action under the rules? warrant of arrest. The remedy available to the accused: posting of bail. Bail is
o A criminal action is one by which the State prosecutes a person for also the means of recognizing the jurisdiction of the court when a person has
an act or omission punishable by law. been issued a warrant of arrest
Ø Q: If you are going to compare a civil action and criminal action, they each Ø There is a problem now if the case reaches the court without first undergoing
have their own rules of procedure. There are also civil cases which apply barangay conciliation. Even if there is an information that is filed, the court
small claims or summary procedure. In criminal procedure, do we also have cannot issue a warrant of arrest immediately. The reason is that in the cases
small claims and summary procedure? which require barangay conciliation, the court is prohibited from issuing
o Summary procedure – Yes warrant of arrest. In other words, warrant of arrest is not issued in light
o Small claims – No offenses
o We have summary procedure for criminal cases, but we do not have Ø Q: How will the court now acquire jurisdiction over the accused if it is not
small claims cases which are criminal in character allowed to issue a warrant of arrest? There must be a substitute device of
Ø Q: Why don’t we have small claims cases criminal in character? acquiring jurisdiction over the accused otherwise the proceedings will be
o The cases governed by the Rule on Small Claims are limited only to meaningless
CIVIL CASES which are exclusively for the payment or o SUMMONS is a substitute device which is allowed to acquire
reimbursement of a sum of money not exceeding P200,000.00 jurisdiction in cases where a warrant of arrest is not allowed.
Ø Q: In civil cases, we must comply with barangay conciliation, provided that However it will not work to detain the accused since that is the
the parties are natural persons and they reside in the same city or function of a warrant of arrest, not summons.
municipality. Do we also have barangay conciliation in criminal cases? o Thus, in light offenses where a warrant of arrest is not allowed,
o Yes. There are some criminal cases that must first undergo prior summons may be issued to acquire jurisdiction over the accused
barangay conciliation Ø Q: How about subpoena?
Ø Q: What are these criminal cases? o No. It is not a mode of acquiring jurisdiction in civil cases nor
o GR: Section 408, Local Government Code. The lupon of each criminal cases
barangay shall have authority to bring together the parties actually Ø Q: So is the summary procedure in light offenses the same as in civil cases?
residing in the same city or municipality for amicable settlement of o No. There is a summary procedure of civil cases and criminal
ALL DISPUTES procedure. They are different.
o EXPN: As amended by A.M. 14-93, except in the following disputes: o The criminal cases covered under SUMMARY PROCEDURE are:
§ xxxxx (BORAT)
§ (6) Offenses for which the law prescribes a maximum 1. Violations of Traffic laws, rules and regulations;
penalty of imprisonment exceeding one [1] year or a fine 2. Violations of the Rental law;
of over five thousand pesos (P5,000.00); 3. Violations of municipal or city Ordinances;
§ (7) Offenses where there is no private offended party; 4. All other criminal cases where the penalty
§ (8) Disputes where urgent legal action is necessary to prescribed by law for the offense charged is
prevent injustice from being committed or further imprisonment not exceeding six months, or a fine
continued, specifically the following: not exceeding (P1,000.00), or both, irrespective of
• (a) Criminal cases where accused is under police other imposable penalties, accessory or otherwise,
custody or detention or of the civil liability arising therefrom: Provided,
o Since the imposable penalty should not exceed 1 year, the offenses however, that in offenses involving damage to
referred to in the enumeration are light offenses. THUS, property through criminal negligence, this Rule

shall govern where the imposable fine does not Ø Q: If the SC acts in the exercise in original jurisdiction? Remember that the SC
exceed ten thousand pesos (P10,000.00). can try factual issues in amparo and habeas data. But this is in exercise of its
5. Violations of B.P. 22 (bouncing checks law) appellate jurisdiction. Will it demean the members of the SC if we say that it
Ø How commenced: by complaint or by information can try fact
Ø Must be accompanied by affidavits of complainant and his witnesses. If this o GR: No, it is not a trier of facts
requirement is not complied with within 5 days from date of filing, the case o EXPN: YES, if it decides to do so if it invokes its original jurisdiction
may be dismissed under the constitution
Ø Arraignment Ø Q: What is the original jurisdiction of the SC under the constitution?
Ø Preliminary conference o Section 5, Article VIII, 1987 Constitution. The Supreme Court shall
Ø Trial have the following powers:
Ø Q: In civil cases, we also have submission of affidavits. After this, the court § Exercise over cases affecting ambassadors, other public
will now render judgment. Will this also apply to criminal cases? ministers and consuls xxxx
o The parties will submit their affidavits, including those of their o The constitution does NOT distinguish whether these cases are civil
witness. But the party interested can conduct cross-examination. or criminal
We don’t have this in civil cases. Ø Q: How about the court of appeals? What is its original jurisdiction?
Ø Q: Why can’t we have judgment right away? Why do we have to recall the o It can try criminal cases for violation of Anti-Terrorism Act
parties in order to cross-examine the witness? Isn’t this the purpose of Ø Q: What about the Sandiganbayan? Where is its jurisdiction found?
summary procedure? To expedite the proceedings? Can we not have the o R.A. 8249
same rule in criminal cases considering that light offenses do not even o 2 things to take into consideration: the nature of the offense and
require imprisonment or it may be dispensed with because of probation? The salary grade of the public official.
o Sec. 15. Procedure of trial. — At the trial, the affidavits submitted Ø Section 4 of RA 8249 provides that the Sandiganbayan shall have:
by the parties shall constitute the direct testimonies of the Ø EXCLUSIVE ORIGINAL JURISDICTION:
witnesses who executed the same. Witnesses who testified may be o Violations of RA 3019 (Anti-graft and Corrupt Practices Law); RA
subjected to cross-examination, redirect or re-cross examination. 1379 (Forfeiture of Illegally Acquired Wealth); Crimes by public
Should the affiant fail to testify, his affidavit shall not be officers or employees embraced in Ch. II, Sec.2 Title VII, Bk. II of the
considered as competent evidence for the party presenting the RPC (Crimes committed by Public Officers), where one or more of
affidavit, but the adverse party may utilize the same for any the accused are officials occupying the following positions in the
admissible purpose. government whether in a permanent, acting or interim capacity, at
Ø Q: What is the reason? Why can’t we do away with cross-examination? the time of the commission of the offense:
o Reason is found in Rule 111 and in the constitution: The accused’s § (1) Officials of the Executive branch occupying the
CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE THE positions of regional director and higher, otherwise
WITNESSES AGAINST HIM AT THE TRIAL classified as Grade 27 and higher, of the Compensation
and Position Classification Act of 1989 Republic Act No.
JURISDICTION IN CRIMINAL CASES 6758) specifically including:
Ø Q: What are the courts which exercise criminal jurisdiction? • (a) Provincial governors, vice-governors,
o MTC members of the sangguniang panlalawigan,
o RTC provincial treasurers, assessors, engineers and
o FC other provincial department heads;
o CTA • (b) City mayors, vice-mayors, members of the
o Sandiganbayan sangguniang panglungsod, city treasurers,
o CA à Appellate Jurisdiction assessors, engineers and other department
o SC à Appellate Jurisdiction heads;

• (c) Officials of the diplomatic service occupying Ø Q: If we say the penalty is 2 years or 3 years, do we automatically say that
the position of consul and higher; RTC is NOT the court?
• d) Philippine Army and Air force colonels, naval o NO, there are other factors to take into consideration in determining
captains and all officers of higher rank; whether or not a court of jurisdiction
• (e) Officers of the PNP while occupying the Ø Q: Aside from the imposable penalty, what are else are the factors to
position of Provincial Director and those holding determine the jurisdiction of a court
the rank of Senior Superintendent or higher; o Laws which specially provided that a criminal case shall fall within
• (f) City and provincial prosecutors and their the jurisdiction of a court
assistants; officials and the prosecutors in the Ø Q: What are the instances?
Office of the Ombudsman and special prosecutor o LIBEL à shall fall within the jurisdiction of the RTC even if it is
• (g) President, directors or trustees or managers punishable by MTC
of government owned or controlled o BRIBERY à shall fall within the jurisdiction of the SANDIGANBAYAN
corporations, state universities or educational if committed by the public officer
institutions or foundations; o DAMAGE TO PROPERTY THRU NEGLIGENCE à MTC
§ (2) Members of Congress and Officials thereof classified as Ø Q: What is the jurisdiction of the RTC according to B.P. 129?
Grade 27 and up under the Compensation and o Section 20. Jurisdiction in criminal cases. – Regional Trial Courts shall
Classification Act of 1989; exercise exclusive original jurisdiction in all criminal cases not within
§ (3) Members of the Judiciary without prejudice to the the exclusive jurisdiction of any court, tribunal or body,
provision of the Constitution; § Except those now falling under the exclusive and
§ (4) Chairmen and members of Constitutional concurrent jurisdiction of the Sandiganbayan which shall
Commissions, without prejudice to the provision of the hereafter be exclusively taken cognizance of by the latter.
Constitution; o Over offenses punishable with imprisonment exceeding 6 years
§ (5) All Other national and local officials classified as Grade o Where the penalty provided for by law is a fine, over offenses
27 and higher under the Compensation and Position punishable with a fine more than P4,000
Classification Act of 1989. Ø Q: How about the MTC according to B.P. 129?
o Other offenses or felonies whether simple or complexed with other o Cases covered by Summary proceedings
crimes committed in relation to their office by the public officials § Violations of city or municipal ordinances  including traffic
and employees mentioned above; laws
o Civil and Criminal Cases filed pursuant to and in connection with EO § Violation of rental law  
1, 2, 14 & 14-A issued in 1986 § Violation of traffic laws, rules and regulations  
Ø APPELLATE JURISDICTION § Violation of BP 22 (Bouncing Check Law)  effective April
o The Sandiganbayan is vested with Appellate Jurisdiction over final 15, 2003  
judgments, resolutions or orders of the RTC whether in the exercise § All other criminal cases where the penalty is
of their original or appellate jurisdiction over crimes and civil cases  imprisonment not exceeding 6 months and/or P100,000
falling within the original exclusive jurisdiction of the Sandiganbayan fine irrespective of other penalties arising therefrom
but which were committed by public officers below Salary Grade 27. o Offenses punishable with imprisonment not exceeding six (6) years
Ø Q: An airforce colonel is the equivalent of a naval captain is that it? irrespective of the amount of fine, and regardless of other
Ø Q: What is the standard of determining jurisdiction of a court? imposable accessory or other penalties, including the civil liability
Ø Q: What is the threshold with respect to RTC? arising from such offenses or predicated thereon, irrespective of the
o More 6 years kind, nature, value or amount thereof; provided however, that in
Ø Q: 6 years or less? offenses involving damage to property through criminal negligence,
o MTC

they shall have exclusive original jurisdiction thereof (Sec. 2, RA o Sec. 5, R.A. 8369. Jurisdiction of family Courts. - The Family Courts
7691). shall have exclusive original jurisdiction to hear and decide the
o Where the only penalty provided for by law is a fine, over offenses following cases:
punishable with a fine of not more than P4,000 § (a) Criminal cases where one or more of the accused is
o Offenses involving DAMAGE TO PROPERTY through CRIMINAL below 18 years of age but not less than 9 years of age but
NEGLIGENCE where the imposable fine is not exceeding P10,000 not less than 9 years of age or where one or more of the
o All offenses (except violations of RA 3019, RA 1379 and Arts. 210 to victims is a minor at the time of the commission of the
212, RPC) committed by public officers and employees in relation to offense: Provided, That if the minor is found guilty, the
their office, including those employed in GOCCs, and by private court shall promulgate sentence and ascertain any civil
individuals charged as co-principals, accomplices or accessories, liability which the accused may have incurred. The
punishable with imprisonment of not more than 6 years OR where sentence, however, shall be suspended without need of
none of the accused holds a position of salary Grade 27 and higher. application pursuant to Presidential Decree No. 603,
Ø Q: Is the summary procedure in a criminal case identical with the summary otherwise known as the "Child and Youth Welfare Code
procedure in a civil case? § xxxx
o There is no cross examination in a civil case but there remains cross § (i) Cases against minors cognizable under the Dangerous
examination in criminal cases in accordance with the constitutional Drugs Act, as amended;
right of the accused § (j) Violations of Republic Act No. 7610, otherwise known as
Ø Q: How about the CTA as a criminal court? the "Special Protection of Children Against Child Abuse,
o Sec. 7, RA 1125, as amended by RA 9282: Exploitation and Discrimination Act," as amended by
o EXCLUSIVE ORIGINAL JURISDICTION over all criminal offenses Republic Act No. 7658; and
arising from violations of the National Internal Revenue Code or § (k) Cases of domestic violence against
Tariff and Customs Code and other laws administered by the • Women - which are acts of gender based
Bureau of Internal Revenue or the Bureau of Customs: violence that results, or are likely to result in
o Provided, however, That offenses or felonies mentioned in this physical, sexual or psychological harm or
paragraph where the principal amount o taxes and fees, exclusive suffering to women; and other forms of physical
of charges and penalties, claimed is less than One million pesos abuse such as battering or threats and coercion
(P1,000,000.00) or where there is no specified amount claimed shall which violate a woman's personhood, integrity
be tried by the regular Courts and the jurisdiction of the CTA shall be and freedom movement; and
appellate. • Children - which include the commission of all
o EXCLUSIVE APPELLATE JURISDICTION in criminal offenses: forms of abuse, neglect, cruelty, exploitation,
§ a. Over appeals from the judgments, resolutions or orders violence, and discrimination and all other
of the Regional Trial Courts in tax cases originally decided conditions prejudicial to their development.
by them, in their respected territorial jurisdiction. Ø Q: if it is the victim is the minor, do we still go to the family court regardless
§ b. Over petitions for review of the judgments, resolutions of the offense?
or orders of the Regional Trial Courts in the exercise of o Yes
their appellate jurisdiction over tax cases originally Ø Q: What is the criminal jurisdiction of the Court of Appeals?
decided by the Metropolitan Trial Courts, Municipal Trial o Original Jurisdiction à Anti-terrorism law (Human Security Act)
Courts and Municipal Circuit Trial Courts in their respective Ø Q: Is this exclusive?
jurisdiction. o Yes
Ø Q: How about the Family Court? Ø Q: How about the SB a while ago?
o Exclusive
Ø Q: RTC?

o Exclusive present action by reason of the sum of money involved which, according to
the law then in force, was within the original exclusive jurisdiction of inferior
Monday Class: March 20, 2017 courts. It failed to do so. Instead, at several stages of the proceedings in the
court a quo as well as in the Court of Appeals, it invoked the jurisdiction of
From Ayah: said courts to obtain affirmative relief and submitted its case for a final
Ø Q: Does the Supreme Court exercise Original Jurisdiction over criminal cases? adjudication on the merits. It was only after an adverse decision was rendered
o Yes by the Court of Appeals that it finally woke up to raise the question of
Ø Tijam v. Sibonghanoy (G.R. No. L-21450) jurisdiction. Were we to sanction such conduct on its part, We would in effect
FACTS: Spouses Tijam commenced a civil case in the CFI of Cebu against the be declaring as useless all the proceedings had in the present case since it was
spouses Sibonghanoy to recover from the sum of P1,908.00, with legal commenced on July 19, 1948 and compel the judgment creditors to go up
interest, plus costs. their Calvary once more. The inequity and unfairness of this is not only patent
A writ of attachment was issued by the court against defendants' but revolting.
properties, but the same was soon dissolved upon the filing of a counter-bond Ø Q: Is Tijam v. Sibonghanoy applicable in criminal cases?
by defendants and the Manila Surety and Fidelity Co. o Yes
Court of First Instance of Cebu rendered judgment in favor of the Ø Figueroa v. People (G.R. No. 147406)
plaintiffs and issued a writ of execution against the defendants. Surety moved FACTS: Figueroa, convicted for reckless imprudence resulting to homicide in
to quash the writ but the same was denied. RTC Bulacan, questioned the trial court’s jurisdiction first time on appeal
Surety appealed to the CA without raising issue of lack of before the CA. CA affirmed conviction. It said that Figueroa actively
jurisdiction. Surety then filed Motion to Dismiss on the ground of lack of participated in RTC trial, hence, he is already estopped by laches.
jurisdiction against CFI Cebu in view of the effectivity of Judiciary Act of 1948 a ISSUE: W/N Figueroa can no longer question jurisdiction of the RTC.
month before the filing of the petition for recovery. Same Act placed original HELD: Yes. Jurisdiction may be questioned. The general rule remains: a court's
exclusive jurisdiction of inferior courts all civil actions for demands not lack of jurisdiction may be raised at any stage of the proceedings, even on
exceeding 2,000 exclusive of interest. CA set aside its earlier decision and appeal. The reason is that jurisdiction is conferred by law, and lack of it affects
referred the case to SC. the very authority of the court to take cognizance of and to render judgment
ISSUE: W/N Surety bond is estopped from questioning the jurisdiction of the on the action. Moreover, jurisdiction is determined by the averments of the
CFI Cebu? complaint, not by the defenses contained in the answer.
HELD: Yes. A party may be estopped or barred from raising a question in Applying the said doctrine to the instant case, the petitioner is in no
different ways and for different reasons. Thus we speak of estoppel in pais, or way estopped by laches in assailing the jurisdiction of the RTC. At that time, no
estoppel by deed or by record, and of estoppel by laches. considerable period had yet elapsed for laches to attach. The principle in
Laches, in a general sense is failure or neglect, for an unreasonable Sibonghanoy case does not apply.
and unexplained length of time, to do that which, by exercising due diligence, We note that estoppel, being in the nature of a forfeiture, is not
could or should have been done earlier; it is negligence or omission to assert a favored by law. It is to be applied rarely--only from necessity, and only in
right within a reasonable time, warranting a presumption that the party extraordinary circumstances. The doctrine must be applied with great
entitled to assert it either has abandoned it or declined to assert it. care and the equity must be strong in its favor.
Furthermore, it has also been held that after voluntarily submitting a Ø Q: How is a criminal case commenced?
cause and encountering an adverse decision on the merits, it is too late for the o By filing an information or complaint
loser to question the jurisdiction or power of the court -"undesirable practice" Ø Q: When do we file a complaint and when an information?
of a party submitting his case for decision and then accepting the judgment, o A complaint is a sworn written statement charging a person with an
only if favorable, and attacking it for lack of jurisdiction, when adverse. offense, subscribed by the offended party, any peace officer, or
The facts of this case show that from the time the Surety became a other public officer charged with the enforcement of the law
quasi-party on July 31, 1948, it could have raised the question of the lack of violated
jurisdiction of the Court of First Instance of Cebu to take cognizance of the

o An information is an accusation in writing charging a person with an o However, any amendment before plea, which downgrades the
offense, subscribed by the prosecutor and filed with the court. nature of the offense charged in or excludes any accused from the
Ø Q: What are the criminal cases which need to be filed in court where there is complaint or information, can be made only upon motion by the
a need to be an information filed by the prosecutor? prosecutor, with notice to the offended party and with leave of
o When there is preliminary investigation, an information needs to be court.
filed by the prosecutor. Ø Q: If the crime charged is murder and the crime proven is homicide, may the
o In cases wherein preliminary investigation is not needed, the action prosecution avail of substitution?
may be commenced by a complaint. o No. Via Rule 119, sec 19.
Ø Q: In violation of ordinance, is preliminary investigation required? Amendment Substitution
o It depends. Amendment may involve either Substitution necessarily involves a
Ø Q: What must be contained in the complaint or information? formal or substantial changes. substantial change from the original
o Rule 110, Sec 6: A complaint or information is sufficient if it states charge.
the name of the accused; the designation of the offense given by the Amendment before plea has been Substitution of information must be
statute; the acts or omissions complained of as constituting the entered can be effected without with leave of court, as the original
offense; the name of the offended party; the approximate date of leave of court. information has to be dismissed.
the commission of the offense; and the place where the offense was Where the amendment is only as to In substitution of information,
committed. form, there is no need for another another preliminary investigation is
Ø Q: Is an amendment to conform to evidence available in criminal cases? preliminary investigation and the entailed and the accused has to plead
o No. Unlike in civil cases, Constitutional provisions and the rights of retaking of the plea of the accused. anew to the new information.  
the accused protects the defendant from being prosecuted for an An amended information refers to Substitution requires or presupposes
offense not charged. the same offense charged in the that the new information involves
o Rule 110: If it appears at any time before judgment that a mistake original information or to an offense different offense which does not
has been made in charging the proper offense, the court shall which necessarily includes or is include or is not necessarily included
dismiss the original complaint or information upon the filing of a necessarily included in the original in the original charge; hence the
new one charging the proper offense in accordance with section 19, charge; hence substantial accused cannot claim double
Rule 119, provided the accused shall not be placed in double amendments to the information after jeopardy.  
jeopardy. the plea has been taken cannot be
o Rule 119: When it becomes manifest at any time before judgment made over the objection of the
that a mistake has been made in charging the proper offense and accused, for if the original
the accused cannot be convicted of the offense charged or any other information would be withdrawn, the
offense necessarily included therein, the accused shall not be accused could invoke double
discharged if there appears good cause to detain him. In such case, jeopardy  
the court shall commit the accused to answer for the proper offense
and dismiss the original case upon the filing of the proper Ø Q: What are the elements of double jeopardy?
information.
o Rule 117: When an accused has been convicted or acquitted, or the
Ø Q: When can there be amendment in Criminal Cases?
case against him dismissed or otherwise terminated without his
o A complaint or information may be amended, in form or in express consent by a court of competent jurisdiction, upon a valid
substance, without leave of court, at any time before the accused complaint or information or other formal charge sufficient in form
enters his plea. After the plea and during the trial, a formal and substance to sustain a conviction and after the accused had
amendment may only be made with leave of court and when it can
pleaded to the charge, the conviction or acquittal of the accused or
be done without causing prejudice to the rights of the accused. the dismissal of the case shall be a bar to another prosecution for
the offense charged, or for any attempt to commit the same or

frustration thereof, or for any offense which necessarily includes or o If the execution in a civil case for sum of money based on a check
is necessarily included in the offense charged in the former proves to be futile, may the plaintiff choose to institute a criminal
complaint or information. action instead?
o The conviction of the accused shall not be a bar to another o So what will be suspended, the execution? No. the rules allow
prosecution for an offense which necessarily includes the offense suspension before judgment only
charged in the former complaint or information under any of the o What if the civil case is cognizable by a RTC but the BP 22 case falls
following instances: under MTC, what should be done?
§ the graver offense developed due to supervening facts § Is consolidation proper (recall the 3 kinds of
arising from the same act or omission constituting the consolidation)? Or should we await the judgment in the
former charge; criminal case?
§ the facts constituting the graver charge became known or § Will any jurisdictional problem arise?
were discovered only after a plea was entered in the § What if the judgment is for the acquittal of the accused?
former complaint or information; or Ø Q: Can a civil action be filed ahead of the criminal action?
§ the plea of guilty to the lesser offense was made without o If if the court in the civil action already rendered judgment, can you
the consent of the prosecutor and of the offended party file the civil?
except as provided in section 1 (f) of Rule 116. o Civil case purely for the recovery of the check was filed and a
criminal case for the bouncing check was filed. What will happen?
From Mendiola: o DJ: In BP 22 cases, what is prohibited is reservation. For purposes of
jurisdiction, BP 22 cases is cognizable by the MTC. However if you
AMENDMENT file only a civil action for recovery of the check, the amount is
Ø Q: Amendment in a motion to quash determinative of jurisdiction. If at first you file a civil action and then
Ø Q: Differences between amendment in 110, 117, 119 later a criminal action, the MTC has jurisdiction because the criminal
o in amendment under Rule 117, are we going to change the offense case for BP 22 is the principal action
charged? Ø Q: What is the effect of death of the accused? Depends whether he died
o In criminal cases, may the court choose to have the complaint before or after arraignment
amended (MTQ)? Yes. (grant, deny, amend) o What is the rule on the settlement of the estate of the accused
Ø Q: In civil cases, if there is a motion to dismiss, can you still amend the o DJ: If we involve the estate, we cannot implied the estate as
pleading defendant. We should apply SpecPro rules.
o DJ: Debt of a debtor does not extinguish the liability of the debtor in
CIVL ACTION ARISING FROM DELICT case it is AFTER ARRAIGNMENT (Sec. 4). Criminal liability and civil
Ø Q: Explain Art. 100 liability arising from delict are extinguished. ICA are not extinguished
Ø Q: Can the offended party file a civil action arising from the civil aspect of the but may be proceeded against the estate
criminal action in a separate action? Yes. o If the debt dies, the civil liability from other sources (other than
o Q: When may an Independent Civil Action be filed? Enumerate. 32, delict) is not extinguished
33, 34, 2176
o BP 22 Rule (no reservation is allowed). In BP 22 cases, can the PREJUDICIAL QUESTION
offended party institute separate civil case? x reserve. only waive or Ø Q: What is PQ?
institute prior to criminal action o What is the consequence of PQ? Criminal case cannot proceed
o Does it mean that in BP 22 cases the offended party must only file a Ø Q: What if the criminal action is instituted ahead and other elements of PQ are
criminal case only? present?

o Rule of PQ will not apply because the civil action can only be Ø Q: What happens after the filing of the complaint?
instituted after the criminal action is terminated. Civil case must Ø Q: How do the rules express the concept of probable cause? Sec. 1, Rule 112
always be instituted before Ø Q: What is the difference between the PC by the judge vs. the PC by
o Example of a PQ investigating officer?
§ civil case for ownership. criminal case for theft or other o Judge: for the issuance of a warrant of arrest
crime against property o Investigating officer: for the filing of a complaint or information
Ø Q: Is Bigamy a PQ in concubinage or adultery
Ø Q: Civil case is an intracorporate controversy (See riano) EVIDENTIARY RULES
Ø DJ: In PQ, the finding in the civil case will play a role in the determination of Ø Q: Does the rules on criminal procedure violate any evidentiary rule? No
the criminal case o DJ: PC does not reach PBRD
o How about in bail which requires evidence of guilt is strong? Does
PRELIMINARY INVESTIGATION this determine guilt? No.
Ø Q: Who can conduct PI? o But what if the motion for bail is denied? Isn’t this a showing that
o PCGG, equestrian cases and ill-gotten wealth the evidence of guilt is strong? Does it violate evidentiary rule? No
o Comelec, election cases o DJ: Evidence of guilt is strong is not the same as PBRD
o Ombudsman too o DJ: Only PC is required in filing a complaint
o DJ: probable cause is even lower than preponderance of evidence
INQUEST o What quantum of evidence does the accused need to show for his
Ø Q: Why is the respondent in inquest under detention? He was arrested acquittal? DJ: the accused should create a doubt
lawfully by virtue of a warrantless arrest
o In inquest, does the respondent have the right to be heard? This is Fourth Meeting: March 25, 2017
satisfied in the affidavits. But he can request for PI
o Is there an overlap between PI and Inquest? YES! COMMENCEMENT OF A CRIMINAL ACTION
o So why do we have both? Ø Q: How do you commence a criminal action?
o By filing a complaint or information
Ø Q: PI vs. INQUEST. Doe we follow the same procedure? Ø Q: Why is it criminal cases the plaintiff is people of the Philippines?
o PI - may complaint o The people of the Philippines is the offended party because a crime
o Inquest - no complaint. then affidavit of the offender shall take the is an act against the sovereignty of a State
place of the complaint Ø Q: Who files the complaint? The information?
Ø Q: What is the background fact that requires an inquest? A lawful warrantless o A person aggrieved of a criminal act files an complaint while the
arrest prosecutor files the information in court
Ø Q: May the inquest be done by a police officer in a police station? NO! Ø Q: There are cases wherein preliminary investigation is conducted. Is this an
Ø Q: In inquest, why are we generally in a hurry to file an information? Because essential part of the criminal proceedings?
of the provision of Art. 125 on Arbitrary Detention o It would depend upon the imposable penalty if preliminary
Ø Q: If the offense is not required for PI, who should file the complaint? investigation is required
Ø Q: What should inquest prosecutor do during inquest?
o May he merely rely on the police report? PRELIMINARY INVESTIGATION; PROBABLE CAUSE
Ø Q: What is the option of the inquest officer when the arrest was effected with Ø Q: When is Preliminary Investigation required?
abuse (See 203 of Riano)? He may order the release of the detainee without o Where imposable penalty for the offense is at least 4 years, 2
prejudice to further investigation months, and 1 day, preliminary investigation is required
Ø DJ: The inquest prosecutor is different from the investigating prosecutor. But o Where the imposable penalty is less that 4 years, 2 months, and 1
their job is to determine whether there is probable cause to file a complaint day, preliminary investigation is not required

Ø Q: For instance, the imposable penalty is less than 4 years, 2 months, and 1 § The hearing shall be held within 10 days from submission
day, say Arresto Mayor. Is PI required? of the counter-affidavits and other documents or from the
o No. The penalty must be at least Prision Correcional in its Medium expiration of the period for their submission. It shall be
Period before PI is required terminated within 5 days.
Ø Q: Is it possible that PI is mandatory even if the imposable penalty is less § Within 10 days after the investigation, the investigating
than that prescribed? It has something to do with Manila or Chartered Cities. officer shall determine whether or not there is sufficient
o Usually Chartered Cities are governed by their own charter. Their ground to hold the respondent for trial
charters will usually provide that a criminal case cannot proceed o In sum:
without conducting PI first regardless of the imposable penalty. A § Respondent files complaint-affidavit
violation of an ordinance will not usually be punishable by arresto § Within 10 days from filing of complaint affidavit,
mayor or higher. Thus, PI is generally not required. But if the charter prosecutor may either dismiss or issue subpoena to
provides that PI is required, then PI must be conducted regardless of respondent
the imposable penalty § Within 10 days from receipt of subpoena, respondent shall
o In places like Manila and other chartered cities which require that submit counter-affidavit
the complaint be filed directly with the prosecutor, the said officer § Within 10 from submission of counter-affidavit, prosecutor
shall act on the complaint based on the supporting affidavits and may conduct clarificatory hearing
other supporting witnesses. The prosecutor may either dismiss the § Clarificatory hearing must be terminated within 5 days
complaint or file the complaint or information in court § Within 10 days from investigation, the prosecutor must
Ø Q: Describe what takes place in PI. determine w/n there is ground to hold respondent for trial
o Section 1, Rule 112. PRELIMINARY INVESTIGATION is an inquiry or (resolution or information)
proceeding to determine whether there is sufficient ground to Ø Q: Usually the complaint in a PI is called complaint-affidavit. Is complaint-
engender a well-founded belief that a crime has been committed affidavit a document under oath?
and the respondent is probably guilty thereof, and should be held o Yes.
for trial. o Sec. 3. xxx the complaint shall state the address of the respondent
o Section 3, Rule 112. Procedure and shall be accompanied by the affidavits of the complainant and
§ The offended party will file a complaint with the his witnesses, as well as other supporting documents to establish
prosecutor’s office in cases where PI is required probable cause. The affidavits shall be subscribed and sworn to
§ Within 10 days after the filing of the complaint, the before any prosecutor or government official authorized to
investigating officer shall either: administer oath, or, in their absence or unavailability, before a
• Dismiss it if he finds no ground to continue with notary public, each of who must certify that he personally examined
the investigation, or issue a subpoena to the the affiants and that he is satisfied that they voluntarily executed
respondent attaching to it a copy of the and understood their affidavits.
complaint and its supporting affidavits and Ø Q: What is the concept of a PI?
documents. o It is an inquiry to determine whether there is a sufficient ground to
§ Within 10 days from receipt of the subpoena with the engender a well founded belief that a crime has been committed
complaint and supporting affidavits and documents, the and the respondent is probably guilty thereof
respondent shall submit his counter-affidavit and that of Ø Q: How does the prosecutor carry out PI? How does he find out if there is
his witnesses and other supporting documents relied upon probable cause? Does he listen to the stand of the offender? Will he only
for his defense. listen to what the offended party tells him? Will he not listen to both sides
§ The investigating officer may set a hearing if there are otherwise he will be a very biased prosecutor? Should he not be considered
facts and issues to be clarified from a party or a witness. as a neutral party? How will he determine the side of the offender?

o He will determine whether or not there is probable cause from the court. This will be forwarded to the Provincial or City prosecutor or
complaint affidavit. The respondent will be notified that there is a Chief State Prosecutor who will have the authority to approve or
complaint against him. He will be required to file a counter-affidavit. deny
So the prosecutor can rely on these documents to determine the o No complaint or information may be filed or dismissed by an
existence of probable cause investigating prosecutor without the prior written authority or
Ø Q: Can he file an answer? approval of the provincial or city prosecutor or chief state
o No. Pleadings are not allowed in criminal cases. A counter-affidavit is prosecutor or the Ombudsman or his deputy.
not an answer similar to that in civil cases. Ø Q: If the Chief Prosecutor does not agree with the recommendation of the
Ø Q: Will the prosecutor conduct a hearing? Will there be a mini-trial? Investigating Prosecutor, the investigating prosecutor might get offended if
Presentation of witnesses? he is forced to file the information. What can the Chief Prosecutor do to
o No. The prosecutor will merely rely on affidavit and counter- avoid this?
affidavit. o The Chief prosecutor may file the information himself or direct
o However, if the documents are not enough, the prosecutor can ask another investigating prosecutor to file the information without
questions for clarification from the complainant or respondent conducting a new PI. In other words, the city prosecutor must make
Ø Q: And this stage of PI is called under the rules as what? use of diplomacy so that the investigating prosecutor’s feelings will
o This is usually called a CLARIFICATORY HEARING. The prosecutor will not get hurt
simply ask questions to the complainant or respondent. He is the o Where the investigating prosecutor recommends the dismissal of
one who do the talking. There will be no examination of witnesses. the complaint but his recommendation (for dismissal) is
o Sec. 3. Xxx (e) The investigating officer may set a hearing if there are disapproved by the provincial or city prosecutor or chief state
facts and issues to be clarified from a party or a witness. The parties prosecutor or the Ombudsman or his deputy on the ground that a
can be present at the hearing but without the right to examine or probable cause exists, the latter MAY,:
cross-examine. They may, however, submit to the investigating § 1. By himself, file the information against the respondent,
officer questions which may be asked to the party or witness or
concerned. § 2. Direct any other assistant prosecutor or state
Ø Q: Assuming he finds no probable cause, what will the prosecutor do? prosecutor to do so without conducting another
o Section 4, Rule 112. preliminary investigation.
o If the investigating prosecutor finds: Ø Q: Does the respondent have any recourse at all if the head prosecutor
§ There is probable case à he shall prepare the resolution decides that there is probable cause? What is his remedy within the office of
and information. the prosecutor?
§ There is no probable cause à he shall recommend the o Motion for reconsideration or more commonly known as MOTION
dismissal of the complaint TO REOPEN THE PROCEEDINGS
§ Within 5 days from his resolution, he shall forward the o Usually it is granted. It is very likely that another prosecutor will
record of the case to the provincial or city prosecutor or study the complaint. So there is a chance that there is a series of
chief state prosecutor or the Ombudsman or his deputy prosecutors
§ They shall act on the resolution within 10 days from their o The aggrieved party is not precluded from filing a motion for
receipt thereof and shall immediately inform the parties of reconsideration (Reopening) within 15 days from receipt of the
such action (approve or deny the resolution) assailed resolution. If the motion is denied, the aggrieved party may
Ø Q: Can he choose not to file the information? appeal within 15 days from the denial of the motion for
o It will not be his sole decision. There is a structure in the executive reconsideration
department as to the prosecutor. The investigating prosecutor shall Ø Q: If still not favorable to the accused, what is his remedy?
prepare a report and make a recommendation whether to file or o He can go up to the Secretary of Justice thru a Petition for Review
not there is Probable Cause and if an information should be filed in with DOJ to be filed within 15 days

o An appeal may be brought to the Secretary of Justice from the o The judge shall ask the prosecutor to submit ADDITIONAL EVIDENCE
resolution of the Chief State Prosecutor, Regional State Prosecutors, in order to determine w/n there is PC to issue a warrant of arrest
and Provincial/City Prosecutor. The appeal shall be taken within 15 o Sec. 5, Rule 112. Within 10 days from the filing of the complaint or
days from receipt of the resolution (or within 15 days from the information, the judge shall personally evaluate the resolution of
receipt of denial of the motion for reconsideration/reopening) the prosecutor and its supporting evidence. He may immediately
Ø In the meantime, the information is already filed with the court. There is dismiss the case if the evidence on record clearly fails to establish
already a case in court against the accused despite the fact that the accused probable cause. If he finds probable cause, he shall issue a warrant
has availed of the remedy of a Petition for Review with the DOJ. Suppose the of arrest, or a commitment order xxx. In case of doubt on the
Secretary of Justice really decides there is no probable cause. But the court existence of probable cause, the judge may order the prosecutor to
has already examined the complaint and may have already have issued a present additional evidence within 5 days from notice and the issue
Warrant of Arrest. We have now a situation wherein there is a case in court must be resolved by the court within 30 days from the filing of the
based on probable cause different from the findings of the Secretary of complaint or information.
Justice. If the SOJ finds that there is no probable cause, the court may opt NOT Ø Thus, there are 3 Options available to the RTC judge upon filing of the
to dismiss. Anyway the SOJ is not part of the judiciary. The SOJ cannot file a information:
motion to dismiss. What the rules tell us is that all the SOJ can do is to instruct 1. Dismiss the case if the evidence on record clearly failed to establish
the trial prosecutor to file a motion to dismiss the case. But again the court probable cause;
will not be bound to dismiss the case. The court may insist its own findings 2. Issue a Warrant of Arrest if the RTC finds probable cause; or
that PC exists. The court’s decision will prevail over the motion to dismiss and 3. In case of doubt as to the existence of probable cause, order the
the court may issue a Warrant of Arrest prosecutor to present additional evidence within 5 days from the
o If upon petition (Petition for Review) by a proper party under such notice
rules as the Department of Justice may prescribe or motu proprio,
the Secretary of Justice reverses or modifies the resolution of the AMENDMENT OF INFORMATION
provincial or city prosecutor or chief state prosecutor, he shall direct Ø When an information is filed, a trial prosecutor shall be assigned to direct the
the prosecutor concerned either to file the corresponding prosecution of the case. The trial prosecutor is not the same investigating
information without conducting another preliminary investigation, prosecutor in PI.
or to dismiss or move for dismissal of the complaint or information Ø Q: What can the trial prosecutor do if he finds that there is something wrong
with notice to the parties. with the information? His duty is only to prosecute the case. What if he
Ø Q: If the court issues a Warrant of Arrest, does it mean that the court found decides that there is a defect in the information. What can the trial
that probable cause exists? prosecutor do? What does Rule 110 provide?
o Yes. The judge has already found a decision of PC if a warrant of o He can resort to the amendment
arrest is issued o Section 14, Rule 110. Amendment or substitution. — A complaint or
Ø When prosecution files Information à There is probable cause based on information may be amended,
complaint affidavit, counter affidavit, and evidence on both sides. When the § In form or in substance, without leave of court, at any time
court issues Warrant of Arrest à There is probable cause but the records of before the accused enters his plea.
the court is based only on the information filed. The documents used by the § After the plea and during the trial, a formal amendment
prosecutor will not be used by the court. The records are not transferred to may only be made with leave of court and when it can be
the court. The records during preliminary investigation will remain with the done without causing prejudice to the rights of the
prosecutor. The court will rely solely on the prosecutor’s findings. accused.
Ø Q: How will the court know if there is PC that will justify the issuance of the Ø Q: When is amendment a matter of right? When is it a matter of discretion?
WOA if the only document that it can rely on is the information filed by the o BEFORE ARRAIGNMENT: he can make amendment without leave of
prosecutor? court.

§ GR: Amendment can either be substantial or formal. Ø Q: We also have amendment in civil cases. Do you recall the rules of
Similar to civil cases, amendment is allowed before a amendment to a complaint of civil cases?
responsive pleading is filed. In criminal cases, it is before o BEFORE A RESPONSIVE PLEADING (i.e. answer) à amendment of
arraignment the complaint is matter of right
§ EXPN: Any amendment before plea which: § The answer may also be amended before a responsive
1. DOWNGRADE THE NATURE OF THE pleading is filed In other words, before reply is served
OFFENSE (i.e. the offense is converted from § The reply may also be amended. But there is no
grave to less grave) responsive pleading to a reply. The rules provide that reply
2. EXCLUDES ANY OF THE ACCUSED (dropping is amended as a matter of right within 10 days from the
a party) service of reply. A period is fixed under the rules because
à Can only be made upon motion of the there is no responsive pleading to a reply
prosecutor, with NOTICE TO THE OFFENDED o AFTER A RESPONSIVE PLEADING
PARTY and WITH LEAVE OF COURT Ø There are no pleadings in criminal cases. Amendment is available depending
o AFTER ARRAIGNMENT: he can amend the information with leave of upon whether or not a plea ha been entered.
court and when it can be done without causing prejudice to the
rights of the accused SUBSTITUTION OF COMPLAINT OR INFORMATION
§ Only formal amendment is allowed after arraignment Ø Sec. 14, Rule 110. xxxx
o However, any amendment before plea, which downgrades the Ø If it appears at any time before judgment that a mistake has been made in
nature of the offense charged in or excludes any accused from the charging the proper offense, the court shall dismiss the original complaint or
complaint or information, can be made only upon motion by the information upon the filing of a new one charging the proper offense in
prosecutor, with notice to the offended party and with leave of accordance with section 19, Rule 119, provided the accused shall not be
court. The court shall state its reasons in resolving the motion and placed in double jeopardy. The court may require the witnesses to give bail
copies of its order shall be furnished all parties, especially the for their appearance at the trial.
offended party. Ø Section 19, Rule 119. When mistake has been made in charging the proper
Ø Q: Suppose the prosecutor amended the complaint before plea but does not offense. — When it becomes manifest at any time before judgment that a
drop any of the accused. Instead, he ADDS other accused. For example, the mistake has been made in charging the proper offense and the accused
information was captioned People vs. ABC and is amended to People vs. ABC cannot be convicted of the offense charged or any other offense necessarily
and D. Is that informal or substantial amendment? included therein, the accused shall NOT BE DISCHARGED if there appears
o Formal amendment good cause to detain him. In such case, the court shall commit the accused to
o If we drop one of the accused, this is substantial which need LOC answer for the proper offense and dismiss the original case upon the filing of
and we have to notify the proper information
o If the prosecutor decides to add, this is formal. There is no need Ø Q: Why will there be a need for substitution in a criminal case?
LOC. There is no need to inform the other party o Because there is a defect in the information which cannot be cured
Ø Q: If the prosecutor downgrades from grave or less grave, the complaint can by amendment
be amended. Suppose he decides to UPGRADE THE OFFENSE, is this allowed? o It must be a very serious defect which consists of mistake in charging
o No. This is not possible because this will require another Preliminary the proper offense
Investigation because this is not subject of the PI that was earlier § SUBSTITUTION – If the accused cannot be convicted of the
conducted. offense charged in the information à court shall dismiss
Ø Q: AFTER PLEA, can we amend the information? original information and a new information shall be filed
o Yes, LOC is necessary. Only FORMAL AMENDMENTS are allowed charging the proper offense
after plea. Ø Q: What will happen now if the accused is acquitted?

o If the accused is already acquitted, meaning that the accused is Ø Q: Every person criminally liable is also civilly liable. What is extinguished
discharged, we should not follow Rule 110 anymore. We should now when a party dies?
follow Rule 119. o If the criminal case is dismissed because the accused dies after
o Rule 119 arraignment, the civil liability arising from the crime also
§ There is a clause in 119 that is not found in 110 extinguished
§ If the accused cannot be convicted of the offense charged Ø Q: How do you enforce the civil aspect of the criminal case if the accused dies
or the offense necessarily included in the therein, the before arraignment?
accused shall NOT BE DISCHARGED if there appears good o In civil cases à the court shall order the substitution of the
cause to detain him decedent. The legal representative will now file a claim against the
§ In such case, the court shall commit the accused to estate under Rule 86
answer for the proper offense and dismiss the original o In criminal procedure, it is not the same
case upon the filing of the proper information Ø Q: So, now we have a new defendant – the estate. However, in Rule 86, the
Ø Although 119 does not say so, the court must fixed a period. Suppose a new claims against the estate must be contractual in nature. But in this case, the
information is filed, we will have a new set of arraignment and plea. Accused claim arises from a crime. How do we reconcile this?
can invoke another provision of Rule 119: right to speedy trial which will o Rule 87 applies with respect to claims not arising from a contract but
result in the dismissal of the case. This is allowed. The accused will file a from other sources. Civil liability arising from a crime is not
motion to dismiss on the ground that his right to speedy trial is violated. This contractual in nature. Thus, Rule 87 applies. The proper action is
will result into acquittal and will result to double jeopardy. Therefore, there one that is filed against the executor or administrator
may be substitution but it must comply with Rule 119 o Sec. 1, Rule 87. Actions which may and which may not be brought
Ø Q: Do we really have to resort to substitution? Why can’t we result to the against executor or administrator. - No action upon a claim for the
rule on amendment? recovery of money or debt or interest thereon shall be commenced
o These 2 remedies are distinct from each other against the executor or administrator; but actions to recover real or
Ø Motion to quash may be filed by the accused. The court has 3 options: personal property, or an interest therein, from the estate, or to
1. Grant enforce a lien thereon, and actions to recover damages for an injury
2. Dismiss to person or property, real or personal, may be commenced against
3. 3. Order the amendment him.
Ø If the motion is granted, then there is no more criminal case Ø Q: Again what are the sources of obligations?
o Law
DEATH OF THE ACCUSED o Contract
Ø Sec. 4, Rule 111 o Quasi-contract
Ø Q: If there is an information already in court, but the accused DIES, what is o Delicts
the effect of the accused? o Quasi-delict
o Criminal procedure makes distinction as to whether the accused dies Ø Rule 86 applies with respect to claims arising from a contract. Rule 87 applies
before or after arraignment. with respect to claims arising from other sources (I.e. Delict, Quas-delict). In
o IF ACCUSED DIES BEFORE ARRAIGNMENT: the latter case, we can pursue a complaint against the executor or
§ The case shall be dismissed but the offended party may administrator
file the proper civil action against the estate of the
deceased PREJUDICIAL QUESTION
o IF ACCUSED DIES AFTER ARRAIGNMENT: Ø Sec. 7, Rule 111. Elements of prejudicial question. – The elements of a
§ The civil liability of the accused arising from the crime is prejudicial questions are: (a) the previously instituted civil action involves an
extinguished issue similar or intimately related to the issue raised in the subsequent

criminal action, and (b) the resolution of such issue determines whether or not INQUEST
the criminal action may proceed. Ø Q: In the rule of PI, there is a term that is always related to PI. That is
Ø Q: In criminal cases, what is the concept of a prejudicial question? Inquest. What is inquest all about?
o Concept of Prejudicial Question: There are 2 cases. One is civil, the o An INQUEST PROCEEDING is conducted when a person is lawfully
other is criminal. The civil action is instituted before the criminal arrested without a warrant involving even also an offense which
action. requires PI.
§ Generally, the civil action is suspended pending the o An inquest is not a preliminary investigation. It is a summary
outcome of the criminal case, or the court can even be investigation which does not follow the procedure set forth in Sec. 3,
consolidated the 2 cases. In any case, the criminal action Rule 112.
will always take precedence over the civil action. o Though it may be said that an inquest is similar to PI insofar as these
§ But in prejudicial question where the issue in the civil case proceedings are determinative of w/n the accused should be
is determinative of the outcome of the criminal case à charged in court
The rule is that the proceedings in the criminal action may Ø Q: If inquest has features similar to that of PI, why can’t we go ahead with
be suspended to await the resolution of the prejudicial PI? In determining w/n there is a need to conduct PI, there is a simple
question in the civil case formula à w/n the imposable penalty is 4 years 2 days and 1 month. Why
o Essentials: do we still need to conduct inquest in certain cases?
§ There is an issue involved in a civil case which is similar or o Inquest is for the purpose of determining w/n the person who has
intimately related to the issue raised in the criminal action, been arrested by virtue of a warrantless arrest should remain in
the resolution of which determines whether or not the custody and charged in court
criminal action may proceed o In inquest, the prosecutor must be vigilant of the periods provided
§ The civil action must be instituted previously or ahead of for under Art. 125 of the RPC because a person is already detained.
the criminal action Unlike in PI, where the accused is yet to be arrested. Thus, inquest is
§ Note: Civil case must be filed before the criminal case. If a summary investigation
the civil case is filed subsequent of the criminal case, we Ø Q: For instance, the accused has been detained by the arresting officer by
do not apply the concept of prejudicial question virtue to a warrantless arrest. There are 5 instances of a warrantless arrest.
Ø Q: Give an example. But do not use a marriage. In marriage cases, the civil What are they?
cases cannot be considered as a basis for a prejudicial question to the o 1. In flagrante delicto arrest
criminal case o 2. Hot pursuit arrest
Ø X was driving jeep and Y was driving a truck. Y overtook X. As a result, there o 3. Escapee prisoner arrest
was a collision. X filed a case against Y. The complaint will be filed before the o 4. Bondsman arrest
MTC or RTC depending upon the amount involved. Let’s assume that the case o 5. Arrest after escape/rescue
is filed in the RTC. X filed a criminal complaint against Y for reckless o Sec. 5, Rule 113. Arrest without warrant; when lawful. – A peace
imprudence resulting to physical injuries. Is the civil case a prejudicial question officer or a private person may, without a warrant, arrest a person:
to the criminal case? § (a) When, in his presence, the person to be arrested has
o To answer this, we must first ask: If Y is declared not liable because committed, is actually committing, or is attempting to
he is not negligence, and that he is not civilly liable, will there be still commit an offense (IN FLAGRANTE DELICTO ARREST)
a reason for the criminal action to proceed? § (b) When an offense has just been committed and he has
o (Not answered. But I think this is not a prejudicial question to the probable cause to believe based on personal knowledge of
criminal case. Reason: it was not shown in the facts that there is an facts or circumstances that the person to be arrested has
issue intimately related to the criminal action which is determinative committed it; (HOT PURSUIT ARREST)
of w/n the latter shall proceed) § (c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is

serving final judgment or is temporarily confined while his Ø Q: Prosecutor will determine whether or not there is PC. He can file an
case is pending, or has escaped while being transferred information, based on what documents?
from one confinement to another. (ESCAPEE PRISONER Ø Q: The purpose of inquest is to comply with the periods under Art. 125 of the
ARREST) RPC. Why, what is this all about?
o Sec. 23, Rule 114. Arrest of accused out on bail. – For the purpose of o Art. 125. Delay in the delivery of detained persons to the proper
surrendering the accused, the bondsmen may arrest him or, upon judicial authorities. — The penalties provided in the next preceding
written authority endorsed on a certified copy of the undertaking, article shall be imposed upon the public officer or employee who
cause him to be arrested by a police officer or any other person of shall detain any person for some legal ground and shall fail to deliver
suitable age and discretion. (BONDSMAN ARREST) such person to the proper judicial authorities within the period of;
o Q: Why can the bondsman make an arrest? § 12 hours, for crimes or offenses punishable by light
§ The bondsman is effectively the jailer. That is why the penalties, or their equivalent;
bailee is allowed to go out on bail. The bondsman posts § 18 hours, for crimes or offenses punishable by
bail in the form of surety bond for him correctional penalties, or their equivalent and
o Sec. 13, Rule 113. Arrest after escape or rescue. – If a person lawfully § 36 hours, for crimes, or offenses punishable by afflictive
arrested escapes or is rescued, any person may immediately pursue or capital penalties, or their equivalent.
or retake him without a warrant at any time and in any place within Ø Q: If the arrest is done at daytime, there is no problem. There are
the Philippines. (ARREST AFTER ESCAPE) prosecutors always available. If the arrest takes place during nighttime,
Ø Q: Let us say that the detainee is delivered to the nearest police station. there is a now a problem. The inquest prosecutor may already be sleeping or
What must be done? even dreaming. Where will you find an inquest prosecutor who is willing to
o The inquest must be conducted by the public prosecutor who is work at night?
assigned inquest duties as an inquest officer and is to discharge his o There is always an inquest prosecutor who is appointed at night so
duties only at the police station or headquarters of the PNP in order that the information may be filed on time
to expedite and facilitate the disposition of inquest cases o Section 6, Rule 113. Time of making arrest. — An arrest may be
o The inquest officer has the initial duty to determine w/n the made on any day and at any time of the day or night.
detainee has been lawfully arrested in accordance with Sec. 5 (a) Ø Q: What do we do now if there is an inquest?
and (b) of Rule 113 o Detainee can insist on a formal Preliminary Investigation but he
§ If he finds that the arrest was NOT LAWFUL, he shall not must make a waiver of the periods under Art. 125 of RPC
proceed with the inquest and shall recommend the Ø Q: But the detainee might think of another option à File a petition for
release of the detainee to the City or Provincial Prosecutor habeas corpus. Is that possible?
§ If the recommendation is approved, the order of release o Habeas Corpus is available for unlawful deprivation only. Usually
shall be served to the officer with custody of the prisoner. habeas corpus is not contemplated as a remedy if there is an
The detainee shall be released for further investigation information filed. The remedies must be availed within the
(preliminary investigation) parameters of a criminal case. These remedies are even more
o On the other hand, if he shall find that the arrest was LAWFUL, beneficial than habeas corpus
inquest shall proceed but he must first ask the detainee if he desires Ø Q: What are these remedies?
to avail himself of a preliminary investigation. o HE CAN POST BAIL. When accused posts bail, it presupposes that he
§ If he does avail of PI, he must execute a WAIVER of the finds nothing wrong with the information. Under the rules,
provisions of Art. 125 of the RPC with the assistance of a availment of a bail is not a bar to objections against the arrest/PI
lawyer. The prosecutor will now determine whether or not o Must raise his concern before arraignment
probable cause exists and if it does, to prepare the o Sec. 26, Rule 114. Bail not a bar to objections on illegal arrest, lack of
corresponding information with recommendation that it or irregular preliminary investigation. – An application for or
be filed in court admission to bail shall not bar the accused from challenging the

validity of his arrest or the legality of the warrant issued therefore, o Present him to the nearest judge at the latter’s residence or office
or from assailing the regularity or questioning the absence of a nearest the place where the arrest took place at any time of the day
preliminary investigation of the charge against him, provided that or night
he raises them before entering his plea. The court shall resolve the Ø Q: What will the judge do with him? Why the arrestee be reported to him?
matter as early as practicable but not later than the start of the trial Why not simply follow crimpro provides that after the arrest, the arrestee
of the case. will be delivered to the nearest judge? What does the law expect the judge
to do?
HUMAN SECURITY ACT o DUTIES OF THE JUDGE: It shall be the duty of the judge to:
Ø See pages 406-407 memaid for full discussion § Ascertain the identity of the police or law enforcement
Ø There is a change of the periods under Art. 125 under the Human Security Act. personnel and the person/s they have arrested and
A different rule applies if the crime constitutes as an act of terrorism or presented before him or her;
conspiracy to commit terrorism. The arrestee can be detained for 3 days § To inquire of them the reasons why they have arrested the
Ø GR: the detainee must be delivered to the nearest police station or jail (Under person; and
Rules on Criminal Procedure) § Determine by questioning and personal observation
o Sec. 3, Rule 113. Duty of arresting officer. — It shall be the duty of whether or not the suspect has been subjected to any
the officer executing the warrant to arrest the accused and to physical, moral, or psychological torture by whom and why
deliver him to the nearest police station or jail without unnecessary § Prepare a written report
delay. Ø Q: The report of the judge shall be submitted to what? The judge is not the
Ø EXPN: with respect to crimes of terrorism or conspiracy to commit treason presiding judge which will try the crime of terrorism. He is just the nearest
(Under Human Security Act) judge of the locality. It is possible that there is no information yet that is filed
o Anti-Terrorism Council can authorize any police or law enforcement in the court? So where must the written report be filed?
personnel to take the charged/suspected person into custody o WRITTEN REPORT: the judge shall submit a written report of what
o The police or enforcement personnel must deliver the he/she observed when the subject was brought before him
charged/suspected to the proper judicial authorities within 3 days o Where to file written report: to the proper court that has
o Before detaining the charged/suspected person, the police or law jurisdiction over the case of the person thus arrested.
enforcement personnel must present him first to: o When to file written report: he judge shall submit the report within
§ 1. Any judge at the latter’s residence at the latter’s 3 calendar days from the time the suspect was brought to his/her
residence; or residence or office
§ 2. Office nearest the place where the arrest took place at Ø Q: House arrest is a term recognized in Human Security Act. Does criminal
any time of the day or night procedure mention anything about house arrest or hospital arrest?
§ (NOT to the nearest police station) o HOUSE ARREST under Human Security Act:
Ø Q: A warrant of arrest is usually issued by court, but this time the authority § Section. 26. Restriction on Travel. xxxx
that will issue the warrant of arrest is? § He/she may also be placed under house arrest by order of
o Anti-Terrorism Council the court at his or her usual place of residence.
Ø Under the human security law, there are certain predicate crimes. There must § While under house arrest, he or she may not use
have been a period of investigation done by the authorities. The offended telephones, cellphones, e-mails, computers, the internet
party must go to the Anti-Terrorism Council who will issue a warrant of arrest or other means of communications with people outside
Ø Q: After the arrest by government authorities for crimes of terrorism, the the residence until otherwise ordered by the court.
arresting officers are not bound to follow criminal procedure insofar as § The restrictions abovementioned shall be terminated upon
delivering him to the nearest police station. What does the Human Security the acquittal of the accused or of the dismissal of the case
Act provide? filed against him or earlier upon the discretion of the court
on motion of the prosecutor or of the accused

o There is no similar provision under Criminal Procedure o Another instance is material witnesses who do not wish to appear
before the court. He may be detained. He may be allowed to post
BENCH WARRANT bail in order to gain release from confinement
Ø Q: Another term used by SC decisions is bench warrant. How is a bench o It is incorrect to say that only those charged of an offense may post
warrant carried out? bail
o Bench warrant is issued usually in criminally cases where the court is o (See, however, Sec. 14, Rule 119. Generally, bail is does not apply to
not authorized to issue a warrant at the outset. a person who is not in custody. EXPN: Sec. 14 provides that a
Ø Q: Warrant of the arrest is the mode of acquiring jurisdiction over the material witness may be ordered to post bail even if he is not under
accused. Why will the court not require issuance of warrant of arrest? detention. The purpose is to guarantee his appearance in court even
o There are instances wherein a warrant of arrest cannot be issued if he is no the accused. It is only when he refuses to post bail that
(i.e. summary procedure) the court shall commit him to prison until he complies with the
Ø Q: When may the court issue summons instead of warrant of arrest? taking if his testimony. Material witness à Post bail à Otherwise,
o In criminal cases when the court is prohibited to issue a warrant of commit him to prison)
the arrest. The next best thing to do is to issue summons which will Ø Q: When is bail a matter of right? When is it a matter of discretion?
result into the court acquiring jurisdiction over the accused. If the o Sec. 4, Rule 114. Bail, a matter of right; exception. —
accused does not obey the summons, the court may now issue a o GR: All persons in custody shall be admitted to bail as a MATTER OF
warrant. This warrant is usually referred to as a Bench Warrant RIGHT, with sufficient sureties, or released on recognize as
which is the same as a warrant of arrest prescribed by law or this Rule
§ Before conviction by the MTC, and
BAIL § After conviction by the MTC
Ø Sec. 1, Rule 114. Bail defined. — Bail is the security given for the release of a § Before conviction by the RTC of an offense not punishable
person in custody of the law, furnished by him or a bondsman, to guarantee by death, reclusion perpetua, or life imprisonment
his appearance before any court as required under the conditions hereinafter § Q: What if the person is charged with a capital offense or
specified. Bail may be given in the form of corporate surety, property bond, an offense punishable by reclusion perpetua or life
cash deposit, or recognizance. imprisonment?
Ø Q: Does the law allow a person to post bail even if there is no criminal charge • Bail is not a matter of right, but a matter of
yet? discretion.
o Yes, provided that the person is under detention • If prosecution proves that evidence of guilt is
o Sec. 17(c), Rule 114. Any person in custody who is not yet charged in strong à Accused shall be denied bail
court may apply for bail with any court in the province, city, or • If prosecution proves that evidence of guilt is not
municipality where he is held strong à Accused shall be admitted to bail
§ The moment that a person is detained, he can apply for o Sec. 5, Rule 114. Bail, when discretionary. —
bail but he must make sure to file it with the correct court. § After conviction by the RTC of an offense not punishable
For example, if you are detained in camp crame, you by death, reclusion perpetua, or life imprisonment,
cannot ask for bail in a Marikina city court. You must do so admission to bail is DISCRETIONARY.
in Quezon city court § Q: What if the offense is punishable by death, reclusion
Ø Q: How can a person be in detention if he is not charged of an offense? perpetua, or life imprisonment, is admission to bail
o If a person is arrested by virtue a warrantless arrest is not yet discretionary?
formally charged with an offense • No. Bail should be denied because this means
Ø Q: When can a person not charged of an offense be detained? that the reason for the conviction is that the
evidence of guilt against him is strong

Ø Q: If the trial court is MTC, it is a matter of right. Supposing that he is tried Ø Q: There are instances wherein the court is bound to order the release of the
and convicted. Is bail still a matter of right? accused either unconditionally or based on his own recognizance or that of
o Yes. Bail is still a matter of right another person
Ø Q: If the accused appeals to the RTC, is bail still a matter of right? o UNDER DETENTION FOR MAXIMUM PENALTY à RELEASE
o Yes, although there is already conviction o If detainee is under detention and he cannot post bail because he
Ø Q: If trial court is RTC, is bail matter of right? cannot afford, provided that the detention is for a period equal to or
o It depends: Before conviction, bail is a matter of right, provided that more than the maximum imposable principal penalty, he shall be
the offense not punishable by death, reclusion perpetua, or life released immediately on his own undertaking although the trial is
imprisonment undergoing
Ø Q: Bail can be in what form in criminal procedure? § Reason: even if he is convicted, he is deemed to have
o 1. Surety bond (or Corporate Surety) served the sentence anyway because he has already been
§ Go to a bonding/surety company. This is bail furnished by detained for such period
a corporation o Sec. 16, Rule 114. Bail, when not required; reduced bail or
o 2. Cash bond recognizance. Xxx
§ Just deposit the equivalent of the bail recommended with o When a person has been in custody for a period equal to or more
the Clerk of Court or any treasurer of the city or than the possible maximum imprisonment prescribe for the offense
municipality charged, he shall be RELEASED immediately, without prejudice to
o 3. Property bond the continuation of the trial or the proceedings on appeal. xxx
§ There is an encumbrance annotated in the back of the Ø Q: Assuming he is not detained for the maximum penalty?
property. A property bond is an undertaking constituted as o UNDER DETENTION FOR MINUMUM PENALTY à REDUCE BAIL OR
a lien on the real property given as a security for the RELEASE ON HIS OWN RECOGNIZANCE
amount of the bail o If detainee is under detainee for a period = minimum imposable
o 4. Recognizance penalty à Release on his own recognizance is discretionary on the
Ø Q: What is this recognizance all about? court OR it also has the option to REDUCE the bail in the hope that
o Recognizance – this is an obligation of record entered into before the detainee can post bail
some court or magistrate duly authorized to take it, with the o A person in custody for a period equal to or more than the minimum
condition to do some particular act, the most usual condition in of the principal penalty prescribed for the offense charged xxx shall
criminal cases being the appearance of the accused for trial be released on a reduced bail or on his own recognizance, at the
o Release on recognizance can either be: discretion of the court
§ 1. By the accused himself or Ø Q: If bail is matter of discretion, what must the accused do so that the court
§ 2. Of a responsible person will not have discretion? A party must initiate something to in order for the
Ø Q: Is there any property given to justify the release from detention of the court to exercise its discretion.
detainee in recognizance? o The accused must file a motion or a petition for bail
Ø Q: Who will sign the commitment? Ø Q: Who is the movant?
o Accused himself or respected member of the community can sign a o The accused
commitment Ø Q: Generally, if a party files a motion in court, the accused has burden of
Ø Q: If it is a recognizance filed by accused by himself, it is in what form? proving the allegations in a motion. Is that the same rule applicable in
o Commitment is in the form of an affidavit. It is a sworn statement motion for bail?
that he shall appear in court o No. The prosecution, the people of the Philippines has burden of
Ø Q: What if it is recognizance by another person? proving that the evidence of guilt is strong.
o Affidavit is signed by that person o Sec. 8, Rule 114. Burden of proof in bail application. — At the
hearing of an application for bail filed by a person who is in custody

for the commission of an offense punishable by death, reclusion o No. If the accused is convicted in the RTC, if the offense is not
perpetua, or life imprisonment, the prosecution has the burden of punishable by death, reclusion perpetua or life imprisonment, it is
showing that evidence of guilt is strong. NOT a matter of right. It is a matter of discretion
Ø Q: What does that mean? Evidence of guilt is strong? What is the quantum Ø Q: Assuming that the accused is convicted for an offense not punishable by
of evidence to prove that evidence of guilt is ‘strong’? there are 3 layers of death, reclusion perpetua, or life imprisonment. The accused appealed to the
evidence CA. The accused wants to file an application for bail. Which court will
o To prove guilt, we need PBRD. But we are just trying to prove that determine w/n bail is allowed?
the accused is entitled to bail. We are not proving the guilt. So it is o RTC
not PBRD. It is less than PBRD. Ø Q: If there is an appeal, isn’t it that jurisdiction is transferred to higher court?
Ø Q: The next level is Preponderant Evidence. Will this layer apply? Why will RTC be the one to determine w/n bail shall be issued?
o No. This applies to civil cases o The RTC shall determine w/n bail shall be allowed provided that
Ø Q: The next is substantial evidence. Will this layer apply? records have not been transmitted
o No. This applies to administrative cases o The RTC is allowed to do so despite the fact that an appeal has been
Ø Q: So what layer do we use? perfected à under the principle of RESIDUAL JURISDICTION OF A
o Evidence should be higher than Preponderance but lower than PBRD TRIAL COURT
Ø Q: But we don’t have such in the ROC. Will we invent another layer? o Sec. 5, Rule 114 in rel. to Sec. 6, Rule 120
o SC has invented another layer higher than preponderant but lower Ø Q: When shall this rule not apply?
than PBRD. It is called CLEAR AND CONVINCING EVIDENCE. This is o If the original record has already transmitted to the appellate court,
required to prove that evidence of guilt is strong in a motion for bail then the application shall be filed with the said appellate court
o This is also the layer of evidence used to dispute a presumption o If accused is charged with a non-bailable offense but is convicted of
o In other words, the accused is presumed innocent. To destroy that a bailable offense à appeal with CA à CA will determine w/n bail
presumption of innocence, we need clear and convincing evidence. shall be allowed, not the RTC
This is must be proven in a motion for bail in cases in the RTC § Sec. 5, Rule 114
Ø Q: Will the warrant of the arrest indicate the amount to post bail? Ø Q: If charge is murder, but the conviction is homicide, is it proper conviction?
o No o Yes it is proper because homicide is included in the crime of murder
Ø Q: How is the accused expected to ascertain the amount of bail? o Only difference between the 2 is that homicide if accompanied
Ø Q: Isn’t it if bail is a matter of right, we DON’T need to ask the court to post Ø Q: If charged with frustrated homicide, can he be convicted with attempted
bail since it is his right to post bail? How will he know the amount to post homicide?
bail? Assuming that the prosecutor files information, the accused has the o Yes. Frustrated is higher than attempted. Attempted homicide is
right to know the amount of bail right away so that he can post bail. How to necessarily included
help the accused in ascertaining the amount without going to jail? o Even serious PI. It is also necessarily included
o Sec. 4, Rule 114 does not fix any figure as to the amount of bail Ø Q: If the charge is non-bailable, and the RTC convicts accused of bailable, we
o If the prosecutor files an information, he shall indicate his do not deal with RTC but with CA in determining w/n bail is allowed. But
recommendation of amount of bail at the bottom of the information isn’t it that RTC has residual jurisdiction? Suppose that the records are still in
o If the bail amount is too high, the accused can ask the court to RTC and appeal is perfected. Why don’t we allow RTC to determine w/n bail
REDUCE the amount of bail. Still, it is a matter of right, but just ask is allowed? Why deprive the RTC of its residual jurisdiction?
for reduction on the ground that no excessive bail shall be required o We must look at it with practicality. There is a corruption element
Ø Sec. 9, Rule 113 fixes the guidelines in fixing the amount of bail. This has here. The RTC judge convicted him already of a lesser offense, from
reference to bail as a matter of discretion. But it does not provide the amount bailable to non-bailable. The RTC favored the accused in such
of bail when bail is a matter of right. When bail is a matter of right, we do not instance. Naturally, if the petition for bail shall be with the RTC, the
require accused to go to court. RTC may be expected to grant him bail
Ø Q: If the accused has been convicted in RTC, is bail a matter of right?

Ø Q: If he is convicted and is now serving sentence. The conviction is already made fully aware of the possible loss of freedom or life and why the
final and executory. Is it possible that he can ask for bail while serving prosecuting arm of the State is mobilized against him.
sentence? Ø Q: when will the court schedule the arraignment of the accused? Is there a
o He can still ask for bail. Not by using criminal procedure but by using fixed period of time?
a special procedural rule. Bail is never allowed after the accused has o The general rule is that the accused should be arraigned within 30
commenced to serve sentence under Sec. 24, Rule 114 days from the date the court acquires jurisdiction over the person
Ø Q: How is this possible? of the accused(motion to quash or for a bill of particulars shall be
o Under the Circular on DNA Evidence excluded in computing the period). The exception is that the
o This contemplates a situation wherein the accused has already been accused could be arraigned within a shorter period if:
convicted. While serving sentence, the convict can ask the court to § The complainant is about to leave the Philippines with an
conduct a DNA examination which shall be conducted by experts, indefinite date return
doctors. § The trial of cases is under the Child Abuse Act
o If it is shown that there is a reasonable doubt if the accused § The accused is under preventive suspension, his case shall
committed the crime that he has been convicted, à REMEDY be raffled and its records transmitted to the judge to
available to the convict if favorable to him: he can file a petition for whom the case was raffled within 3 days from the filing of
HABEAS CORPUS the information or complaint. The accused shall be
o In effect, we are overturning conviction by presenting proof of a arraigned within 10 days from the date of the raffle.
reasonable doubt as to the guilt of the accused Ø Q: How is arraignment done?
o If habeas court determines that conviction should be reversed, this o In open court
is allowed o By the judge or clerk
o (A.M. 06-11-5-SC) Sec. 10. Post-conviction DNA Testing – Remedy if o By furnishing the accused with a copy of the complaint or
the Results Are Favorable to the Convict. – The convict or the information
prosecution may file a petition for a writ of habeas corpus in the o Reading it in the language or dialect known to him
COURT OF ORIGIN if the results of the post-conviction DNA testing o Asking him whether he pleads guilty or not guilty
are favorable to the convict. In the case the court, after due hearing Ø Q: What happens when the accused enters a plea of guilt to a non-capital
finds the petition to be meritorious, if shall reverse or modify the offense?
judgment of conviction and order the release of the convict, unless o Reception of additional evidence is discretionary with the court,
continued detention is justified for a lawful cause. A similar petition wherein the court has discretion as the punishment, the imposable
may be filed either in the Court of Appeals or the Supreme Court, or penalty is divided into periods or is an indeterminate sentence or is
with any member of said courts, which may conduct a hearing in the alternative
thereon or remand the petition to the court of origin and issue the o Evidence may be that of proving aggravating circumstances (for the
appropriate orders. prosecution) and that of proving mitigating circumstances (for the
defense)
Assignment: finish crimpro. o General rule: a plea of guilty can’t be attacked if it is made
intelligently and voluntarily
Monday Class: March 27, 2017 o Exception: it can be attacked if it’s induced by threats,
From Ayah: misrepresentation or bribes or when it is shown that the defendant
ARRAIGNMENT AND PLEA (RULE 116) wasn’t fully apprised of its consequences
Ø Q: What is the importance of arraignment? Ø Q: Can the accused enter a guilty plea and later on withdraw it?
o As it is the means for bringing the accused into court by informing o Yes, where the prosecution doesn’t have sufficient evidence to
him of the nature and cause of the accusation against him, he is establish the guilt of the accused, the latter can move for a
substitution of his plea.

o The withdrawal must be done before the judgment becomes final. o A plea of guilty results in the admission of all material facts in the
o The withdrawal of the plea of guilty is NOT a matter of right of the complaint or information, including the aggravating circumstances
accused but is within the discretion of the court. Trial has already o It is MANDATORY for the court to require the prosecution to prove
commenced and the withdrawal of the plea will change the theory the guilt of the accused and the precise degree of his culpability,
of the case therefore the plea may only be withdrawn with with the accused being likewise entitled to present evidence to
permission of the court. prove mitigating circumstances.
Ø Q: What is a conditional plea of guilt? o Procedural guidelines laid down by the SC where the accused waives
o Accused pleads guilty usually in exchange for less serious charges or his right to present evidence and be heard with regards to CAPITAL
a lighter sentence. If the accused makes a conditional plea, a plea of offenses:
not guilty shall be entered for him. 1. Trial court should hear both prosecution and the accused
Ø Q: What are the kinds of plea? on the desire or manifestation of the accused to waive his
o No plea – a plea of not guilty shall be entered right
o Conditional plea of guilt – a plea of not guilty shall be entered 2. Trial court shall ensure the attendance of the prosecution
o Not guilty – case proceeds to trial or pre-trial and especially the accused in the hearing
o Guilty to a lesser offense – if fiscal and offended party consents, 3. Trial court during the hearing should:
conviction under offense charged for purposes of double jeopardy • Ask the defense counsel questions to determine
o Info may be amended whether he has explained to the accused his
§ Case goes to trial right to present evidence and be heard
§ Even if info is not amended, and even if lesser offense is • Inquire from the defense counsel (with
not included in offense charged, court may still find the conformity of the accused) whether he wants to
accused guilty of that lesser offense present evidence or submit a memorandum
Ø Q: What is done if the accused pleads guilty to a capital/heinous offense? elucidating on the contradictions and
o Conduct a search inquiry to establish that the plea of guilty was insufficiency of the prosecution evidence, if any;
done voluntarily with full awareness of its consequences. or in default thereof, file a demurrer to evidence
§ “Searching Inquiry” means that the judge must convince with prior leave of court
himself that the accused is entering the plea of guilty • Elicit information about the personality of the
voluntarily, that he is truly guilty, that there exists a accused, which would serve as a trustworthy
rational basis for finding the guilt of the accused based on index of his capacity to give a free and informed
his testimony. waiver
o The record must show • Ask questions to the accused in a language
§ Events that actually took place during the arraignment known and understood by him
§ Words spoken and the warnings given o On automatic review by the Supreme Court
• Age of the accused, educational attainment, § People v. Mateo (G.R. NO. 147678-87 July 7, 2004): While
socio-economic status the Fundamental Law requires a mandatory review by the
§ Provision of counsel for him at the custodial and Supreme Court of cases where the penalty imposed is
preliminary investigation reclusion perpetua, life imprisonment, or death, nowhere,
o Trial court must explain the essential elements of the crime he is however, has it proscribed an intermediate review. If only
charged with and the penalty and civil liability therefore and also to to ensure utmost circumspection before the penalty of
direct questions to the defense counsel to determine whether he death, reclusion perpetua or life imprisonment is imposed,
has duly conferred with the accused and completely examined to the Court now deems it wise and compelling to provide in
him the meaning and consequences of a plea of guilty these cases a review by the Court of Appeals before the
case is elevated to the Supreme Court. Where life and

liberty are at stake, all possible avenues to determine his accused objects to the provisional dismissal, a revival of the case
guilt or innocence must be accorded an accused, and no would place him in double jeopardy.
care in the evaluation of the facts can ever be overdone. A Ø Q: When does provisional dismissal become final?
prior determination by the Court of Appeals on, o The provisional dismissal of offenses punishable by imprisonment
particularly, the factual issues, would minimize the exceeding 6 years or a fine of any amount shall become permanent
possibility of an error of judgment. If the Court of after 1 year without the case having been revived.
Appeals should affirm the penalty of death, reclusion o For offenses punishable by imprisonment of more than 6 years, the
perpetua or life imprisonment, it could then render provisional dismissal shall become permanent after 2 years without
judgment imposing the corresponding penalty as the the case having been revived.
circumstances so warrant, refrain from entering judgment o After the provisional dismissal becomes final, the accused cannot be
and elevate the entire records of the case to the Supreme prosecuted anymore.
Court for its final disposition. Ø Q: What are the requisites of a provisional dismissal?
o Consent of the prosecutor
MOTION TO QUASH (RULE 117) o Consent of the accused
Ø Q: Is the motion to quash in a criminal case the equivalent of a motion to o Notice to the offended party
dismiss in a civil case? Ø Q: If the accused filed a motion to quash, can the court still schedule an
o Yes. However, this may not be entirely true since a motion to arraignment?
dismiss may also be allowed in a criminal case. o Yes.
Ø Q: What are the grounds for a motion to quash? Ø Q: What happens if the defendant enters his plea before filing a motion to
o That the facts charged do not constitute an offense; quash?
o That the court trying the case has no jurisdiction over the offense o By entering his plea before filing the motion to quash, the defendant
charged waives FORMAL objections to the complaint or information.
o That the court trying the case has no jurisdiction over the person of o But if the ground for the motion is any of the following, there is no
the accused waiver (NON-WAIVABLE GROUNDS). The ground may be raised at
o That the officer who filed the information had no authority to do so any stage of the proceeding:
o That it does not conform substantially to the prescribed form § Failure to charge an offense
o That more than one offense is charged except when a single § Lack of jurisdiction over the offense
punishment for various offenses is prescribed by law (duplicitous). § Extinction of criminal liability
o That the criminal action or liability has been extinguished. § Double jeopardy
o That it contains averments which, if true, would constitute a legal Ø Q: What are the two kinds of jeopardy?
excuse or justification. o No person shall be twice put in jeopardy for the same offense.
o That the accused has been previously convicted or acquitted of the o When an act is punished by a law and an ordinance, conviction or
offense charged, or the case against him was dismissed or otherwise acquittal under either shall constitute a bar to another prosecution
terminated without his express consent (double jeopardy). for the same act.
Ø Q: What are the grounds of a motion to dismiss in a criminal case? Ø Q: What are the requisites for the accused to raise the defense of double
o Violation of his right to speedy trial (see A.M. No. 12-11-2-SC) jeopardy?
o Insufficiency of the evidence of the prosecution (demurrer to o A first jeopardy must have attached prior to the second
evidence) o The first jeopardy must have been validly terminated
Ø Q: When is a case provisionally dismissed? o The second jeopardy must be for the same offense or the second
o A case can only be dismissed provisionally if the accused expressly offense includes or is necessarily included in the offense charged in
consents, and with notice to the offended party. Provisional the first information, or is an attempt or a frustration thereof.
dismissal does not place the accused in double jeopardy. But if the Ø Q: What are the requisites for the first jeopardy to attach?

o Valid complaint or information o The court may dismiss the case on its own initiative after giving the
o Court of competent jurisdiction prosecution the right to be heard
o Arraignment o Upon demurrer to evidence filed by the accused with or without
o Valid plea leave of court.
o The defendant was acquitted, convicted, or the case was dismissed Ø Q: How do you file a demurrer to evidence with leave of court?
without his express consent. o Within 5 days after the prosecution rests, the accused should file a
Ø Q: When is a dismissal of the case, even with the express consent of the motion for leave of court to file a demurrer to evidence. In the
accused, equivalent to an acquittal, which would constitute a bar to a second motion for leave of court, he should state his grounds. The
jeopardy? When is it not a bar to a second jeopardy? prosecution shall have 5 days within which to oppose the motion.
o A dismissal upon motion of the accused or his counsel negates the o If the leave of court is granted, the accused shall file the demurrer to
application of double jeopardy because the motion of the accused evidence within 10 days from notice of the grant of leave of court.
amounts to express consent, EXCEPT: The prosecution may oppose the demurrer to evidence within 10
§ If the ground is insufficiency of evidence of the days from its receipt of the demurrer.
prosecution (demurrer to evidence) Ø Q: What is the effect of filing the demurrer to evidence with leave of court?
§ Denial of the right to speedy trial o If the court grants it, the case is dismissed.
o But if the accused moves to dismiss on the following grounds, he can o If the court denies the demurrer to evidence filed with leave of
still be prosecuted for the same offense because he is deemed to court, the accused may still adduce evidence in his defense.
have waived his right against a second jeopardy: Ø Q: What is the effect of filing the demurrer to evidence without leave of
§ Lack of jurisdiction (Why? Because if you move to dismiss court?
on the ground of lack of jurisdiction, it means that you o If the court denies the demurrer to evidence without leave of court,
could not have been validly convicted by that court. You the accused is deemed to have waived his right to present evidence
are later estopped from claiming that you were in danger and submits the case for judgment on the basis of the evidence of
of conviction). the prosecution. This is because demurrer to evidence is not a
§ Insufficiency of complaint or information (Same reason. matter of right but is discretionary on the court. You have to ask for
You could not have been validly convicted under that its permission before filing it, or else you lose certain rights.
defective information, so you are estopped from claiming Ø Q: What is the remedy of the accused if the demurrer to evidence is denied?
that there was a first jeopardy). o As a general rule, there can be no appeal or certiorari from the
Ø Q: When will dismissal or termination of the first case not bar a second denial of the demurrer to evidence, since it is an interlocutory order,
jeopardy? which does not pass judgment on the merits of the case.
o The dismissal must be sought by the defendant personally or Ø Q: When can a case be reopened?
through his counsel o At any time before finality of judgment of conviction, the judge may
o Such dismissal must not be on the merits and must not necessarily reopen the case either on his own volition or upon motion, with
amount to an acquittal hearing in either case, in order to avoid a miscarriage of justice. The
proceedings should be terminated within 30 days from the order
TRIAL (RULE 119) granting the reopening of the case.
Ø Q: Do we have demurrer to evidence in a criminal case? Ø Q: What is a state witness?
o Yes. It is a motion to dismiss the case filed by the defense after the o A state witness is one of two or more persons jointly charged with
prosecution rests on the ground of insufficiency of the evidence of the commission of a crime but who is discharged with his consent as
the prosecution. such accused so that he may be a witness for the State.
Ø Q: What are the ways by which a case may be dismissed on the basis of Ø Q: When should the application for discharge of the state witness be made?
insufficiency of evidence of the prosecution? o It should be made upon motion of the prosecution before resting its
case.

Ø Q: What is the procedure? o EXPN: Unless a shorter period is provided by special law or Supreme
1. Before resting its case, the prosecution should file a motion to Court circular
discharge the accused as state witness with his consent. o This is the rule when the accused is not under preventive detention
2. The court will require the prosecution to present evidence and the Ø Q: What is the procedure followed when the accused is under detention?
sworn statement of the proposed state witness at a hearing in order o (e) When the accused is UNDER PREVENTIVE DETENTION, his case
to support the discharge. shall be raffled and its records transmitted to the judge to whom the
3. The court will determine if the requisites of giving the discharge are case was raffled within 3 days from the filing of the information or
present. Evidence adduced in support of the discharge shall complaint.
automatically form part of the trial. § The accused shall be arraigned within 10 days from the
4. If the court is satisfied, it will discharge the state witness. The date of the raffle. The pre-trial conference of his case shall
discharge is equivalent to an acquittal, unless the witness later fails be held within 10 days after arraignment.
or refuses to testify. Ø Q: The accused must be in court during arraignment. Can he be represented
5. If the court denies the motion for discharge, his sworn statement by lawyer?
shall be inadmissible as evidence. o No. He must be personally present in the court
Ø Q: What are the requisites in order for a person to be discharged as a state o The accused must be present at the arraignment and must
witness? personally enter his plea
1. There is absolute necessity for the testimony of the accused whose Ø Q: Is the presence of the offended party required?
discharge is requested o No, it is not mandatory
2. There is no direct evidence available for the proper prosecution of o (f) The private offended party shall be required to appear at the
the offense committed, except the testimony of the said accused arraignment for purposes of plea bargaining, determination of civil
3. The testimony of said accused can be substantially corroborated in liability, and other matters requiring his presence. In case of failure
its material points of the offended party to appear despite due notice, the court may
4. Said accused does not appear to be the most guilty allow the accused to enter a plea of guilty to a lesser offense which
5. Said accused has not at any time been convicted of any offense is necessarily included in the offense charged with the conformity of
involving moral turpitude the trial prosecutor alone.
Ø Q: What takes place in arraignment?
o The accused enters his plea, whether it be guilty or not guilty
Fifth Meeting: April 1, 2017 Ø Q: But before entering his plea, he must comply with procedure under the
rules.
RULE 116 - ARRAIGNMENT o The accused must be furnished with a copy of the
Ø Q: Explain the procedure followed in Arraignment. complaint/information
o Sec. 1, Rule 116. Arraignment is made in open court or clerk by o The information must be read to him in a language or dialect known
furnishing the accused with a copy of the complaint or information, to him
reading the same in the language or dialect known to him, and o The judge will now ask in open court whether he pleads guilty or not
asking him whether he pleads guilty or not guilty. guilty
Ø Q: In arraignment, we assume that an information has been filed. A warrant Ø Q: What is the purpose of reading the information to the accused?
of arrest has been issued. The court will issue warrant of arrest and the o To satisfy the constitutional right of the accused to be informed of
accused will be arrested. Is there any period fixed in the rules to compel the the nature and cause of accusation against him.
court to fix an arraignment? Ø PLEA OF GUILT
o GR: Within 30 days from the date the court acquires jurisdiction o NON-CAPITAL OFFENSE
over the person of the accused. o CAPITAL OFFENSE

Ø Q: Assume that the accused is charged with homicide. Homicide is not a Ø Q: Given that initial arraignment, the prosecution did not present evidence,
capital offense. The accused enters a plea of guilty. Must the court conduct a can the prosecution present evidence now to prove the guilt of the accused?
hearing? o Yes. The plea of guilt was withdrawn and a plea of not guilty is now
o No. Hearing is not mandatory if the accused pleads guilty to a non- entered
capital offense Ø Q: What if the accused pleads guilty to a CAPITAL OFFENSE?
o Sec. 4. When the accused pleads guilty to a non-capital offense, the o Court must conduct hearing à voluntariness
court MAY receive evidence from the parties o The rules provides for 3 duties:
o Purpose: to determine the penalty to be imposed 1. Searching inquiry
Ø Q: But can accuse tell the court to conduct a hearing. Is the court compelled a. Conduct a searching inquiry for the purpose of
to conduct hearing? ascertaining the voluntariness and full
o No. It has discretion to whether or not to grant the motion comprehension of consequences of his plea and
Ø Q: Assuming the court grants the motion. Will the prosecution present 2. Require the prosecution present evidence
evidence? a. Require the prosecution to prove his guilt and the
o No precise degree of culpability
Ø Q: Why not? 3. Allow accused to present evidence
o The accused is the only one who needs to present other evidence Ø Q: Does the rules provide how the trial judge to conduct a searching inquiry?
Ø Q: What will be the purpose of presenting evidence? o No, the rules do not provide for the meaning of searching inquiry
o Only for the purpose of determining the penalty imposed. Ø Q: What questions will be propounded to determine if accused knows of the
o In other words, the accused will be proving the existence of other crime, the penalty the voluntariness, consequences of his plea?
mitigating circumstance o Riano: Although there is no definite and concrete rule as to how a
Ø Q: Can the accused still present exculpatory evidence? Is that allowed trial judge must conduct a searching inquiry, the SC came up with
despite the fact the he plea of guilt? Won’t the exculpatory evidence the following guidelines:
contravene with the judicial admission of guilt? The prosecution will surely 1. The court must ascertain from the accused himself (1) how he
object. Chances are, the court will sustain the objection. If you were the was brought into the custody of law; (2) Whether he had
lawyer of the accused, what will you do? assistance of competent counsel; and (3) Under what
o The accused should present evidence that may prove that the plea conditions he was interrogated
of guilt is improvidently done 2. Ask the defense counsel questions as to whether he had
o Sec. 1. (d) When the accused pleads guilty but presents exculpatory completely explained to the accused the meaning and
evidence, his plea shall be deemed withdrawn and a plea of not consequences of plea of guilty
guilty shall be entered for him 3. Elicit personality profile of the accused (i.e. age, socio-economic
Ø Q: What is the effect of the improvident plea of guilt? status, educational background) to determine if he has the
o It is deemed withdrawn and a plea of not guilty shall be entered for capacity to give a free and informed plea of guilty
him 4. Inquire the accused if he knows the crime he is charged and
Ø Q: What will you, as lawyer of the accused, do? fully explain to him the elements of the crime
o Move for the withdrawal of the improvident plea of guilt and ask the 5. Questions should be in a language understood by the accused
court to enter a plea of NOT GUILTY 6. The judge must be satisfied that the accused, in pleading, is
Ø Q: Do you need to ask for withdrawal? truly guilty.
o No. It takes operation of law o If you are judge, you will be the one to propound questions and no
o But the court will allow the motion so that the improvident plea of one else. You must observe certain factors when conducting
guilt may be withdrawn and allow a new one. Purpose: to correct Searching inquiry, such as the level of understanding of the accused,
the record which initially provided that the plea is guilty. It will now the age of accused, etc. You must explain that since this is a capital
be with a plea of not guilty offense, he might be convicted and be held incarceration 20 to 30

years. You face the risk that the higher court might set aside the o There are circumstances that might affect the case. The rules
conviction if you do not conduct a search inquiry as contemplated enumerate good reasons why the court should not arraign the
under the rules. accused
Ø Q: Is it possible after being explained, accused regrets entering a plea of o Sec. 11. Upon motion by the proper party, the arraignment shall be
guilt? suspended in the following cases:
o He can take advantage of the rule on improvident plea of guilt § (a) The accused appears to be suffering from an
o The rules always looks after the interest of the accused because the UNSOUND MENTAL CONDITION which effective renders
liberty of the accused is at stake here him unable to fully understand the charge against him and
Ø Q: If he is 20 years, can we talk about his love life, say his girlfriend or wife, to plead intelligently thereto. In such case, the court shall
because if he will be convicted he will not see her again and that she will order his mental examination and, if necessary, his
look for someone else? And tell him the consequence is that he will be in jail confinement for such purpose;
for the rest of his life? § (b) There exists a PREJUDICIAL QUESTION; and
o Yes § (c) A PETITION FOR REVIEW of the resolution of the
Ø Q: How about his interest about his movies? Anyway you are the judge and prosecutor is pending at either the Department of Justice,
no one will object or the Office of the President; provided, that the period of
o Yes. The point is that judge can inquire as to anything that might suspension shall not exceed sixty (60) days counted from
make the accused change his mind the filing of the petition with the reviewing office.
o In crafting the Rules, SC justices wanted to be sure that no error was Ø First ground: unsound mental condition
committed at all in entering the plea of guilt o Q: If the accused is insane, why should we move for suspension?
o It is their job to look for errors in the plea of guilty. If the court finds Why can’t he just withdraw his plea on the argument that it is
serious error in a plea of guilty, it will try to educe the penalty as improvident?
much as possible § It is possible that the accused is insane but only at the time
o Failure to conduct a searching inquiry is a serious error of arraignment
Ø Q: What is effect of failure to conduct searching inquiry § The proper party will move for suspension
o Some SC decisions provide that the conviction is void. The court will o Q: Why is there a need to suspend the arraignment if the accused
have to do everything and arraign the accused all over again looks insane at the time of arraignment?
Ø Q: After a searching inquiry, what comes next? § If he looks insane, even if you read the information 100
o Require the prosecution to prove his guilt and the precise degree of times he will really not understand. Thus, we must
culpability postpone
Ø PLEA OF GUILT is equivalent to PROOF BEYOND REASONABLE DOUBT Ø Second ground: Prejudicial Question
Ø Q: Afterwards? o Q: What again is a prejudicial question under Rule 111?
o The accused will be made to present evidence. § It is a question raised in a civil case that is filed ahead of
o He may present exculpatory evidence proving that the plea is an criminal case and the question is intimately related to the
improvident plea latter such that its resolution will determine w/n the
Ø Thus, the court will observe procedure to determine whether or not the plea criminal case will be prosecuted
of guilt is improvident § Note: Civil case must always be filed before the criminal
Ø SUSPENSION OF ARRAIGNMENT case
Ø Q: Can the accused ask the court to postpone or defer the arraignment? § This is another ground to suspend the arraignment
o Yes pending the outcome of the civil case
Ø Q: For what reason? Ø Third ground: Petition for review of the resolution of the prosecutor is
pending at either the DOJ or Office of the president
Ø BILL OF PARTICULARS

Ø Q: What if the accused files a motion for bill of particulars? o 3. Litis pendentia
o Section 9. Bill of particulars. — The accused may, before o 4. Prescription
arraignment, move for a bill of particulars to enable him properly to Ø Q: Are there non- waivables also under criminal cases?
plead and to prepare for trial. The motion shall specify the alleged o Yes.
defects of the complaint or information and the details desired. o Section 3, Rule 117. Grounds. — The accused may move to quash
o The complaint or info is ambiguous. Seek clarification the complaint or information on any of the following grounds:
Ø Q: In civil cases, do you also ask for BOP if there is ambiguity? § (a) That the facts charged do not constitute an offense;
o Yes. In civil case, there is a need to move for bill of particulars for the § (b) That the court trying the case has no jurisdiction over
following purpose: so that the defendant or plaintiff in reply can file the offense charged;
a responsive pleading § (g) That the criminal action or liability has been
o There must be something wrong in the complaint, the defendant will extinguished;
move for the BOP in order to file an answer. If there is something § (i) That the accused has been previously convicted or
wrong with the answer, the plaintiff will move for BOP to file his acquitted of the offense charged, or the case against him
reply was dismissed or otherwise terminated without his
Ø Q: In criminal cases, is it the same? express consent
o No. BOP is only available to accused, not the prosecution Ø Q: What is the difference between the non-waivables for criminal and civil
o The purpose in criminal cases is not to file a responsive pleading. case?
Rather, the purpose is to enable accused to properly plead and to o There are 3 which are the same/similar
prepare for trial o Litis pendentia is a waivable defense in criminal cases
Ø In civil procedure à there is an separate rule devoted for BOP o Failure to state a cause of action is the equivalent of ‘the facts do
Ø In criminal procedureà there is only a provision under arraignment not constitute an offense’. It is a waivable ground in civil cases
Civil Procedure (Sec. 1, Rule 9) Criminal Procedure (Sec. 9, Rule 117)
RULE 117 – MOTION TO QUASH Lack of jurisdiction over the subject Lack of jurisdiction over the offense charged
Ø Q: What is a motion to quash? matter
o It is a motion filed any time before the accused enters his plea to set Prescription The criminal action/liability has been extinguised
aside the information or complaint Res Judicata Double Jeopardy
Ø Q: Is it the equivalent to motion to dismiss in a civil case? Litis Pendentia -
o Yes, essentially - The facts charged do not constitute an offense
o However, this statement is not totally correct. It may be considered Ø Q: The equivalent of ‘the information to charge of an offense’ in civil cases is
an inaccurate what?
Ø Q: Is a motion to dismiss allowed in criminal cases different from a motion to o Failure to state a COA. It is a waivable ground
quash? o In criminal cases, this ground is a serious defense
o Yes o In civil case, it is not that serious. That is why it is waivable
Ø For example, the accused makes the averment that he has (???) trial. If that is Ø Q: What is the reason why in civil cases it is waivable while it is non-waivable
the ground, remedy is to file for motion to dismiss. Thus, we have motion to in criminal cases? If the accused does not raise it in a motion to dismiss, he
dismiss different from a motion to quash cannot raise it anymore later on. Unlike in criminal procedure, you can raise
Ø Q: We can have both motions in criminal case. Can we have both motions in it even after trial or even after conviction. Why do we allow this in civil case
a civil case? and not a criminal case? The defect is similar. No COA in civil cases. Info does
Ø Q: In relation to Rule 9, there are certain grounds that consider as NON- not charge an offense. Why is the effect different in both cases, when the
WAIVABLES not under Rule 16. What are the non-waivables again? effect is identical anyway?
o 1. No jurisdiction
o 2. Res Judicata

o If we analyze this further, in civil case, if this is the ground raised in Ø CIVIL CASES à CAN BE CURED BY FORMAL AMENDMENT BY PLAINTIFF OR
a MTD, and the court finds merit in the motion, what are the option EVEN OTHER MODES IF FAILURE TO STATE OF CAUSE OF ACTION BY PLAINTIFF
of the court? o What is that other mode of amendment allowed in a civil cases?
§ 1. Grant motion à dismissal of case. Dismissal is without o “AMENDMENT TO CONFORM TO EVIDENCE’ – if the plaintiff does
prejudice under Rule 16 not formally amend, and evidence is submitted which cures the
§ 2. Deny motion à case will proceed complaint’s defect, the complaint is amended by operation of law
§ 3. Order the amendment à plaintiff must amend already but the plaintiff may move for amendment to conform to
complaint and if he does obey the court, the case may be evidence to correct the record
dismissed under Rule 17 for failure to comply with the Ø CRIMINAL CASES àTHERE IS NO AMENDEMENT TO CONFORM TO EVIDENCE
orders of the court. This is a dismissal with prejudice (as contemplated under civil procedure). Thus, in failure to charge an offense,
o If we go to criminal procedure, if there is a MTQ, the option are: there is a need TO MAKE IT NON-WAIVABLE GROUND AND ALLOW IT TO BE
§ 1. Sustain the motion à info is quash RAISED at any stage because in criminal procedure, AMENDMENT TO
§ 2. Deny the motion à case will proceed CONFORM TO EVIDENCE (as contemplated in civil procedure) IS NOT
§ 3. Order the amendment ALLOWED
o Essentially, they are the same. If manner of dismissing are the same. o Note: Although amendment to conform to evidence as
o But they are different when it comes to the procedure in amending contemplated in civil procedure does not apply in criminal
the complaint on the ground of failure to state a cause of action/a procedure, it is still possible that we can have amendment to
failure to charge an offense. We will be able to find out the reason conform to evidence in criminal procedure. We must refer to the
why it is waivable civil cases and in criminal cases it is not waivable. rule on variance under Rule 120 - Judgment
Ø Q: In civil case, if the plaintiff makes the error of filing a complaint which Ø RULE ON VARIANCE IN REL. AMENDEMENT TO CONFORM TO EVIDENCE –
states no cause of action, how can can rectify the error? Evidence does not jive with the offense charge
o By amending the complaint o Section 4, Rule 120. Judgment in case of variance between
o AS A RIGHT: before a responsive pleading. As long as no answer has allegation and proof. — When there is variance between the offense
been filed, the plaintiff can amend his complaint charged in the complaint or information and that proved, and the
o AS A MATTER OF DISCRETION: after a responsive pleading has been offense as charged is included in or necessarily includes the offense
filed proved, the accused shall be convicted of the offense proved which
Ø In criminal cases à If it is based on the ground that the facts charged do not is included in the offense charged, or of the offense charged which is
constitute an offense, the prosecution shall be given by the court an included in the offense proved.
opportunity to correct the defect by amendment o Q: What does this rule on variance mean? Give an illustration.
o Section 4. Amendment of the complaint or information. § For instance the crime charged is frustrated homicide. If
o If the motion to quash is based on an alleged defect of the evidence presented by prosecution à PBRD à court can
complaint or information which can be cured by amendment, the convict him. If evidence shows that the crime committed is
court shall order that an amendment be made. attempted homicide, the accused can be convicted of
o If it is based on the ground that the facts charged do not constitute attempted homicide. Reason: attempted homicide is
an offense, the prosecution shall be given by the court an necessarily included in frustrated homicide
opportunity to correct the defect by amendment. The motion shall o Q: What if it is the other way around?
be granted if the prosecution fails to make the amendment, or the § It is not allowed. If attempted homicide and the evidence
complaint or information still suffers from the same defect despite presented is for the crime of frustrated homicide, a
the amendment. conviction of frustrated homicide is NOT ALLOWED
Ø Q: SO WHY IN CIVIL CASES IT IS NON-WAIVABLE AND IN CRIMINAL CASES IT o In other words, the rule on variance provides that the accused must
IS WAIVABLE? always be convicted of the offense charge or a crime necessarily
included. But he can never apply à higher offense. Reason: that is

not the offense read to him in the arraignment or necessarily o (f) That more than one offense is charged except when a single
included. The right of the accused to be informed of the nature and punishment for various offenses is prescribed by law;
cause of the accusation against him is violated o (g) That the criminal action or liability has been extinguished;
o IF PREJDICIAL TO ACCUSEDà DO NOT APPLY RULE ON VARIANCE o (h) That it contains averments which, if true, would constitute a legal
o IF NOT PREJUDICIAL à APPLY THE RULE ON VARIANCE excuse or justification; and
Ø BUT THE AMENDMENT TO CONFORM TO EVIDENCE IS NOT AS ALL- o (i) That the accused has been previously convicted or acquitted of
ENCOMPASSING AS CIVIL CASE the offense charged, or the case against him was dismissed or
o In civil procedure, if plaintiff proves only 500k out of 1M, then the otherwise terminated without his express consent.
court will award only 500k. If plaintiff proves 2M, the court will Ø Q: In a MTQ in a criminal case, do we have MTQ which contains all of the
award 2M. This is allowed. This is where the rule of amendment to grounds mentioned? Or de we allow several grounds to file MTQ one after
conform to evidence comes in with respect to civil case. If claim is the other? Can accused file MTQ using 2 grounds (i.e. 1 lack of J, the other
1M and the evidence proves that the defendant is liable for 2M, the double jeopardy)?
allegations in the complaint are deemed amended by operation of o In a civil, motion to dismiss allowed motion to dismiss one after the
law. other exceptionally à non-waivable can be raised subsequently in
§ This does NOT APPLY in criminal case. Reason: there are another MTD
constitutional rights in criminal case: Right to be informed o In criminal case, it is filed before plea as a general rule. After plea,
of nature and cause of action against him. we usually do not allow unless it is a non-waivable ground
o Thus, when applying the concept of amendment to conform to o Thus, the rules are similar or the same insofar as this aspect
evidence, there is: Ø Q: A MTQ filed before plea is based on grounds under the rules. But there is a
§ With respect to Civil cases: complete application ground which cannot be joined by other grounds. What is this ground?
§ With respect to Criminal cases: qualified application Otherwise, if we use other grounds, the first ground is deemed waived. If we
o In criminal procedure, if the crime charged is completely different use this ground, we cannot use other grounds
from that proven (i.e. if accused is charged with homicide, he cannot o MTQ on ground of lack of jurisdiction over the person
be convicted of murder because it is prejudicial to accused). Effect: o If you mix it with other grounds in one MTQ, ground of Lack of
NO CONVICTION, NO ACQUITTAL IS ALLOWED. There can be jurisdiction is deemed waived
substitution of information. We do not apply this in civil cases o Section 2. Form and contents. — The motion to quash shall be in
because there is complete application in civil case. In criminal cases, writing, signed by the accused or his counsel and shall distinctly
it is only qualifiedly applied specify its factual and legal grounds. The court shall consider no
Ø Amendment to conform à Read Rule 10 carefully. It will only apply if there is ground other than those stated in the motion, except lack of
no objection over wrong evidence is presented jurisdiction over the offense charged.
Ø Q: What are the grounds to a motion to quash an offense? o It is entirely different in civil case. If you file on this ground, there is
o Section 3. Grounds. — The accused may move to quash the no waiver. Reason: the SC amended the rules to provide that in civil
complaint or information on any of the following grounds: case, raising other grounds together with lack of jurisdiction is not
o (a) That the facts charged do not constitute an offense; waiver of other grounds. No such amendment was made in criminal
o (b) That the court trying the case has no jurisdiction over the offense procedure.
charged; Ø Q: one of the grounds is when the prosecutor who signed the information is
o (c) That the court trying the case has no jurisdiction over the person not authorized. Isn’t that the role of the information to sign an information
of the accused; and file it in court? Should we not assume that the prosecutor is really
o (d) That the officer who filed the information had no authority to do authorized?
so; o An information is filed without approval of the Head Prosecutor. The
o (e) That it does not conform substantially to the prescribed form; one who conducts PI, only recommends. The head is the one who
signs. He is the one authorized. So If an information is signed by the

investigating prosecutor, it is can be said that the prosecutor is not Ø Q: What must you prove?
authorized o Generally, 180days (6 months) have already lapsed and the criminal
Ø Q: In criminal procedure the rules also emphasized a provisional dismissal case is not yet settled. Before this period ends, cannot invoke
which we do not have in civil case. What is this rule about in criminal case? speedy trial violated
o Section 8. Provisional dismissal. — A case shall not be provisionally Ø Q: How long provisionally dismissed?
dismissed except with the express consent of the accused and with o There are 2 period contemplated
notice to the offended party. § 1 years
o The provisional dismissal of offenses punishable by imprisonment § 2 year
not exceeding six (6) years or a fine of any amount, or both, shall o Within that 1 year or 2 year period, the case could be revived by the
become permanent one (1) year after issuance of the order without prosecution.
the case having been revived. With respect to offenses punishable Ø Q: Will prescription set in?
by imprisonment of more than six (6) years, their provisional o No. Under the records, the case is still alive. Not prescribed
dismissal shall become permanent two (2) years after issuance of Ø Q: How do you revive?
the order without the case having been revived o Prosecutor seeks revival. He will file a motion.
Ø Q: Who is the movant? Ø Q: One year or two years, there will be no movement of the case. Until
o It can be either the prosecutor or the accused provisional dismissal is converted into a final dismissal if not revived. In the
Ø Q: Why will prosecutor move for dismissal if he is in charge of prosecuting? meantime, will he continue to be under detention? What will happen to your
o Student: I.e. a witness is absent or there is a delay client?
Ø Q: If the witness of the prosecution is absent, will this not violate right to Ø Q: is it possible that you agree to a provisional dismissal but the favor you
speedy trial? For instance, clerk of court calls witness. Prosecutor notices his will ask for the court is that your client will be released in the meantime?
witness is not around. Prosecutor moves for provisional dismissal. If you are Ø The Rules of Court do not provide for such situation. Nothing under the rules.
lawyer for accused, will accede to the motion? Will you be amenable to this? Thus you will ask the court to dismiss in the meantime.
Is this in the interest of your client? Ø Q: In a civil case do we really not have provisional dismissal? If we have this
o No, you should not accede to the request of prosecutor for in civil case, we will also have 1 or 2 years wherein the case is dismissed
provisional dismissal of the case similar to criminal cases
o You should move for dismissal of the case on the ground that his o No provisional dismissal in civil cases
right to speedy trial is violated Ø So this is one of the remedies if the prosecutors’ witness is absent: move for
§ If the motion is granted, this will result to acquittal of the provisional dismissal
accused. This is the end of criminal case. You can now Ø Q: How about in civil cases. If the plaintiff fails to present witnesses because
invoke double jeopardy his witnesses are not around. If you were the lawyer for the defendant. What
Ø Q: What if you moved for provisional dismissal what is the effect? will you do? He cannot ask provisional dismissal.
o Provisional dismissal is not equivalent to an acquittal. It is a o Ask for dismissal of the case on the ground of failure to prosecute
dismissal which is only provisional. It is subject to revival. The Ø Q: If dismissed on this ground, can the plaintiff still refile a similar
accused cannot yet invoke double jeopardy subsequent case?
Ø Thus, it is better to choose motion to dismiss which will lead to an acquittal o No. It is a dismissal with prejudice. That is res judicata.
rather than provisional dismissal. This is more beneficial to your client o Section 3, Rule 17. Dismissal due to fault of plaintiff. — If, for no
Ø Q: Can you always make use of a dismissal on the ground that the right to justifiable cause, the plaintiff fails to appear on the date of the
speedy trial is violated? presentation of his evidence in chief on the complaint, or to
o No, not on the mere ground that the witness is absent. You cannot prosecute his action for an unreasonable length of time, or to
invoke this simply because the witness of the prosecution is absent comply with these Rules or any order of the court, the complaint
o Before you move for dismissal on this ground, you must show that may be dismissed upon motion of the defendant or upon the court's
the right to speedy trial has been violated own motion, without prejudice to the right of the defendant to

prosecute his counterclaim in the same or in a separate action. This o Ask jolo
dismissal shall have the effect of an adjudication upon the merits, Ø Q: For instance, the prosecution is the one who moves. Plea will be changed
unless otherwise declared by the court. from guilty to not guilty. Will he be admitting?
Ø Civil case à move for dismissal on the ground of failure to prosecute o Yes. Plea of guilt is in effect admission
Ø Criminal case à ask for provisional dismissal Ø Q: Will he still be subject of direct and cross examination?
Ø Q: In criminal cases, do you need the consent of the defendant? o No.
o Yes Ø Q: When does he effectively withdraws his plea of guilty.
Ø Q: Can he put up as a condition to the dismissal that it will be a permanent Ø Is it not too much a risk of admitting the crime but there is no assurance that
dismissal? he will be made a state witness? If the court does not grant, he is a co-
o No accused. Court cannot give the guarantee. Court must hear a motion first isn’t
it? The other party will do everything so that the motion will not be granted. It
STATE WITNESS is not only an admission. It is a judicial admission in open court. What do the
Ø Section 17, Rule 119. Discharge of accused to be state witness. — When two rules provide?
or more persons are jointly charged with the commission of any offense, upon o Although admitted, IT CANNOT BE USED AGAINST HIM. This is the
motion of the prosecution before resting its case, the court may direct one or measure of protection is granted to the co-accused
more of the accused to be discharged with their consent so that they may be Ø Q: The state witness will be acquitted. A is out. But B and C want him to
witnesses for the state when, after requiring the prosecution to present suffer the consequence coz they might be convicted. Can they challenge the
evidence and the sworn statement of each proposed state witness at a order of the court granted the co-accused being a state witness? What is
hearing in support of the discharge, the court is satisfied that: remedy? Can B and C appeal?
o (a) There is absolute necessity for the testimony of the accused o Insofar as A is concerned à it is final. Reason: order to become a
whose discharge is requested; state witness is equivalent to acquittal
o (b) The is no other direct evidence available for the proper o Insofar as B and C à interlocutory. Trial will go on
prosecution of the offense committed, except the testimony of said o Thus, it is interlocutory. Cannot go on with appeal
accused; Ø Q: Can they not go up to a higher court right away?
o (c) The testimony of said accused can be substantially corroborated o They can make use of Rule 65 because there is no plain, adequate,
in its material points; and speedy remedy, they will allege they acted in grave abuse of
o (d) Said accused does not appear to be the most guilty; and discretion amounting to lack or excess of jurisdiction.
o (e) Said accused has not at any time been convicted of any offense o B and C will also have to seek an injunction against the court from
involving moral turpitude. making A a state witness. Effectively, the trial court must wait for
Ø Evidence adduced in support of the discharge shall automatically form part of the injunction to terminate. If certiorari court does not find
the trial. If the court denies the motion for discharge of the accused as state injunction meritorious, the trial court will go on
witness, his sworn statement shall be inadmissible in evidence. Ø Q: Why can B and C hope to be acquitted notwithstanding A?
Ø Q: What is the procedure for a witness to be a state witness? o They will still be allowed to present evidence
o Must be one of the co-accused Ø STATE WITNESS PROGRAM LAW
o Prosecution must accept for him to be a state witness Ø Q: Can this be done before the information is filed with the case is still in the
Ø If there is a co-accused, this means that there are other accused. All must have jurisdiction of the prosecution?
been arraigned. During arraignment, the accused must have entered a plea of o Yes. It can be done before or after
not guilty. That is why they are in trial o If done before, it is administrative in character
Ø Q: Is the trial joint? Only charged in one information? o There is a special law for this
o Court can order separate trial even if only information o Purely a negotiation between prosecutor and witness
Ø Q: If a person wants to be a state witness, must they have been put to court o It is a remedy to pre-empt the filing of information against the state
for negotiation? witness. He will not be charged or arrested

Ø Q: How do you go about this? Making the accused a state witness before an RTC with jurisdiction over the place of confinement upon request of
information? the court that rendered the decision. The court promulgating the
o Title of information: people vs. B and C judgment can also accept notices of appeal and applications for bail,
o Nothing appears in record of the court. Information has yet to be unless the court that rendered the decision changed the nature of
filed. the offense from non-bailable to bailable, in which case, the
o What is the guarantee that A will not be charged and eventually go application for bail can only be filed with the appellate court.
to court and testify? Ø Q: Is the accused required to appear during promulgation?
§ We assume that there has been no information yet. There o Yes. Judgment must be promulgated in the presence of the accused.
is no case filed yet in administrative level. Assurance of But if the conviction is for a light offense, judgment may be
prosecutor would be an affidavit of A that he committed promulgated in the presence of his counsel or representative. Also,
the crime. It is not testimony in court. if the accused fails to attend the promulgation, even if he was
o A can always change his mind by stating another affidavit on the notified thereof, or if he jumped bail or escaped from prison,
reason that the first affidavit is wrong. Or he may find other ways to judgment may be validly promulgated in absentia.
make the affidavit admissible such saying that when he executed it Ø Q: What are the instances where the accused must be present in court?
he was not assisted by counsel (uncounseled admission). The o Arraignment
prosecutor now has a problem. He might be outsmarted by a person o During promulgation of judgment, except if it is for a light offense
who may have committed a crime o When the presence of the accused at the trial is necessary for
Ø Q: If information is filed? purposes of identification, unless he admits beforehand that he is
o Rules of court will apply. Not administrative the same person charged
Ø Remedy of the prosecution is that it can always amend the information as a Ø Q: If the accused does not appear, during arraignment, will there be a
right and to disregard all the agreements that may have been entered with the serious consequence?
accused o Court can cancel bail
o Court can order the arrest of the accused
Monday Class: April 3, 2017 Ø Q: if the accused is absent during arraignment, will this lead to trial in
absentia?
From Ayah: o No. For trial in absentia to proceed, the accused has already been
JUDGMENT (RULE 120) arraigned.
Ø Q: What are the requisites of valid judgment? Ø Q: If the accused does not appear during promulgation, what are the adverse
o Must be written in the official language consequences?
o Personally and directly prepared by the judge o The promulgation shall be made by recording the judgment in the
o Signed by him criminal docket and serving the accused a copy thereof at his last
o Should contain clearly and distinctly a statement of the facts and law known address or through his counsel.
upon which it is based o If the judgment is of conviction, the accused who fails to appear at
Ø Q: distinguish Rule 36 (judgment in civil cases) from Rule 120 (judgment in the promulgation shall lose the remedies available to him against
criminal cases) the judgment, and the court shall order his arrest.
o No promulgation of judgment in civil cases. Ø Q: What remedies will the accused lose?
o In civil cases, judgment is filed with the clerk of court. In criminal o Motion for new trial
cases, such is not needed. o Motion for reconsideration
Ø Q: When can judgment be promulgated by somebody who is not the judge o Appeal
who penned the decision? Ø Q: When may the accused reacquire his remedies?
o If the accused is confined or detained in another province or city, o Within 15 days from promulgation, he accused can surrender and
the judgment may be promulgated by the executive judge of the file a motion for leave of court to avail of these remedies. He shall

state the reason for his failure to attend the promulgation, and if he o Yes, but in a very limited sense. Only if the outcome will be
is able to justify his absence, he shall be allowed to avail of these favorable to the accused.
remedies within 15 days from notice.
Ø Q: Compare the remedies of an adverse decision in a civil and criminal case NEW TRIAL OR RECONSIDERATION (RULE 121)
CIVIL CASES CRIMINAL CASES Ø Q: What is the purpose of a new trial?
§ Appeal § Appeal o It is to temper the severity of a judgment or prevent the failure of
§ Motion for New Trial § Motion for New Trial justice.
§ Motion for Reconsideration § Motion for Reconsideration Ø Q: Distinguish between new trial and reconsideration.
§ Relief from Judgment o In a new trial, the case is opened again, after judgment, for the
§ Annulment of Judgment reception of new evidence and further proceedings. It is only proper
Ø Q: Why is Relief from Judgment and Annulment of Judgment not a remedy in after rendition or promulgation of judgment.
criminal cases? o In a reconsideration, the case is not reopened for further
o Because the accused may still avail of Habeas Corpus as a remedy in proceeding. The court is merely asked to reconsider its findings of
case it was discovered that there was irregularity in the proceedings, law in order to make them conformable to the law applicable to the
that there was fraud, or that new evidence was discovered which case.
would alter the result of the case. This may be availed even if the Ø What are the grounds for a new trial?
period to appeal is expired or if the accused is already serving his 1. That errors of law or irregularities prejudicial to the substantial
sentence. rights of the accused have been committed during the trial (errors of
Ø Q: What must the judgment state if the accused is acquitted? law or irregularities);
o Whether the evidence of the prosecution absolutely failed to prove 2. That new and material evidence has been discovered which the
the guilt of the accused or merely failed to prove it beyond accused could not with reasonable diligence have discovered and
reasonable doubt; and produced at the trial and which if introduced and admitted would
o If the act or omission from which the civil liability might arise did not probably change the judgment (newly discovered evidence).
exist. 3. If the case is being heard by the CA or SC, it may determine other
Ø Q: Why is it possible that the accused though acquitted be liable for grounds in the exercise of its discretion.
damages? Ø Q: What are the grounds for reconsideration?
o Exemption in criminal liability does not include exemption from civil o Errors of law or fact in the judgment.
liability. This is because civil liability requires a lower quantum of Ø Q: Which is more comprehensive, new trial in a civil case or new trial in a
evidence. criminal case?
Ø Q: if the crime charged is homicide and the RTC convicts the accused of o Civil case.
homicide, may the CA, on appeal, convict him of murder? Ø Q: What are the requisites for granting a new trial on the ground of newly
o No. The accused can only be convicted of the lesser offense, which is discovered evidence?
included in the graver offense either proved or charged. The reason o The evidence must have been discovered after trial;
for this is that the accused can only be convicted of the offense o Such evidence could not have been discovered and produced at the
which is both charged and proved (Rule on variance). trial even with the exercise of reasonable diligence;
Ø Q: What are the 2 instances when the rule on variance applies? o The evidence is material, not merely cumulative, corroborative, or
o When the information charges a crime that is graver that the crime impeaching;
that is proven, the accused may be convicted of the crime proven. o The evidence must go to the merits, such that it would produce a
o When the crime proven is graver than that stated in the information, different result if admitted.
the accused cannot be convicted of the proven crime. Ø Q: What is the difference between newly discovered evidence in civil cases
Ø Q: Is the rule on amendment to conform to evidence applicable in a criminal and civil cases?
case?

o In civil cases, the requisite of exercising reasonable diligence in o Competent evidence is one that is not excluded by law or the rules.
discovering the evidence is required whereas such is not a requisite If the test of relevance is logic and common sense, the test of
in criminal cases. competence is the law or the rules. Competence, in relation to
Ø Q: Is new trial allowed in the CA in criminal cases? evidence in general, refers to eligibility of an evidence to be received
o Yes. On the ground of newly discovered evidence. as such.
Ø Q: If it is excluded by the rules, does it make it irrelevant?
RULES ON EVIDENCE o No. It is incompetent but may be relevant.
Ø Q: what remedy is available if evidence is excluded by the rules?
Ø Q: What is the concept of evidence? o In criminal case, a motion to suppress evidence.
o Evidence is the means, sanctioned by the Rules of Court, of Ø Q: What are the requisites for admissibility of documentary evidence?
ascertaining in a judicial proceeding the truth respecting a matter of o The document must be relevant to the fact in issue
fact. It is only a means of ascertaining the truth. This truth should o The document must be competent
depend upon the evidence submitted in a court in accordance with o The document must be authenticated before it is admitted
the rules. o The authentication must be made by a competent witness; and
Ø Q: If the ascertainment is the truth as a matter of law, do we apply the o The document must be formally offered in evidence.
concept of evidence? Ø Q: What is the best evidence rule?
o No. All persons and courts are conclusively presumed to know the o It requires the highest grade of evidence obtainable to prove a
law. disputed fact. It cannot be invoked unless the contents of writing is
Ø Q: Can the court render a decision if it does not apply the rules on evidence? the subject of judicial inquiry, in which case the best evidence is the
o Yes, although factual disputes must be resolved through evidentiary original writing itself.
rules, there are other special rules that may be applied. o The best evidence refers to that which the law or the rules consider
o A matter may also be proved by means of an affidavit, such as in as the best evidence to prove the fact in dispute. The best evidence
motions based on facts not appearing on record, in cases covered by is the evidence which the case in its nature is susceptible and which
the Rules on Summary Procedure, and those filed in administrative is within the power of the party to produce. Evidence cannot be
or quasi-judicial bodies. received which indicates on its face that it is secondary, that is,
Ø Q: What do litigants do to the evidence during pre-trial? merely substitutionary in its nature, and that the original source of
o They are marked. information is in existence and accessible. The underlying purpose is
Ø Q: What is the purpose of judicial affidavit in civil cases? the prevention of fraud.
o The judicial affidavit of witnesses will take the place of testimony on Ø Q: What action may help the litigant in presenting secondary evidence so
direct examination. Witnesses will still go to court to subject that the adverse party may no longer raise the question of admissibility?
themselves to cross examination. o Rule on actionable document (Rule 8, sec. 7)
Ø Q: In summary procedure, despite the submission of judicial affidavit, will Ø Q: What are the requisites for introducing secondary evidence?
the witnesses still go to court to undergo cross examination? o The offeror must satisfy first the requirements for laying the basis
o Yes for the presentation of secondary evidence. Laying the basis involves
Ø What are the 2 distinct elements that justifies the presentation of evidence? explaining to the satisfaction of the court the reason for the inability
o That it is relevant to the issue; and to offer the original of the document, in the following:
o That it is competent, that is, that it does not belong to that class of § The execution or existence of the original;
evidence which is excluded by the law or the rules. § The loss and destruction of the original or its
Ø What is the test of relevancy? nonproduction in court;
o Evidence must have such a relation to the fact in issue as to induce § Unavailability of the original is not due to bad faith on the
belief in its existence or non-existence. part of the offeror.
Ø What is the test of competence?

o If the offeror has successfully laid the basis for the presentation of 2. Is there presentation of evidence in small claims? YES upon filing of verified
the secondary evidence, then the original need not be presented. statement of claim or response, attach evidence. But NO TRIAL only HEARING on the
However, one must observe the order in which the secondary same day
evidence is to be offered. This is because not every secondary 3. in summary procedure? w/in 10 days from receipt of order of preliminary conference,
evidence can be offered. The following order must therefore, be submit evidence, affidavits, position papers, NO TRIAL EXCEPT CRIMINAL
observed: 4. factum probandum, can we rely solely on information? NO. there must be a plea of
§ A copy of the original; no guilty first. In civil cases, there must be answer with specific denial
§ If there is no copy, then a recital of its contents in some 5. axioms of relevance and competence memorise section 3 and 4
authentic document; 6. is plea of guilty no probandum? There is if heinous crime, there is a need for
§ In default of hereof, by the testimony of witnesses in the searching inquiry
order stated. 7. plea of guilty is a judicial admission. No need for introduction of evidence. Therefore
no probandum. EXCEPT heinous.
From Mendiola: 8. If there is a judicial admission, it may be contradicted a. palpable mistake; b. no such
1. What are the requisites of a valid judgment admission is made - MOTION FOR RELIEVE FROM ADMISSION
2. Contents (acquitted; convicted)
3. Rule on civil liability in case of acquittal Judgment; requisites
4. Axiom of relevancy; axiom of competency (verbatim) 36 vs 120
5. Accused in the criminal case is convicted of homicide (can he appeal?) Appeal in civil case vs appeal in criminal case
6. Appeal to CA - can he now be convicted of murder? Why should judge trust clerk of court to deliver decision on civil case and not in criminal
7. What is the extent of the review power of the appellate court in criminal cases? case (practical point of view)
8. What is the meaning of reversal? Crim- accused may Jump bail.
9. Are the remedies available to the aggrieved party in the civil case also available to the
aggrieved party in a criminal case? When is there trial in absentia?
10. Rules more generous to the aggrieved parties in a civil case? Consequences when not present in promulgation?
11. Why do you prohibit the use of annulment of judgment and petition for relief from
judgment in criminal cases? Remedies in civil case vs in a civil case?
12. Ground for new trial (civil vs. criminal procedure) Which is more comprehensive?
13. Period to file a motion for new trial – CA
14. Evidence – definition 37 vs 121
15. Rules on evidence - small claims; even without trial. Summary procedure Before appellate courts can there be new trial?
16. Axioms of wigmore 53 vs 124, section 14
17. Concept of collateral matters – Example? In criminal cases, if judgment is of Acquittal how is it crafted? 120, section 2 paragraph 2
18. Criminal cases - probandum - do we rely solely on the information? Question on civil liability
19. In civil cases - what is required to have a probandum
20. Rules on withdrawal of an improvident plea of guilt Rule on variance between allegation and proof. 120 section 4
21. Upon withdrawal it becomes an extrajudicial admission - can be used against the
accused Amendment to conform to evidence in civil case vs criminal case
22. If the prosecution makes use of the withdrawn plea of guilt it must be corroborated
with what evidence? Substitution of information

1. Define evidence Evidence? Concept? As a matter of Law?
Can you give an example?

In Small claims cases do we allow rules on evidence although lawyers are not allowed? Ø We always make reference to the fact in issue. Does every dispute involve a
Summary procedure? fact in issue?
Test of relevancy? o Not necessarily. There are disputes wherein there is no fact in issue
Test of competency? o In order to determine w/n there is a fact in issue, we must first
How do you manifest to the prosecutor that the evidence is incompetent? - motion to distinguish as to what kind of case is involved
suppress evidence
Legal mechanism in presenting evidence, do away with the problems? CIVIL CASES
How can there be admission by the adverse party? Ø Q: A Civil complaint for unpaid loan was filed. There must have been an
What is the effect of judicial admission by a party as to the genuineness and due allegation of a cause of action. If there is a fact in issue, we make use of the
execution of such document? 129, section 4 conclusive to the party admitting the same Rules on Evidence Based on the complaint itself, can we ascertain the fact in
What if it was a mistake?remedy? Palpable mistake and no admission was admitted issue?
o No. There is no fact in issue
Ø Q: How can we ascertain whether or not there is a fact in issue?
Sixth Meeting: April 8, 2017 o We have to wait for a responsive pleading to be filed à filing of an
answer
RULES ON EVIDENCE Ø Q: If there is no answer filed by the defendant, is there a fact in issue?
o No
WIGMORE’S AXIOMS OF ADMISSIBILITY Ø Q: The next move for the plaintiff is to move for default and the court grants
Ø Axioms of admissibility (memorize!): the motion. Is there now a fact in issue?
o 1. Axiom of Relevancy - none but facts with rational probative value o The rules do not require the court to conduct a trial anymore. The
are admissible. options available to the court are:
§ Sec. 4. Relevancy; collateral matters. — Evidence must § 1. Render judgment of the case right away in favor of the
have such a relation to the fact in issue as to induce belief plaintiff since it is based on the allegations of the
in its existence or non-existence complaint, regardless of the fact if the allegations are true
§ Relevancy is determined purely by logic, and its or not; or
connection to the fact in issue § 2. The other option of the court is to order the plaintiff to
o 2. Axiom of Competency - all facts having rational probative value present evidence ex parte.
are admissible unless excluded by the rule Ø Q: Assuming that the court rendered a judgment right away, the first option.
§ Evidence is competent when it is not excluded by the rules What will be the basis of the court believing as true and correct the
of court, Constitution, Special law, or SC circular. allegations of the complaint if there is no evidence presented by the parties?
§ It is determined by law o Failure of the defendant to answer. We have to look at the
Ø Q: Object evidence rule. Is it a rule that excludes other pieces of evidence? possibilities that we take into account if the defendant does not
o No. There is no exclusionary clause in its definition answer. He may have not been served with summons. Assuming
Ø Q: How about BER? that he has been served with summons, he nevertheless was not
o Yes. It excludes secondary evidence able to file his answer. He then is declared is default. This is a serious
Ø Q: What is admissible in BER? punishment because he will be deprived of his right to participate in
o Original Document the proceedings.
Ø Q: How about PER? o Remember that in a civil case, the quantum of evidence is
o Yes, it is also is an exclusionary rule. It excludes evidence aliunde. It preponderance of evidence. If there is a judgment by default, there
may be testimonial or documentary would be no reason for the court to doubt the allegations in the
Ø Q: How about collateral matters, are they excluded in the Rules? complaint because the court can treat the complaint as
o Generally, yes

preponderant evidence to make an award. The problem now what NOT REQUIRE PROOF. It is conclusive and binding upon the party
evidence may be made the basis of the judgment making it.
o Verified pleadings Ø Q: Can the defendant change his mind after filing an answer with a general
§ If the complaint is verified, there would be basis to render denial? On the day after he was declared in default, he amends his answer
judgment because it is under oath. If the pleadings are so that the general denial will be a specific denial, so that there will now be a
verified and the defendant does not answer, the fact in issue. Is this allowed? Does he need the court’s approval?
verification would tell us that the allegations in the o Yes. He can file his amended answer. Until a reply is filed,
pleading are true and correct of the pleader’s knowledge. amendment will be as a matter of right under Rule 10
This could serve as sufficient evidence. But not all o There is no need to ask for leave of court
pleadings are verified. It is only required in certain Ø Q: What will happen to the judicial admission on the original answer, will it
instances such as summary procedure or small claims. This still be continue to be an admission?
is not the general rule. o Yes. The defendant could still have been considered to have
o Signature of counsel admitted his liability. It is still an admission
§ Effect: The lawyer makes undertaking that he has read the o The judicial admission will be converted to an extra-judicial
pleading to the best of his knowledge that there is a good admission
ground to support the complaint o Extra-judicial admissions are still admissible in our Rules. It may be
§ It is not the same as verification. It is not under oath. It is considered relevant. It is competent since it is not excluded by the
not enough basis for the court to make award in favor of rules
the plaintiff right away. It could not serve as sufficient Ø Q: What is the difference between judicial and extra-judicial admissions?
evidence Judicial Admissions Extra-judicial Admissions
o Actionable document As to how made Admission (verbal or Admission made outside
§ If there is an actionable document, there is at least written) made by a party in (but Judge prefers “not
evidence attached to the complaint. For example, a course of the proceedings made in the proceedings”
promissory note is an actionable Document. The court will in the same case of the) court; or in a
now have something to rely upon. This could be sufficient judicial proceeding
evidence. But not all pleadings allege an actionable different from the one in
document. consideration
o The court can make an assumption that the debtor has decided not As to how admitted in Does NOT require proof Must be formally offered in
to answer because he admits liability. Non-answering is in effect an evidence evidence (otherwise, it will
ADMISSION OF LIABILITY not be considered)
Ø Purpose of evidence: to ascertain the truth as matter of fact As to conclusiveness Conclusive upon party GR: they are disputable
Ø Q: Assuming that the defendant answers. He makes a denial. What is effect? making them EXPN: when elements of
o It depends upon the manner of denial estoppel are present
o Specific Denial à there will be a fact in issue However, they have the same weight and effect when
o General denial à there will be no fact in issue. The defendant is admitted by the court: no need to present evidence on
deemed to have admitted the allegations in the complaint. It is a the fact admitted
judicial admission. The court can render judgment without
conducting trial CRIMINAL CASES
Ø Q: What is the effect of a judicial admission under our evidentiary rules? Ø We don’t need an answer in criminal case. Summons is not served. The
o Sec. 4. Judicial admissions. An admission, verbal or written, made by accused will be arrested. What takes the place of an answer is arraignment. It
the party in the course of the proceedings in the same case, DOES is during arraignment that the accused makes known his stand against the
criminal charge.

Ø Q: Suppose he does not want to talk when the court asks him to enter a plea, o (a) When the original has been LOST or destroyed, or cannot be
what is the effect? produced in court, without bad faith on the part of the offeror;
o The court will enter a plea of not guilty for him o (b) When the original is in the custody or under the control of the
Ø Q: If he enters a plea of guilty, will there be a fact in issue? party against whom the evidence is offered, and the latter fails to
o It depends upon the imposable penalty of the crime produce it after reasonable notice (In custody of ADVERSE party);
o Non-capital offense à generally no issue o (c) When the original consists of NUMEROUS accounts or other
o Capital offense à there is a fact in issue documents which cannot be examined in court without great loss of
Ø Q: What is the probandum in a plea of guilty? time and the fact sought to be established from them is only the
o Non-capital offense à no probandum. A hearing may be had but general result of the whole (Voluminous Writings); and
only to determine the proper penalty to be charged o (d) When the original is a PUBLIC record in the custody of a public
o Capital offense à there are 3 duties that a trial judge must observe officer or is recorded in a public office. (Doctrine of irremovability of
§ Conduct a searching inquiry for the purpose of Public Documents)
ascertaining the voluntariness and full comprehension of Ø Application: when issue is centered on the CONTENTS of the document, the
consequences of his plea and BER applies. Only the original document may be admitted
§ To require the prosecution to prove his guilt and the Ø Q: For example, the original of promissory note is presented as evidence by
precise degree of culpability the plaintiff to show the indebtedness. The probandum is the contents. Will
§ To allow the accused to present his own evidence it be admitted in court right away?
Ø Q: Is it possible that an accused who pleaded guilty to a heinous offense be o No. Assuming the defendant objects, the court has the option to
acquitted? reject the original right away on the ground that the proponent did
o It is possible. There are 3 duties of the judge and the third duty is to not follow the rule on authentication
allow the accused to present his own evidence. If the accused was o If you are going to offer the original, must comply with the rule on
allowed to present evidence, he can present mitigating AUTHENTICATION of documents under Rule 132
circumstances. In effect, the penalty may be lowered.
o The defense may otherwise present evidence proving that the AUTHENTICATION – RULE 132
accused is not guilty Ø 2 Kinds of Documents:
Ø Effect of Plea of Guilty = Judicial Admission. o Public document – need NOT BE AUTHENTICATED when offered as
Ø Q: Will the court accept evidence presented by the accused to the effect that authentic. They are conclusive as to their due execution and
he did not commit the crime notwithstanding the conclusiveness of the genuineness.
admission due to the plea of guilty? o Private document – NEEDS TO BE AUTHENTICATED when offered as
o If the prosecution does not object on the ground that the evidence authentic.
will controvert a judicial admission, and the court allows it, then it Ø Q: What is a public document?
will be admitted o There are 3 CLASSES OF PUBLIC DOCUMENTS, to wit:
Ø Improvident plea of guilty à may be withdrawn before judgment with leave § (a) The written official acts or records of the official acts
of court. The improvident plea of guilty will be changed to plea of not guilty of the sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of a
BEST EVIDENCE RULE foreign country.
Ø GR: Sec. 3. Original document must be produced; exceptions. — When the § (b) Documents acknowledged before a notary public
subject of inquiry is the CONTENTS of a document, no evidence shall be § (c) Public records, kept in the Philippines, of private
admissible other than the ORIGINAL DOCUMENT ITSELF. documents required by law to the entered therein.
o BER excludes the presentation of secondary evidence o All other writings are private.
Ø EXPNs: except in the following cases: (LANuPu) Ø Q: Is a notarized document a public document?
o Yes

Ø Q: Generally a private document needs to be authenticated. Is there any § 1. Relevant

instance wherein a private document need not be authenticated? § 2. Competent (not excluded by the Rules of Court)
o Yes. An ancient document need not be authenticated. Also, when § 3. Authenticated in the manner prescribed by the Rules of
the parties stipulate that there is no need for authentication. Electronic Evidence
o Sec. 21. When evidence of authenticity of private document not Ø Authentication of an Electronic Document (ED)
necessary. — Where a private document is: Ø Q: How do you authenticate ED?
§ Private Ancient Document o It would depend upon whether the ED is public or private
• 1. More than 30 years old, Ø Q: How do you authenticate Public ED?
• 2. Is produced from the custody in which it o Proof of electronically notarized document. - A document
would naturally be found if genuine, and electronically notarized in accordance with the rules promulgated by
• 3. Is unblemished by any alterations or the Supreme Court shall be considered as a PUBLIC DOCUMENT and
circumstances of suspicion, proved as a notarial document under the Rules of Court.
o Stipulated by the parties o However, the SC has not yet promulgated rules governing electronic
Ø Q: How do you authenticate? notarization
o Section 20. Proof of private document. — Before any private Ø Q: How do you authenticate a private ED?
document offered as authentic is RECEIVED in evidence, its: (1) due o Manner of authentication. – Before any private electronic document
execution and (2) authenticity must be proved either: offered as authentic is received in evidence, its authenticity must be
§ (a) By anyone who saw the document executed or proved by any of the following means:
written; or § (a) by evidence that it had been digitally signed by the
§ (b) By evidence of the genuineness of the signature OR person purported to have signed the same;
handwriting of the maker. § (b) by evidence that other appropriate security
procedures or devices as may be authorized by the
RULES ON ELECTRONIC EVIDENCE Supreme Court or by law for authentication of electronic
Ø We authentic an ordinary document by calling on witnesses. How about an documents were applied to the document; or
electronic document? How do you authenticate and electronic document? If § (c) by other evidence showing its integrity and reliability
there is a signature, there will be an electronic signature. Sometimes we just to the satisfaction of the judge.
use symbols in electronic document. There is a different rule on Ø With respect to Electronic Documents, there is no need to call witnesses to
authenticating electronic documents prove the matters above. Only an affiant is required.
Ø Authentication of Electronic Signatures Ø Q: But who will be the affiant that will authenticate the ED?
o Authentication of electronic signatures. – An electronic signature o Proponent will present the electronic document
may be authenticate in any of the following manner: o The private electronic document will be authenticated by the person
§ (a) By evidence that a method or process was utilized to who signs the affidavit. The affiant will be the person charged in
establish a digital signature and verity the same; storing the document
§ (b) By any other means provided by law; or Ø Q: So an electronic document is stored. How does the rules define again an
§ (c) By any other means satisfactory to the judge as ED?
establishing the genuineness of the electronic signature. o (h) “Electronic document” refers to information or the
Ø Electronic Document representation of information, data, figures, symbols or other
o Admissibility. – An electronic document is ADMISSIBLE in evidence if modes of written expression, described or however represented, by
it complies with the rules on admissibility prescribed by the Rules which a right is established or an obligation extinguished, or by
of Court and related laws and is authenticated in the manner which a fact may be proved and affirmed, which is received,
prescribed by these Rules. recorded, transmitted, stored processed, retrieved or produced
o REQUISITES: electronically. It includes digitally signed documents and any print-

out or output, readable by sight or other means, which accurately o Section 24. Proof of official record. — The record of public
reflects the electronic data message or electronic document. For documents referred to in paragraph (a) of Section 19, when
purposes of these Rules, the term “electronic document” may be admissible for any purpose, may be evidenced:
used interchangeably with electronic data message”. § If the office in which the record is kept is in foreign country,
o ED – it has reference to information electronically sent, stored, or the certificate may be made by a secretary of the
transmitted, it does not necessarily mean it will give rise to a right or embassy or legation, consul general, consul, vice consul,
extinguish an obligation. or consular agent or by any officer in the foreign service
Ø Q: Can the adverse party insist in cross-examining the affiant? of the Philippines stationed in the foreign country in which
o Yes the record is kept, and authenticated by the SEAL of his
Ø Q: How do we determine if the ED conforms to the BER? office.
o Electronic is deemed Original if it is a PRINTOUT o DOS executed before notary public of Florida. The DOS must be
Ø Original of an Electronic Evidence certified by consul of the Philippines to the US.
o Original of an electronic document. – An electronic document shall Ø Q: How will that consul know if the one who notarized is really licensed to
be regarded as the equivalent of an original document under the notarize the document?
Best Evidence Rule if it is a PRINTOUT OR OUTPUT readable by sight o If the consul is satisfied that the foreign public document was
or other means, shown to REFLECT the data accurately. notarized by a notary public with valid authority, he will normally
§ Ex: Receipt issued by Honda, Printout by Zalora authenticate the document with the seal of the consular official
§ This is the advantage under these Rules, that there is no Ø Q: The authentication of a foreign public document is almost identical to the
difficulty in offering an  original because the ED can easily rule if you want to prove foreign law. A certified true copy of the law must be
be printed out since it is stored in a computer.  However, obtained. Who issues the certification?
this is only good insofar as the database still stores the ED o If it is a Japanese law, we give a copy of the pertinent copy of the
Ø Q: If it is an ordinary document, how we determined if it is the original? Japanese law. It must be certified by the Japanese embassy that will
o If the original is available, the proponent must offer the original in take care of the necessary certification
court with proper authentication if it is private document Ø Q: Suppose the country is a common law country? The laws are not usually
reduced into writing. How do we prove, say the Family Law of the United
FOREIGN PUBLIC DOCUMENT Kingdom?
Ø Covered under Sec. 19 o Common law is unwritten law. It is not reduced in writing. The laws
o Sec. 19. (a) The written official acts or records of the official acts of that are followed in a common law country are those contained
the sovereign authority, official bodies and tribunals, and public decisions of court. This is much harder because we must know the
officers, whether of the Philippines, or of a foreign country. latest decisions of the SC of that country. Instead of a civil code, we
Ø With respect to a public document executed abroad à No need to be get the latest decision of SC.
authenticated but must be presented in the manner as the rules provide. As Ø Q: Who will certify that these are really the latest?
compared to notarized document in the Philippines, it is enough that upon its o The secretary of state. Consular official will just issue a certification
face it is notarized to the effect that they are really officers. The court will now admit
Ø Q: If the foreign public document is a sovereign act, we do not need to the document without further authentication.
authenticate but there is a proper way of presenting them under the rules. Ø Q: Can our courts take judicial notice of the laws of another country?
How do we present these documents? o NO. Only law of nations just liket he charter of united nations. But
Ø For instance, a DOS of sale executed by the parties in the US. Notarized DOS our courts do NOT take judicial notice of the municipal law of a
was brought to the PH. Court will not admit it right away. However, we cannot foreign country. We will apply the doctrine of processual
expect the court to examine the signatures of the notary public. This will be presumption
difficult. To make it admissible, only need to present the DOS in its proper Ø Q: Recourse of proponent is to resort to the doctrine of Processual
form. Presumption

o Our courts cannot take judicial notice of foreign laws Ø Q: What case? Will this go into the validity of the contract?
o GR: Foreign laws must be alleged and proved. In the absence of o Reformation of the contract in order to give effect to the true intent
proof, the foreign law will be presumed to be the same as Philippine of the contract
law Ø Q: Can we now present evidence that will modify the terms of the
o Presumed identical to ours if there is a local law agreement?
o Yes
PAROLE EVIDENCE RULE Ø Q: What could turn out to be the true intent of the parties?
Ø GR: Sec. 9. Evidence of written agreements. When the terms of an agreement o Parties may in reality have intended that the contract is not a
have been reduced to writing, it is considered as containing all the terms contract of sale but an equitable mortgage
agreed upon and there can be, between the parties and their successors in Ø Q: When is a sale deemed to be an equitable mortgage?
interest, no evidence of such terms other than the contents of the written o Art. 1602, Civil Code. The contract shall be presumed to be an
agreement. equitable mortgage, in any of the following cases:
Ø EXPN: However, a party may present evidence to MODIFY, EXPLAIN OR ADD o (1) When the price of a sale with right to repurchase is unusually
to the terms of written agreement if he puts in issue in his PLEADINGS: inadequate;
o (a) An INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION in the o (2) When the vendor remains in possession as lessee or otherwise;
written agreement; o (3) When upon or after the expiration of the right to repurchase
o (b) The FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS THE another instrument extending the period of redemption or granting
TRUE INTENT and agreement of the parties thereto; a new period is executed;
o (c) The VALIDITY of the written agreement; or o (4) When the purchaser retains for himself a part of the purchase
§ When validity is in dispute, then the PER does not apply. price;
The application of PER requires a valid written agreement o (5) When the vendor binds himself to pay the taxes on the thing
o (d) The existence of other terms agreed to by the parties or their sold;
successors in interest after the execution of the written agreement. o (6) In any other case where it may be fairly inferred that the real
(SUBSEQUENT AGREEMENT) intention of the parties is that the transaction shall secure the
Ø Q: What is excluded under PER? payment of a debt or the performance of any other obligation.
o Parole evidence or extrinsic evidence or evidence aliunde o In any of the foregoing cases, any money, fruits, or other benefit to
be received by the vendee as rent or otherwise shall be considered
FAILURE TO EXPRESS THE TRUE INTENT OF THE PARTIES as interest which shall be subject to the usury laws
Ø Q: For instance sale of adjoining lot between seller and buyer but the Ø Q: The complaint may be filed for reformation by the seller so that he can
consideration is only 50,000. Is that document presumed to be valid? present evidence. What must be alleged? Although on its face, it is deed of
o Other party can present evidence to modify explain add to the terms sale, and you purport that it is an equitable mortgage, what must be
on the ground that the written agreement fails to express the true proven?
intent and agreement of the parties o Must prove the existence of any of the grounds
o It can be contended that the consideration of 50,000 is grossly o You do not need to prove that the contract is equitable mortgage.
inadequate. This will go into the validity of the agreement You only need facts that would lead court to come to conclusion
Ø Q: If you were the lawyer of the seller, how will you bring up this issue? Are that the contract is an equitable evidence
the parties not bound with what they agreed upon? o Evidence to be presented to give rise to such presumption is to
Ø Before we can apply the PER, we must have a case in court. Someone has to prove any of the grounds are present. You first need to prove that
go to court. Chances are it is the seller. Under PER, the issue MUST BE RAISED the price is unusually inadequate à submit the assessed value of
IN PLEADING in order for the PER to apply the land by the city assessor. For instance, it turns out that the value
Ø Q: Who will file case? of the land is 50k per square meter and not 50k in its entirety. There
o Seller is really something wrong with the consideration under the DOS

Ø Q: Eventually you were able to convince the court that the contract is really o The sale is a VOID Sale. There is failure of consideration. There is no
one of mortgage, not of sale. In other words, there will be an indebtedness. meeting of the minds between the parties as to the consideration.
Suppose the mortgagee (buyer) agrees that it is a mortgage. He alleges that Parole Evidence cannot be presented. Cannot be rectified. Extrinsic
the indebtedness has not been paid by the mortgagor (seller). Is it possible ambiguity since the ambiguity appears on the face. We cannot do
that the mortgagee can foreclose the mortgage. Can a case for foreclosure of anything about it
mortgage be filed by the mortgagee? Ø But in the other exceptions, there may be evidence aliunde allowed to modify
o Mortgagee can only foreclose judicially (not extra judicially) an the terms of an agreement, namely:
equitable mortgage because extra judicial foreclosure of mortgage is o (d) The existence of other terms agreed to by the parties or their
available if the mortgagee is authorized. We cannot expect a deed successors in interest after the execution of the written agreement.
of sale to contain a clause authorizing the mortgagee to foreclose (SUBSEQUENT AGREEMENT)
the mortgage Ø Such that after sale, parties can enter into an amendatory agreement. This is
Ø One of the exceptions to PER is extrinsic ambiguity admissible in evidence. It is not covered under the prohibition against
presentation of extrinsic evidence
INTRINSIC AMBIGUITY
Ø Another exception to PER is intrinsic ambiguity in the written agreement DEAD MAN’S STATUTE
Ø There must first be a dispute between the parties. That is why there is a Ø Concept
requirement as to putting issue in pleadings Ø The situation contemplated is that there is an agreement for example a deed
Ø Q: What does ambiguity mean? of sale. The buyer and seller must have reduced the sale into writing. The
o There is doubt as to the meaning of the terms; it is susceptible of 2 buyer or seller dies. Do we go ahead with the sale? Under civil law, if there is a
or more interpretations. perfected sale between buyer and seller, the seller dies, death of the party will
Ø Q: How does the law define intrinsic ambiguity? not invalidate the contract. If the thing is not delivered, the buyer can still
o Intrinsic or Latent Ambiguity – writing is unambiguous but a compel delivery but of course not to the seller because he is dead but rather
collateral matter makes the meaning uncertain. Thus, evidence to the estate or executor or administrator. Can dead mans statute apply in this
aliunde may cure such ambiguity case?
o Those that are not readily seen upon the face of the writing Ø Q: Who will be disqualified to testify?
§ Covered by PER o Plaintiff-buyer will no longer be allowed to testify as to the fact on
Ø Q: How about extrinsic Ambiguity the matters they entered into.
o Extrinsic or Patent Ambiguity – apparent ambiguity on the writing’s Ø Q: Will the case now be against estate even if the seller is dead?
face which cannot be cured by evidence aliunde. o Yes. The case is a means to compel one party against the other party
§ Not covered by PER to comply with his prestation
Ø Q: Example of a writing which is intrinsically ambiguous? You just need to Ø Q: Is the disqualification of the plaintiff to testify absolute? Or is it partial?
read the textbooks which copies the example of Wigmore o It is partial because the law disqualifies the witness to testify only as
o The usual example given is when a seller sells a piece of land for a any matters of fact occurring before the death of such deceased
consideration of 1M to Juan Dela Cruz as buyer. It can be considered person or any matter of fact before such person became of unsound
intrinsically ambiguous if there are 2 or more persons with the name mind
Juan Dela Cruz. It could be rectified so that the court can identify the Ø Purpose: the purpose of the dead man’s statute is to protect the deceased
Juan Dela Cruz as the buyer. That ambiguity can be cureed by person who can no longer testify - If death has closed the lips of one party, the
extrinsic evidence. This is intrinsically ambiguous because upon its policy of the law is to close the lips of the other
face, it appears to be regular but upon inspection it turns out there Ø Q: Is this not one of the instances wherein the estate is used as a means of
may be 2 or more persons who may be the buyer of the property committing fraud?
Ø Q: What if the deed of sale merely provides for the sale of “a piece of land”? Ø Q: What are the instances wherein we can allow the testimony of matters
agreed upon if there is death of a contracting party?

o We can present the dead of sale. It is not covered under the dead where the elements of estoppels are not present, disputable and
man’s statute needs to be formally offered in evidence.
Ø Q: Who is disqualified from testifying? Against which persons can this DQ be Ø Q: Can an admission be one which enhances the interest of an admitter?
invoked? o No. Such are called self-serving statements. Declaration of a party
o The witness is/are: (PAP) favorable to himself are not admissible as proof of the facts
§ Parties or asserted.
§ Assignors of parties to a case, or Ø Q: If a person tells his neighbor I am not the owner and just the tenant, is
§ Persons in whose behalf a case is prosecuted, this an admission or a self-serving statement?
Ø Q: Can we not ask persons who are not disqualified to testify if they have o See 2004 notes.
knowledge because they are not included in the prohibition? Ø Q: What is the rule on Res Inter Alios Acta?
o Yes we can o Res inter alios acta alteri nocere debt means that "things done to
strangers ought not to injure those who are not parties to them” It
APRIL 10, 2017 (MONDAY CLASS) has two branches, namely:
1. The rule that the rights of a party cannot be prejudiced by
Ø Q: What are the differences between an extrajudicial admission and an act, declaration, or omission of another; and
confession? 2. The rule that evidence of previous conduct or similar acts
at one time is not admissible to prove that one did or did
ADMISSION CONFESSION not do the same act at another time.
An act, declaration or omission of a The declaration of an accused o The rule has reference to extrajudicial declarations. Hence,
party as to a relevant fact. acknowledging his guilt of the offense statements made in open court by a witness implicating persons
charged, or of any offense necessarily aside from his own judicial admissions are admissible as declarations
included therein. from one who has personal knowledge of the facts testified to.
It is a voluntary acknowledgment It is a statement by the accused that Ø Q: What are the exceptions to the first rule?
made by a party of the existence of he engaged in conduct which 1. Admission by a co-partner or agent (Sec. 29, Rule 130);
the truth of certain facts which are constitutes a crime. 2. Admission by a co-conspirator (Sec. 30, Rule 130); and
inconsistent with his claims in an 3. Admission by privies (Sec. 31, Rule 130).
action. Ø Q: What are the requisites for an admission of a co-conspirator to be
Broader than confession. Specific type of admission which admitted?
refers only to an acknowledgment of o The declaration or act be made or done during the existence of the
guilt conspiracy;
May be implied like admission by Cannot be implied, but should be a o The declaration or act must relate to the conspiracy; and
silence. direct and positive acknowledgment o The conspiracy must be shown by evidence other than the
of guilt. declaration or act.
May be judicial or extrajudicial. May be judicial or extrajudicial. Ø Q: What are the requisites for an admission by a co-partner or agent to be
May be adoptive, which occurs admitted?
when a person manifests his assent o The declaration or act of the partner and agent must have been
to the statements of another made or done within the scope of his authority;
person. o The declaration or act of the partner and agent must have been
made or done during the existence of the partnership or agency, and
Ø Q: Differentiate extrajudicial and judicial admissions? the person making the declaration still a partner or an agent; and
o Judicial admissions are conclusive upon the party making them, o The existence of the partnership or agency is proven by evidence
while extrajudicial admissions or other admissions are, as a rule, and other than the declaration or act of the partner and agent.

Ø Q: Does this rule apply to co-debtors? 11. Independently relevant evidence;

o Yes. The same rule applies to the act or declaration of a joint owner, 12. Commercial lists and the like;
joint debtor, or other person jointly interested with the party. 13. Act or declaration about pedigree; and
Ø Q: What are the requisites for an admission privies to be admitted? 14. Part of res gestae.
o Where the declarations are made in the presence of the transferee, Ø Q: What is the principle of interlocking confessions?
and he acquiesces in the statements, or asserts no rights where he o Where several extra-judicial confession had been made by several
ought to speak; persons charged with an offense and there could have been no
o Where there has been a prima facie case of fraud established, as collusion with reference to said several confessions, the facts that
where the thing after the sale or transfer, remains with the seller or the statements therein are in all material respects identical, is
transferor; confirmatory of the confession of the co-defendant, and is
o Where the evidence establishes a continuing conspiracy to defraud, admissible against his other co-defendants.
which conspiracy exists between the vendor and the vendee. Ø Q: There is a case of damages against partners A and B arising from a traffic
Ø Q: What is evidence of similar acts? accident. Will the declarations of A that he was at fault will be admissible
o Evidence that one did or did not do a certain thing at one time is not against A alone or may it be admissible against B or the partnership?
admissible to prove that he did or did not do the same or a similar o Yes, if all the requisites of an admission by a co-partner are complied
thing at another time; but it may be received to prove a specific with. The act or declaration of a partner or agent of the party within
intent or knowledge, identity, plan, system, scheme, habit, custom the scope of his authority and during the existence of the
or usage, and the like. Evidence of collateral offenses must not be partnership or agency, may be given in evidence against such party
received as substantive evidence of the offenses on trial. after the partnership or agency is shown by evidence other than
Ø Q: What is the Hearsay Rule? such act or declaration.
o Hearsay evidence is inadmissible according to the general rule. The Ø Q: What is a dying declaration?
real basis for the exclusion is the fact that hearsay testimony is not o The declaration of a dying person, made under the consciousness of
subject to the tests which can ordinarily be applied for the an impending death, may be received in any case wherein his death
ascertainment of the truth of testimony, since the declarant is not is the subject of inquiry, as evidence of the cause and surrounding
present and available for cross-examination. circumstances of such death.
o In criminal cases the admission of hearsay evidence would be a Ø Q: What are the requisites of a dying declaration?
violation of the constitutional provision that the accused shall enjoy o That death is imminent and the declarant is conscious of that fact;
the right of being confronted with the witnesses testifying against o That the declaration refers to the cause and surrounding
him and to cross-examine them. Moreover, the court is without the circumstances of such death;
opportunity to test the credibility of hearsay statements by o That the declaration relates to facts which the victim is competent
observing the demeanor of the person who made them. to testify to; and
Ø Q: What are the exception to the hearsay rule? (DEVFLECT‘D WI-CAP) o That the declaration is offered in a case wherein the declarant’s
1. Dying declaration; death is the subject of the inquiry.
2. Entries in the course of business; Ø Q: How will consciousness of impending death be proven?
3. Verbal acts; o The most significant element is that the declaration must have been
4. Family reputation or tradition regarding pedigree; conscious of his impending death. It is this consciousness which is
5. Learned treatises; assumed to be the compelling motive to tell the truth. Any
6. Entries in official records; statement he makes not related to the circumstances of his death is
7. Common reputation; inadmissible as a dying declaration.
8. Testimony or deposition at a former proceeding; Ø Q: What is res gestae?
9. Declaration against interest; o Statements made by a person while a startling occurrence is taking
10. Waiver; place or immediately prior or subsequent thereto with respect to

the circumstances thereof, may be given in evidence as part of the

res gestae. So, also, statements accompanying an equivocal act Ø Q: What is a declaration against interest?
material to the issue, and giving it a legal significance, may be o The declaration made by a person deceased, or unable to testify,
received as part of the res gestae. against the interest of the declarant, if the fact asserted in the
o The general classes of declarations to which the term res gestae is declaration was at the time it was made so far contrary to
usually applied are (a) spontaneous statements, and (b) verbal acts. declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be
SPONTANEOUS STATEMENTS VERBAL ACTS true, may be received in evidence against himself or his successors
Statement or exclamation made Utterances which accompany some in interest and against third persons.
immediately after some exciting act or conduct to which it is desired Ø Q: What are the requisites for declaration against interest to apply?
occasion by a participant or to give a legal effect. When such act o That the declarant is dead or unable to testify;
spectator and asserting the has intrinsically no definite legal o That it relates to a fact against the interest of the declarant;
circumstances of that occasion as it significance, or only an ambiguous o That at the time he made said declaration the declarant was aware
is observed by him. one, its legal purport or tenor may that the same was contrary to his aforesaid interest;
be ascertained by considering the o That the declarant had no motive to falsify and believed such
words accompanying it, and these declaration to be true.
utterances thus enter merely as
verbal part of the act. ADMISSION BY PRIVIES DECLARATION AGAINST INTEREST
The res gestae is the startling The res gestae is the equivocal act One of 3 exceptions to res inter Exception to hearsay
occurrence alios acta
Spontaneous exclamation may be Verbal act must be Evidence against the successor in Evidence against even the
prior to, simultaneous with, or contemporaneous with or must interest of the admitter declarant, his successor in interest,
subsequent to the startling accompany the equivocal act to be or 3rd persons
occurrence. admissible. Admitter need not be dead or Declarant is dead or unable to
Reason for admissibility: Reason for admissibility: unable to testify testify
Trustworthiness and necessity— The motive, character and object of Relates to title to property Relates to any interest
because statements are made an act are frequently indicated by Admission need not be against Declaration must be against the
instinctively, and because said what was said by the person the admitter‘s interest interest of the declarant
natural and spontaneous utterances engaged in the act.
are more convincing than the APRIL 17, 2017 (MONDAY CLASS)
testimony of the same person on
the stand. Ø Q: Why is hearsay evidence not admissible?
Requisites for admissibility: Requisites for admissibility: o The basis for the exclusion of hearsay evidence is the fact that
a) There must be a startling a) Act or occurrence characterized hearsay testimony is not subject to the tests which can ordinarily be
occurrence; must be equivocal; applied for the ascertainment of the truth of testimony, since the
b) The statement must relate to b) Verbal acts must characterize declarant is not present and available for cross-examination.
the circumstances of the or explain the equivocal act; o In criminal cases the admission of hearsay evidence would be a
startling occurrence; c) Equivocal act must be relevant violation of the constitutional provision that the accused shall enjoy
The statement must be to the issue; the right of being confronted with the witnesses testifying against
spontaneous. Verbal acts must be him and to cross-examine them. Moreover, the court is without the
contemporaneous with equivocal opportunity to test the credibility of hearsay statements by
act. observing the demeanor of the person who made them.

Ø Q: How is it possible for a testimony that is not hearsay to be converted into intention to offer such statement and its particulars to
hearsay? provide him a fair opportunity to object. If the child is
o Yes. If the adverse party was not given the opportunity to cross available, the court shall, upon motion of the adverse
examine the witness. party, require the child to be present at the presentation
Ø Q: How do you authenticate private documents? of the hearsay statement for cross-examination by the
o It requires proof of their due execution and authentication before adverse party. When the child is unavailable, the fact of
they can be received in evidence. The due execution and such circumstance must be proved by the proponent.
authenticity must be proved either: § In ruling on the admissibility of such hearsay statement,
§ By anyone who saw the document executed or written; or the court shall consider the time, content and
§ By evidence of the genuineness of the signature or circumstances thereof which provide sufficient indicia of
handwriting of the maker reliability.
§ By expert witnesses o The child witness shall be considered unavailable under the
Ø Q: When is the adverse party not given the opportunity to cross examine? following situations:
o When statements are made out-of-court § Is deceased, suffers from physical infirmity, lack of
Ø Q: What is the propensity rule as an exception to the hearsay rule? memory, mental illness, or will be exposed to sever
o The rule that evidence of previous conduct or similar acts at one psychological injury; or
time is not admissible to prove that one did or did not do the same § Is absent from the hearing and the proponent of his
act at another time. statement has been unable to procure his attendance by
Ø Q: What is the shop-book rule? (Entries in the course of business of private process or other reasonable mean.
entities) o When the child witness is unavailable, his hearsay testimony shall be
o A doctrine that allows the admission into evidence of books that con admitted only if corroborated by other admissible evidence.
sist of original entries made in the normal course of business, which Ø Q: What is the competency examination of a child witness?
are introduced to the court from proper custody upon general o Every child is presumed qualified to be a witness. However, the
authentication. court shall conduct a competency examination of a child (only by the
o Requisites for admissibility: judge, or court), motu propio or on motion of a party, when it finds
§ Entries must have been made at or near the time of the that substantial doubt exists regarding the stability of the child to
transaction to which they refer; perceive, remember, communicate, distinguish truth from
§ Entrant must have been in a position to know the facts falsehood, or appreciate the duty to tell the truth in court. The court
stated in the entries; has the duty of continuously assessing the competence of the child
§ Entries must have been made by entrant in his throughout his testimony.
professional capacity or in the performance of his duty; Ø Q: What is the other term for a competency examination?
§ Entries were made in the ordinary or regular course of o Voir dire examination
business of duties; o Voir dire is a French phrase meaning "To speak the truth." It may
§ Entrant must be deceased or unable to testify. refer to a preliminary examination to ascertain whether he
Ø Q: What are the rules on the examination of a child witness as an exception possesses the required qualifications, being sworn to make true
to the hearsay rule? answers (State v. Fox, 149 S.E. 735 [1929]).
o A statement made by a child describing any act or attempted act of Ø Q: How is the competency examination done?
child abuse, not otherwise admissible under the hearsay rule, may o The examination of a child witness presented in a hearing or any
be admitted in evidence in any criminal or non-criminal proceeding proceeding shall be done in open court. Unless the witness is
subject to the following rules: incapacitated to speak, or the question calls for a different mode of
§ Before such hearsay statement may be admitted, its answer, the answers of the witness shall be given orally. The party
proponent shall make known to the adverse party the who presents a child witness or the guardian ad litem of such child

witness may, however, move the court to allow him to testify in the o Entries in family bibles or other family books or charts, engravings
manner provided in this Rule. on rings, family portraits and the like, may be received as evidence
Ø Q: What is an electronic document? of pedigree.
o Electronic document refers to information or the representation of o Requisites for the exception to apply:
information, data, figures, symbols or other modes of written § There is a controversy in respect to the pedigree of any
expression, described or however represented, by which a right is members of a family;
established or an obligation extinguished, or by which a fact may be § The reputation or tradition of the pedigree of the person
proved and affirmed, which is received, recorded, transmitted, concerned existed ante litem motam or pervious to the
stored, processed, retrieved or produced electronically. It includes controversy; and
digitally signed documents and any print-out or output, readable by § The witness testifying to the reputation or tradition
sight or other means, which accurately reflects the electronic data regarding the pedigree of the person concerned must be a
message or electronic document. member of the family of said person, either by
Ø Q: How are electronic documents authenticated? consanguinity or affinity.
o All matters relating to the admissibility and evidentiary weight of an Ø Q: What are the exceptions to the hearsay rule that must exist ante litem
electronic document may be established by an affidavit stating facts motam?
of direct personal knowledge of the affiant or based on authentic o The reputation or tradition of the pedigree of the person
records. The affidavit must affirmatively show the competence of o Common reputation respecting moral character
the affiant to testify on the matters contained therein. o Concerning the death or insanity of the adverse party
Ø Q: Who proves or authenticates such documents? Ø Q: What is the opinion rule?
o The person who stores or is the custodian of such document. o The opinion of a witness is not admissible. The witness must testify
Ø Q: What is the concept of pedigree? to facts within their knowledge and may not state their opinion,
o The word "pedigree" includes relationship, family genealogy, birth, even on their cross-examination.
marriage, death, the dates when and the places where these facts Ø Q: What are the exceptions to the opinion rule?
occurred, and the names of the relatives. It embraces also facts of o OPINION OF EXPERT WITNESS - On a matter requiring special
family history intimately connected with pedigree. knowledge, skill, experience or training which he possesses, that is,
Ø Q: What are the requisites for admissibility of pedigree testimony? when he is an expert thereon may be received in evidence. Expert
o Declarant is dead or unable to testify; testimony is not admissible as to a matter not in issue.
o Necessity that pedigree be in issue; o OPINION OF ORDINARY WITNESSES
o Declarant must be a relative of the person whose pedigree is in § The identity of a person about whom he has adequate
question; knowledge;
o Declaration must be made before the controversy occurred; and § A handwriting of a person with which he has sufficient
o The relationship between the declarant and the person whose familiarity;
pedigree is in question must be shown by evidence other than such § The mental sanity or a person with whom he is sufficiently
act or declaration. acquainted; and
Ø Q: Why is pedigree testimony considered hearsay? § The witness’ impression of the emotion, behavior,
o It is inherently hearsay because they rely on the declaration of a condition or appearance of a person.
deceased person. Ø Q: What is the rule on character evidence?
o Pedigree is the history of family descent which is transmitted from o Character evidence, as a general rule, is not admissible in evidence
one generation to another by both oral and written declarations and because the evidence of a person’s character does not prove that
by traditions. such person acted conformity with such character or trait in a
Ø Q: What are the requisites for evidence on family reputation and tradition to particular occasion.
be admissible? Ø Q: What are the exceptions to the rule?

o In criminal cases, the prosecution may not at the outset prove the o But not by evidence of particular wrongful acts, except that it may
bad moral character of the accused which is pertinent to the moral be shown by the examination of the witness, or the record of the
trait involved in the offense charged. If the accused, however, in his judgment, that he has been convicted of an offense.
defense attempts to prove his good moral character then the Ø Q: What is meant by conclusive presumption of law?
prosecution can introduce evidence of such bad moral character at o It is conclusive when the presumption becomes irrebuttable upon
the rebuttal stage. the presentation of the evidence tending to rebut the presumption
o Also in criminal case, the good or bad moral character of the is not admissible. This presumption is in reality a rule of substantive
offended party may always be proved by either party as long as such law.
evidence tends to establish the probability or improbability of the Ø Q: What are the conclusive presumptions?
offense charged. 1. Whenever a party has, by his own declaration, act, or omission,
o In civil cases, the moral character of either party thereto cannot be intentionally and deliberately led another to believe a particular
proved unless it is pertinent to the issue of character involved in the thing true, and to act upon such belief, he cannot, in any litigation
case. arising out of such declaration, act or omission, be permitted to
o In both civil and criminal cases, the bad moral character of a witness falsify it.
may always be proved by either party but not evidence of his good 2. The tenant is not permitted to deny the title of his landlord at the
character, unless it has been impeached. time of the commencement of the relation of landlord and tenant
Ø Q: What are the rules with respect to the nature or substance of the between them.
character evidence? Ø Q: What are disputable presumptions?
o With respect to the accused, such character evidence must be o It is disputable or rebuttable or it may be contradicted or overcome
pertinent to the moral trait involved in the offense charged; by other evidence. When evidence that rebuts the presumption is
o With respect to the offended person, it is sufficient that such introduced, the force of the presumption disappears.
character evidence may establish in any reasonable degree the Ø Q: What are the disputable presumptions?
probability or improbability of the offense charged, as in 1. That a person is innocent of crime or wrong;
prosecutions for rape or consented abduction wherein the victim‘s 2. That an unlawful act was done with an unlawful intent;
chastity may be questioned, and in prosecution for homicide 3. That a person intends the ordinary consequences of his voluntary
wherein the pugnacious, quarrelsome or trouble-seeking character act;
of the victim is a proper subject of inquiry; and 4. That a person takes ordinary care of his concerns;
o With respect to witnesses, such character evidence must refer to his 5. That evidence willfully suppressed would be adverse if produced;
general reputation for truth, honesty or integrity, that is, as affecting 6. That money paid by one to another was due to the latter;
his credibility. 7. That a thing delivered by one to another belonged to the latter;
Ø Q: What is the concept of impeachment of a witness? 8. That an obligation delivered up to the debtor has been paid;
o To impeach means to call into question the veracity of the witness’s 9. That prior rents or installments had been paid when a receipt for the
testimony by means of evidence offered for that purpose, or by later one is produced;
showing that the witness is unworthy of belief. Impeachment is an 10. That a person found in possession of a thing taken in the doing of a
allegation, supported by proof, that a witness who has been recent wrongful act is the taker and the doer of the whole act;
examined is unworthy of credit. otherwise, that things which a person possess, or exercises acts of
Ø Q: How does an adverse party impeach the witness of the proponent? ownership over, are owned by him;
o By contradictory evidence; 11. That a person in possession of an order on himself for the payment
o By evidence that his general reputation for truth, honesty, or of the money, or the delivery of anything, has paid the money or
integrity is bad; or delivered the thing accordingly;
o By evidence that he has made at other times statements 12. That a person acting in a public office was regularly appointed or
inconsistent with his present testimony; elected to it;

13. That official duty has been regularly performed; o It the logical and inevitable result of the evidence on record,
14. That a court, or judge acting as such, whether in the Philippines or exclusive of any other consideration, of the moral certainty of the
elsewhere, was acting in the lawful exercise of jurisdiction; guilt of the accused or that degree of proof which produces
15. That all the matters within an issue raised in a case were laid before conviction in an unprejudiced mind. It does not mean such degree of
the court and passed upon by it; and in like manner that all matters proof as, excluding possibility of error, produces absolute certainty.
within an issue raised in a dispute submitted for arbitration were Moral certainty only is required.
laid before the arbitrators and passed upon by them; Ø Q: What is preponderance of evidence?
16. That private transactions have been fair and regular; o That which is of greater weight or more convincing than that which
17. That the ordinary course of business has been followed; is offered in opposition to it; synonymous with the terms “greater
18. That there was a sufficient consideration for a contract; weight of evidence” or “greater weight of credible evidence.” It
19. That a negotiable instrument was given or indorsed for a sufficient means probably the truth. It is evidence which is more convincing to
consideration; the court as worthy of belief than that which is offered in opposition
20. That an endorsement of negotiable instrument was made before the thereto.
instrument was overdue and at the place where the instrument is Ø Q: What is clear and convincing evidence?
dated; o That measure or degree of proof which will produce in the mind of
21. That a writing is truly dated; the trier of facts a firm belief or conviction as to the allegations
22. That a letter duly directed and mailed was received in the regular sought to be established.
course of the mail; o It is more than preponderance but not to the extent of such moral
23. That after an absence of seven years, it being unknown whether or certainty as is required beyond reasonable doubt as in criminal
not the absentee still lives, he is considered dead for all purposes, cases. It is often said that to overcome a disputable presumption of
except for those of succession. law, clear and convincing evidence is required.
Ø Q: What is the concept of burden of proof? Ø Q: What is substantial evidence?
o Such relevant evidence as a reasonable mind might accept as
BURDEN OF PROOF BUREN OF EVIDENCE adequate to support a conclusion.
Denotes the duty of establishing the Means the necessity of going forward o More than a scintilla but may be somewhat less than
truth of a given proposition or issue with the evidence to meet the prima preponderance, even if other reasonable minds might conceivably
by such quantum of evidence as the facie case created against him opine otherwise.
law demands in the case in which the
issue arises.
It remains with the party alleging It shifts from side to side as the trial
facts and never shifts to the other of the case progresses
party. He who alleges the affirmative
of the issue has the burden of proof,
and the same never parts.

Ø Q: What are the quantum of evidence required?
o Criminal Case – Proof beyond reasonable doubt
o Civil Case – Preponderance of evidence
o Clear and Convincing evidence
o Administrative proceedings & Quasi-judicial bodies – Substantial
evidence
Ø Q: What is proof beyond reasonable doubt?

Final RemRev ClassNotes

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Remedial Law Review Class Notes 2017 – Dean Jara

MIDTERMS determined, without regard to technicalities, and in the most

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Second Meeting: January 2, 2017 3. Res Judicata

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o There is no procedural defect. The non-inclusion of a necessary

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(c) The issues to be tried or resolved;

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entered into in any stage of the proceedings. The effect of the

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Ø Q: What are the grounds for reconsideration?

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o Thus, a motion for execution may be granted even pending appeal

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