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PROVISIONAL REMEDIES

We are now on provisional remedies from Rule 57 - 61. So there are 5


provisional remedies. Just remember the word AIRRS.

But if you are asked, don't say attachment as a provisional remedy but rather
it is preliminary attachment. Don't say injunction as a provisional remedy but
rather preliminary injunction. As to receivership, yes it is both an action and a
provisional remedy. Technically, it is not the receivership which is the
provisional remedy but rather appointment of a receiver because in
receivership it is also a kind of action. And then you have replevin or delivery
of possession of personal property. And then finally you have support
pendente lite. Support is not a provisional remedy but it is support pendente
lite which is a provisional remedy.

Now, let me give you a bird's eye view of these provisional remedies.
First, because they are provisional, they cannot stand alone. Being
provisional remedies, they are dependent, contingent, or adhere to a principal
action. So that you cannot find an action for preliminary attachment. It must
always be adhered to the principal action.

Q: Because of that, what are the principal actions to which these provisional
remedies attach?
A:
1.) As to preliminary attachment, the principal action is recovery of real or
personal property. If you try to look at Section 1 Rule 57, you will find out
that all the actions there are for recovery of either real or personal
property.
2.) As to preliminary injunction, the principal action is injunction although
these seldom find, in actual practice, an action for injunction because it
always goes with some other actions. Like for example specific
performance and injunction plus damages with prayer of preliminary
injunction. Is there an action which is injunction? Yes. Under Section 4 of
Rule 39.
3.) As to receivership, receivership is the principal action. The provisional
remedy is appointment of a receiver. If you go and look at Section 4 of Rule
39, you will see that receivership is an action.
4.) As to replevin, the principal action is recovery of personal property. In
replevin, a foreclosure on mortgage is possible.
5.) As to support pendente lite, the principal action is support.

Q: Which court has jurisdiction over these provisional remedies?


A: General answer is because they are contingent, that court which has
jurisdiction over the principal action also has jurisdiction over these
provisional remedies. Precisely because they adhere to the principal action.

But let us be more specific, because prior to the 1997 Rules of Court
injunction, for example, is cognizable only by the RTC. But with RA 7691
(expansion of the inferior courts) and looking at Rule 70 (Sections 15 and 19,
all about injunction), therefore under the present rules, the preliminary
injunction is now cognizable by the inferior courts. Before the effectivity of
the 1997 Rules, that was applied also by jurisprudence only on unlawful
detainer. But now it applies to both unlawful detainer and forcible entry as is
specifically provided under Rule 70.

Q: How about support pendente lite which adheres to an action for support?
A: Remember that it cannot be taken cognizance of by the inferior courts
because support is an action which is incapable of pecuniary estimation.
Therefore, support pendente lite is only cognizable by the RTC because
support to which it adheres is incapable of pecuniary estimation. Exception:
In criminal cases. Because the present rules on criminal procedure speaks
that once a criminal case is filed, the civil aspect is deemed instituted with it
under Rule 111. Hence, if the action is criminal in nature but cognizable by
the inferior court and the prosecution includes the civil action for support,
then support pendente lite can be taken cognizance of by the inferior courts.
Example: complaint for seduction which is cognizable by the inferior courts.
And together with that you pray for the acknowledgment of the child
(suppose merong anak) and you pray for support pendente lite. In this
instance the support pendente lite is taken cognizance of the inferior courts.

In Receivership: both inferior courts and RTC.

In Replevin: both inferior courts and RTC.

In Injunction: both inferior courts and RTC.

In Attachment: both inferior courts and RTC depending now on the principal
action to which the provisional remedy attaches.

Q: What are the requirements in applying for these provisional remedies


attaching to the principal action?
A:
1.) In case of preliminary attachment, what is required is the affidavit and
bond.
2.) In case of preliminary injunction, the requirement is a bond and a verified
petition.
3.) In case of receivership, also a bond and verified petition.
4.) In case of replevin, affidavit and bond.
5.) In case of support pendente lite, only a verified application. No bond.

Q: How do you secure, aside from these requirements, the writs for these
provisional remedies?
A:
1.) In case of preliminary attachment, you may secure it ex parte. Although
the writ cannot be implemented ex parte but it can be issued ex parte.
2.) In case of preliminary injunction, as a general rule you cannot secure it ex
parte under Section 5, Rule 58, although in cases of urgency, that
injunctive relief for a period of 72 hours can be granted summarily (meron
pa din notice and hearing for due process). That is how stringent in
applying for injunctive relief.
3.) In replevin, you cannot get it ex parte.
4.) In support pendente lite, there is a peculiar provision under Section 2
(Rule 61) wherein the respondent, within a period of 5 days from notice, is
bound to file his comment. And if he does not file his comment, the case
will be heard on the application only (Section 3) within 3 days.

Q: Once the writ is granted or issued, how do you discharge the writ?
A:
1.) In case of preliminary attachment, it may be discharged under Sections 5,
12 and 13 of Rule 57. Cash deposit or counter bond (Secs 5 and 12) or a
motion questioning the propriety or regularity of the issuance of the writ
(Section 13).
2.) In case of preliminary injunction, it cannot be discharge it by a bond
neither if it be granted by a bond, although bond is required but a counter
bond does not discharge a writ of preliminary injunction.
3.) The same thing with replevin and receivership, you cannot discharge it
with a bond. You have to file a motion questioning the propriety or
regularity of the issuance of the writ.
4.) In support pendente lite, there is no bond. If the judgment is in favor of the
respondent, the support pendente lite must also be discharged because it
has no basis to stand with.

RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: recovery of either real or personal property

Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate
Rule 57 had you understood Rule 39 because there are cross-references
between these provisions. Section 7 of Rule 57 you will find out that that is
also practically the same or similar provision in Section 9-11 of Rule 39.
Section 16 in Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin).
Try to analyze it, pare-pareho. The 3rd party claimant will simply execute an
affidavit. The sheriff will not be bound to hold it but deliver it to the 3rd party
claimant. Yang v. Valdez (was given in the bar about 5 years ago) - the 5 day
period of redelivery bond. You have now to distinguish a bond from a counter
bond. Later on, remember that it is different from a supersedeas bond which
you have studied and under Settlement of Estate. Here, we are dealing with
bond and counter bond. Bond is required of the applicant. Counter bond is
required of the person against whom the application was filed. Deposit can
be cash either on the part of the plaintiff or the defendant as the case may
be.

Q: Take note of Section 1. When can you file or apply for a writ of preliminary
attachment?
A: It says there at the commencement of the action or at any time before
entry of judgment.

Q: Bakit? Why should you not apply for a writ of preliminary attachment when
judgment has already been entered?
A: Because your remedy is not attachment but your remedy is execution
under Rule 39. Remember when we were discussing Section 27-29 of Rule 39
(regarding redemption and redemptioner), so that when a property was sold
on attachment, there are possible redemptioners because Section 1 says at
the commencement of the action, you already apply for the issuance of the
writ of preliminary attachment. And if the writ is issued and implemented, the
sheriff, to whom the writ is addressed, takes actual custody of the property if
it is capable of manual delivery. In the case of replevin, ibibigay ng sheriff sa
applicant after 5 days if there is no redelivery bond is filed. But in the case of
preliminary attachment, kukunin niya yan for safe keeping. And it will only be
sold after judgment is rendered in favor of the plaintiff (applicant).

Q: Once a property has been replevined and again it was attached, is it still
valid?
A: Yes. once the property is replevined it can still be attached. But if the
property is attached it cannot be replevined. Because in attachment, you
may not take possession but in replevin you have to take possession.

Q: A 3rd party can deal with the property that has been attached. Suppose it
was mortgaged with a bank after it has been attached, is it possible?
A: Yes. The mortgage becomes a lien subsequent to the lien under which the
property was sold if ever the plaintiff wins in the case.

You cannot just attach right and left if there is no ground. That is why let me
emphasize Section 3 of Rule 57.
1. There must be a valid cause of action. Because preliminary attachment is
only provisional so if the cause of action is invalid, the preliminary
attachment is also invalid.
2. There must be a valid ground among the 6 enumerated grounds under
Section 1.
3. There must be no other security. Or if ever there is, the security is not
sufficient.
4. The order must be equivalent to the sum for which you are asking.
NOTE: These 4 requirements must be contained in an affidavit. So your
affidavit is pro forma or insufficient if it does not allege these 4 basic
requirements as enumerated under Section 3. Aside from that affidavit of
merits, bond must accompany it.

Q: What do you notice in the grounds under Section 1?


A: Yung first three, it is a kind of action. Yung last three, it is the party
involved.
First action, it is an action for specific amount of money and damages other
than moral and exemplary damages on an action arising from law, contracts,
quasi-contracts, delicts, quasi-delicts against a party who is about to
abscond in fraud of creditors.

Q: Why other that moral and exemplary damages?


A: There is no basis. The basis must be personal, wounded feelings etc.

Q: Ano yung mga requirements niyan?


A:
1. Your actions should be for sum of money and damages, other than moral
and exemplary damages.
2. Your cause of action is based on a law, contract, quasi-contract, delict, or
quasi-delict.
3. It must be directed against a party who is to depart from the Philippines
with intent to defraud.

Second action, an action also for recovery. But look at the defendant here,
the defendant is a public officer, officer of a corporation, attorney, factor,
broker, agent, or clerk. In other words there must be a fiduciary relationship
between the applicant and the respondent.

Third action, recovery of possession, this time, against a party who removed,
disposed, or does not disclose it, or who hid these properties.

Q: What is then a common denominator here?


A: There is an element of FRAUD.

When you go to paragraphs d, e, and f the phraseology is different. It is


against a party this time, not anymore to the kind of action but to the kind of
person who is a party defendant.

In paragraph d, a person who is guilty again of fraud in contracting a debt or


obligation upon which the action is brought or in the performance thereof.

Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates
the rule prior to the 1997 Rules of Court.
Facts of this case: There was a simple sale of property, let's say the purchase
price was P100, 000.00 D.O. Plaza paid 50% and the balance was secured
with postdated checks. Plaza took possession of the property sold. Later on,
the checks, which were in payment of the obligation contracted, bounced. It
all bounced. An action for sum of money was filed with prayer of preliminary
attachment using that the respondent was guilty of fraud in contracting its
obligation. When it reached the Supreme Court, the SC said no. Preliminary
attachment must be discharged because there was no fraud in contracting
the obligation but there was fraud in the performance thereof. And at that
time, wala pa yung term na in the performance thereof. Hence, the defendant
here won in the sense that the preliminary attachment was invalid.

That is why when they amended the 1997 Rules of Court, using the case of
D.O. Plaza, they included it in the present rules.

Paragraph e, is one against a party who tries to dispose the property again in
fraud of creditors.
SC case: So here is a businessman who was engaged in buying and selling.
So when he owed somebody a sum of money, that somebody filed a case
against this businessman and applied for a writ of preliminary attachment on
the ground that the businessman was disposing his property in fraud of
creditors. The SC said NO. He is disposing his property in line of his business
precisely he is in buy and sell. If he does not dispose his property, how will he
ever be able to pay you. The attachment was invalid.
Another SC case: Wherein the businessman who had a sari-sari store. A case
was filed against him for a sum of money and a writ of preliminary
attachment was applied for. The SC said YES, the writ of preliminary
attachment was validly issued because there was disposal of the property in
fraud of creditors. Even if the disposal was made in line of his business, the
SC held that the disposal was made at midnight and through the backdoor. So
there is fraud.

NOTE: Paragraph f is peculiar because it speaks about his situation or


residence. So in this instance, any person who left the country and
temporarily reside there, you file an action and you can apply for a writ of
preliminary attachment. But take note of the last phrase there and those who
may be served by publication. So you cross-refer that to Section 15-17 of Rule
14 on Summons, who must be served through publication. It applies only on
actions in rem or quasi in rem. Actions which are strictly in personam,
summons by publication is not allowed.

One of the objectives of a writ of preliminary attachment is to convert an


action which is strictly in personam to an action quasi in rem. Once you
convert it, then you can now serve summons through publication.

Q: In writ of preliminary attachment, there are three stages:


A:
1. Application. Together with the application is the order granting the
application.
2. Issuance of the order or the writ of preliminary attachment.
3. Implementation or execution of the writ of preliminary attachment.

NOTE: The first two stages may be done ex parte. But the last stage must
always be with prior or contemporaneous service of summons. Hence that
applied, you can avail of paragraph f of Section 1 of Rule 57 in converting the
action in to an action in rem. Because the writ of preliminary attachment can
be issued even without service of summons.

In paragraph f, nakalagay dun that if a person cannot be found in the


Philippines or is temporarily residing out of the Philippines, then that can be
a ground for asking the court to issue the writ of preliminary attachment. But
we said, it says there further, and all those persons who may be served
summons through publication. But sabi natin, who are these persons who
may be served summons through publication? Ala yan diyan. So you go back
to Section 15-17 of Rule 14, Extra-territorial service. But we said that even if
summons by publication is allowed, that is only in cases where the action is
not strictly in personam (quasi in rem). Sabi natin, so contradictory
apparently. Why? Because you are asking precisely for a writ of preliminary
attachment on that ground but you cannot serve summons to a person if your
action is strictly in personam. Sabi natin, hindi. Ang explanation diyan is that
in the application for the writ of preliminary attachment, there are three
stages. Yung una hindi mo kailangan ng summons. So you can already apply,
on the basis that the defendant is outside of the country. You apply
irrespective whether the summons can be issued or not because it can be
issued ex parte. But dito lang sa issuance. Pero pag hawak na yan ng sheriff,
iimplement na niya under Section 7, levy on attachment, hindi ka pwede mag
levy on attachment if the court has not acquired jurisdiction over the person
of the defendant. Kaya nakalagay diyan, prior or contemporaneous. Prior is
Mangila case. Contemporaneous sabay na ng pag implement ng writ of
preliminary attachment ang service of summons.
When the property has been attached, it does not mean that the property is
already yours. You have to wait for the judgment before you can dispose of
the property either by public auction or possess it as owner.

Q: Suppose the plaintiff loses under Section 20, what will answer for
damages?
A: The bond will answer for damages.

NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer
only for damages, it is only in Rule 57 will the bond answer for the judgment.
So you underline the word judgment. Kasi dito mo lang makikita yan sa Rule
57. Because in Rules 58-61, the bond answers for damages. While in Rule 57,
the bond answers for judgment. Ano'ng ibig sabihin nun? Sometimes damages
can be separated from judgment. But in most instances hindi. Let's say
defendant is ordered to pay P20,000 as principal obligation and damages of
P10,000, so hiwalay. In other cases the bond or counter bond only answers
for the P10,000. But in preliminary attachment, the bond or counter bond
answers for the P30,000, judgment and damages.

Do not be misled therefore by cross-references to Section 20 by the other


rules. Do you notice that? di ba puro cross-references. Section 8 of Rule 58,
Section 9 of Rule 59, and Section 10, Rule 60 cross-refer to Section 20, Rule
57. The cross-reference is correct but the difference is that the bond and
counter bond in all these provisional remedies answer only for damages. But
in writ of preliminary attachment because of its precedent section which is
Section 19, which answers for any judgment.

Q: How do you discharge the writ of preliminary attachment?


A: So the writ of preliminary attachment has already been issued or served
as the case may be. At any stage, you can always discharge the writ. Under
Sections 5, 12, and 13. These are important sections. Read that and you will
note the differences.

Q: What is the difference between Section 5 and Section 12?


A: Apparently, there is no difference. But if you try to analyze it, there is a
difference. The means to discharge are the same which is either a cash
deposit or counter bond, which you find in Section 5. If you go to Section 12,
pareho din ang means which is a cash deposit or a counter bond. Tignan niyo,
sino ang hihingi ng discharge of the writ? Siyempre that party against whom
the writ was issued. A is the plaintiff and B is the defendant. If A applies for
preliminary attachment and it was issued, who seeks for the discharge?
Siyempre si B. Is it possible that A, in an instance, may also seek the
discharge of the writ? Ordinarily no, but if B as a counterclaim, which is
permissive, B will ask for a writ of preliminary attachment against A. Thus A
may also seek the discharge the writ. A can file for a counter bond.

Section 5 speaks of a cash deposit or a counter bond. The counter bond will
answer for the judgment. The cash deposit will also answer for the judgment,
May pinagkaiba ba yun? Siyempre iba yun. Yung cash deposit, pera na yun.
But businessmen don't usually do that. What they do is through surety. And
this is an instance where surety is automatically impleaded without the
requisite service of summons in acquiring jurisdiction over the person of the
defendant.

The difference is, in Section 5, the writ has not been implemented but it is
already issued. In the case of Section 12, the writ has already been
implemented and custody of the property sought to be attached is already in
the hands of the sheriff. The property is already in custodia legis.

Regardless in what stage, whether the writ was just issued but not yet
implemented or is contemporaneously implemented, the defendant can
immediately file for a counter bond. The counter bond, in effect,
automatically discharges the writ.

Section 13, another means of discharging the writ by filing a motion in court
questioning the propriety or regularity of the issuance of the writ. Whether
the writ has already been implemented or not, you can avail of Section 13.

Q: What are some grounds of irregularity in the issuance?


A: Insufficiency of the bond. Remember that the requirement for the issuance
are affidavit and bond. So if the affidavit for example did not contain the
required statement as provided for in Section 3 of Rule 57, then that is an
irregularity. Or it contains but it was untruthful. It was a lie, then it is
irregular.

Or suppose the bond which was filed was very insufficient. There was a claim
for P20M and the bond was only P1M. So, the issuance of the writ is irregular
and improper.
Or it was issued by the court on the ground not specifically stated in Section
1 of Rule 57. Because the 6 grounds there are EXCLUSIVE. Wala ng iba.

Remedies are Sections 5, 12 and 13. These are the means to discharge the
writ of preliminary attachment.

Q: Can one avail of Section 12 and avail again Section 13 in the same case?
A: Yes, it can happen. If I was a businessman and a case was filed against me
and a writ of preliminary attachment was issued against my sari sari store,
and the writ is implemented, I cannot proceed with my business because it is
already in custodia legis. I cannot start selling this because the property
which has been attached is reserved for judgment. Remedy? I immediately
file a counter bond, and the writ is automatically discharged. So i can again
continue in selling my merchandise. Meanwhile when there was no writ
anymore, I'll file a motion before the court claiming that the issuance was
improper and irregular. I'm not praying anymore for the discharge of the writ
but rather for the discharge of the counter bond. So answer is YES. One can
avail both 12 and 13.

Q: How about Sections 13 and 5?


A: Hindi. Kasi yung Section 5 before the implementation.

I was saying, it is possible that the applicant loses in the case. It is not a
guarantee that when you ask for a writ of preliminary attachment, you will
win in the case. Even if you win in the case, but you may lose in your
application for the writ of preliminary attachment.

Q: How can this happen?


A: It can happen in such a way that during the proceeding, it was established
that the issuance of the writ was irregular and improper. And what does the
rule provide? The rule provides that if this happens right there and then
before entry of judgment, you already have to file for damages. You cannot
file that after entry of judgment because you are considered to have waived
your right. And remember Section 46 of Rule 39, you can file now a case
against the surety even without impleading the principal. In like manner,
provided there is notice, you can go after the surety if it is a counter bond or
surety bond.

Q: How about a 3rd party claim, which you find in Section 14 of Rule 57?
A: If there is a 3rd party claim, the same provision as you find in Section 16 of
Rule 39 applies. The 3rd party claimant executes an affidavit, gives it to the
sheriff and then the sheriff will deliver back the property, which has been
attached, to the 3rd party claimant unless the applicant secures the sheriff
with another bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and
Section 16 of Rule 39.

NOTE: Common error of the students think that since the 3rd party claimant
files his claim, then the 3rd party claimant should file for the bond. Atty.
Brondial corrects that it is not. The applicant for the writ who should file the
bond without prejudice, of course, to a filing a case against the 3rd party
claimant who filed a 3rd party claim frivolously and fraudulently. And that
case can be threshed out in the same action or even in a separate action.

RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction

We said you find an action for injunction in Section 4 in Rule 39. But seldom
will you find an action filed specifically for injunction only. It is coupled
always with other causes of action. Like damages, or recovery of property
with injunction and prayer for preliminary injunction and TRO.

Q: When do you apply?


A: We said any court has jurisdiction over injunctive relief.
It is often said that SC has no jurisdiction over an action for injunction. Of
course not, in the sense you do not file an original action with the SC. But if
your action is certiorari which is cognizable by the SC, you can ask for
injunction.

Madaling intindihin ito ngayon, these are always in the papers. Ngayon,
maraming mga pulitiko ang hinahabol at dinidismiss, kaya they are all filing
injunctive relief. They are praying for annulment of the order of dismissal or
cancellation of the order of dismissal with prayer for injunction and writ of
preliminary injunction. Where do they go? To the CA because the defendant
here is the DILG. So pwede yun.

While injunction can be availed of in any court, including the SC, but if you
read cases and statements to the effect that you cannot file for an action for
injunction to the SC it is because it is not a court of original jurisdiction over
this action except certiorari, prohibition, mandamus, quo warranto, habeas
corpus.

Q: What are the requirements in order for a party to file an injunction with
prayer for preliminary injunction?
A: This basic requirement is a right of the applicant.
1. First requirement: The applicant must have a right. This right must be
actual, existing and valid and not just an inchoate right or a right not in
esse (substantial).
Example of an inchoate right is the property of your parents. And you
claim to be an heir. You are not entitled to the property unless your
parents die. Your right to the property is just inchoate.
2. Second requirement: There must be a violation of that right or threatened
violation. So the violation may not be actual. It can only be a threat and
you can already seek protection through injunction.
3. Third requirement: The violation or threatened violation will result in
irreparable damage and injuries.
Take note of these three fundamental requirements.
Example is the Idolor case.

NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory


to preliminary injunction. And within that TRO is the 72 hour period of the
TRO. Tatandaan niyo to a.

Preliminary injunction has no time frame. After trial that can become
permanent. But remember that a preliminary injunction is a provisional
remedy attached to injunction. So when a preliminary injunction has become
permanent, it means that you already won the case of injunction. But not the
TRO, because the TRO is preparatory to preliminary injunction. That is why
there is a time frame in the TRO which is 20 days in cases of the RTC and
MTC and 60 days of CA.

Q: The requirement is verified application and bond, when do you apply for
this?
A: You apply for preliminary injunction at any time in the course of the action
even at the commencement of the action or anytime thereafter but before
judgment.

Q: Preliminary injunctions are of 2 kinds:


A: Prohibitory injunction or mandatory preliminary injunction.
In prohibitory injunction, you seek to maintain the status quo. In mandatory
injunction, you seek to return to the status quo.

Let me illustrate: Suppose when you go home tonight, you found your home
without electricity because it has been cut by MERALCO for non-payment of
your electric bill. So you want a return to the status quo, so you file for a
mandatory injunction, mandating the MERALCO to return electricity to your
residence.

Suppose when you arrived at home what you got was a notice of
disconnection, may ilaw pa kayo. The notice of disconnection is a warning. It
is a threat of a violation of your right or violation of your contract. So what do
you file? Prohibitory injunction, you seek to maintain the status quo of having
lights in your house.

Q: Can you get injunctive relief ex parte?


A: In no way. It must always be after hearing. You cannot get injunctive relief
ex parte. I would like to emphasize there as to where you are applying
because this has always been a case for discussion. If you apply for the writ
for injunctive relief before a multi-sala court, there are 2 notices necessary
for issuance of the writ of preliminary injunction.

Q: Ano ba ang multi-sala court?


A: There is only one RTC Manila. But there are many salas, RTC Branches 45-
48, etc. Quezon City marami din yun. Yan ang tinatawag na multi-sala. Pag 2
na yan, multi-sala na yan.

The rules provide that when you apply for injunctive relief before a multi-sala
court, the executive judge, even before hearing the case, must give notice of
raffle. Raffle pa lang, may notice na dapat. So that if there is no notice of the
raffle date, it is already violative of the due process clause of the
constitution. Kung single sala, wala na. Ang notice mo ay notice of hearing
because hearing is mandatory. But if it is in Metro Manila or if it is a multi-
sala court, 2 notices, Notice of raffle and notice of hearing. So ang ipapadala
munang notice is when is the raffle date and your failure to attend after
notice, you waive your right to be present at the raffle. And then later on is
notice of hearing.

During the hearing, the applicant should present evidence and the defendant
should present his evidence. Ordinarily, what is given is TRO. This TRO, if it is
issued by the RTC or MTC, is good only for 20 days. Upon expiration, it cannot
be renewed. It is grave abuse of discretion on the part of the court to extend
even upon agreement of the parties cannot and should not be extended. In
the case of the CA, it is 60 days.

Q: Where do you count the 20 day or 60 day period as the case may be?
A: From issuance.

I would like to find out, that every TRO cannot be granted ex parte except on
a very urgent matter where the hearing can be done summarily. In the case
of a TRO which is good for 72 hours, this time from notice.

Q: Why 72 hours?
A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday.
So hindi pwedeng 48 hours baka kasi pumatak dun sa Saturday or Sunday.
Kaya 72 hours because it is 3 days, kahit yun pumasok ng friday ng hapon,
papatak yun ng lunes. O pag binigay yang ng saturday, papatak pa din yan ng
lunes.

If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will
be included in the 20 days. This time counted from the issuance of the TRO of
the 72 hours.

Q: Why 20 days?
A: It is because this is roughly 3 weeks. And within a 3 week period, the court
must hear whether or not to grant the writ of preliminary injunction. The
court is a very busy body and you cannot set it for hearing immediately
because there are other cases filed before it.

Q: How do you discharge the writ?


A: You cannot discharge the writ through a counter bond. The only way is to
question the propriety or regularity of the issuance. But even then, chances
are it will just be denied. Kaya pag na issue ang TRO for 20 days, wait ka na
lang after that period. That's why it's not that long because it is really to be
threshed out whether there was violation of the right, whether it will cause
irreparable damage or injury.

Any action, if there is a violation of a right, you can ask for injunctive relief.

How about damages, you are cross-referred to Section 20 of Rule 57. But the
bond here answers only for damages.

RULE 59 RECEIVERSHIP

When we talked about receivership it is both a provisional remedy and a principal action.
Although it can happen that receivership is attached as a provisional remedy to an action for a
recovery.

Q: What is the principal action for receivership?


A: If the receivership is used as a provisional remedy, the principal action here is for recovery of
property whether real or personal.

Q: What would be the jurisdiction?


A: Jurisdiction shall depend upon the principal action. It can be taken cognizance by the inferior
court or the regional trial court. You cannot file it to the Court of Appeals or the Supreme Court.
You only file original actions in the SC or CA in a very peculiar actions and we already know that
when we studied jurisdictions. Concurrent jurisdictions like certiorari, prohibition, mandamus,
quo warranto, habeas corpus.

Q: If you file an annulment of judgment of the MTC, where will you file it?
A: We do not apply Rule 47 because it is for the order of the Regional Trial Court, we apply the
general rule that no actions on appeal can go to the CA or SC because it is a judgment of MTC.
RTC has jurisdiction even though it is annulment of judgment.

If receivership can be taken cognizance depending on the principal action, but if the principal
action is receivership itself since receivership may be the principal action. While preliminary
injunction can never be the principal action, what is the principal action there is injunction. In
receivership it may be a principal action or provisional remedy. If it is a provisional action it must
attached to a principal action which is recovery. But unlike attachment, Sec. 1 Rule 57, states
the grounds for attachment. Sec. 1 Rule 59 also gives the different kinds of instances where you
can apply for receivership.

Q: What are these instances?


A: Sec. 1 Rule 59
a. When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or materially injured unless a
receiver be appointed to administer and preserve it;
b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that
the property is in danger of being wasted or dissipated or materially injured, and that
its value is probably insufficient to discharge the mortgage debt, or that the parties
have so stipulated in the contract of mortgage;
c. After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment, or otherwise carry the judgment into effect;
d. Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the
property in litigation.

Q: What is the purpose or the reason for assigning or appointing a receiver in these instances?
A: It is for the preservation, administration or disposal of the property.

Note: You must be logical in your analysis. Why do we have to preserve the property? If the
property is already there, why do you have to preserve it? Because it is not being preserve. It is
in danger of being loss, dissipated, damage or the value is being diminished. If such reason
does not exist, you cannot ask for receivership. In administration, the value may be diminished
hence the need for receiver to retain the value of the property or the property is supposed to be
disposed but it is disposed irregularly.
Even a mortgagee can file for a receivership because the property being mortgaged is in danger
of being loss, dissipated, destroyed or the value diminished.

Q: How do you apply for receivership? Procedure for receivership?


A: File an application for appointment of a receiver which is ordinarily a verified petition.
Q: What do you mean by a verified petition?
A: When you talk about verified petition it simply means that the petition must be under oath.
Verified under oath.

Q: When do you apply?


A: From the commencement of the action even after appeal because the property is still in
danger of being loss, dissipated, destroyed or its value diminished.

Q: Where do you apply? Is it in the appellate court or trial court?


A: Amendment of the rule, the appellate court may allow the application to be filed in and
decided by the court of origin and the appointed receiver of the court of origin has control over
the property under receivership. Sec. 1 Rule 59 last paragraph.
This amendment is exceptional because under Sec. 9 Rule 41 perfection and loss of
jurisdiction. The court of origin has no more jurisdiction over the action but still the court of origin
can still appoint a receiver, this is the reason why it is exceptional. If you look at the 1960 rule
which was amended by the 1997 rules of court hindi pa yan pwede but now pwede na. because
the rationale there is what is actually appealed is not the subject matter of receivership but the
principal action, here it is merely a provisional remedy. Sir does not totally agree with that
because as said earlier receivership may be a provisional remedy or a principal action, so if it is
a principal action definitely it is appealed there. The real reason there is that it is in the exercise
of its residual jurisdiction.

Q: What are the requirements?


A: Affidavit and bond.

Q: What constitutes the affidavit?


A: The affidavit here pertains to the affidavit of merits, same as Rule 57 Sec. 3 requirements but
different grounds. It is a mandatory requirement for receivership.

Q: Who should file the bond?


A: The applicant and the receiver shall file the bond. An applicants bond and a receivers bond
because the applicant may not be appointed as the receiver. As much as possible, a party to the
case should not be appointed as receiver, if you are the applicant it does not follow that you will
be appointed as the receiver. Because these are 2 different bonds they must undergo 2 different
things. The applicants bond answer for the damages caused by the applicant while the receivers
bond answer for the damages caused by the receiver.

Q: What happens if the applicant is appointed as the receiver himself? Does he file 2 bonds?
A: Yes, thats why you do not limit yourself to replevin where the bond is twice the value of the
property. It can also happen here that 1 person files 2 kinds of bonds although not necessarily
the value of the property because here just like attachment it is with the discretion of the court.
The court may only require his bond not necessarily an amount equal to the value of the
property but in replevin the rules specifically provide that the bond must be twice the value of the
property. Here not necessarily, pero 2 pa rin, one coming from the applicant and another from
the receiver, so if the applicant was appointed as the receiver he files 2 bonds. One as an
applicant and another as receiver.

Q: If the 2 requirements are complied with, the affidavit and bond, the court shall issue an order
appointing a receiver, so what are the duties and responsibilities of a receiver?
A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend actions in his own name;
to take and keep possession of the property in controversy; to receive rents; to collect debts due
to himself as receiver or to the fund, property, estate, person, or corporation of the same; to
make transfers; to pay outstanding debts; to divide money and other property that shall remain
among the persons legally entitled to receive the same. However, funds in the hands of the
receiver may only be invested only upon order of the court and upon written consent of all the
parties to the action. No action may be filed by or against a receiver without the leave of the
court which appointed him.

Q: Can a receiver be sue or be sued? How is it related to Sec. 1 Rule 3?


A: Yes, cross referring it to Rule 3 Sec. 1 who may be a party? A party is one who may be
benefited or prejudiced by the suit. A receiver shall not be damage or prejudiced by the suit nor
benefited thereto. He is not a party in interest, so why can he sue and be sued? Because he will
fall under an entity authorized by law just like an executor or administrator, he has no interest on
the estate so he is not a party in interest actually. But he is authorized, he has what we call legal
standing.

Q: An order of receivership or appointing a receiver will take over and must have possession of
the property, if necessary these properties refer to everything under litigation including books of
accounts and everything. They are also obliged to deliver or surrender do not comply what
should the receiver do?
A: He can ask the court to cite him for contempt.

Q: How receivership is terminated?


A: When there is no more reason for its existence it has to be terminated. Therefore if the
properties subject of receivership is no longer in danger of being wasted, lost, damage, injured
or value dissipated then receivership will terminate.

One common example here is when a corporation who is now in the stages of winding up its
affairs. During that time, the stock holders usuallynakaw dito nakaw doonusually the better
solution is for the appointment of a receiver. A receiver is not necessarily an individual person, it
may also be a corporation. Banko Pilipino for example, it was placed by receivership by the
Sentral Bank. The problem was that the receiver assigned was more corrupt than the stock
holders before the termination of the receivership he left for the States and stayed there
permanently bringing with him all the assets of Banko Pilipino. It took Banko Pilipino more than
20 years to recover. That is why the receiver is also obliged to give a report, a return or an
accounting of his duties and responsibilities to the court otherwise before you know it baka lalo
lang nawala and lahat.

Rule 60 Replevin
Q: What is the principal action?
A: Recovery of possession of PERSONAL property

Q: Which court has jurisdiction?


A: MTC or RTC depending upon the value of the property because technically replevin is only a
provisional remedy.

Note: only receivership may only be a principal action but replevin will always be a provisional
remedy.
Q: What are the grounds for application of replevin?
A: Sec. 2
a. That the applicant is he owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;
b. That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief;
c. That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment, or
otherwise placed under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and
d. That actual market value of the property is stated in the affidavit.

Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his favor can A ask
for recovery of the property being entitled to the recovery of the property?
A: No, because replevin only applies to personal property.

The other provisional remedies we studied so far, you apply for the provisional remedy from the
commencement of the action or before judgment and even after judgment in the case of
receivership. But in replevin it should be availed of before answer.

Q: Why should replevin can only be availed of before answer? Why would an answer disqualify
an application for replevin? After answer it cannot be applied for anymore, why?
A: When an answer is filed issues are joined and because issues are joined, the court already
knows whether the applicant is entitled to the ownership or possession. So hindi na igagrant ng
court, kaya it must be before the answer because it is an immediate remedy.

Q: To whom the writ of replevin addressed? What should he do after issuance of writ?
A: To the sheriff, and after issuance of the writ of replevin he shall take actual possession of the
property for safe keeping.

Note: In attachment the taking of the property is for the purpose of awaiting for the final
judgment, here in replevin the reason for the taking of the actual possession of the property is
for safe keeping.

Q: How long should the sheriff hold in possession of said property?


A: Only 5 days, after said period he must deliver said property to the applicant.

Q: So the defendant must object? If he does not object, what happens?


A: Yes, it requires an objection. If such objection is not made the possession of the property
shall be given to the applicant.

Q: How do you discharge the writ of replevin?


A: By filing a counter bond which is called redelivery bond within the period of 5 days. And
within that period if the writ of replevin is intended to be discharge the defendant must file a
counter bond which is also known as redelivery bond. If the defendant puts up a redelivery bond
then the sheriff is now required to return the property to the person to whom he got it. But if the
defendant fails to put a redelivery bond then the sheriff will deliver it to the applicant.
Remember that this is only a provisional remedy, the principal action is recovery of possession
of personal property. Later on, in the principal action you can thresh out ownership as the basis
for the recovery of possession. Therefore possession becomes an effect of ownership. If he is
only entitled for possession, pwede pa rin.

Yang vs Valdez
The 5 day period is mandatory, even if you put up a redelivery bond but beyond the 5 day period
it will not have the effect intended for.

Note: This is the shortest period wherein the sheriff have custody of the property, in attachment
from application which may be from the commencement of the action until final judgment which
may last for 10 years. Here, you may even file for receivership kasi baka yung property e
ginagamit na ng sheriff. And usually you do not assign the sheriff or the clerk of court as a
receiver. It is even advisable not to assign a party to the case as a receiver.

Q: How much the bond be?


A: Twice the value of the property.

Q: If the defendant objects on the ground of insufficiency of the bond or to the validity or
capacity of the surety, what happens now?
A: Sec. 5 Rule 60. Then the court must ask the applicant to satisfy the insufficiency of the bond,
and only when the order comes out and there is still no satisfaction of the insufficiency of the
bond then the property shall be delivered to the person to whom it was taken by the sheriff.

Q: What are the requirements?


A: Affidavit and bond.

We said in receivership that it can happen that there is 2 bond if the applicant is appointed at the
same time as the receiver. In replevin it can be thrice.

Q: Give the circumstance wherein it can happen?


A: If there is a 3rd party claimant.

Note: Weve studied 3rd party claim in Rule 39 execution, 3rd party claim in attachment and again
here in replevin. Sec. 16, 14 dito naman 7. The same provision, meaning if a 3 rd party claims
ownership or entitlement of possession of the property subject of replevin then the applicant
must file another bond which is not less than the value of the property. So 3 na. This is without
prejudice to a possible action for damages filed against the 3 rd party claimant if the 3rd party
claimants claim is found to be frivolous or fraudulent. Where do you file it? Either in the same
action or a separate action for damages.

In attachment if you file for damages Sec. 20 Rule 57 you have to do it before entry of judgment,
dito sa replevin it can be file in a separate action. You should know the distinctions between the
different provisional remedies, they are different, one from another.

Q: If there is already a writ of replevin and the sheriff already took possession of the property
and given it to the applicant, how can it be discharged?
A:
Q: How do you discharge a writ of attachment?
A: Sec. 5, 12, 13 Rule 57. Sec. 13 is by motion, Sec. 5 is by counterbond. Dito naman sa
replevin may equivalent for that, a counterbond also or by redelivery bond, how much is the
redelivery bond? Equal to the bond therefore twice the value of the property also. Or you
question the propriety or regularity of the issuance.

Q: What are the possible grounds there?


A: That there is no basis, or there is no entitlement of ownership or possession of the property.
Then the writ can be discharged. But the immediate way to discharged it is thru a redelivery
bond which is equal to the value of the bond which is twice the value of the property.

Yung 3rd party claim, the same provision yun, the same application. In other words, thru an
affidavit furnishing the same to the sheriff, the sheriff is entitled to deliver it to the 3 rd party
claimant unless the applicant puts up another bond. So thrice na lahat, the value of the property.

Do you recall the peculiarity in what we studied in the writ of execution? Under Rule 39, when
there is a 3rd party claim, during the auction sale, even if the purchaser is the judgment obligee
he has to pay. Ordinarily, the judgment obligee, if he is the purchaser during an auction sale
pursuant to an execution he does not have to pay. But if there is a 3 rd party claim, then he has to
pay. Why? Because precisely the ownership is in question.

Dito naman delivery until you put up another bond equivalent to the value of the property.

While the property now is in the hands of the applicant, the main action should proceed and
what should be the judgment? Important to.

Orosa case
Sec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay.

Q: What are the alternative decisions here?


A: It is either give the property or pay the value.

The best example of replevin is buying a car. But most buyers dont buy in cash almost
everyone is buying thru installment. Here you are not the owner yet, when the car is given to
you, you execute a mortgage, mortgaging the same car to the seller. Read the contract, it
always has a clause in default, if it says there that if you default for example 2 months of
payment, the seller will have the right to foreclose the mortgage judicially or extrajudicially. Here,
the foreclosure will always carry a prayer for replevin and the seller is willing to pay twice as
much as the value of the property because the bond is not a cash bond but merely a surety.
Once they foreclose they get the car, complying with all the requirements. Once they recover it
after the case, the same car shall be resold.

Replevin as well as attachment is known as custodia legis. Property which has been attached
can no longer be the subject of replevin, but a property replevined can be the subject of
attachment minus/less delivery. Note parehong may delivery, pag replevin kinuha na, pero
pwede mo pang iattach without delivery because in attachment you also take but first right sa
replevin, di mo na pwede kunin yun. But you can attach, because attachment simply furnish him
with the copy of the order. So ano ka? Subsequent lien holder ka dun. The attaching creditor
shall be a subsequent lien holder. Replevin replevin no attachment attachment yes why?
Because it depends upon the value, if the value of the property for example a 100 square meter
property in makati worth 2m and it was attached for a debt worth 1m, it can again be attached.
But in the case of levy, levy on attachment who is . the first attaching creditor. Kung may
sobra ibabalik dun sa may owner. And you can even be a redemptioner there because you are a
subsequent attaching creditor. So if there are 2 attachment, the 2 nd attaching creditor is or
maybe a redemptioner if the property is sold thru levy in attachment.

RULE 61 SUPPORT PENDENTE LITE


Q: What is the principal action?
A: Support, support pendent lite being a provisional remedy cannot stand alone, it must be
attached to a principal action which is an action for support.

Q: Which court has jurisdiction?


A: The court which has jurisdiction over the principal action. RTC

Q: Why RTC? Can it be MTC?


A: Because the subject of support is not capable of pecuniary estimation so only cognizable by
the RTC. The amount asked or prayed in the action of support is immaterial because the issue
here is whether or not the applicant is entitled to support.

Q: Is there any exception to the rule? Are there circumstances wherein support pendent lite can
be taken cognizance by the MTC or inferior courts?
A: Yes, in criminal cases because support pendent lite which attaches to support can be filed
together with the criminal case because in criminal procedure it is now provided that once you
filed a criminal case the civil aspect is deemed instituted with it.

Q: What are exceptions to that?


A: Reservation, prior institution.

Q: The usual case of an unwed mother goes to court and ask support for the child. When can
she file it?
A: From the commencement of the action or at anytime prior to final judgment.

Q: Then the court must take immediate action on the provisional remedy of support pendent lite.
What does the court do?
A: The court shall issue an order directing the respondent to file a comment within 5 days. And
with or without comment, hearing must be held by the court. The hearing here is for the
provisional remedy. (parang injunction, it cannot be granted without a hearing. In preliminary
attachment pwede, kasi it can be granted ex parte but it cannot be implemented without prior or
comtemporaneous service of summons). If he failed to appear, court grant an order of support
pendent lite, here it is only provisional.

An unwed mother living in the squatters area in Tondo asked the court for support and asked to
be granted provisional support to her only child in the amount of 50k a month. The court will ask
why 50k? Panggasulina po. Ilan ba kotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang
taon na ba ang anak mo? 3 months old po. Ano ba ang gatas nya? Breast fed po? Sabihin ng
court di mo kailangan ng 50k ang kailangan mo lang e malunggayLOL. Para mayroong gatas,
and you are only feeding milk to your son o baka naman may pinapadodo ka pang iba dyan
LOL. Provisional lang to, kya the court may grant 5k a month provisional remedy.
Note: That this provisional remedy shall depend upon the capacity, eto ang very wide discretion
ng court. Capacity ng person who will give support.

Q: Suppose the respondent does not comply, what should the court do?
A: The court shall issue an order to execute

As we have studied under the Rule 39, only final order or judgment may be executed. Then why
should it be executed? In fact, this is an interlocutory order like an appointment of a receiver, it is
not appealable only subject to certiorari if there is a ground.

Q: If these is merely an interlocutory order, why should it be executed?


A: The rule so provides that this is the only instance where an interlocutory order may be
executed. That provisional remedy of support pendent lite can be subject of a writ of execution.
It is a very exceptional character. It is an exception to the rule that only a final and executory
order may be executed.

Q: Mother was granted 10k a month, in the process the main action is being heard which is
support proper to make the support pendente lite support already. Suppose the respondent was
able to establish that he is not liable to give support because he was able to prove that he was
not the father. What happens now?
A: Court shall order the return of the paid amount with payment of legal interest from the dates
of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a
separate action from the person legally obliged to give support. Should the recipient fail to
reimburse the amounts, the person who provided the same may seek reimbursement in a
separate action from the person legally obliged to give such support.

Q: What happens to the provisional remedy which has already been granted, yun ba ang
ibabalik?
A:

Q: If the applicant cannot return the support granted then what happens?
A: She cannot be forced nor be imprisoned for that. But the respondent may seek
reimbursement in a separate action to the person legally obliged to give support.

Note: 2 remedies restitution and reimbursement plus damages.

Mongonon vs CA 495 or 496 or 497 SCRA


De Asis doctrine
Support never becomes final, so res judicata does not apply. Because if granted 10k by court as
support (not just pendent lite) may judgment na for support. You can always go back to court
and asked for increase or decrease of support because it depends upon the capacity of
respondent and needs of recipient. In the De Asis case, the parties thereto made a compromise
and later on the other party filed another case for support. The respondent alleged that the
compromise judgment is immediately executory and there is res judicata. SC ruled that there is
no res judicata in support, it is never final.

People vs Manahan
Acknowledgment must be distinguish and separated from support. If the defendant is married,
under that doctrine, he may be forced to give support but not to acknowledge the child. The
rationale there is in the Family Code because it would introduce bad blood in the family.
Sir: Doesnt like that doctrine, he should be forced to acknowledge the child. It is his fault so why
should not he acknowledge.

SPECIAL CIVIL ACTIONS

Q: What is so special about special civil actions? Why are they called special civil actions?
A: Because each particular civil actions are governed by their own special rules. Ordinary rules
of court does not apply to them but is only suppletory in character. For example some special
civil actions have no summons, the court acquire jurisdiction over the respondent in a different
manner but in ordinary actions summons is mandatory. Like in certiorari, there is no issuance of
summons there, the court acquire jurisdiction by the issuance of order to file a commnent.

Distinguish Rule 65 with Rule 45


In special civil actions in Rule 65 it says there that the tribunal, body, board, officer, corporation
are only nominal parties and under regulations now of the SC, circulars, the tribunal,
corporations under or impleaded as respondent are not suppose to appear and not suppose to
file pleadings, let the private respondents do that for them.
That is why in certiorari, you say petition for certiorari Juan De la Cruz vs RTC branch 45 manila
then name of respondent. The principal respondent there is the tribunal court or bodies, but they
become nominal in the process.

Q: Name the special civil actions?


A:
1. Rule 62 Interpleader
2. Rule 63 Declaratory Relief and Similar Remedies
3. Rule 64 Review of judgments and final orders or resolutions of the COMELEC and COA
4. Rule 65 Certiorari, Prohibition and Mandamus
5. Rule 66 Quo Warranto
6. Rule 67 Expropriation
7. Rule 68 Foreclosure of Real Estate Mortgage
8. Rule 69 Partition
9. Rule 70 Forcible Entry and Unlawful Detainer
10. Rule 71 Contempt

RULE 62 INTERPLEADER
Q: Which court has jurisdiction in an action for interpleader?
A: It may be taken cognizance by MTC or RTC. It depends upon the subject matter of the
interpleader.

Q: Why does it depend upon the subject matter? What can be the subject matter of an
interpleader?
A: Property whether real or personal may be the subject matter of an interpleader, aside from
that performance of an obligation may also be the subject matter of an interpleader.

Note: Performance of the obligation cannot be filed in the MTC because it is incapable of
pecuniary estimation which is only cognizable by the RTC. Performance of an obligation
amounts to specific performance which is not capable of pecuniary estimation.
For example you found a wallet, you surrender it to the dean, upon opening of the wallet it was
found to contain a check worth 350k payable to cash. A,B,C, and D alleges ownership. The
dean has no other choice but to file an action for interpleader because there are 4 different
claimants. Another example is A and B are lessor and lessee over an apartment unit. At the end
of the contract of lease A would like to surrender the premises to B, but C and D came forward
and said they are entitled to that. A now does not know to whom to deliver, therefore A should
file an interpleader. Example of obligation, to paint, sculpt, perform.

Q: How do you distinguish now interpleader from intervention?


A: Interpleader is a special civil action while intervention is an ancillary action. In the former
there can be no single defendant, there must be at least 2 defendants while in intervention there
can be 1 defendant. In the former there is no action yet while in the latter there is already a
pending action.

Note: If you are asked to make a distinction do not define one and period because you are not
stating a distinction at all.

Q: After an action of interpleader is filed, what happens next?


A: The court shall order the respondents to file their answer.

Note: This is the only rule where there is a section for a motion to dismiss. Defenses and
objections, that is what is meant there.

After filing an answer and once the issues are joined then you go to the regular rules of court
which is you go to pretrial then trial.

Q: What should the judgment be by the court in an interpleader case?


A: The judgment shall be a declaration as to who is entitled or who is the legitimate or entitled to
the real or personal property or of the performance of the obligation.

Wakwak golf case


Interpleader is a compulsory counterclaim. When Tan filed a case against Wakwak knowing
already that there is another claimant, it could have and it should have filed a compulsory
counterclaim of interpleader. For not doing so, it is considered that it had waived its right to any
action against the defendant.

Q: Can there be a compulsory intervention?


A: Yes it can happen.

Eternal Garden vs IAC


Court may order that the subject matter be paid or delivered to court. And the person who filed
the interpleader having no interest over the subject matter should be ordered by the court to do
so.

So if you have an action for interpleader you should ask the court to deposit.

Q: What if the action is for the performance of an act, can you ask for its deposit? A: No, the
person who is obliged to perform will not stay there. It is only applicable to real or personal
property.
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
Q: Which court has jurisdiction over declaratory relief?
A: RTC has original and exclusive jurisdiction because the subject matter is not capable of
pecuniary estimation.

Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63, the 2 nd
paragraph which pertains to reformation of instrument or quieting of title is not declaratory relief
it is similar remedies. The 2 nd paragraph was added there to give life to certain provisions of the
Civil Code which has no corresponding procedural aspect. It is even misplaced, it should fall
under ordinary action.

Q: Whats the venue?


A: If personal action, where the plaintiffs or respondents resides at the option of the plaintiff.

Q: What is the subject matter?


A: Any contract, will, deed, or other instruments or whose rights are affected by a statute,
executive order or regulation, ordinance or any other governmental regulation.

Q: What is the condition? What is the peculiarity there?


A: Before breach of contract or violation of the statute. If there is already violation in the contract
or statute then declaratory relief is no longer applicable.

Meralco vs Philippine Consumers 374 SCRA


There was a PD by Marcos reducing the Tariff rate of electricity from 5% to 2% and then the
Phil. Consumers Foundation Inc. wanted that the 3% reduction be given to the consumers. The
BOE denied it. It was never appealed so the order of BOE became final and executory. 5 years
after PCFI filed an action for declaratory relief. SC dismissed it because the PD has long been
breached already. The doctrine here is that you cannot file an action for declaratory relief if there
is already breach.

Example Makati issued an ordinance banning smoking even on the street effective on Dec. 20,
2008. Before Dec. 20, 2008 arrives you have the right to file an action for declaratory relief. Pero
pagdating ng Dec. 20 no more, because once Dec. 20 arrives there is a reasonable
presumption that there is already a violation.

Q: Suppose youve already filed an action before breach, then pending action there is already
breach, then what happens?
A: Then the action shall be converted into an ordinary action.

Q: How do you convert the action?


A: File a motion to amend action with leave of court.

Q: Example a regulation of a school was issued stating that by the school year 2008-2009
starting June tuition fees shall be raised by 120%. There was already a circular to that effect.
Declaratory relief was filed, pending action June 2008 came. The increase was already
collected from the students so you convert your action for declaratory relief to what kind of
action?
A: Convert is to collection of sum of money.
A and B are lessor and lessee of a property. And the contract of lease is for a period of 10 years
from year 1990 to year 2000. In 1995 the land was overrun by MNLF and so the lessee left the
property. 4 years thereafter, in 1999 the MNLF was driven away by the military so B returned to
the premises. He files for an action of declaratory relief asking the court to determine whether
the contract will expire 2000 or 2004. why? Because he was not able to avail of the 4 year
period when it was under the possession of the MNLF. So he filed for declaration of relief, but
the action has not yet terminated it is already 2001, by 2001 the action must be converted into
what? Into either unlawful detainer or forcible entry as the case may be or for recovery accion
publiciana.

Q: Is the court bound to make a judgment in an action of declaratory relief?


A: No, another peculiarity here is that the court is not bound to make a judgment.

Q: When is it not bound to make a judgment?


A: When there will be no finality in the resolution of the rights and privileges

Manhattan Bank New York


MBNY is a trustee of a will and one of the named devisee in the will filed an action for
declaratory relief without asking the court to determine who are the compulsory heirs and what
are their specific rights under the will. The petitioner did not implead the compulsory heirs, the
court refused to render judgment because even if it did it will not finished or end the controversy.

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE COMELEC AND COA
Remember that Rule 64 cross refer you to Rule 65 so we do not have to discuss Rule 64

Q: What is the difference between Rule 64 and Rule 65?


A: In Rule 64 it only applies to COA and COMELEC while in Rule 65 there is no specific agency.
In the former the petition should be filed 30 days from receipt of notice while in the latter it is
filed 60 days from notice. In the former it is solely cognizable only by the SC while in the latter
there is concurrent jurisdiction between SC, CA, RTC and even Sandiganbayan but in the case
of the latter the only limitation being is it should only be in aid of its appellate jurisdiction.

RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS

Let us now discuss these:


Q: We do not have any problem in the aggrieved parties. How about the respondents?
A: In prohibition you add the person and the corporation and remember that this used to be
under the jurisdiction of the SEC, but this is no longer true. How about this person? This is not
ordinary individual person but a person exercising quasi judicial function. Remember that quasi
judicial bodies as we have studied does not belong to the judiciary and a lot of them falls under
the executive branch of the government and that includes the NLRC. The NLRC is not a judicial
body but it exercises quasi judicial functions.

UP Board of Regents vs Tailan


Board was considered as a body exercising discretionary function, in effect quasi judicial. Even
in an administrative bodies, a school board, when it rules that a student is not entitled to be
enrolled in said school due to some grounds.

Lapid vs Laurea
Requirement of certiorari

Q: Give example of lack of jurisdiction?


A: Tribunal, body, board or officer has no authority to decide the case. Example MTC rendered a
judgment on an issue which the subject is not capable of pecuniary estimation.

Russel vs Vestil

Note: Under Rule 45 which is a mode of appeal, the body there acted with jurisdiction that is
why the ground cannot be any of the 3 because it is a mode of appeal. It is called errors in
judgment. Under Rule 65 it is errors of jurisdiction. Errors of judgment are correctible by an
appeal, while error of jurisdiction is correctible by certiorari.

Q: Give example of excess of jurisdiction?


A: Here the court has jurisdiction but it exceeded its authority. Example is when MTC in a case
of reckless imprudence resulting to homicide rendered a judgment of conviction of 20 yrs
imprisonment. This is clearly excess of jurisdiction.

Before amendment in summary procedure, attorneys fees are limited to 20k wala na yan
ngayon. So if a court grants more than 20k as attorneys fees under the old law it is clearly
excess of jurisdiction. Under the new law it may be grave abuse of discretion but not anymore
excess of jurisdiction.

Court penalizes lawyer in the amount of 20k for direct contempt for coming late. Maximum
penalty is 20k so no excess of jurisdiction but maybe grave abuse of discretion.

Q: What is grave abuse of jurisdiction amounting to lack of jurisdiction?


A: It is a capricious or whimsical exercise of judgment and despotic or arbitrary exercise thereof.

Certiorari is always questioned in the bar or at least it is always mentioned. So if you are asked
a question about certiorari and you do not know whether it is excess of jurisdiction or grave
abuse of jurisdiction amounting to lack of jurisdiction, just remember 4 adjectives whimsical,
capricious, despotic and arbitrary. When you see any of these words, it is grave abuse of
discretion because in all jurisprudence involving certiorari, these are the words often used by the
SC. But there may be a case wherein it does not use the specific words, kaya dapat alam nyo
ang meaning and synonyms of these terms.

Q: When is it capricious? How about whimsical? Despotic? Arbitrary?


A:
Note: That the word capricious and whimsical always go together. You will not find one without
the other. It means it is only based on whim, there is no need, no necessity. It is unreasonable.
Arbitrary naman is no basis, unwarranted, baseless, the law does not provide. Despotic
on the other hand is when it is done out of passion, out of revenge, out of hatred or out of love.
Remember despotic pa rin yan kahit out of love. Relationships, maraming jurisprudence dyan,
kaya lawyers always file motion for inhibition.

Q: Give example of grave abuse of discretion?


A: In filing a motion to quash grounded on double jeopardy and in your motion you attached the
judgment of conviction of your client. Very clear he has been convicted already. Court denied
motion stating yes you have been convicted of rape of my daughter but it is still denied. Why?
Because I have 2 more daughters.LOL.

Note: In all of these grounds lack of jurisdiction, excess of jurisdiction, grave abuse of
discretion. Ang malimit mong mabasa is grave abuse of discretion kasi very clear pag excess of
jurisdiction and lack of jurisdiction.

It is important that you must establish the existence of whimsical, capricious, despotic or
arbitrary. If you cannot establish that then the court should deny it because it would then be an
error of judgment and not error of jurisdiction. The remedy would be wrong. And at the time of
said judgment the case would be final and executory because the right to appeal is lost because
the period for filing an appeal has already lapse.

Note: That certiorari does not stop the running of the period of appeal.

Note: Discuss mandamus with quo warranto because of the similarities between the 2.

Q: Let us now go to functions of the respondent. In Certiorari the functions are judicial and quasi
judicial function. Now, what is judicial function?
A:

Q: The distinction lies in the root of its power since both exercises the same power which is the
power to hear and determine a case, so what is the root of its authority?
A: In judicial function the root of its power comes from the judiciary itself while in quasi judicial
function the roots of its power comes from the legislative or the executive department.

Note: Do not confuse it to discretionary or ministerial functions

Q: How do you distinguish one from the other?


A: In ministerial, the court is left without the choice but to grant it if all the rules and
requirements are complied with, while in discretionary it may deny or grant but within the
parameters, it cannot go beyond said parameters. Example is giving penalty of 6 years 1 day to
12 years. The court has discretion what specific penalty to give but it must be within said period
depending upon certain circumstance.
Note: That the grounds in prohibition is the same even if the function is merely ministerial kasi
pwede pa rin na whimsical, capricious, despotic or arbitrary. But which is clearer? Yung
discretionary function sa certiorari because it is very clear because of the parameter in
discretionary. So if it exceeds the parameter clearly grave abuse of discretion amounting to lack
of jurisdiction (????).

Conditions are that there must be no appeal and there is no other plain, speedy, adequate
remedy in the ordinary course of law.
Q: Why no appeal?
A: Generally, certiorari cannot be a substitute for an appeal. Remember this, madaming
ramifications to. If appealable, no certiorari, as a general rule, so why go to certiorari? Because
it is not appealable. Example of those which are not appealable are interlocutory orders.
Decisions in labor cases, does not allow appeal so your remedy is certiorari. Why no appeal
again? Because you could have appealed but you did not, you have now lost your right to
appeal. But these time the loss of appeal here is not due to any others fault but your own. If it is
your own fault, you cannot apply for certiorari. You loss your right to appeal not because of your
own fault. Example lawyers fault, although the general rule is fault of lawyer is also fault of
client, but there are exceptions there like Rule 38 Sec 1 Relief from judgment; Sec. 2 Rule 38
Relief from denial of appeal. You left for abroad while pending case, lawyer received decision
but he did not notify you. When you return it can be excused.

The other condition, no plain, speedy, or adequate remedy in the course of law, in other words
you could have filed a motion for reconsideration or you could have appealed because it is still
available, but appeal or MR are not speedy or adequate remedy in the ordinary course of law.
Example motion to quash was denied, may appeal dun, pero certiorari is the better rule, why?
Because if you saw appeal, tuloy tuloy pa rin ang kaso. You cannot desist from proceeding the
case, are you going to subject, are you going to endanger the client to be convicted later on? So
instead of an appeal or MR then you go to certiorari where the other court will immediately strike
down the resolution.

Q: What is the character of Rule 65 as distinguished from rule 45?


A: Rule 65 is a special civil action while rule 45 is a mode of appeal.
The ground for filing an appeal under Rule 45 is error of judgment which can either be:
1. Insufficiency of evidence
2. Judgment is not according to the facts
3. Damages awarded is contrary to law
The ground for filing certiorari under Rule 65 is error of jurisdiction which can either be:
1. Lack of jurisdiction
2. Excess of jurisdiction
3. Grave abuse of discretion amounting to lack or excess of jurisdiction.

Q: What are the grounds for filing of an action for prohibition?


A: Same grounds with certiorari.

Q: What are the grounds for filing an action for mandamus?


A:
1. Neglect in the performance of duty imposed by law
2. Exclusion from enjoyment of an office

Q: Doctrine in the case of Lapid V. Laurea


A:
1. Requirement preparatory to the filing of petition for certiorari
General Rule: Filing of a motion for reconsideration is mandatory to give the tribunal a
chance to correct itself
Exception: Purely questions of law which raises questions of error of jurisdiction
2. Specific dates must be stated as to when the judgment was rendered, when notice of
judgment was received, filing of Motion for reconsideration and receipt of order with
respect to the denial or grant of the motion.

Q: What is the period for filing of certiorari?


A: Period of 60 days from receipt of copy of judgment.

Q: Does the Neypes doctrine or fresh day rule apply?


A: The jurisprudence does not specifically provide that it should likewise apply to Rule 65
because it speaks only of appeal. However according to a noted professor, the fresh day rule
applies both to Rules 45 and 65 unless a new jurisprudence would otherwise provide.

NOTE: There was an old SC circular which provides that the 60 day period includes the filing of
a Motion for Reconsideration. However, in 2005 there was a new circular which states that the
old circular does not apply to Rule 65 so the 60 day period is counted from the notice of receipt
of denial of the motion for reconsideration.

Q: Doctrine of UP Board of Regeants Case


A: In mandamus rights must be very, very clear so that if the right is doubtful, mandamus will not
lie.

Q: Distinguish mandamus from quo warranto. For example: Mayor Atienza has a city attorney
which is Atty. X whom he replaced with Atty. Y with no valid reason. Against whom may Atty. X
file mandamus and against whom may he file quo warranto?
A: Atty. X can file mandamus against Mayor Atienza because by the latter's act he was excluded
from the enjoyment of his office. Atty. X can file quo warranto against Atty. Y because he is a
usurper of Atty. X's office.

RULE 66 QUO WARRANTO


Q: What is the doctrine in the Mendoza Case?
A: Quo warranto is directed against the person and not against the office. Also plaintiff is not
entitled to backwages.

Q: Who initiates Quo warranto?


A: Office of the Solicitor General, public prosecutors and relators.

Q: Who are relators?


A: Private citizen who is entitled to the office.

Classic Example: Ninoy cannot file quo warranto against Marcos so his remedy was to file
prohibition. He did not succeed. He succeeded in the tarmac when he died. What is the moral of
the story? Whatever you cannot do living, you might succeed in death.

Q: Example 4 candidate for councilor filed a quo warranto against 8 elected counsilors of
Manila. The court dismissed the case. Why?
A: It is a rule that in filing quo warranto the person filing should be entitled to the position. So in
this case it was dismissed because how can 4 people fill up the position of 8 councilors.

Q: Jurisdiction?
A: Concurrent SC, CA or RTC but never in Sandiganbayan except in aid of appellate jurisdiction
Q: What does in aid of appellate jurisdiction mean?
A: When the appeal was made to the Sandiganbayan from MTC or RTC in cases of publice
officials whose salary grade is below 27

Q: Tuason Case
A: Certiorari will only lie against tribunal exercising judicial/quasi-judicial function.

RULE 67 EXPROPRIATION
Q: Who exercises jurisdiction?
A: The RTC because the action is not capable of pecuniary estimation. The value of the
property being only incidental to the case. (Russel V. Vestil, Brgy San Roque V. Heirs of Pastor)

Q: Venue?
A: Where the property is located.

Q: Who are the parties who may expropriate?


A: LGU's, government instrumentalities however a resolution authorizing expropriation must first
be passed.

Q: Rule 67 is procedural. What is the substantive law which provides for expropriation?
A: The 1987 Constitution

Q: What properties are involved?


A: Any kind of property, whether real or personal

Q: What does taking mean?


A: Taking includes not just actual taking but also diminution/deprivation of benefits

Q: What does for public use mean?


A: It means that the purpose for taking would ultimately redound to the general welfare of the
people

Q: May a law be passed authorizing the city of Manila to expropriate a portion of UST? May the
compensation be by way of exchange of property?
A: No there can be no compensation by way of exchange of property because the determination
of Just compensation is a judicial function.

Q: What is the remedy of the owner of the property?


A: 1. Mandamus
2. Quo warranto

Q: Which should be preferred, ownership or utility?


A: At first glance it would seem that ownership must be preferred but in reality it is utility
because nature made it so that you own only what you need and dispose of the things that you
don't use. Pag wala nang pakinabang, ipamigay mo na kagaya ng asawa mo.

Q: What is the formula for computing just compensation?


A: Just Compensation = Fair Market Value plus Consequential damages minus consequential
benefit which should not be more than consequential damages.
Q: What are the 2 parts of expropriation?
A: The first stage is to determine whether or not the property can be devoted to public use.
Second stage, determination of the just compensation.
NOTE: Plaintiff upon deposit of the amount may enter the property

Q: Where should the deposit be made?


A: court or reputable bank

Q: How much should the deposit be?


A: Assessed value of the property

Q: Who determines Just compensation?


A: Determination of just compensation is a judicial function so there can be no compensation by
agreement.

Q: Appointment of Commissioner
A: Not more than 3
Men of Integrity

Q: What is the effect of the report of the commissioner?


A: The report is not binding upon the court

Q: NPC case
A: Apparent conflict under Sec. 1 Rule 17 and Sec. 2 Rule 67

Q: Doctrine in the City of Manila V. Serrano


A: Expropriation should be a final recourse

RULE 68 JUDICIAL FORECLOSURE

Q: Application?
A: Applicable to both real estate and chattel mortgages.

Q: What does judicial foreclosure mean?


A: It has passed through court process.

Q: What should be filed?


A: Verified complaint of foreclosure absolute necessity to the mortgage

Q: Who should be included?


A: All parties who have interest over the property subordinate to that of the mortgagor.

Q: If a party interested is not impleaded what is the effect?


A: He is not affected by loss of equity of redemption.

Q: What is the object of foreclosure


A: Property

Q: Can a property mortgaged may still be attached?


A: Yes

Q: Distinguish right of redemption from equity of redemption.


A: Right of redemption is the 1 year period from registration of certificate of sale given to a
person to redeem the property. Equity of redemption is a right given to persons with interest
within 90 days and not more than 120 days from entry of judgment to redeem the property.

Q: What is order of confirmation?


A: Confirmation of the sale of the property.

Q: Deficiency judgment
A: By filing a motion for deficiency judgment.

RULE 69 PARTITION

Q: What is the object of partition?


A: To assign property.

Q: Jurisdiction
A: RTC because the case is not capable of pecuniary estimation.

Q: What are the stages in partition?


A:
1. Determination of the existence of co-ownership - absence of which partition is unavailable
2. Determination of who are entitled and what properties to be distributed
NOTE: Each stage is final and appealable

Q: What kind of appeal?


A: By record of appeal because the action calls for multiple appeals.

Q: What is a project of partition?


A: Agreement between and among the parties in partition which is submitted to the court on
which a judgment of partition is made.

Q: Who prepares a project of partition?


A: Any of the co-owners

Q: Who are the parties in an action for partition?


A: Plaintiff - co-owner
Defendant - all other co-owners as indispensable parties

Q: What is the effect of the approval of the project?


A: Approval is equivalent to judgment of partition.

Q: If no project is agreed upon what should the court do?


A: Appoint a commissioner and the commissioner would make and submit a project of partition.

Q: If the parties still does not agree, what should commissioner do?
A: Assignment - identical to buying out.
NOTE: Even if only one of the co-owners objects, no assignment
Q: What then should the court do?
A: Sell the property and the proceeds distributed among and between co-owners. This is the
last resort.

Q: May a sale be objected to? On what ground?


A: Yes sale may be objected to if it will not redound to the benefit of the co-owners.
NOTE: Commissioner should give report, however such is not binding upon the court.

Q: What does judgment of partition include?


A: It includes payment of the cost of accounting and damages.

Q: Doctrine of Heirs of Teves V. CA


A: Any activity that puts an end to indivision is a case of partition.

RULE 70

Q: What are the 3 kinds of action involving recovery of property?


A:
1. accion publiciana - right of possession
2. accion reinvindicatoria - recovery of ownership with possession as an attribute of ownership
3. accion interdictal - possession de facto
a. forcible entry
b. unlawful detainer
i. governed by rule 70
ii. in case of agricultural property/land governed by the civil code

Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE)

Q: Who are the aggrieved parties?


A: Vendor, vendee, lessor or any other person deprived of possession

Q: Is the lessee included?


A: Generally no because the lessee is assumed to be in possession. He may be included under
those other persons deprived of possession.

Q: In ejectment the only issue is possession de facto. Can you raise the issue of ownership? If
so what is the effect?
A: It will not divest the court of its jurisdiction. The court shall resolve the issue of ownership
only to resolve the issue of possession. Resolution as to ownership in ejectment cases is only
provisional.
NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the court is
divested of its jurisdiction.

Q: A is the lessor and B is the lessee who was not able to pay rentals for several months. A filed
a case of unlawful detainer against B. Judgment was rendered in favor of B. Is the judgment in
favor of B immediately executory?
A: No because he was already in possession of the property.

Q: What is immediately executory in the judgment as provided under sec.19?


A: The return of the property. Restoration or restitution to the one who is entitled to possession.

Q: How is execution stayed?


A: Requisites for stay of execution
1. Perfection of appeal by filing a notice of appeal
2. Supersedeas bond
3. Deposit of the amount for the use and occupancy of the premises

Q: What is a supersedeas bond?


A: Unpaid rentals. If there are no unpaid rentals there is no supercedeas bond.

Q: How much is the supersedeas bond?


A:
1. In accordance with judgment
2. If there is no judgment, in accordance with the contract
3. In the absence of contract, according to what was paid as rentals

Q: What is the amount for use and occupancy?


A: Payment of rental during the pendency of the appeal.

Q: How much?
A: Same as supersedeas bond.

Q: Where do you file notice of appeal?


A: In the municipal trial court

Q: Where do you file supersedeas bond?


A: In the municipal trial court

Q: Where do you file amount for use and occupancy?


A: In the appellate court

Q: When?
A: General rule on or before the 10th day of each succeeding month. For example the rent due
for the month of april should be paid on or before May 10.
Exception: When payment of rental must be paid in advance in accordance with the contract.
NOTE: Non-compliance with even one month would render the judgment immediately
executory.

Q: Both Sec. 19 and Sec 21 speak of immediately executory judgment. How is Sec. 21 different
from section 19?
A: Section 21 speaks of the judgment of the appellate court and such judgment cannot be
stayed except when defendant filed injunction.

Q: How about sec. 15 and sec. 20?


A: Sec 15 applies to Trial Court while Sec 20 applies to the appellate court. Injunctive relief is
available to both in order to stop defendant's act of dispossession

Q: Doctrine in Refugia Case


A: Motion for reconsideration is a prohibited pleading only in the MTC under summary
procedure. When the case has already been appealed to the RTC, MR is already allowed.

RULE 71

Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court

Q: What are the two kinds?


A:
1. Direct Contempt
Done in the presence of or so near a judge that disrupted proceedings.
2. Indirect Contempt

Q: What are the remedies of a person cited in contempt?


A:
Direct Contempt
File a petition for certiorari and not an appeal because the judgment is only interlocutory
Indirect Contempt
1. File an appeal
2. Post a bond

Q: Doctrine in the case of Yasay V. Recto


A: Supreme Court said that the power of contempt must be used in preventive manner and not
in vindictive manner. The distinction between civil and criminal contempt was also abolished.

SPECIAL PROCEEDING
NOTE: Declaration of absence and death: There is no such thing as declaration of deathit
should be absence leading to the declaration of death.

These are the only things which we will be discussing in Special Proceedings (I will state them
in the order of importance, procedurally speaking):
1. Settlement of Estates- states the meat of special proceedings
2. Adoption- although this is already studied in civil law; it is important because of the new rule
on adoption, not the laws on adoption (R.A. 3552, the Domestic Adoption Act of 1998 as
well as R.A. 8043, the Inter Country Adoption Law of 1995)not that because that is
substantive. I am talking of the new rule on adoption which took effect sometime in August
2004. I thats why I think its the second most important thing to discuss here.
3. Rule 103 in relation to Rule 108, Change of Name and Correction of Entry..again, because of
the new law. So the possibility of being asked in the BAR is great. (Read also R.A. 9048)
4. Guardianship- practically the same rules of procedure as settlement of estate..only that in
settlement of estate, the subject is dead unlike in guardianship, the subject is still alive.
Physically alive, but mentally dead or a minor. That is the difference between the two.
5. Habeas Corpus- a peculiar kind of special proceeding
6. Escheat
7. Trust (not the trust you buy in Mercury, but relationtrust relation)

All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations; Declaration of
Absence & Death; Hospitalization of Insane Persons(but, I still advise you to read), even the
Constitution of the Family Home.

If I were an examiner, I would definitely ask in Special Proceedings, Settlement of Estate and
next to Settlement of Estate would be Adoption and next to that would be Habeas Corpus.

Note that even in last years BAR examination there was no question on special proceedings
because utmost you get only one question for BAR purposes, one question in Special
Proceedings. Very seldom if you find two questions in Special Proceedings. If, perhaps, the
examiner is teaching special proceedings, then perhaps he will ask you more questions in the
BAR, but ordinarily nonot that Im demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that remains to be seen
starting this afternoon.

Remember, Special Proceedings is different from all other actions, including Special Civil
Actions. If you are asked to define what a Special Proceeding is, A Special Proceeding is an
action other than an ordinary action, a special civil action, or a criminal action. That is a
correct definition by exclusion. To be more specific, Special Proceedings are actions geared
or directed towards the establishment of a right, status, or a particular fact. The ordinary
rules apply here and more so because there are specific provisions that distinguishes it from
special civil actions where it has a special rule. Here, no. It has its own uniqueness. Every
Special Proceeding has its own nuances. For example, because the objective is the
establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In
special proceedings, there is no defendant, so there is no need for summons. Summons, as we
have studied is the way by which a court acquires jurisdiction over the person of the defendant
(Rule 14). The only exception is, of course, Habeas Corpus Proceedings wherein you
name a respondent but the respondent here is different from a defendant because
summons is not necessary.

Q: So, how does a court acquire jurisdiction over the case?


A: There is no need for the court to acquire jurisdiction over the person of the defendant
because there is no defendant. Therefore, the court should acquire jurisdiction of the case, over
the subject matter. How? Because it is an action in rem, ordinarily publication. So that is the
uniqueness of Special Proceedings. Publication is the means by which the court acquires
jurisdiction over the subject matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not prescribe.
There might be limitations of such periods in some instances, but ordinarily, they do not
prescribe.

Q: What are the Special Proceedings?


A: Name them according to the Rules starting from Rule 73-90 Settlement of Estate; Rule 91
Escheat; Rules 92-97 General Guardians & Guardianship; Rule 98 Trustees; Rules 99-100 are
no longer applied because they are deemed repealed by the new rules on adoption, including
Rescission & Custody of Children, these Rules are no longer applied because of the adoption of
the Child & Youth Welfare Code.

SETTLEMENT OF ESTATE OF DECEASED PERSONS


When you speak of Settlement of Estate, immediately what comes to your mind is that someone
died (and thats the beauty in lawmen live forever in lawthey continue in their estateThere
are those who want someone dead because of his estate. there are also those who want
somebody alive because he has no estatebut actually, even if you are a pauper or a
millionaire, you always have an estate. So you live forever through your estate. That estate
must be settled).

Q: There are two ways to Settle an Estate:


A: Extrajudicial Settlement and Judicial Settlement of Estate. In, extrajudicial settlement, the
rules speak of settlement through Affidavit of Self Adjudication and the other way to settle it is by
extrajudicial partition. Those are the extrajudicial manner of settling the estate. Extrajudicial
settlement proper is by agreement of the parties.. extrajudicial settlement is distinct from
partition. When you go to judicial settlement, you have the first which is Summary Settlement
Sec. 2, Rule 74, which is very practical and then judicial partition under Rule 61, that is a mode
of settlement and then you have the conventional mode of settlement of estate. We can even
add a fourth kind, whish is also a mode of settlement of estateEscheat proceedings
under Rule 91.

The conventional mode settlement is either testate or intestate. The testate can either be with
the will annexed or without the will annexed. The intestate, of course, there is no will. But both
testate and intestate may also be done either in the Philippines or outside the Philippines.

Q: What are the requirements for an Affidavit of Self Adjudication?


A:
1. There is a will
2. No debts;
3. Only one heir.

Q: Suppose Mr. X, who died, was known to everyone to have one child but later on, it was
found out that he had other illegitimate children. What will happen to the affidavit of self
adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still subject to claims.

Q: How do you go about in making an Affidavit of Self Adjudication?


A: The word suggests already that it is an affidavitso, how do you formulate an affidavit? You
simply state in your affidavit that your father or your mother died; and that he/she left the
following properties; and that you are the only heir of your parent; and that the estate are such
and such, valued accordingly; and that they are found there (location of property)..you simply
submit that to the Register of Deeds and the Register of Deeds will act on it only after you
comply with the requirement of publication and if there are personal properties belonging to the
estate, put up a bond according to the value or upon the discretion of the register of Deeds.
(extrajudicial hathe court has no participation whatsoever here) You simply submit to the
Register of Deeds, the Register of Deeds acts on it and if there is already publication, once a
week for 3 consecutive weeks in a newspaper of general circulation, the Register of Deeds will
simply transfer the title in favor of the affiant.

The other mode of extrajudicial settlement is extrajudicial partition...that is not under Rule 69
because under Rule 69 is judicial partitionhere, the parties agreed, but take note that there is
also no will and there are also no debts and even if there are debts, there is sufficient money to
answer for those debts which are reservedthe money is reserved to answer for debtsso you
can partition among and between yourselves these properties, provided all of you are of age. If
one is a minor, he is duly representedordinarily, you ask the court for the appointment of a
guardian ad litem. This form of extrajudicial settlement is similar to Partitionthere is really no
distinguishing feature between extrajudicial partition and extrajudicial settlement. Jurisprudence
tells us that any act between and among persons that would lead to the division of property is a
form of partition or settlementany act that would terminate indivision would be division.

In affidavit of self adjudication, of course you have to support your allegations with documentary
evidence (like for example, that you are the only heir, this can be proven through your birth
certificate and also the marriage contract and the properties you wish to adjudicate unto yourself
should be established by Titles or muniments of titles).

Judicial Settlement refers to Conventional: Rules 73-90. Summary Settlement of Estate


is very impractical because up to now the value of the estate is still P10T (P10,000) but you will
note that there is still a requirement for publication (so if you have it published once a week for 3
consecutive weeks, ubos na yung ten thousand mo).

RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat tells us that if a person dies without a will,
without an heir, and no debts, then the Office of the Solicitor General will file, under the directive
of the President of the Philippines, will file an Escheat Proceeding. But if it happens that during
the pendency of the proceeding, a will pops up, then the proceeding is discontinued. If an heir
pops up, then the proceeding may be suspended and establish your rightotherwise, after the
hearing, the property will go to the government. This escheat proceeding is founded on the
theory that all lands belong to the Statethe Regalian Doctrine that you studied under LTD
(Land Titles & Deeds) all lands belong to the State and he who claims otherwise has the
burden of proof so after the escheat proceedings, the property belonging to the estate will go to
the city or municipality where it is found.

So if the proceeding is in Manila, but the property escheated is in Calamba, the property
escheated located in Calamba will go to the City of Calamba and not to the City of Manila. The
same thing with personal propertywhere it may be found and the Rule is very specific that the
property will be spent for charitable purposes, for educational purposes, so on and so forth. So
that is Rule 91.

Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years
ago (sa dami daming pwedeng ibigay sa Special Proceedings, yun lang ang binigay). This
speaks of REVERSION. In other words, the property was acquired by an individual in violation
of the Constitution. Under the Constitution, any person, even foreigners who were former
Filipinos, can now acquire property in the Philippines and that was given more strength because
of the Dual Citizenship Law.

Q: Which court has jurisdiction over Petitions for Settlement of Estate?


A: Under RA 7691, inferior courts now have jurisdiction over settlement of estate, whether
testate or intestate. So it is not under the provision which speaks of actions involving title to or
any interest in property but it is a direct provision of the law that settlement of estate, whether
testate or intestate, may be taken cognizance of by inferior courts, depending on the gross value
(hindi assessed). Remember, there is another provision under BP 129, the basis of which is the
assessed valuedito, gross value of the estate and the location is determinative somehow of
jurisdiction because if it is outside Metro Manila, less that P300T and within Metro Manila,
P400Tso suppletory character lang yun.

The old books speak of Courts of First Instance (RTC), exclusivelyhindi na yun.

RULE 73 VENUE AND PROCESS.

Q: Is settlement of estate limited to the estate of Filipino Citizen?


A: No.

Q: If an American was in the Philippines because he was a member of the Armed Forces, who
joined the Balikatan Forces in Mindanao and he died here, where should the settlement of
estate be done? Is it the place of ones death which is determinative of the venue? Suppose
one had 5 residences because he had 5 wives?
A: This is a very confusing provision because the title is Venue & Process but the word
venue is never mentioned. On the other hand, the word jurisdiction is mentioned three (3)
times.

Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of venue?
A: It is a matter of venue so you cannot question it.

Q: Suppose Mr. X, a Filipino citizen residing in Cebu City died at St. Lukes Hospital, Quezon
City, where should his estate be settled?
A: In Cebu because it is the place of the final residence of the decedent.

Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City, is the venue
properly laid?
A: No.

Q: So, what happens to the case?


A: The settlement must continue because venue is not jurisdictional.

Let me emphasize to you that in civil cases, including special proceedings, venue is not
jurisdictional, unlike in criminal cases, venue is jurisdictional and from what we have learned
under Rule 4 of the Rules of Court, venue may be waived.

So, if there is no opposition, there is no question as to the petition filed by anybody for the
settlement of the estate of Mr. X who is a resident of Cebu, the petition is filed in Quezon City,
the issue is not jurisdiction but only of venue. But considering that there was no opposition, then
the petition for settlement must continue.

Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred by law and RA
7691 confers that depending on the value of the gross estate, which can either be the
MTC or the RTC.

Q: What is Residence?
(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited in your book (it
has to cited in your book) because that is a very leading case, also the case of Fule, et al. vs.
CA, these are the cases about venue and jurisdictionemphasizes these cases cited in all
books. Eusebio vs. Eusebio, that is also cited in your book These are questions about the
conflicting rules on venue and jurisdiction.)
A: It is now settled (because of there cases) that residence is only a matter of venue. It is not a
matter of jurisdiction.

This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezin City, parallel to
Espaa or Quezon Blvd. He was a resident of Cebu but also had a house in Qezon City
because he was a member the Senate. When he died in Quezon City, his residence was in
Cebu. When he died, he was already a widower at the time, so he had two families. The first
family with his first wife, and the second family with his second wife. His second wife, staying
with him in Quezon City, filed a petition for the settlement of his estate in the RTC (Then CFI) of
Q.C. After the 9- day novena for his demise, the heirs of Senator Cuenco, filed a petition for
settlement of his estate in Cebu. This reached the SC. The issue was in fact wrong: Which
court has jurisdiction? Mali. It is not a matter of jurisdiction but only of venue. But the greater
error here is not the error of the petitioners but the error of the Court. Why? Because the Q.C.
Court on its own (motu propio) said we are going to give way to the court in Cebu to settle the
estate. That cannot be done because under the Rule, the court which first takes cognizance of
a petition for settlement of estate, takes it to the exclusion of all other courts. And so, which
court has jurisdiction? Both courts have jurisdiction actually, but because of the Rule, since it
was first filed with the Q.C. Court, it was already taken cognizance of by said court in Q.C. to the
exclusion of all other courts, including the Cebu Court. That is why if ever the court cedes its
authority in favor of the Cebu Court, that is wrong. It should have been correct if anybody
interested in the petition files a motion to dismiss on the ground of improper venue but there
was none.

In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by the
examiner saying that a motion to dismiss was filed with the Cebu Court and the Cebu Court
granted it. Wrong. Why? Because the Cebu court did not acquire jurisdiction because the
petition was first filed in Q. C. and there can be no dual jurisdiction here because the Rule says:
the court acquires jurisdiction to the exclusion of all other courts.

This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of
Fule vs. CA, a 1975 case. Philippine reports pa ito. If you want to read it, you can find it in the
Philippine Reports. But Fule, you find it already in the SCRA. Is that clear? Take note of that
doctrine because that is very basic in Settlement of Estate. Sec. 1 of the Rule there does not
speak of jurisdiction but only of venue. In Fule it has been settled that the residence is the
actual place of habitation.

So that if a person has two (well nagayon, hindi lang two, marami, apat, lima, anim..tingnan nyo
si Pacquiao, hindi na malaman kung saan sya resident, Manila, Gensan.. hindi na malaman..
But if only Pacquiao studied law, he would not have run for any position in the first place had
he studied law, he would not be a millionaire in the first place.) Fule settled that residence is the
place of actual habitation or it may not be the place of actual habitation, provided there is
animus manendi (intent to remain) and animus revertendi (intent to return). Kaya pag yung
isang lalaki, mayron legal na asawa, mayron pang kerida, mayron pang kabit, at mayron ding
scholar, in different houses, the residence is that of the original. Why? Because there is animus
manendi and animus revertendi. In all other residences, there is only animus amare (intent to
love) so that is regarding this Section 1.

Let us go now regarding these two: It can be testate or intestate. You know testate, in other
words, there is a will. Intestate, there is no will. The distinction, regarding these two will give
you also the distinction between an executor and an administrator.

Q: What is the distinction between an executor and an administrator?


A: The executor is the one appointed by the decedent as embodied in the will. The
administrator is the one appointed by the court if there in no will, or if there is a will but does not
designate an executor, or even if there is an executor, the executor refuses to accept the trust or
fails to put up a bond These are the requirements: He is either not qualified; he fails to accept
the trust; or he fails to put up a bond so an administrator may be appointed.

Q: An administrator is of two kinds, what are they?


A: Rule 80
1. Special Administrator ( also of two kinds): With the will or Without a will annexed;
2. Regular Administrator

Q: In what instances may the court appoint a special administrator?


A:
1. Delay in granting of Letters of Administration;
2. Sec. 8, Rule 86: The executor is a claimant of the estate he represents.

Q: So, when you go to testate, why is it here that they are of two kinds: with the will or without a
will annexed? How would you explain that? Kailan nangyayari ito? If you are a custodian of a
will of the decedent, what is your obligation?
A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)

Q: Are you bound to file a petition?


A: No. The obligation there is only to deliver the will. But if you do file a petition, because you
are the custodian of the will, you must have an interest in the estate. You may either be the
named administrator, a devisee, a legatee, or a creditor, and with more reason, if you are an
heir, you have an interest. If you are in the custody of the will, and you filed a petition for
settlement of estate, you have to attach the will in your petition.. But if you are not in custody of
the will and you are interested in the settlement of the estate, you simply file a petition without
the will annexed.

In many instances, I was telling you that settlement of estate is the best example of multiple
appeals, diba? Because in the settlement of estate there are several stages.

Q: If it is a testate proceeding, what is the first stage?


A: Probate of a will.

Under this lesson on a probate of a will, there is this general proposition that the probate court
(the court probating a will) either the MTC or the RTC, is a court of limited jurisdiction.

Q: What does it mean when the Rule says that a probate court is a court of limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its intrinsic
validity.

This is what you have to understand. Even lawyers do not realize this. Sabi nila probate court
yan so you cannot question, you cannot raise the issue of ownership. The probate court ceases
to be a probate court upon allowance or disallowance of a will but it remains to be a court no
longer of limited jurisdiction. That is why I was emphasizing on the petition as settlement of
estate and not as a petition for the probate of a will. Why? Once a will has been probated,
thats the end of it? No. It is only the first stage in the testate proceedings. So when the Rule
says that the probate court is a court of limited jurisdiction, only as far as the probate of a will is
concerned. Pagkatapos nun, the court is no longer of limited jurisdiction because it has to go
appointment of the administrator or executor, approval of the accounting, approval of the
inventory, then payment of debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due execution, but you
do not transfer courts after the will has been probated, after the will has been allowed or
disallowed which is a final resolution which is a final order or resolution of the court which is
appealable. But the appeal here is by record on appeal because it is multiple appeal. The court
now is no longer of limited jurisdiction because it is no longer a probate court.

Q: Ano ba ang end of settlement of estate?


A: Distribution under Rule 90. The first stage of settlement of estate, if it is a testate proceeding
is the probate of the will. That is where the court has limited jurisdiction.

Q: Why is this so? Why does this issue pop up here?


A: This is because during probate of the will, in the very petition, the jurisdictional requirement is
that you have to state what constitutes the estate and the value of the estate. Jurisdictional
facts.

Q: If an oppositor enters the picture, the oppositor says mali yan because what constitutes the
estate are these properties, but what is stated in the petition do not belong to the estate, now,
can the court decide the ownership of those properties?
A: No. That is where the limited jurisdiction comes into the picture. It cannot because the court
has only the duty of discussing whether the will has been duly executed so this is only as to the
extrinsic validity of a will. The intrinsic will come much, much later, the disposition of the will.

The issue of ownership is outside the jurisdiction of the probate court. But if the probate court
cannot continue without deciding the issue of ownership, the issue of ownership being incidental
(intimately related to the issue of probate) to the probate of the will, must be decided, but the
decision here is not final. It is only provisional and it can be contested in other proceedings and
the rule on res judicata will not apply.

In the case of Balaraw which was assigned to you, that was also the issue involved.

In the beginning, there is no defendant. The equivalent of a defendant in a probate proceeding


is the oppositor. The oppositor is not only opposing the probate of the will, but also settlement
of the estate, for one reason or another.

The objective of the settlement of the estate is the distribution of the estate among the heirs or
those entitled thereto, although not heirs (those persons named in the will).

Once the court allows or disallows a will, as the case may be, the nature of the court as a
probate court ceases. Therefore, the issue of limited jurisdiction no longer applies. Limited
jurisdiction applies only to the authenticity and due execution of the will.

Q: Once the will is allowed, What does it mean?


A: Rule 76: Allowance of the Will

If Mr. A is accused of a crime of falsification of documents by forging the signature allegedly of a


testator and during the pendency of the criminal action, the will allegedly forged by Mr. A was
probated and allowed, the criminal case should be dismissed because the probate of the court
is final and if not appealed becomes conclusive. Wala na yung forgery because the probate of
a will only avows the fact that the signature there is authentic; that there was due execution of
the will. The case against A for falsification should be dismissed. Suppose he has been
convicted, he shall be released. Supposing he is not released, your remedy is to file a petition
for habeas corpus because the basis .for restraining his liberty no longer exists. (So kita nyo
ang correlations.)

We are talking here of allowance of the will within the Philippines.

Q: Suppose a will was executed and allowed (probated) outside the Philippines, what happens?
A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the Philippines and
Administration of Estate thereunder.

Q: An American citizen residing in California died in California, his will was probated in the
county state of San Bernardino. That will has been allowed in the U.S. Should that will be also
allowed in the Philippines?
A: No.

Q: What should anyone interested in the allowance of the will in the Philippines do because the
deceased had property in the Philippines?
A: It should be re-probated here and the venue is in the proper court of any province where the
decedent had property.

This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.

Q: What are you supposed to establish or prove in the re-probate of a will?


A:
1. The due execution of the will in accordance with the foreign law;
2. That the testator had his domicile in the foreign country and not in the Philippines;
3. That the will has been admitted to probate in such country;
4. The fat that the foreign tribunal is a probate court;
5. That the laws of a foreign country on procedure and allowance of wills.
6. The fact of death (jurisdictional fact) of the testator in a place within the territorial
jurisdiction of the court.

These are mandatory requirements. These must all be established in the Philippine courts. That
is how to re-probate a will which has already been allowed. Thereafter, the court should appoint
an administrator. The foreign allowance of a will leads to the appointment of a domiciliary
administrator. Once it is probated in the Philippines, the court appoints an ancillary
administrator.

Q: Who may petition for the allowance of the will or who may oppose thereto?
A: Anybody who has an interest in the estate or in the disposition of the estate of the decedent

Q: What are the qualifications for one to be appointed as administrator of the estate?
A: Any competent person may serve as executor or administrator. He is incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit to exercise the duties of the trust by reason of :
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving moral turpitude.

Q: If a man cannot sleep without drinking at least 3 beers before he goes to sleep, can he be
appointed as administrator?
A: Yes. He is not a drunkard.

Q: Suppose in the very will, the testator named an executor of his estate, may the court appoint
another one other than the one named in the will?
A: Yes, when such person:
1. refuses to accept the trust ( ang gusto nya kasi is he would accept the trust if it is
candy flavored);
2. fails to give a bond; and
3. is incompetent.

Q: In the course of the administratorship, when one has already be appointed, can he be
removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and Removal of Executor
or Administrator.
Sec. 2. Grounds:
1. neglect to render accounts within 1 year or when the court directs;
2. neglect to settle the estate according to the Rules;
3. neglect to perform an order or judgment of the court or a duty expressly provided by these
rule;
4. absconding; or
5. insanity or incapability or unsuitability to discharge the trust.

Q: If a special administrator is appointed because the regular administrator has a claim against
the estate, what happens to the regular administrator?
A: The regular administrator is not removed by the appointment of the special administrator
because the regular administrator has a claim under Sec. 8 of Rule 86. The special
administrator only has a specific function which is only to work on the claim of the regular
administrator.

The executor of an executor cannot be appointed as executor of the principal testator.

Example: Richard is the testator. He appointed Piolo as his executor. Later on Piolo died. In
the will of Piolo, he appointed Sam as his executor. Sam cannot be the executor of the estate of
Richard.

Reason: An executor takes charge of the estate. If you are an executor and you died and you
have an own estate and the executor of your own estate will now execute the estate of your
testator that appointed you, there will be conflict of interest (Magkakaroon ng sama sama yung
estate. Magkaka halo halo). To avoid possible corruption in the administration of ones estate.

Q: What are the duties of a special administrator?


A: Sec. 2, Rule 80:
1. possession and charge of the properties;
2. preserve the properties;
3. commence and maintain a suit for the estate;
4. sell only:
a. perishable property; and
b. those ordered by the court
5. pay debts only as may be ordered by the court.

Q: Can he encumber the property of the estate through lease?


A: It depends. If the lease is not for more than one (1) year, he can because it would fall under
acts of administration. Beyond that, it is already an act of disposition

Q: If the court appoints Mr. X as special administrator, is the order final and appealable?
A: No. It is only interlocutory and unappealable because if you appeal the appointment of a
special administrator, there will be no end to the settlement of the estate.

The special administrator is likewise required to put up a bond.

Q: Suppose the testator in naming an executor of his estate specifically states there that he
should serve as administrator without a bond. Can the court nonetheless require a bond?
A: Yes. The court has a very wide discretion.

Once a regular administrator is appointed, the continuation of the duties and functions of a
special administrator will now reside in the special administrator. But always remember that if it
is an act of disposition or conveyance, which cannot be done by an appointed executor or
administrator without permission of the court. You always file a motion for leave of court to sell a
specific property and this is part of your accounting one year after.

Accounting is one of the principal duties of an administrator. His first duty is to prepare an
inventory within three (3) months from appointment and within one (1) year, prepare an
accounting of his administratorship and the bond that he put up is precisely to answer for the
misadministration .
RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY

Q: Who are entitled to allowance during proceedings?


A:
1. legitimate surviving spouse; and
2. children of the decedent (legitimate & illegitimate children)

Relate to Art. 194, Family Code: Children, even if 18 years of age are still entitled to support
from the estate.

Read Ruiz Case


RULE 86 CLAIMS AGAINST ESTATE

Q: What may be claimed against the estate?


A:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.

Q: Suppose they are not due yet, can they be filed against the estate?
A: Yes.

Q: Suppose they are not yet due?


A: Yeswhether due, not yet due, or contingent, you can file against the estate.

Q: When do you file it?


A: Not more than 12 months nor less than 6 months after the date of first publication. Otherwise
it is deemed waived. (STATUTE OF NON- CLAIMS)

STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.

FCC vs Santibanez

Q: What were the issues assigned as errors before the CA?


A: Issues
1. Whether or not estoppel applies
2. Whether or not the extra judicial partition bet among the heirs were valid
3. Whether or not it is necessary for a partition to be approved by the probate court
4. Whether or not the respondent could be held jointly liable with Santibanez.

Testate Proceeding.
Provisions on a holographic will. It wasnt clearly stated in this case.
The parties entered into an agreement.

Q. Can prospective heirs whether under the testate or intestate enter into a partition over the
properties belonging to the estate?
A. There can be no partition until and unless the will is allowed or probated.

Q. Was it really a partition?


A: According to the SC they may act to put an end in any indivision is considered and deemed
to be a partition.
There can be no partition in a testate proceeding before the will is allowed.

Q: What is the rationale behind that?


A: Because the SC said if it is allowed then you are divesting the court of its jurisdiction over the
property partition. Bec it is partition, it amounts to distribution. Distribution is the final stage in a
settlement proceeding and there will be no distribution of the estate until and unless all debts
has been paid. The court looks into it as an act of divesting of its jurisdiction.

Q: Can principle of estoppel be applied?


A: The SC said the principle of estoppel will not apply because the basis which is the extra
judicial partition is in fact void, a void act of declaration or omission of a party cannot be used as
evidence against the party. If the act is null and void, estoppel will not arise therefrom.

Q: Are the heirs liable?


A: The SC said he did not even established the fact that you are the proper party in interest
because Union Bank did not show any evidence to prove that you are really the affiny.

Settlement of Estate
Sec 7. Mortgage debt due from estate
Remedy
1. Claim against the estate
- after all the debts has been paid; upon distribution

2. Foreclose the mortgage - judicial


- deficiency judgement by motion only in the same action

3. Extrajudicial foreclosure
- you solely rely on his mortgage, you dont get any deficiency judgement

Q: Sec 9 How to file a claim


A: In form of a simple application form
1. Deliver the claim to the clerk of court
2. Serve a copy on the executor or administrator
3. if the claim is due, it must be supported by affidavit stating the amount due and the fact that
there has been no effects.
4. if the claim is not due or contingent, it must be accompanied by affidavit stating the
particulars

Sec 10 Answer of executor or administrator


1. Executor may file answer within 15 days from the service of claim
2. Answer must set forth claims which decedent has against claimant or else it will be barred
forever.

Q. What is a statute of non-claims?


A. A claim against the estate shall be filed within a period of not less than 6 mos and not more
than 12mos from the date of first publication.
Q. What is the relationship bet a statute of non-claims and limitations?
A. A statute of non claims supersedes a statute of limitations. The statute of limitation is a period
provided for in the Civil Code where actions prescribe. An ordinary prescriptive period in a civil
case is 10 years from accrual.

Q: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never reached his
destination because the bus fell over a ravine on January 5, 1990. That is the date of the
accrual of the cause of action (Jan. 5, 1990). Can Mr. A file a case against Mr. B on March
2001?
A: No because the action is barred by the statute of limitations.

Q: Suppose Mr. B died in 1995. (yung owner ng bus, Mr. B, not Mr. Bean) What should A do?
A: File a claim against the estate within a period of not less than 6 mos. and not more than
12mos from the date of first publication. So, the presumption here is that there is a settlement
of the estate of B. Otherwise the statute of non-claims will not apply.

Q: Suppose notice was given on March 1, 1995. So you have 6 months and it was published
March 20, you have not less than 6 months from March 20, nor more than up to the 19 th of
March 1996. Can you file it in 1998?
A: No because it is beyond the statute of non-claims. Even if it is within the statute of
limitations, you can no longer file it because it is beyond the statute of non-claims.
That is the meaning of the statute of non-claims supersedes the statute of limitations.

On the other hand, if B died in 1999 of December, you have only have up to January of 2000
because the action has already prescribed, the ordinary action.

The statute of non-claims prevails over the statute of limitations. However, the statute of non-
claims will not apply if there is no settlement proceedings.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

We have limited claims against the estate to the following:


1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.

These are considered as contractual money claims under Rule 86. When you go to Rule 87,
you will note that you cannot file a claim against the estate if it is claimable under Rule 86. So
contractual money claims, hindi. That is why in Rule 87, you are also limited to the following
claims or actions:
1. Recovery of real or personal property;
2. Recovery of interest or lien therein;
3. Judgment arising from injuries

Q: In actions by and against executors and administrators, where will the executor or
administrator get his money to satisfy your prayer in your action? Hindi ba from the estate? So
why not against the estate, bakit against the executor or administrator?
A: Rule 86 is not an action tapos na dyan yung action, it is already through. In 87, it is a
separate and distinct action, so that if it is a complaint, you always file it against the executor or
administrator. Pero dito, tapos na yan. Hence, dahil tapos na, it is urgent urgency of the
subject matter so the presumption in 86, that there must an estate proceeding, whether
testate or intestate without that , you cannot file any claim. Suppose wala, ano gagawin mo?
Iinitiate the testate or intestate proceeding so that you file a claim. It is not an independent
action here.

But in 87, it is an independent action. Meron bang testate or intestate proceeding? Not
necessarily. You might say, bakit executor, administrator? Kaya nga or because when you say
executor, meron yan. Kung walang executor, administrator. You mean to say that there can be
no administrator without an estate proceeding? No. There can be an administrator even if there
is no estate proceeding because you can even undertake extrajudicial settlement of the estate.
In extrajudicial settlement there can be an agreement by and between the parties as to the
administrator of the estate. The estate does not have a separate and distinct personality. It is
only an entity authorized by law in special cases.

As a general rule, the estate cannot sue and be sued. It can only be sued in certain instances.
It cannot be sued because under Sec.1, Rule 3 (Who may be parties), it is only an entity
authorized by law. That is why you file against the executor or administrator. Remember that
an executor or administrator is a natural person. Iba yun sa Guardian ha? A guardian can be a
juridical person.. only guardianship over the property of the ward. In guardianship over the
ward, the guardian cannot be an artificial being or corporation.

Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule 87 (Mortgage
due estate may be foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the creditor. The
creditors may have affirmative remedies as to their claims against the decedent such as going
after his estate. The estate is the debtor, the mortgagor (mortgage due from the estate). As
compared to Sec. 5, Rule 87, the estate is the mortgagee.

Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec 7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.

After all these claims have been settled, all debts have been paid, you go now to distribution.
This is the last stage. But in the distribution of the estate, what Rule should be followed? First,
before distribution, there shall be payment of debts.

Q: What are these debts? There are only 5 specific kinds of debts.
A:
1. Debts of the decedent;
2. Funeral expenses;
3. Expenses for administration;
4. Allowance for the widow; and
5. Taxes.

Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation,
even taxes give way to unpaid salaries and wages. But in all other instances, palaging ang
gobyerno ang uunahin. Sabi nga sa mga Reviewers, pag wala ka na daw maisasagot sa
question sa taxation, taxation is the lifeblood of the government.

Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other Encumbrances of the
Property of the Deceased. The fundamental reason for sales, mortgages, and other
encumbrances is to pay off debts.

Q: The estate is worth one million (P1M). After payment of debts, all that had been paid
amounted to P500T. How much is left for distribution?
A: Only P500T.

Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A
should receive P500T; B- P100T; C- P100T; D and E- P50T each and what remains is only
P500T, how will you distribute the estate?
A: Distribute the estate by ratio and proportion.

Q: Suppose the asset was P10M gross value and the obligation was only P1M. You have
P900T left but the will says to distribute only P500T; P100T; P100T and P50T to the last two,
may sobra ka, (that goes to the pocket of the lawyer?) it should be distributed in accordance
with intestate succession but also pro rata. A: Remember we are talking here of the remainder,
wala nang babayaran. We have also studied the Rules on contingent claims, under Sec. 4,
Rule 74 ( Liability of Distributees and Etate), the two-year lien.

Q: Can the estate be distributed even before payment of debts?


A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the distributee
first gives a bond.

The remedy is to give a bond. If the asset to be distributed is quite important, such as real
property, then you give the asset.
RULE 92 GUARDIANSHIP

Madali lang itong guardianship. You know why? Because the Rules are practically the same.
The fundamental difference is that in guardianship, the subject is still alive. In settlement of
estate, the subject matter is already dead.

Three Kinds of Guardians:


1. Judicial guardian that appointed by the court in a judicial proceeding for legal guardianship
2. Legal guardian guardian by operation of law; not just appointed by any court. (ex.:
parents of minor children)
3. Guardian ad litem- that which is appointed by the court not necessarily in a guardianship
proceeding, because this guardian ad litem is only on a temporary basis with a specific duty
to perform.

Q: Which court has jurisdiction over a petition for guardianship?


A: Exclusively and originally cognizable by the Family Court (RTC specifically designated as a
Family Court because of RA 8369 ). There is no inferior court here.

However, in settlement of estate, jurisdiction may be lodged in inferior courts depending on the
gross value of the estate.

The venue is the residence of the ward. If the ward has no residence and the
guardianship application is over the property of the ward, the venue is where the
property is situated/ located.

Take note that the venue here is the residence of the ward as distinguished from the venue in
adoption, which is the residence of the adopter. Bakit? Because in adoption, the result is that
the adoptee will become the child of the adopter for all legal intents and purposes. But here, it is
the guardian that goes to the ward as the relation here is only of a temporary character.

You file a guardianship proceeding only on 2 grounds:


1. Minority; and
2. Incompetency.
The term incompetent here is different from that in settlement of estate. Here,
incompetent refers to:
Sec. 2. Meaning of the word incompetent. Incompetent includes:
1. Those suffering from the penalty of civil interdiction (a penalty attached to conviction);
2. Hospitalized lepers;
3. Prodigals (one who is a spendthrift; wastes money or property on things without reserving
any for himself and before you know it, he is not only a prodigal son but also a grasa man.);
4. Deaf and Dumb unable to read and write;
5. Those of unsound mind although they have lucid intervals;
6. Persons not of unsound mind but by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of themselves or manage their property.

A minor, under the age of 18, can be the subject of guardianship.

Case of Evangelista: The petition for guardianship was granted by the court and Caniza was
appointed as the guardian of Evangelista. As a guardian, remember the rights, the guardian can
sue and be sued, can collect debts, can manage the properties of the ward. So one of his
actions here was to ask the Estradas to vacate the premises owned by the ward. Judgment
was rendered in favor of plaintiff, but on appeal, it was reversed and on appeal again from the
order of reversal, it was sustained. That is why it went up to the Supreme Court. But pending
the appeal with the CA, the ward died. This is a case for ejectment. The issue here is that
considering that there is no more guardianship because death terminates guardianship, hence,
the case must be dismissed because the party appellant is not the proper party-in-interest. The
SC said No. Even if death terminates guardianship, in this particular case, it is contrary to the
principle of equity of justice if we have to start all over again. The case is already with us, so
remand of the case to the lower court would be a waste of time and more importantly, they
found from the record that Caniza was one of the heirs of the ward. Hence, there is still a party-
in-interest even if there is no settlement of the estate. Ang importante ay pag guardian ka tapos
heir ka din, there is no need for the settlement of the estate.

NOTE: Remember that you find that also in Sec. 16 of Rule 3: Substitution of Parties (without a
need of appointing an administrator or executor of the estate in the substitution of parties.).
That is the doctrine laid down in this case.

Q: Who can initiate a petition for guardianship?


A: Anybody who has interest in the person of or property of the ward. If you cannot establish
any interest in the person of or in the property of the ward, you cannot file a petition for
guardianship.

Buyena vs. Ledesma: In this case, they were able to establish interest. They were both
single and they were living together.

You have to establish interest. The Rule says, friends, relatives, or any person who has interest.

Q: What is the procedure?


A: File a petition with a court of competent jurisdiction in the proper venue. And the court will
issue an order setting the case for hearing. If there are oppositors, then they can file their
opposition. Remember, this is a special proceeding and jurisdiction is always acquired through
publication. After trial, there will be decision either allowing or disallowing guardianship. In
other word, appointing a guardian or not appointing a guardian.
The guardian now enters into the guardianship after he has filed the necessary bond. The
duties and responsibilities of a guardian are similar to that of an executor or administrator .

Q: Can he sell the properties of his ward?


A: Yes. Even without permission from the court if the property involved is personal property.
But, if it is real property, just like, an executor or administrator, he has to get permission from the
court. Only with the permission of the court will the sale of real property be considered a valid
sale. It is not only permission of the court which is required, but also notice to all interested
parties. In guardianship, the absence of notice, even with permission of the court, still renders
the sale void.

Q: In what instances may guardianship be terminated?


A: Death also terminates guardianship, but the general rule is that if the ground for the
appointment of the guardian ceases, then guardianship ceases as well.. If the minor is already
of age (remember, even the minor himself can ask for guardianship). This is an exception
regarding lack of a minors legal personality to sue. If the ground is based on incompetency and
it is established that the ward is already competent, or that he was insane, but now, he is no
longer insane; a petition for termination of guardianship may be filed.

Q: Should the legal guardian file guardianship proceedings over the person and property of
their minor children?
A: Yes if the property of the war, which is their own children, is worth more than P50T. If they
sell the property of their ward, even if they are the legal guardians, the sale of the property is
void.

Q: Distinction between a guardian and a trustee


A: The distinction between a guardian and a trustee is that the latter has the legal title while the
guardian has no legal title of the property. So that the trustee can negotiate and encumber the
property under trust. Although the same trustee may either be a trustee and a beneficiary at the
same time.

A trust relationship can either be express if there is a trust agreement between parties or implied
if it is by operation of law. Examples of trust by operation of law is when parents die without a
will and then some children are still minors, whoever is the guardian of the minor holds the
property for and in behalf of the minors in trust. So that you will note that the guardian here,
being the trustee, may not be a party to a written trust agreement but he cannot dispose the
minor's property without consent of the court for the reason that he is only in trust for the ces qui
trust. Even in the absence of a written contract, there is a trust relationship by operation of law.

ADOPTION
Background of adoption: The rule on adoption has been amended several times and even the
rules on procedure, which you find in 99 and 100 are no longer applicable. They have been
repealed expressly. As early as the mid-70s when the Child and Youth Welfare Code (PD 603)
was enacted, it already amended the rules on adoption. PD 603 was also amended by the
Family Code. But all these are no longer applicable in toto because of the new laws on adoption
which should be the subject matter of today's section. The laws applicable now is not even the
Civil Code per se, but rather it should be RA 8562, the Domestic Adoption Law of 1998 and the
Inter Country Adoption Law of 1995 (RA 8043). These are the substantive law governing
adoption. Our concern is the rule on adoption.
AM 02-6-02SC, dated July 2002, is the new rule on Adoption.

Q: Who may be adopted only?


A: General Rule: one who is legally available for adoption.

Q: Who are legally available for adoption?


A: Those who are voluntarily committed and/or involuntarily committed.

The parents or guardians of these persons have voluntarily surrendered their parental or
guardianship authority to the DSWD.

Q: Who are those involuntarily committed?


A: Judicially or administratively deprived. Minors, whose parents or guardians are
administratively or judicially deprived of their authority over these persons. They are involuntarily
committed. And within that concept, you have the abandoned, the dependents, and neglected
children.

Q: What is a child-placement agency as distinguished from a child-caring agency?


A: The distinction is in the services that they cater. Pag placement, it is to provide
comprehensive child welfare services including, but not limited to, receiving applications for
adoption, evaluating the prospective adoptive parents, and preparing the adoption home study
while pag caring, it is like Hospicio de San Jose, which provides 24 hour residential care
services for abandoned, orphaned, neglected or voluntarily committed therein.

Q: Which court has jurisdiction over a petition for adoption?


A: It is the Family Court. RTC is not even a totally and perfectly correct answer because it may
be another RTC.

Q: What is the venue?


A: The place where the adoptive parents reside.
NOTE: Here, the meaning of residence is the actual habituation of the petitioner.

We are only going to study 2 fundamental questions on adoption. Who may be adopted and
who may adopt. Once you perfect that we can go to another lesson.

Q: Who may adopt? Or who is a qualified prospective adopter?


A:
1. Any Filipino Citizen
2. Any alien
3. Guardian, with respect to the ward. And remember, there is no qualification as to the
citizenship of the guardian. The only qualification is that the guardianship must have ended
AND his accountability as a guardian has been completed. Yun lang ang qualification.

Q: Now let's go to the Filipino, what are the qualifications?


A:
1. of legal age;
2. he must possess full civil capacity and legal rights;
3. of good moral character;
4. has not been convicted of any crime involving moral turpitude;
5. emotionally and psychologically capable of caring or children;
6. financially capable or economically capable;
7. at least 16 years older than the adoptee.

NOTE: When one is of legal age, a minor cannot adopt. Because he must be capable of
unquestionable demonstration. Under the Rules on Evidence, the court can either take judicial
notice of that because he is capable of unquestionable demonstration.

Q: What does possession of full civil capacity and legal rights mean?
A: Give me a person who is not possessed of full civil capacity and legal right. A convicted
person which has received an additional penalty of civil interdiction.

Q: How about a deaf-mute? Is a deaf-mute in possession of full civil capacity?


A: Under the rules, a deaf-mute who is not able to read and write is not in possession of full civil
capacity, thus it is incapable of contracting obligations.

Q: A person caught urinating, and charged of urinating in public. Is this not moral turpitude?
A: Urinating or defecating in public is an offense and not a crime. The requirement speaks of
one who has not been convicted of a crime, which is punishable by the Revised Penal Code.

Q: But if you are charged of Rape, can you not adopt?


A: No. Because it speaks of conviction. You must first be convicted.

But if you are convicted of homicide, recent jurisprudence say, you can still adopt because it is
not a crime of moral turpitude. So tatlo, there must be a crime, there must be conviction,
and it must be of moral turpitude.

Q: How do you establish your emotional and psychological capacity?


A: Clearances to show that you have not been convicted from a crime of moral turpitude.
Clearances from RTC, police, PNP, barangay, MTC, etc. And these clearances will ought to
show that you are of good moral character, that you are emotionally and psychologically
capacitated, subject of course to presentation of evidence and cross-examination. Wala namang
summons sa adoption.

Q: How do you establish your financial capacity?


A: Certificate of employment, income tax returns.

Q: When we speak of age gap, the miracle number is 16, why? What is sought to be avoided by
this age gap?
A: To avoid temptation. You look at the history of the Civil Code of the Philippines which was
adopted from the Civil Code of Spain. And being of European origin, there is that also a 16 year
old gap. Malalaking bulas ang mga european and they seek adoption as a means of having
mistresses.

Q: Who may be adopted?


A: General Rule: one who is legally available for adoption.

Q: Who are legally available for adoption?


A: There are 7. So that minority is not an absolute requirement to be adopted. Relationship is
not even a disqualification on the part of the adoptee. because they can be adopted.
What I would like to emphasize is the doctrine laid down in Cang v CA, which is that consent
must be given either by the prospective adoptee, if he is at least 10 years old, or parents, or
guardians, or the DSWD. Without that consent, as laid down in this doctrine, adoption is null and
void.
So you can adopt even your own child. You can even adopt your own grandchildren just like
what Juan Ponce Enrile did to his grandchildren.

Q: Another person who may adopt is a foreigner, and he may adopt under the domestic
adoption law or the inter-country adoption law. What are the requirements?
A: So all the requirements applied to a Filipino prospective adopter are also required of an alien.
Therefore, he must be of legal age, in possession of full civil capacity and legal rights, of good
moral character, not convicted of a crime involving moral turpitude, etc.
Over and above this, an alien is also required:
1. he must have continuously resided in the Philippines 3 years prior to the filing of the
adoption;
2. he must have a certification from his consular official that he is in possession of full civil
capacity;
3. his country of origin must have diplomatic relations with our country;
4. his country of origin must allow the adoptee to become a citizen of his country;
5. that his country of origin allows the adoptee to enter the country of origin of the adopter;

Q: Where should he file this petition for adoption? (Section 28)


A:
1. It may be filed by a foreign national or Filipino citizen permanently residing abroad with the
Family Court having jurisdiction over the place where the child resides or may be found;
2. It may be filed directly with the Inter-Country Adoption Board.

When an alien files a petition before the Inter-Country Adoption Board, the alien will come here
in the Philippines and will bring the adoptee and the social worker back to his country of origin
for the trial custody of 6 months will happen there.

This is purposely done by the law, because there is an objective of discouragement. To


discourage the adoption of Filipino citizens by aliens. In fact that is only allowed if the
prospective adoptee cannot be adopted by a Filipino. Filipinos have the preference of adopting.

Q: What constitutes the allegations?


A:
1. Jurisdictional facts;
2. legal capacity of the prospective adopter and the adoptee;

In the case of Republic v. Hernandez (1997), the SC said that the petition for adoption does
not carry with it the change of name of the adoptee. With the present rules on adoption
specifically under Section 10, this doctrine does not apply anymore. This is a good bar question.
So you can now have joinder of causes of action in special proceedings, in effect. Dati wala. So
you can now join in your prayer, asking for a change of name and for adoption. Let me
emphasize, it is a change of name and not a change of surname because change of surname is
an automatic effect of adoption.

Q: After you have filed a petition for adoption, what happens now?
A: There would be a case study, where it is immediately assigned to a social worker. Under
present dispensation in our jurisdiction, every family courts is now provided with a social worker.
Because a petition for adoption is exclusively cognizable by the Family Courts.

Q: For what purpose is this?


A: One is the home study report and the other is the case study report. The home study report
is about assigning to the social worker of the respective adoptee and the case study report is
about the prospective adopter.

The general objective of adoption, why it is allowed under the rules, is that which leads to the
benefit of the adoptee.

Under the rules, it is mandatory that the petitioner must appear and testify. Similar to an
annulment of marriage case, there can be no stipulation of facts here or confessions of
judgment. There must be actual presentation of evidence here. And basic requirement here is
the consent given by the adoptee, the parents or the guardians of the adoptee.

Q: After the hearing, may the court render judgment now?


A: The judgment referred to here is not similar to the judgment that we have ordinarily because
the judgment here is always subject to the issuance of another decree of adoption. Ang finality
dito is not the finality of the judgment but rather the finality of the decree of adoption.

Q: When is the decree of adoption issued?


A: After complying with the 6 month trial custody. Again, this is another undertaking of the
DSWD. Tignan niyo, the home or case study report is before the decision is rendered, but
before a decree of adoption is rendered kailangan pa ng isa pang report which is the trial
custody report.

Q: For how long?


A: General Rule: 6 months.
Exception: when it is in the best interest of the child; the petition during the hearing is that the
prospective adoptee is already living with the adopter.

Q: After the decree of adoption has become final and executory, what is the next?
A: There should be a new birth certificate issued. Remember that one of the rights of a party in
litigation is the right to a speedy and public trial. But this adoption proceeding is exceptional
because even the documents there are public records but are not open to the public, not
anybody can get it including the new birth certificate issued to the adopter.

NOTE: But take note that under the rule on rescission of adoption, the issued certificate of the
civil registrar's office is cancelled in favor of the old birth certificate, which means that the old
birth certificate is not deleted, but remains in the record. And this is the reason of the confidential
nature of the proceedings.

Q: What is adoption?
A: It is a judicial proceeding whereby the relationship of paternity and filiation is established. AS
simple as that.
According to a noted professor, when a decree of adoption is final and executory, there is the
total and absolute cut of any legal relationship between the natural parent and the child.

Under the new rules, the adopter cannot rescind the adoption but only disinherit the adopted
child. An adopted child has all the rights of a legitimate child.

HABEAS CORPUS
Q: What is the constitutional provision about habeas corpus?
A: The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion
or when public safety requires it. It is not the writ which is suspended but the privilege.

Q: What is a writ of habeas corpus?


A: It is an order or judicial process directed to the person to show cause for the reason of
detention.
Q: By that definition, it is directed in two conditions, which are:
A:
1. illegal detention or confinement;
2. illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or confinement or illegal
withholding of custody from a person entitled thereto.

Q: What is an example of the first instance?


A: Violation of the constitution, whereby a person is deprived or restrained of his liberty or not
afforded a right to due process, or an order from an authority which has no jurisdiction.

Q: What is an example of the second instance?


A: Malimit itong mangyari within the family, where the mother or father fights over for the
custody of the child.

Q: If a woman leaves the parental home in order to stay with her paramour, can the parents file
a petition for a writ of habeas corpus?
A: It depends. If the child is a minor, a writ of habeas corpus is available. But when a child
comes of age, the writ of habeas corpus is not available.

Q: Suppose a judge renders a judgment penalizing a person with imprisonment of 6 years 1


month and 1 day, and then the convict has already stayed for more than that period of time, is
the writ available?
A: Yes, the writ is available because that is the immediate remedy. Although you can also file
certiorari but it is no longer immediate here. Because what do you intend to annul there? wala.

Q: What is a preliminary citation as compared to the writ of habeas corpus or the peremptory
writ?
A: Preliminary citation is a citation to the government officer having the person in his custody to
show cause why the writ of habeas corpus should not issue (detention not patently illegal).
Preemptory writ is issued when the cause of the detention appears to be patently illegal and the
non-compliance wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the issuance of the
preliminary citation and go directly to the issuance of the writ of habeas corpus.

A person in custody of another, restraining the liberty of another, must give a return upon receipt
of the writ of habeas corpus. That return can either be prima facie evidence of the detention or a
plea of the facts stated therein, in the return.

Q: Ano ang ibig sabihin nito? (Section 13)


A: The content of the return as to whether it is a plea only or prima facie evidence of detention,
they distinguish as to who has burden of proof. If the return contains prima facie evidence of the
detention, then petitioner has the burden of proof to show that the detention is illegal. But if it is
only a plea of the facts stated in the return, then the one who has the custody of the person has
the burden of proof.

So a writ of habeas corpus is directed to a jail warden. When the jail warden prepares the
return, which is brought to the court, he says that this person is under a commitment order,
merong desisyon ang korte that this one should be imprisoned because he was denied bail
although is appeal is still pending. That is prima facie evidence of the cause of his detention,
and when that is submitted to the court, the applicant has the burden to establish that that
commitment order is illegal.

But if the return, it says well i am taking custody of this child because i am the father, that is not
a commitment order or judicial order, that is coming from a private person. Therefore, that is not
prima facie evidence but only a plea of the facts stated therein. Hence, the father will show that
he has the right to take custody of the child and not anymore the petitioner.

RULE 103 (CHANGE OF NAME) and 108 (CORRECTION OF ENTRIES) are still applicable.
They have only been amended but are not yet repealed by RA 9048. Therefore, an affected
person can avail of Rule 103 or Rule 108 without RA 9048 being violated.

RA 9048 is known as administrative procedure of changing one's name or nick name or


administrative procedure of correcting an entry in a document. Therefore, being administrative, it
is extrajudicial. In case of Rules 103 and 108, they are judicial processes.

Q: Which courts have jurisdiction over Rules 103 and 108?


A: RTC, specifically the Family Courts.

Q: Venue?
A: Residence in case of change of name. Where the registry is located in case of correction of
entries.

Q: What are the amendments to these two rules brought about by RA 9048?
A: Remember that RA 9048 speaks only of names and nickname but when Rule 103 says
change of name, it does not only refer to name or nick name but also to family name. So if you
want to change the family name you cannot avail of RA 9048.

Q: What are the grounds?


A:
The same grounds. Under RA 9048, the same grounds:
1. That the name is ridiculous. If your name is Lucifer, you can have it changed under Rule 103
or RA 9048.
2. Tainted with dishonor. If your name is Osama Bin Laden, you can have it changed.
3. Your name is very difficult to pronounce or write. If your name is
supercalifragilisticexpialidocious.
4. That you are known by the name in the community.
5. To avoid confusion.
6. To avoid foreign alienage.
So the same grounds either under Rule 103 or RA 9048.

Under Rule 108, you have to correct entries in a document. And the enumerated public
documents where entries have had are as many as possible. Those which are in the custody of
the register of deeds. If the change are substantial, you cannot avail RA 9048 but Rule 108. You
can only avail of RA 9048 if the change sought is clerical or typographical in nature.

Q: Name is Maria Cecilia when in her birth certificate it shows as Ma. Cecilia, is that
typographical or clerical error?
A: There is no error there. What you have to seek is change of name because Ma is different
from Maria Cecilia. There is no error there.

You cannot avail of RA 9048 if it will change sex, status, or nationality. If there is error you can
change it under Rule 108 and not RA 9048.

Q: Suppose you do it under Rule 108, and it was denied. Where do you appeal or what is the
remedy?
A: The remedy is to go to the Civil Registrar General who is the Manager of the National
Census Administrative Office. It is not an appeal but a motion for reconsideration. If the civil
registrar affirms the denial, you file a PETITION under Rule 108.

Q: Going back to RA 9048, A was born in Quezon City, he now resides in Baguio City. Should
he go to Quezon City in order to file under RA 9048?
A: No, he has to file it in Baguio and under the rules the two civil registrar, that of Baguio and
Quezon city will coordinate. It also can be done abroad, by filing the same with the Philippine
Consulate, it is a matter of communication.

NOTE: Appeal in RA 9048 is with the Civil Registrar General. Although it is not really an appeal,
it is a motion for reconsideration. Appeal under Rule 103 or 108 is ordinary/ regular appeal. In
RA 9048, it is not really an appeal, wala naman kasi appeal sa administrative remedies, you use
the word appeal for facilitation of better understanding. But that is not an appeal, motion for
reconsideration siguro.

EVIDENCE

TESTIMONIAL EVIDENCE
The weakest of all kinds of evidences precisely because it emanates from man who can always
try to controvert matters.
What are the qualifications?
You better memorize the qualifications. It's very simple because almost all problems of the
qualification of a witness can be answered through these basic characteristics of a witness.

A witness is one who can perceive and perceiving and can make known his perception.
So anybody.

Can a deaf-mute testify? Can a blind testify?


If he can perceive and perceiving and can make known his perception, he can testify. Even if
you don't get a perfect score, you will not get a zero for that because that is a correct answer.

Can a child of tender age testify?


If he can perceive and perceiving can make known his perception, he can testify.

In one and recent case wherein a child was asked to testify, the SC allowed the child to testify
because they find out that what is the criteria for ability to perceive is not just perceiving but
making known your perception to others. This is the case of People v. Bulimlit (not sure), they
spoke of the ability to perceive, then ability of communication. And they added the other one, the
ability to know the difference between what is right from wrong. In other words, some cases use
it as the ability to understand the nature of an oath.

In another case, the SC said that the child was not qualified to testify because he cannot
perceive and cannot make known his perception. The child was 2 1/2 years old.

Can a retardate testify?


She was the only witness in a rape case where she was a victim, the defendant's counsel was
able to destroy the testimony to the point of even getting an answer that she likes the act of
rape. But the SC convicted the accused nonetheless on the sole testimony of the retardate.
Rationale: the retardate is qualified because she can perceive and perceiving can make known
his perception.

Disqualification?
Basic exception to the general rule (one can perceive and perceiving can make known his
perception) is if the law disqualifies him. So if there is a law disqualifying a person, even if he
can perceive and perceiving can make known his perception, he is disqualified. You get that
from other laws, substantive laws. We have studied in Rule 119 regarding a state witness. One
of the qualifications of a state witness is that he must not have been convicted of a crime
involving moral turpitude. If you are convicted of a crime of moral turpitude, you cannot testify as
a state witness because the law disqualifies you to testify.
If you have been convicted of perjury, defamation or misrepresentation, or forgery, you cannot
be a witness to a will under your wills and successions law. And remember, before you
authenticate a will, you must present the three instrumental witnesses. If one witness is
convicted of perjury etc. then he cannot testify as a witness.

Other disqualifications:
1. Mental incapacity or Immaturity.
When you speak of maturity, it does not go with age. You may be of age but still immature. You
may not be of age but already mature. One who cannot decipher what is good and right. One
who does not appreciate the sanctity of an oath. These are signs of immaturity. In other words,
you are irresponsible. Who is irresponsible? One who cannot live up to situations. Who is
responsible? If he has the ability to respond. So you are irresponsible if the incident calls for a
correct response and you did not.

But if you are pronounced to be insane or psychotic, you are disqualified.


Children, under the Rule on Section 21, because of their maturity but remember that the
children may even be more mature than the adults. So this is a case-to-case basis. And
because of the Child Witness Rule it has demasculated or efeminated, wherein children cannot
testify. Because under the Child Witness Rule, there are a lot of exceptions where a child can
testify. There are a lot of what you call testimonial aids. If a child is testifying in a crime of rape,
you can give her a doll, then she would testify. What are your parts in the body which are similar
to the parts of this doll. Or she can ask to be held by the hand of her grandmother, mother,
brother, sister, etc. In fact, two years ago in the bar exams, there was a question about fiddling
testimony, this is under the Child Witness Rule.

2. Marital disqualification rule.


You often confuse that with marital privilege rule. A very important guide here is that the
marital privilege rule, the statements in the testimony which are not allowed are those of
communications which are confidential. But this is not so in marital disqualification rule. And in
the marital disqualification rule, the time frame is within or during marriage. But this is not in the
marital privilege rule. These are the things. but what are the waivers here? The waiver is upon
consent. Another waiver is one against another. Example is for annulment of marriage, the
witness in chief is the party involved.

3. The Dead Man's Statute


So if A files a case against the estate of B, or the property belonging to B being insane, then A
cannot testify on matters ante litem motam (before the controversy). The rationale behind is that
when law closes the lips of someone, the adverse party's lips must likewise be closed. But you
might be given certain problems, remember that the action here is limited to actions against the
estate in case of a deceased and the property of the insane in case the defendant is insane. So
if it is the estate, it must be an action against Rule 87 (action by or against the executor or
administrator), which are recovery of real or personal property, recovery of decedent's interest or
lien thereon or recovery for damages arising from an offense or action. So it will not be a
contractual money claim, because it is a claim against the estate. This one is against the
executor or administrator.
Exceptions: If there is a waiver, if one consents to the other. But an implied waiver here is
if the defendant executor or administrator interposes a counterclaim. The dead man's statute
does not apply because who will establish the counterclaim. How will you oppose the
counterclaim. And remember that the subject matter are those before the controversy, ante litem
motam.

4. Privilege Rule
Basic characteristic here in these instances is the confidential nature of the communication
between one party and the other. So you start with husband and wife. It is not stated there but
this husband and wife relationship can only be invoked by those who are legally married.
Although it is not stated in the Rules. Because if you give that privilege to those who are not
legally married, you are giving a premium to illegality. Therefore, if you are only a common law
wife, this rule will not apply to you.

5. Lawyer and Client relationship


It is not the client who is privileged here but rather the lawyer who cannot be compelled to testify
on matters which he receives from the client or regarding matters he gave as advices to the
client. How about the client testifying? Of course, the client can testify, but not the lawyer. But,
together with the lawyer and the alter ego of the lawyer which is the secretary or his
stenographer. So that would even be sui generis, that would even include his clerk in the office.
Because, practically, the secretary or his stenographer knows everything. But this has
something to do in the course of the practice of the profession. For example: a client goes to
you and communicate matters regarding her amorous affairs and starts insinuating something,
this has nothing to do with the case. And of course if there is consent, this is another waiver.

6. Doctor and Patient relationship


Look, there is a peculiarity there. The disqualification is only in civil cases and not in criminal
cases. Because in many instances, the doctor is even required to testify in criminal cases. The
term doctor expands also to his alter ego, or similar, sui generis also. But how about the quack
doctor? No. It is not within the privilege because that would again be giving premium to an
illegal practice of medicine. And also the matters privileged are those within the communication
within the confidential nature of the communication in relation to the medical practice of the
person.

7. Priest and Penitent relationship


At least in the catholic church, this has never been violated. A lot of priests have fallen and got
out of their priestly ministry but had never broken this confession.

8. Public Officer
But here what you have to look into is the public interest. If in disclosing matters, it would be
detrimental or prejudicial to public interest, then you cannot force. Example is military secrets.
But not the testimony of oakland mutineers.

Parental and Filial Privilege


Parental is with regard to the Parent who cannot be compelled to testify against their children.
Filial is with regard to the child who cannot be compelled to testify against their parents. This is
not a disqualification per se. That's why it is privilege. It is more of legal incompetency. Parental
privilege and Filial privilege. Compulsion. But if parents would like to testify against children,
then go ahead. And if the children would like to testify against their parents, there is no
prohibition. You cannot force them if they do not want to. This is where the prohibition lies. There
are many jurisprudence where the accused is the father in the crime of rape. The daughter can
definitely testify against the father. Even the mother can testify against the father. This is not a
marital disqualification.

ADMISSIONS AND CONFESSIONS


When we speak of admission, this is a statement of a fact. There is no admission of liability
here, necessarily. But when you speak of a confession, it is always an acknowledgment of guilt.
It is an admission of liability.

So an admission, as a general rule, is admissible as against the admitter but not against other
people. While in confession, it must definitely be against the confessant and never against other
people.

What is the exception to that?


Inter-locking confession.
What is the doctrine of inter-locking confession?
If 6 are accused and 4 of them executed an affidavit detailing how the crime was committed and
pointing to the other 2, that extrajudicial confession is admissible as against the other 2 who did
not confess, pursuant to the doctrine of interlocking confession.

NOTE: When you speak of confession, personal yan. It refers only to the confessant. But when
you speak of admission, ordinarily it is admissible as against the admitter. That is not absolute
as it can be admissible as against other persons. So Section 26 says act, declaration or
omission of a person is admissible as to him. So even in the negative it is admissible as to him.

The act referred to there refers to a physical act. Declaration refers to a statement. Omission is
the failure to do something which the law calls you to do or provides that you do it but you did
not do it. So that is always admissible as to the declarant, actor, or omitter.

Don't confuse this with the res inter alios acta rule. That is provided for in Section 28. These
following sections must be read together. Section 26, 28 and 34 (other side of the res inter alios
acta rule).

Section 26, the act, declaration, or omission of a party is admissible as to the actor, declarant or
omitter. Self-explanatory. If you do it, then you are liable. But remember that the admissibility of
the declaration must be against their interest. Because under the Rules of Evidence, a
declaration which is self-serving is inadmissible. So if i declare that I did not steal the car, it is a
self-serving declaration. It is in fact a denial. And a denial, although stronger than affirmative
statement cannot always be taken in your favor. So the act, declaration, or omission must all be
positive. The declaration must be against one's own interest. So when you declare, for example,
that I was with Mr. A when he robbed the bank that is a declaration against interest. That can be
taken against you. But when you speak of the res inter alios acta rule, it's different. The rights of
a party cannot be prejudiced by the act, declaration or omission of another. So if Pedro acts,
declares or omits, that act, declaration, or omission cannot be taken against Juan. Yung kay
Pedro kay Pedro. Yung kay Juan kay Juan. So don't confuse Section 26 with Section 28. The
act, declaration or omission of a party cannot be taken against the other.

What is the general rule?


If you do something, you are responsible for it. If you do something, another is not responsible
for it. Ganun lang yan. Although, what you have to look into are the exceptions in the res inter
alios acta rule. So when you speak of an exception, the keyword there is privity. Pag may privity
of relationships, then that is an exception. So when A does something, that act, declaration, or
omission is not admissible as against B.
Exceptions:
1. If there is privity in their relationship. What is that relationship? It can be a relation of
partnership, agency, co-ownership, co-debtorship. So yan ang exception. B can be liable for
the act of A, if B and A are partners, agents of each other, co-owners, or co-debtors. But in
establishing the exception, you have to establish the existence of the agency, partnership,
co-ownership by evidence other than the act, declaration or omission of a party. So that is
where the difficulty lies because you have to get other evidence other than the act,
declaration or omission. So for example, A says, I entered into a contract with X together with
B who is my partner, the contract or the act of contracting cannot establish partnership. You
have to establish partnership by other evidence other than the act of contracting. And that
holds true with agency, co-ownership, and co-debtorship.
2. Conspiracy. In criminal law, the act of one is the act of all. you have to establish conspiracy
by evidence other than the act, declaration or omission of the party.
3. Admission by privies. So these relationships that we have exemplified are actually legal
relationships. But when you speak of privies, they are other forms of relationship. For
example, the relationship between the successor-in-interest and predecessor-in-interest,
father and son relationship, by succession. That is also privity in relationship.
4. Admission by silence. If A, B, C, D, and E, were the accused of robbery and they were put
in jail. They were confronted by the private complainant. Private complainant pointed them
as the accused and A, B, and C admitted their guilt reasoning poverty, D and E kept silent.
That is an admission by silence. Because they could have reacted. Silence means consent.
Exceptions to admissions by silence, if you are supposed to react and you did not react, your
silence is admissible against you. If you are under advisement by your counsel or if you
invoke your right to remain silent. If your answer would be self-incriminatory.

The other side of res inter alios acta rule is found in Section 34. This is the flip side of res inter
alios acta rule doctrine. And you will note that Section 34 says, that declaration cannot be
admissible as to others except that if Pedro does something or does not do anything on this
particular occasion, it does not follow that he did or did not do the same thing in another
occasion. So, you emphasize again there the exceptions. It is an evidence, nonetheless, of
intent, knowledge, scheme, plot, habit, custom. Yun ang ginagamit ng mga police investigators.

EXAMPLE: There is a complainant who goes to the police precinct and said ninakaw ang
kanyang cellphone. Saang parte ka ninakawan? Dun ho sa kanto ng extramadura at espanya.
Kukuha ng file yung pulis and points out to the person. Parang Ocean Eleven.

HEARSAY RULE
General Rule: You can only testify on what you know. Kaya nga, in connection with the general
guideline i gave you regarding qualification, one who can perceive and perceiving can make
known his perception, that is the general rule. Someone must personally perceive and not on
what others perceive.

What is the rationale behind the prohibition?


There is no opportunity on the part of the party to cross-examine the witness. So, this is the
general rule. You only testify on what you personally know.

What are the exceptions? Memorize.


Hindi na lang 11 ito. Kundi 12 na. And what is the 12th exception? Child Witness Rule.
1. Dying Declaration;
2. Declaration against interest;
3. Act or declaration about pedigree;
4. Family reputation or tradition regarding pedigree;
5. Common reputation;
6. Res Gestae;
7. Entries in the ordinary course of business;
8. Entries in official records;
9. Commercial lists;
10. Learned treatises;
11. Testimony or deposition at a former proceeding; and
12. Child Witness Rule
Dying Declaration
Bugbog na bugbog na yang dying declarations, in relation to the res gestae.. Just look at the
qualifications.

In res gestae, the declarant does not have to die. But in dying declaration, kaya nga dying,
namatay. Kung buhay pa yan, hindi dying declaration yan. Remember that these exceptions to
the hearsay rule, there is a basic requirement of unavailability of the witness. Because if the
witness is available, let him testify orally. The declarant must be conscious upon pending
death.

Requirements of dying declarations:


a. That death is imminent and the declarant is conscious of that fact;
b. That the declaration refers to the cause and the surrounding circumstances of such
death;
c. That the declaration relates to the facts which the victim is competent to testify;
d. That the declaration is offered in a case wherein the declarant's death is subject of the
inquiry (the victim necessarily must have died);
e. That the statement is complete in itself.

Declaration against interest. We discussed that partly.

Pedigree
Pedigree is a kind of relationship. If one testifies about the relationship of another because it is
known by him, then that is not hearsay. If I testify, I know Mr. X to be the illegitimate child of Mr.
Y. That is not hearsay. But when I say that it is well known in the community that Mr. X is not
legally married to Y. It can be about pedigree of marriage. Common reputation about pedigree.

Res Gestae
Two kinds. It can either be statements during an occurrence or spontaneous articulation in the
course of an event. If you are on top of a building, and you are looking over on the road and you
see both men coming at each other armed with a bolo. These are all part of the res gestae yung
reactions. Multiple admissibility, a witness or a testimony can be admitted because of a res
gestae or a dying declaration.

Treatises
It refers to publications and the witness who testifies is not the author. Because if the author
testifies on his own writing, then it is not hearsay. It is someone else who testified on a
treaty or a publication by a well-known author or write in specialized fields, this is considered
hearsay but admissible. But another qualification, the one who testifies on that must be
knowledgeable on the subject matter. Suppose there is a book by Gerardo Sicat. He is well-
known Economist, then the one who is testifying about his book is Bernardo Villegas, another
well-known economist. Definitely, even if that is hearsay as far as the witness is concerned but
this is considered as an exception because it is learned treatises. Another example is a doctoral
thesis. So you tie this up with expert witnesses.

Entries or commercial lists


Just go over the requirements of each.
Testimony at a former proceeding or deposition
We have extensively studied deposition.

OPINION RULE
Going back to the general formulation, one who can perceive and perceiving can make known
his perception. So what are you suppose to testify on? What you perceive and not what you
think about what you perceive because that is already a matter of opinion. Opinions are not
allowed in testimonies.
Exceptions:
1. Expert Witness
2. Ordinary Witness
a. identity of a person about whom he has adequate knowledge
b. handwriting with which he has sufficient familiarity
c. mental sanity of a person with whom he is sufficiently acquainted

An expert witness must testify on his experties. Example is in a case of annulment of marriage,
mandatorily, the law says that an expert witness must testify when the ground is Psychological
incapacity.
An ordinary witness may testify on his opinion but limited only to 3 instances.

Doctrine of independently relevant statement


You are not trying to establish the content whether it is true or not but you are only trying to
establish the fact that someone (C) told you that X went with A. As to the existence of the fact
and not as to the truth or veracity of the issue.

RULE 131
Who has the burden of proof?
Burden of proof must first be distinguished from burden of evidence. While burden of proof does
not shift, burden of evidence shifts. Burden of proof means, the you need to establish a claim.
Now that claim may be propounded by the plaintiff or the defendant in the case of counterclaim
in civil cases or in the case of defense on the part of the accused in criminal cases. So burden
of proof lies thereof on the claimant. He who claims something must establish his claim by proof.

There is a peculiarity of burden of proof as distinguished from burden of evidence in criminal


cases. Because in criminal cases, the quantum of evidence being proof beyond reasonable
doubt, the burden is always with the prosecution. It never shifts from the beginning to the end.
What shifts is the burden of evidence. So when the prosecution has already established its
claim that the accused killed the victim, it is incumbent upon the accused to disprove the claim.
What is the burden of evidence? Putting forward the evidence. This is the literal meaning.

That is clear in civil cases. Because the plaintiff presents evidence to establish his claim (sum of
money), demand letters, contract of loan. After he has established his burden of proof, comes
now the burden of evidence. Meaning to say, who has now the burden of presenting of evidence
to disprove the proof presented by the plaintiff is now the defendant. But when the defendant
would like to establish now his defense (affirmative relief), he has the burden of proof. The
defendant has to establish his proof. This is not burden of evidence but proof.

What are the two kinds of presumptions?


They are Conclusive and Disputable Presumptions.
What is a conclusive presumption?
Conclusive presumption is such kind of presumption which can never be controverted. No
amount of evidence can destroy or overturn conclusive presumption.

What are the two kinds of conclusive presumptions?


Estoppel in pais and the title of the landlord. Kaya memorize niyo na.

What is this estoppel in pais?


When by my act, declaration, or omission, i make someone believe that such a thing is true, I
cannot deny my actuation anymore. I am conclusively presumed. I am estopped from denying
facts. A, vendor, sells his real property, consisting of 100sq. m. lot to B. B would not want to buy
it, but A says, I have a special power of attorney because the title is not titled to A. So B agreed.
On that basis of that declaration, later on he cannot deny otherwise. It is estoppel in pais.

In the same kind of example, we give the second kind of conclusive presumption. If A, as the
seller, says that I am going to sell this to you which I also bought from Mr. X, therefore, I had a
title to the property. Then if B, later on, says wala ka naman palang titulo sa property. No. B is
now bound by the claim of title of A. Malimit yang mangyari sa contract of lease. A and B
entered into a contract of lease over a parcel of land. Then B being the lessee, 3 years after,
realized that A is really not the owner but the government. You cannot deny now. It must be
before the act, declaration, or omission or before they entered into a contract.

As to disputable presumptions
There are 37 disputable presumptions. You go over these disputable presumptions.

The evidence willfully suppressed would be adversed if produced. The emphasis is based on
the ground that there are a lot of cases relative to this presumption. So remember that this has
something to do with suppression of evidence.

And what are the requisites?


1. That the evidence suppressed is at the disposal only of the suppressing party.
2. That the suppression is willful.
3. That the evidence suppressed is not merely corroborative or cumulative.
4. And that the suppression is not in the exercise of a privilege.

Letter E. The first two are the most important requisites. These suppression of evidence are of
any kind. Real, documentary and even testimonial evidence is covered. Suppose it is a
prosecution for rape, and then the prosecution says, I would no longer put in the witness stand
the police investigator. And then the other party says, it is suppression of evidence because if
the evidence will be presented, it will be adverse to the prosecution. No, the courts would say
that is not suppression of evidence because the police investigator is available to both of you.
Bakit? Pwede mo namang ipresent ang police investigator by any party. The first requisite has
not been complied with because the evidence suppressed is not only at the disposal of the
suppressing party.

But suppose the evidence that I would like to present is x-ray which is a medical record. I asked
for the subpoena duces tecum. The hospital did not produce it. The court sustained and said
that this is suppression of evidence.

If it is not willfully suppressed then the presumption would not apply.


Letter M. That official duty has been regularly performed. Maraming kaso ito. Accused was
charged of selling 980 grams of shabu in a buy-bust operation. During his trial, the prosecution
relied mainly on the testimony of a policeman who acted as a buyer. Can the court rely on the
presumption that official duty has been regularly performed in convicting the accused? No.
Why? To determine whether there was a valid entrapment or where entrapment procedures
were undertaken in effecting the buy-bust operation, it is incumbent upon the court to make sure
that the details of the operation are clearly and adequately laid out, relevant, material and
competent evidence. The court cannot rely but must study these things.
People v. Ong 432 SCRA (2004). If you want to apply this presumption, you have to outline the
rules and regulations governing performance of such obligation. If you don't outline, there is no
presumption that it was regularly performed. So it was more of a defense. If there is a sweeping
statement that there is a presumption, then establish that the following are the functions, for
example a clerk of court in the issuance of a writ of execution. Outline first the functions of a
clerk of court, kumbaga ba e is it the duty of the clerk of court or is it the judge.

Letter W. You have studied this already. The presumption of death. Amendment, if there is
presumption of death. Example: where a mother files damages against an airline, where she
contends that her son died in the crash. The defense of the airline was that no body was
recovered. So the mother also filed for presumption of death. The SC, there is a provision for
the presumption of death. Since the death only happened last year then she must wait for 4
years before she can apply for the presumption of death.
I'm talking of presumption ha. But if you have the body already, then this presumption would not
apply.

Letter Double A (aa). That a man and woman deporting themselves as husband and wife had
entered into a lawful contract of marriage.

Letter Double B (bb). That property acquired by a man and a woman who are capacitated to
marry each other and who live exclusively each other as husband and wife without the benefit of
marriage or under a void marriage has been obtained by their joint efforts, work or industry.

Letter Double J (jj). Succession. When two persons perish in the same calamity.
1. Both are under the age of 15 years - older
2. Both are over the age of 60 years - younger
3. One is under 15 and the other is above 60 - former
4. One is over 15 and the other is under 60, different sex - male
5. One is over 15 and the other is under 60, same sex - older
6. One is under 15 or over 60 and the other between those ages - latter

RULE 132 - PRESENTATION OF EVIDENCE


To have a bird's eye view, you divide it into three parts:
1. Examination of witness - Section 1-18
2. Authentication and proof of documents - Sections 19 - 33
3. Offer and objection - Sections 34 - 40

Examination of a witness presented in a trial or hearing shall be done in open court and under
oath or affirmation.

The opposition of open court is in chamber.


But all these examinations of witness is in the presence of a judge whether in open court or in
chambers.
The entire proceedings must be recorded. The official record is what you call the transcript of
stenographic notes. And the contents of the stenographic notes is prima facie correct.

For practical purposes, when you are now trying a case, in the next hearing, be sure that you
have already the copy of the transcript of the last hearing. Why? The only time to correct errors
in the transcript of the stenographic notes is before the trial of the case. If you don't correct the
transcript of the stenographic notes, the basis of the judgment would always be the transcript of
the stenographic notes. In fact, a judge who did not hear the case at all can still render judgment
solely based on the transcript of the stenogrpahic notes. Before the 1997 Rules of Court, some
courts are not courts of record, like the inferior courts. Under the present rules, all courts are
already courts of record. How about quasi-judicial agencies, are they courts of record? Yes they
are at present even though the rules do not so provide but as a matter of practice.

Section 4. Order in the examination of an individual witness


We distinguished that from order in the presentation of evidence which we under Rule 30
Section 5 and Rule 119, Section 11. So in Civil Procedure, the order of trial is found in Section 5
of Rule 30. In criminal cases, Section 11 of Rule 119. That is order of trial. In the order of trial, in
criminal cases, we start with the prosecution's evidence. Then accused's evidence. In civil
cases, we start with plaintiff's evidence. Then followed by defendant's evidence. And followed by
3rd party, 4th party defendant and the intervenor. But here it is the order of examination. Direct,
Cross, Re-Direct, and then Re-Cross.

Is there a re re-direct or re re-cross examination?


Technically there is none. But in practice you ask for additional re-direct examination or
additional re-cross examination.

In direct examination, you can have an examination in chief. Your cross-examination is limited to
the subject matter of the direct. The re-direct is limited to the cross. Then the re-cross is limited
to the re-direct.

What happens now to the testimony of the witness whose cross-examination was not
undertaken for one reason or the other, should it be deleted from the record or remain?
It all depends upon the reason for the failure to cross-examine. If after the direct examination,
the defense counsel said your honor I have another hearing in another court, so i would not
undertake my cross-examination. I move for continuance. By next week i will undertake my
cross-examination. It was granted. 3 days after the witness died. So what was taken under the
stenographic notes was only the direct examination without re-cross. Here comes now the
defense counsel, Your honor i move that the direct testimony be stricken from the record for
failure or without giving the chance to cross-examine. The court should deny it. It should remain
in the records because the motion for continuance was on the part of the defendant. If it was
due to the plaintiff's counsel, then the examination may be stricken off the record. Example: after
the direct examination, the defense's counsel undertook to cross-examine. If the continuance
was moved by the plaintiff's counsel.

Section 10. Leading and Misleading Questions


A leading question is not allowed. Rationale: Because you already suggest the answer. So
parang ikaw na ang sumasagot din. They say that ordinarily, questions answerable by yes or no
are leading questions. But take note of exceptions.
1. Preliminary matters - example, mr. witness are you the plaintiff in this case?
2. On cross examination - Rationale: because katunggali yan. He will never answer questions
in your favor.
3. Of an unwilling or hostile witness and witness who is an adverse party - same reason.

But you have to distinguish an adverse witness from a hostile or unwilling witness. As to adverse
witness, you don't have to qualify him because that can be taken judicial notice of by the court.
But if you present an unwilling witness or a hostile witness, you have to lay down the predicate.
You have to establish that he is unwilling or a hostile witness.
4. Difficulty in getting direct and intelligible answers from a witness - leading question is
allowed on a child.

A misleading question is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he has previously stated. It is not allowed. In all
instances, a misleading question is not allowed. Because you are deceitful, you prevaricate
(beat around the bush) actually. You intend to tell a lie.

Example: Mr. Witness you stated that on such a date you were in that particular place.
Objection your honor, there was no testimony to that effect. That is misleading. Another
example: Or he testified already. On april 5, 1995, i was watching TV. Then during cross
examination he asked, Mr. Witness you testified that on April 5, 1995 you were watching the
basketball game. Misleading question.

Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS


How do you impeach?
1. By contradictory evidence
2. By evidence that his general reputation for truth, honesty, or integrity is bad
3. By evidence that he has made at other times statements inconsistent with his present
testimony.

What is the very common way of impeachment?


Contradictory evidence. Recall your deposition. The deposition of a witness may be used
against him.

Mahirap ang 2nd. Ordinarily, you cannot establish the bad character of the witness unless it is
testified to or is the subject matter or issue, otherwise you cannot do that.

Section 15. Exclusion and Separation of Witnesses


This is an exception to the general right to a public, speedy and impartial trial. This is exception.
But if you are a party to the case, you can never be excluded.

Section 16. When witnesses may refer to memorandum


There are two doctrines in this section.
Present Recollection Revived and Past Recollection Recorded.
General Rule is that you testify only on what you personally know, perceive on your own
and without kodigo.

Exception: this section.

Example: Suppose a witness, on his way home, may hinoholdap. Pagdating niya sa bahay,
since he has the habit of writing a diary, he wrote down what he witnessed from the hold-up. For
one reason or the other, he was asked to testify. Then he said, I recall that I witness an occasion
of a hold-up, but i cannot recall really the exact incident. The counsel would say, your honor we
are invoking the doctrine on present recollection revived, may he refer to a memorandum. The
court may allow that under this rule.

What is not allowed is to have the diary marked in evidence as testimonial evidence. Never, that
is not allowed. So he testifies on his own, the diary is used only to refresh his memory. It is not
evidence in itself but the evidence here is testimonial and not documentary.
That is present recollection revived.

Have you come across Estrada v. Desierto. The Angara Diary. This is a present recollection
revived. A new term is coined, Adoptive Evidence.

What is Past recollection recorded?


An example of this would be let's say a medico legal case is being prosecuted. The medico legal
officer has a lot of cases already examined, thus when he is put to the witness stand, he may be
allowed to consult with his examination records or autopsy records of Mr. X. Now that can be
marked in evidence. Because that is an entry of official records in hearsay rule. That can be
considered. Certification from a government agency is hearsay in itself but it is an exception to
the hearsay rule.

Second part of Rule 132 - Authentication and proof of documents


Classes of documents:
Public or private

If you are asked what are public documents.


There is no definition. There is but an enumeration. So enumerate public documents.

If you are asked what are private documents.


Your correct answer is that which is not public. Tama yun by exclusion. The definition is all other
writings are private.

What are public documents?


1. The written official acts or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines or of a foreign
country;
Written official act - E.O., Records of laws passed in congress. Take note of this foreign country
when we talked mandatory judicial notice. As a general rule, our courts cannot take judicial
notice of foreign laws. That must be established by evidence.

2. Documents acknowledged before a notary public except last wills and testaments; and
An affidavit is not contemplated here. Because it must be acknowledged. An affidavit is only
subscribed and sworn to, or jurat. What is acknowledged? A deed of conveyance or a deed of
sale. When you find an acknowledgment in the document, it does not require authentication
because that is a public document.
Except last wills and testaments because under the laws on succession, there is a different way
of establishing the authenticity and due execution of a last will and testament. 3 instrumental
witness.
3. Public records, kept in the Philippines, of private documents required by law to be
entered therein.
Birth certificates when submitted to the National Census or the Civil Registrar. Marriage
contract. Death Certificate.

NOTE: Do you recall when we studied correction of entries under Rule 108. 15 items. All other
writings are private. So pag private writing lang ang dapat iauthenticate.
I told you the 6 requirements for the admissibility of evidence. Yung isa ay authentication. And
exception to that would be public documents because it need not be authenticated.

How do you authenticate private documents? (Section 20)


1. By anyone who saw the document executed.
2. By evidence of the genuineness of the signature or handwriting of the maker.
3. Any other private document need only be identified as that which it is claimed to be.

Ano ba ang ibig sabihin nito? Yung mga hindi material. You need not authenticate it anymore. If
you want to establish, for example, that on your way home you got a letter from the mailbox
which happens to be a love letter.

Section 21. Evidence of Authenticity Not Necessary


1. It is more than 30 years old;
2. It is found in the proper custody as its nature requires; and
3. It is unblemished by any alterations or by any circumstance of suspicion.

Example: birth certificate. Sino pa ba ang magtatago ng birth certificate kung hindi ikaw din
lang. It must be unblemished by any alterations or by any circumstance of suspicion.

Section 29. How Judicial Record impeached


1. By evidence of want of jurisdiction in the court or judicial officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, in respect to the proceedings.

Please connect this with Section 47 of Rule 39 on Foreign Judgments because the way to
impeach it is also by lack of jurisdiction, collusion or fraud.

Third Part - Offer and Objection


The courts shall not consider any evidence which has not been formally offered.

So what are the requirements again for admissibility?


Relevancy, competency, identification, marking, authentication, offer.

When do you make an offer?


It depends.
1. Real evidence - you offer it right there and then.
2. Documentary evidence - you offer it before you rest your case or presentation of evidence.
3. Testimonial evidence - you offer it before the witness testifies.

So you call on a party, an LRA case, cancellation of adverse claim. The witness is the petitioner
himself. You lay down the foundations before the testimony be taken. Your honor, the witness is
called upon to establish the truth that he is the petitioner of the case, that he is the owner of the
TCT, that such title carries an encumbrance or annotation of adverse claim, and that he seeks to
have it cancelled before this court and that she will identify documents relative to this case. Yan
ang formal offer of testimonial evidence.

All jurisprudence says, as a general rule, that when you don't make an offer the testimony is
inadmissible. But latest jurisprudence says that even if you did not make an offer at the
beginning of your testimonial evidence that can be corrected. That's the latest jurisprudence
now. It can be corrected by making the offer at the middle or after. So the SC is not strict as to
the time. But the rule says that you must offer it before the testimonial evidence.

In case of documentary evidence, you make the offer in writing, as a general rule. You can only
make it orally if the court allows it, if there are only few documentary evidences.

You make the objections during the offer. In the case of the testimonial, after the offer. In the
case of documentary, you make objections upon receipt of a copy of the formal offer of
evidence.

The objections referred to here is not only regarding objections to the offer of evidence. During
the testimony or in the course of the proceeding, you can also make objections.

How many kinds of objections are there?


Substantial and Formal objection

What is substantial objection?


It goes into the substance of what is being objected to.

What is formal objection?


It only goes into the form, the way it is at.

Objection to the leading question is only a formal objection

Section 40. Tender of excluded evidence


What is proffer of evidence?
It is also known as offer of proof. But the correct term is tender of excluded evidence.
When a witness has been declared as incompetent witness, the adverse counsel may ask for
the proffer of evidence. If the witness were allowed to testify, he would have established the
following. So in the case of appeal, the appellate court will see and determine the grounds why it
was objected to and may reverse the trial court.

RULE 133 WEIGHT AND SUFFICIENCY OF EVIDENCE


Quantum of evidence:
1. Overwhelming evidence strongest, that which can never be contradicted.

2. Proof beyond reasonable doubt - this is necessary in criminal cases, it does not absolute
certainty but only moral certainty. Moral certainty is that which an unprejudiced mind would
believe that the thing or that that exist. That the accused is guilty thereof based on the
circumstances or evidence.

3. Preponderance of evidence - that which has heavier evidence wins. The graphical
illustration is the lady justice with a scale. Pag balanced yun, there is no preponderance. You
apply the equipoise doctrine. This doctrine is if the scale is balanced, status quo. Defendant
wins. Accused acquitted.
But preponderance means that one side is weightier than the other side. How do you
determine? It is not a matter of number or nature of testimony, but it is a matter of many
circumstances lumped together, credibility of the witness, the nature of the testimonies.
Jurisprudence has given us the basic doctrine, which is that the witness must not only be
credible but his testimony be credible as well.
Example, if you put on the witness stand a priest to testify, he is a very credible witness. But
suppose the priest testified and said that he was on the moon on that date. Then his testimony
is incredible. Or you took someone who is an ex-convict. He testified in a very credible manner.
The ex-convict is not a credible witness but had a credible testimony.

4. Substantial evidence - clear and convincing evidence. This is necessary only in


administrative hearing or procedure. Labor cases for example. It is similar to probable cause.
That which an unprejudiced mind would consider true based on the facts and circumstances
on the evidence presented based on those facts and circumstances.

5. Probable cause - is the quantum of evidence also, that is the required in preliminary
investigations and preliminary examination.

6. Prima Facie Evidence - that evidence which is not so controverted becomes conclusive.
Can prima facie evidence convict? Yes, solely by it, if the evidence was never controverted, it
becomes conclusive.

7. Iota of evidence - is one circumstantial evidence. Lightest form of evidence. It can never
convict. Because under the rule, there must be more than one circumstance. And the
conclusion arrived at must have been established. And that these several circumstances
establish only one conclusion.

People v. Ador - 432 SCRA June 14, 2004


Ganito yun, in convicting an accused for murder, the trial court relied on the circumstances
namely:
1. He was seen fleeing from the crime;
2. That he allegedly surrendered a hand gun;
3. That the slug taken from the head of the victim was fired from the gun surrendered;
4. That the victim made a dying declaration identifying him; and
5. That the paraffin tests show that he was positive for gun powder.

Is the conviction proper?


The SC said no. For circumstantial evidence to suffice there must be more than one
circumstance. The facts from which the inferences derived are proven. They were not all proven.
The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. So the second and the third requirements were not complied with. Accordingly, the
following are the guidelines in appreciating circumstantial evidence, so please go over it.

You distinguish that from People v. Mansueto 336 SCRA 715 July 31, 2006, Chief Justice
Davide considered the circumstantial evidence valid to convict the accused. So tingnan niyo
diperensya dun in these two cases.

Section 7.
What is evidence on motion?
When a motion is based on facts not appearing of record the court may hear the matter on
affidavits or depositions presented by the respective parties, but the court may direct that the
matters be heard wholly or partly on oral testimony or depositions.

What is a good example of this?


The one we were discussing about search warrants. Because if you file a motion to quash the
search warrant in a court which did not issue the search warrant (like the case of Washington
Distillers v. CA) then it is evidence on motion. In other words, the basis of the motion are not
parts of the records, so you have to establish those parts.

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