Up Law Boc Remedial Law 2016

2016 University of the Philippines
College of Law
Bar Reviewer
Dean Overall Head

Dean Danilo L. Concepcion Eleanor Zosa
Associate Dean Subject Heads

Prof. Concepcion L. Jardeleza Eleanor Zosa
Chris Nuevo
Academics Committee Heads

Evert Callueng
Paulo Faustino
Carlos Hernandez
Audrey Ng
Desiree Sokoken
4TH WEEK
REMEDIAL
LAW
UP Law Bar Operations Commission 2016

UP Law Bar Operations Commission 2016
UP LAW
BAR OPS 2016
UP LAW BOC TABLE OF CONTENTS REMEDIAL LAW
A. ACTIONS ................................... 20
A.1 KINDS OF ACTIONS ............................ 20
A.2 CIVIL ACTIONS VERSUS SPECIAL
Table of Contents PROCEEDINGS ...........................................21
A.3 PERSONAL ACTIONS AND REAL
ACTIONS......................................................21
A.4 LOCAL AND TRANSITORY ACTIONS 22
Civil Procedure 1 A.5 ACTIONS IN REM, IN PERSONAM, OR
QUASI IN REM ........................................... 22
I. GENERAL CONCEPTS ....................... 2 A.6 INDEPENDENT CIVIL ACTIONS [SEC. 3,
A. CONCEPT OF REMEDIAL LAW ...... 2 RULE 111] ..................................................... 23
A.1 SOURCE ................................................. 2 B. CAUSE OF ACTION ..................... 23
A.2 APPLICABILITY ..................................... 2 B.1 RIGHT OF ACTION VERSUS CAUSE OF
A.3 PROSPECTIVITY/ RETROACTIVITY ..... 2 ACTION ....................................................... 24
B. SUBSTANTIVE LAW VIS--VIS B.2 FAILURE OF THE COMPLAINT TO
REMEDIAL LAW ............................... 2 STATE A CAUSE OF ACTION .................... 24
C. RULE MAKING POWER OF THE B.3 SPLITTING A SINGLE CAUSE OF
SUPREME COURT ............................ 3 ACTION; EFFECTS ..................................... 25
C.1 POWER OF THE SC TO AMEND B.4 JOINDER AND MISJOINDER OF
PROCEDURAL RULES .................................3 CAUSES OF ACTION ................................. 26
C.2 POWER OF SC TO SUSPEND ...............3 C. PARTIES .................................... 26
D. NATURE OF PHILIPPINE COURTS . 4 C.1 REAL PARTY-IN-INTEREST ................ 27
D.1 MEANING OF A COURT........................ 4 C.2. INDISPENSABLE AND NECESSARY
D.2 CLASSIFICATION OF PHIL. COURTS .. 4 PARTIES .....................................................28
D.3 PRINCIPLE OF JUDICIAL HIERARCHY 5 C.3 INDIGENT PARTIES .............................28
D.4 DOCTRINE OF NON-INTERFERENCE 6 C.4 ALTERNATIVE DEFENDANTS ............ 29
II. JURISDICTION ................................. 6 C.5 COMPULSORY AND PERMISSIVE
A. ASPECTS OF JURISDICTION JOINDER OF PARTIES ............................... 29
[BOSTON EQUITY RESOURCES, INC. V. C.6 MISJOINDER AND NON-JOINDER OF
CA, G.R. NO. 173946 (2013)] ............. 6 PARTIES .....................................................30
A.1 JURISDICTION OVER THE SUBJECT C.7 CLASS SUIT ..........................................30
MATTER ....................................................... 6 C.8 SUITS AGAINST ENTITIES WITHOUT
A.2 JURISDICTION OVER THE PARTIES ... 9 JURIDICAL PERSONALITY ......................... 31
A.3 JURISDICTION OVER THE ISSUES ...... 9 C.9 EFFECT OF DEATH OF A PARTY-
A.4 JURISDICTION OVER THE RES OR LITIGANT ..................................................... 31
PROPERTY IN LITIGATION ........................ 10 D. VENUE ...................................... 32
B. JURISDICTION OF COURTS ......... 10 D.1 VENUE VERSUS JURISDICTION ......... 33
B.1 SUPREME COURT ................................ 10 D.2 VENUE OF REAL ACTIONS ................ 33
B.2 COURT OF APPEALS ........................... 11 D.3 VENUE OF PERSONAL ACTIONS ...... 33
B.3 COURT OF TAX APPEALS .................. 12 D.4 VENUE OF ACTIONS AGAINST NON-
B.4 SANDIGANBAYAN [P.D. 1606, AS RESIDENTS ................................................ 33
AMENDED BY R.A. 7975 AND R.A. 10660] D.5 WHEN THE RULES ON VENUE DO
..................................................................... 13 NOT APPLY ................................................ 34
B.5 REGIONAL TRIAL COURTS ................ 14 D.6 EFFECTS OF STIPULATION ON VENUE
B.6 FAMILY COURTS [RA 8369] ............... 17 ..................................................................... 34
B.7 METROPOLITAN TRIAL COURTS/ E. PLEADINGS ............................... 34
MUNICIPAL TRIAL COURTS ...................... 17 E.1 KINDS OF PLEADINGS ........................ 34
B.8 SHARIA COURTS ................................ 18 E.2 PLEADINGS ALLOWED IN SPECIAL
C. JURISDICTION OVER SMALL RULES........................................................ 40
CLAIMS .......................................... 18 E.3 PARTS OF A PLEADING ...................... 41
D. CASES COVERED BY RULES ON E.4 ALLEGATIONS IN A PLEADING .........44
SUMMARY PROCEDURE .................. 19 SPECIFIC DENIALS ....................................45
E. CASES COVERED BY BARANGAY E.5 EFFECT OF FAILURE TO PLEAD ........46
CONCILIATION ................................ 19 E.6 DEFAULT .............................................46
F. TOTALITY RULE ......................... 20 E.7 FILING AND SERVICE OF PLEADINGS
III. COMMENCEMENT OF ACTIONS TO .....................................................................49
TRIAL ............................................... 20
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E.8 AMENDMENT AND SUPPLEMENTAL L. PRE-TRIAL ................................. 70

PLEADINGS ............................................... 52 L.1. NATURE AND PURPOSE .................... 70
F. SUMMONS ................................. 55 L.2. NOTICE OF PRE-TRIAL ...................... 70
F.1 NATURE AND PURPOSE OF L.3. APPEARANCE OF PARTIES ................ 71
SUMMONS IN RELATION TO ACTIONS IN L.4. PRE-TRIAL BRIEF ................................ 71
PERSONAM, IN REM, AND QUASI IN REM L.5. PROCEEDINGS DURING AND AFTER
.................................................................... 55 PRE-TRIAL ................................................. 72
ACTIONS IN PERSONAM ......................... 55 L.6. DISTINCTION BETWEEN PRE-TRIAL IN
ACTIONS IN REM AND QUASI IN REM ... 55 CIVIL CASE AND IN CRIMINAL CASE ....... 72
F.2 VOLUNTARY APPEARANCE .............. 55 L.7. ALTERNATIVE DISPUTE RESOLUTION
F.3 MODES OF SERVICE OF SUMMONS 56 ..................................................................... 73
PERSONAL SERVICE ................................ 56 M. INTERVENTION ......................... 76
SUBSTITUTED SERVICE OF SUMMONS . 56 M.1. REQUISITES FOR INTERVENTION ... 76
SERVICE BY PUBLICATION MEANING OF LEGAL INTEREST .............. 76
(CONSTRUCTIVE SERVICE) ......................57 M.2. TIME TO INTERVENE ........................ 76
SPECIAL CLASSES OF DEFENDANTS M. 3. PLEADINGS-IN-INTERVENTION ..... 76
.....................................................................57 M.4. REMEDIES OF THE PARTIES ........... 76
F.4 RETURN AND PROOF OF SERVICE .. 58 N. SUBPOENA ................................. 77
RETURN [SEC. 4, RULE 14] ...................... 58 N.1. SUBPOENA DUCES TECUM .............. 77
ALIAS SUMMONS [SEC. 5, RULE 14] ...... 58 N.2. SUBPOENA AD TESTIFICANDUM..... 77
PROOF OF SERVICE [SEC. 18, RULE 14] . 59 N.3. SERVICE OF SUBPOENA .................. 77
G. MOTIONS IN GENERAL .............. 59 N.4. COMPELLING ATTENDANCE OF
G.1. CONTENTS AND FORM OF MOTION59 WITNESS .................................................... 78
G.2 KINDS OF MOTIONS .......................... 59 N.5. QUASHING OF SUBPOENA .............. 78
G.3 NOTICE OF HEARING AND HEARING GROUNDS .................................................. 78
OF MOTIONS ............................................. 60 O. MODES OF DISCOVERY .............. 78
G.4. OMNIBUS MOTION RULE ................ 60 O.1 DEPOSITIONS ...................................... 78
H. MOTION FOR BILL OF TAKING OF DEPOSITION .......................... 78
PARTICULARS ............................... 60 USES AND SCOPE OF DEPOSITION ........ 79
H.1. PURPOSE AND WHEN APPLIED FOR OBJECTIONS TO ADMISSIBILITY ............ 80
..................................................................... 61 TERMINATION OF TAKING OF
H.2 ACTION OF THE COURT ..................... 61 DEPOSITION OR LIMITATION OF SCOPE
H.3 COMPLIANCE WITH THE ORDER ...... 61 .................................................................... 80
H.4 EFFECT ON THE PERIOD TO FILE O.2. WRITTEN INTERROGATORIES OF
RESPONSIVE PLEADING........................... 61 ADVERSE PARTIES [RULE 25] .................82
J. MOTION TO DISMISS .................. 62 SERVICE OF INTERROGATORIES TO
J.1. GROUNDS ........................................... 62 PARTIES .....................................................82
J.2. RESOLUTION OF MOTION ................ 66 ANSWERS .................................................. 83
J.3. BAR BY DISMISSAL ............................ 66 OBJECTIONS TO INTERROGATORIES..... 83
J.4. REMEDIES OF PLAINTIFF WHEN THE CONSEQUENCES OF FAILURE TO
COMPLAINT IS DISMISSED ...................... 66 ANSWER..................................................... 83
J.5. REMEDIES OF DEFENDANT WHEN EFFECT OF FAILURE TO SERVE .............. 83
THE MOTION IS DENIED ...........................67 O.3. REQUEST FOR ADMISSION [RULE 26]
J.6. WHEN GROUNDS PLEADED AS ..................................................................... 83
AFFIRMATIVE DEFENSES .........................67 IMPLIED ADMISSION BY ADVERSE PARTY
J.7. DISTINGUISHED FROM DEMURRER ..................................................................... 83
TO EVIDENCE [RULE 33] ...........................67 CONSEQUENCES FOR FAILURE TO
K. DISMISSAL OF ACTIONS ............. 67 ANSWER REQUEST ................................. 84
K.1. DISMISSAL UPON NOTICE BY EFFECT OF ADMISSION ........................... 84
PLAINTIFF ...................................................67 EFFECT OF FAILURE TO FILE AND SERVE
K.2. DISMISSAL UPON MOTION OF REQUEST FOR ADMISSION .................... 84
PLAINTIFF .................................................. 68 O.4. PRODUCTION OR INSPECTION OF
K.3. DISMISSAL DUE TO FAULT OF THE DOCUMENTS OR THINGS [RULE 27] ..... 84
PLAINTIFF .................................................. 68 PRODUCTION OF DOCUMENTS VS
K.4. DISMISSAL OF COUNTERCLAIM, SUBPOENA DUCES TECUM ......................85
CROSS-CLAIM, OR THIRD-PARTY O.5. PHYSICAL OR MENTAL
COMPLAINT............................................... 69 EXAMINATION OF PERSONS [RULE 28] 85
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O.6. CONSEQUENCES OF REFUSAL TO POST-JUDGMENT REMEDIES WITHIN

COMPLY [RULE 29] .................................. 86 THE LOWER COURT .......................... 119
P. TRIAL ........................................ 86 C. RELIEF FROM JUDGMENTS.
P.1. ADJOURNAMENTS AND ORDERS, AND OTHER PROCEEDINGS
POSTPONEMENTS ................................... 87 ..................................................... 121
P.2. AGREED STATEMENT OF FACTS .... 87 D. ANNULMENT OF JUDGMENTS OR
P.3. ORDER OF TRIAL .............................. 87 FINAL ORDERS AND RESOLUTIONS
P.4. CONSOLIDATION OR SEVERANCE OF .................................................... 123
HEARING OR TRIAL .................................. 88 E. COLLATERAL ATTACK OF
P.5. DELEGATION OF RECEPTION OF JUDGMENTS ................................. 124
EVIDENCE .................................................. 89 VI. EXECUTION, SATISFACTION AND
P.6. TRIAL BY COMMISSIONERS............. 89 EFFECT OF JUDGMENTS ................... 126
Q. DEMURRER TO EVIDENCE ......... 90 A. FINALITY FOR PURPOSES OF
Q.1. EFFECT OF DENIAL ............................ 91 APPEAL AND FOR PURPOSES OF
Q.2. EFFECT OF GRANT ............................ 91 EXECUTION .................................. 126
Q.3. WAIVER OF RIGHT TO PRESENT B. WHEN EXECUTION SHALL ISSUE127
EVIDENCE ................................................... 91 C. HOW JUDGMENT IS EXECUTED . 130
Q.4. DEMURRER IN CIVIL AND CRIMINAL D. PROPERTIES EXEMPT FROM
CASES ......................................................... 91 EXECUTION .................................. 134
IV. JUDGMENTS AND FINAL ORDERS . 92 E. PROCEEDINGS WHERE PROPERTY
A. JUDGMENTS IN GENERAL .......... 92 CLAIMED BY THIRD PERSONS ....... 135
A.1. REQUISITES OF A VALID JUDGMENT F. RULES ON REDEMPTION ........... 137
[RIANO] ...................................................... 92 G. REMEDIES OF JUDGMENT
A.2. KINDS OF JUDGMENT ...................... 92 CREDITOR IF JUDGMENT NOT
A.3. JUDGMENT WITHOUT TRIAL ........... 93 SATISFIED [SECS. 36-43, RULE 39] 139
B. CONTENTS OF A JUDGMENT ...... 93 H. EFFECT OF JUDGMENT OR FINAL
B.3. DISTINCTION BETWEEN JUDGMENT ORDERS ....................................... 140
AND OPINION OF THE COURT ................ 93 I. ENFORCEMENT AND EFFECT OF
B.4. CONFLICT BETWEEN DISPOSITION FOREIGN JUDGMENT OR FINAL
AND OPINION OF THE COURT................ 93 ORDERS ....................................... 142
C. JUDGMENT ON THE PLEADINGS . 94 VII. PROVISIONAL REMEDIES ........... 143
D. SUMMARY JUDGMENTS ............. 94 A. PRELIMINARY ATTACHMENT ..... 143
D.1 WHEN THE CASE IS NOT FULLY B. PRELIMINARY INJUNCTION ....... 148
ADJUDICATED........................................... 95 C. RECEIVERSHIP ......................... 152
D.2 AFFIDAVITS AND ATTACHMENTS ... 95 D. REPLEVIN ................................. 155
E. SUMMARY JUDGMENT V. D.1. WHEN WRIT MAY BE ISSUED ......... 155
JUDGMENT ON THE PLEADINGS V. D.2. REQUISITES ..................................... 156
JUDGMENT BY DEFAULT ................ 96 D.3. AFFIDAVIT AND BOND; REDELIVERY
F. RENDITION OF JUDGMENTS AND BOND ........................................................ 156
FINAL ORDERS .............................. 96 D.4. SHERIFFS DUTY IN
G. ENTRY OF JUDGMENT AND FINAL IMPLEMENTATION ...................................157
ORDER .......................................... 97 D.5. WHEN PROPERTY CLAIMED BY
H. AMENDMENTS TO JUDGMENT .... 97 THIRD PARTY............................................157
V. POST-JUDGMENT REMEDIES ......... 98 A COMPARATIVE CHART ON THE
A. MOTION FOR NEW TRIAL OR PROVISIONAL REMEDIES ................. 158
RECONSIDERATION ....................... 98 VIII. SPECIAL CIVIL ACTIONS ............ 160
A.1. GROUNDS .......................................... 98 A. IN GENERAL ........................... 160
A.3. FORM AND CONTENTS .................... 98 A.1 NATURE .............................................. 160
A.4 RESOLUTION AND COURT ACTION 99 A.2 ORDINARY CIVIL ACTIONS V. SPECIAL
B. APPEALS .................................. 100 CIVIL ACTIONS ......................................... 160
MODES OF APPEAL ................................. 102 A.3 JURISDICTION AND VENUE ............. 160
PERIOD OF APPEAL ................................ 102 B. INTERPLEADER ......................... 161
FLOWCHART: APPEALS TO THE B.1 NATURE ............................................... 161
SUPREME COURT ............................. 117 B.2 REQUISITES FOR INTERPLEADER .. 161
COMPARATIVE TABLE ON THE MODES B.3 WHEN TO FILE.................................... 161
OF APPEAL ....................................... 118 C. DECLARATORY RELIEFS AND
FLOWCHART: .................................... 119 SIMILAR REMEDIES ...................... 162
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C.1. NATURE ............................................. 162 F.8. RIGHTS OF A PERSON ADJUDGED

C.2.WHO MAY FILE THE ACTION [SEC. 1, ENTITLED TO PUBLIC OFFICE ................ 173
RULE 63] ................................................... 163 G. EXPROPRIATION ..................... 173
C.3 REQUISITES OF ACTION FOR G.1. NATURE ............................................. 173
DECLARATORY RELIEF ........................... 163 G.2. REQUISITES FOR THE VALID
C.4. WHEN COURT MAY REFUSE TO EXERCISE OF THE RIGHT ........................ 173
MAKE JUDICIAL DECLARATION ............. 163 G.3. MATTERS TO ALLEGE IN COMPLAINT
C.5. CONVERSION TO ORDINARY ACTION FOR EXPROPRIATION ............................. 173
[SEC. 6, RULE 63] ..................................... 163 G.4. TWO STAGES IN EVERY ACTION FOR
C.6. PROCEEDINGS CONSIDERED AS EXPROPRIATION ......................................174
SIMILAR REMEDIES ................................. 163 G.5. WHEN PLAINTIFF CAN IMMEDIATELY
D. REVIEW OF JUDGMENTS AND ENTER INTO POSSESSION OF THE REAL
FINAL ORDERS OR RESOLUTION OF PROPERTY, IN RELATION TO R.A. NO.
THE COMELEC AND COA ............... 164 8974 ...........................................................174
D.1 APPLICATION OF RULE 65 UNDER G.6. NEW SYSTEM OF IMMEDIATE
RULE 64 .................................................... 164 PAYMENT OF INITIAL JUST
D.2 DISTINCTION IN THE APPLICATION OF COMPENSATION ......................................175
RULE 65 TO JUDGMENTS OF THE G.10. APPOINTMENT
COMELEC AND COA AND THE OFCOMMISSIONERS; COMMISSIONERS
APPLICATION OF RULE 65 TO OTHER REPORT; COURT ACTION UPON REPORT
TRIBUNALS, PERSONS, AND OFFICERS .................................................................... 177
................................................................... 165 G.12. EFFECT OF RECORDING OF
E. CERTIORARI, PROHIBITION, JUDGMENT ...............................................178
MANDAMUS ................................. 165 H. FORECLOSURE OF REAL ESTATE
E.1 DEFINITIONS AND DISTINCTIONS ... 165 MORTGAGE .................................. 178
E.2 REQUISITES ....................................... 167 H.1. NATURE .............................................178
E.3 WHEN PETITION FOR CERTIORARI, H.5. DISPOSITION OF PROCEEDS OF
PROHIBITION, AND MANDAMUS IS SALE ......................................................... 180
PROPER .................................................... 167 H.7. JUDICIAL FORECLOSURE VS.
E.4 INJUNCTIVE RELIEF .......................... 168 EXTRAJUDICIAL FORECLOSURE ........... 181
E.5 EXCEPTIONS TO FILING MOTION FOR H.8. EQUITY OF REDEMPTION VS. RIGHT
RECONSIDERATION BEFORE FILING OF REDEMPTION ..................................... 181
PETITION .................................................. 169 I.1. NATURE .............................................. 182
E.6 RELIEFS PETITIONER IS ENTITLED TO I.2. WHEN CAN PARTITION BE MADE ... 182
................................................................... 169 I.3. WHEN PARTITION CANNOT BE MADE:
E.7 ACTS/OMISSIONS OF MTC/RTC IN ................................................................... 182
ELECTION CASES .................................... 170 I.5. MATTERS TO ALLEGE IN THE
E.8 WHEN AND WHERE TO FILE PETITION COMPLAINT FOR PARTITION ................ 182
................................................................... 170 I.6. TWO STAGES IN EVERY ACTION FOR
F. QUO WARRANTO ...................... 170 PARTITION ............................................... 183
F.1. NATURE ............................................. 170 I.7. ORDER OF PARTITION AND
F.2. AGAINST WHOM MAY THE ACTION BE PARTITION BY AGREEMENT .................. 183
BROUGHT .................................................. 171 I.8. PARTITION BY COMMISSIONERS;
JURISDICTION ........................................... 171 APPOINTMENT OF COMMISSIONERS;
F.3. DISTINGUISHED FROM QUO COMMISSIONERS REPORT; COURT
WARRANTO IN THE OMNIBUS ELECTION ACTION UPON COMMISSIONERS
CODE .......................................................... 171 REPORT .................................................... 183
F.4. WHEN GOVERNMENT MAY I.10. PARTITION OF PERSONAL
COMMENCE AN ACTION AGAINST PROPERTY ............................................... 185
INDIVIDUALS ............................................ 172 I.11. PRESCRIPTION OF ACTION ............. 185
F.5. WHEN INDIVIDUAL MAY COMMENCE J. FORCIBLE ENTRY AND UNLAWFUL
AN ACTION ............................................... 172 DETAINER .................................... 185
F.6. PERIOD FOR PLEADINGS AND J.1. NATURE .............................................. 185
PROCEEDINGS MAY BE REDUCED ....... 172 J.2. DEFINITIONS AND DISTINCTIONS
F.7. JUDGMENT IN QUO WARRANTO [RIANO] ..................................................... 185
ACTION ..................................................... 172
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J.3. DISTINGUISHED FROM ACCION D.4. ANNEXES SERVED ON ADVERSE

PUBLICIANA, ACCION REINVINDICATORIA, PARTY ...................................................... 205
AND ACCION INTERDICTAL ................... 186 D.5. APPLICABILITY ............................... 205
J.4. TO DETERMINE JURISDICTION IN
ACCION PULICIANA, ACCION
REINVINDICATORIA, AND ACCION
INTERDICTAL ........................................... 186
Special Proceedings 206
J.5. WHO MAY INSTITUTE THE ACTION
AND WHEN; AGAINST WHOM THE I. SPECIAL PROCEEDINGS ............... 207
ACTION MAY BE MAINTAINED ............... 186 A. SUBJECT MATTER AND
J.6. PLEADINGS ALLOWED ..................... 187 APPLICABILITY OF GENERAL RULES
J.7. ACTION ON COMPLAINT .................. 187 ................................................... 207
J.8. WHEN DEMAND NECESSARY ......... 188 II. SETTLEMENT OF ESTATE OF
J.9. PRELIMINARY INJUNCTION AND DECEASED PERSONS ...................... 208
PRELIMINARY MANDATORY INJUNCTION A. MODES OF SETTLEMENT OF
................................................................... 188 ESTATE ....................................... 208
J.10. RESOLVING DEFENSE OF B. JURISDICTION ......................... 208
OWNERSHIP............................................. 189 C. VENUE .................................... 209
J.12. SUMMARY PROCEDURE, D. EXTENT OF JURISDICTION OF
PROHIBITED PLEADINGS .......................190 PROBATE COURT ......................... 209
K. CONTEMPT ............................... 190 E. POWERS AND DUTIES OF A
K.1. NATURE .............................................190 PROBATE COURT ......................... 209
K.2. KINDS OF CONTEMPT; PURPOSE III. SUMMARY SETTLEMENT OF
AND NATURE OF EACH ..........................190 ESTATES .......................................... 210
K.3. DIRECT CONTEMPT .......................... 191 A. EXTRAJUDICIAL SETTLEMENT OF
K.4. INDIRECT CONTEMPT ..................... 192 ESTATES ...................................... 210
K.5. WHEN IMPRISONMENT SHALL BE TWO-YEAR PERIOD ................................. 211
IMPOSED .................................................. 193 B. SUMMARY SETTLEMENT OF
THE SPECIAL CIVIL ACTIONS ............ 194 ESTATES OF SMALL VALUE ............ 211
IX. SPECIAL RULES .......................... 196 PROCEDURE............................................ 212
A. REVISED RULES ON SUMMARY COMPARISON .......................................... 212
PROCEDURE ................................. 196 C. REMEDIES OF AGGRIEVED PARTIES
FLOWCHART: SUMMARY PROCEDURE AFTER EXTRAJUDICIAL SETTLEMENT
....................................................... 197 OF ESTATE ................................... 212
B. KATARUNGANG PAMBARANGAY WITHIN REGLAMENTARY PERIOD OF
LAW (PD 1508; RA 7160, AS TWO YEARS: ............................................ 212
AMENDED) ................................... 199 OTHERS: ................................................... 213
B.1. SCOPE AND APPLICABILITY OF THE IV. PRODUCTION AND PROBATE OF
RULE ......................................................... 199 WILL ................................................ 214
B.2. CASES COVERED ............................. 199 A. NATURE OF PROBATE
B.4. WHEN PARTIES MAY GO DIRECTLY PROCEEDINGS .............................. 214
TO COURT ................................................ 199 V. ALLOWANCE OR DISALLOWANCE OF
B.6. EXECUTION ...................................... 199 WILL ................................................ 214
B.7. REPUDIATION ..................................200 A. WHO MAY PETITION FOR
B.8. FLOWCHART ...................................200 PROBATE; PERSONS ENTITLED TO
C.1. SCOPE AND APPLICABILITY OF THE NOTICE ........................................ 215
RULE ......................................................... 201 TIMING AND WHO MAY PETITION ........ 215
C.2. COMMENCEMENT OF SMALL CLAIMS MEANING OF INTEREST IN ESTATE ...... 215
ACTION; RESPONSE................................ 201 B. CONTENTS OF PETITION FOR
C.4. APPEARANCES ............................... 203 ALLOWANCE OF WILL ................... 215
C.5. HEARING; DUTY OF THE JUDGE ... 203 JURISDICTION, HOW ACQUIRED .......... 215
C.6. FINALITY OF JUDGMENT ............... 203 EVIDENCE REQUIRED IN SUPPORT OF A
FLOWCHART: .......................................... 204 WILL .......................................................... 215
SMALL CLAIMS CASES ........................... 204 C. GROUNDS FOR DISALLOWING A
D.1. FORMAT AND STYLE....................... 205 WILL ............................................. 217
D.2. MARGINS AND PRINTS .................. 205 D. REPROBATE ............................. 217
D.3. COPIES TO BE FILED ...................... 205 F. EFFECTS OF PROBATE .............. 217
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VI. LETTERS TESTAMENTARY AND OF VII. CLAIMS AGAINST THE ESTATE ... 225
ADMINISTRATION ............................ 218 ESTATE BURDENED WITH LIEN OF
A. WHEN AND TO WHOM LETTERS OF CREDITORS ............................................. 225
ADMINISTRATION ARE GRANTED .. 218 PURPOSE OF PRESENTATION OF CLAIMS
WHO ARE INCOMPETENT TO SERVE AS AGAINST ESTATE ................................... 225
EXECUTOR OR ADMINISTRATOR.......... 218 A. TIME WITHIN WHICH CLAIMS
B. ORDER OF PREFERENCE .......... 219 SHALL BE FILED; EXCEPTIONS ..... 225
30-DAY PERIOD MAY BE WAIVED ......... 219 ALTERNATIVE REMEDIES OF A
C. OPPOSITION TO ISSUANCE OF MORTGAGE CREDITOR UPON DEATH OF
LETTERS TESTAMENTARY; DEBTOR ................................................... 227
SIMULTANEOUS FILING OF PETITION B. CLAIM OF EXECUTOR OR
FOR ADMINISTRATION ................. 219 ADMINISTRATOR AGAINST AN
D. POWERS AND DUTIES OF ESTATE ........................................ 227
EXECUTORS AND ADMINISTRATORS; C. PAYMENT OF DEBTS ................ 228
RESTRICTIONS ON THE POWERS . 220 PAYMENT OF CONTINGENT CLAIM ..... 228
D.1. GENERAL POWERS AND DUTIES POSSESSION BY HEIRS, DEVISEES OR
OF EXECUTORS AND LEGATEES BEFORE DEBTS AND
ADMINISTRATORS ........................ 221 EXPENSES ARE PAID ............................. 228
HAVE ACCESS TO PARTNERSHIP BOOKS LIABILITY OF HEIRS AND DISTRIBUTEES
AND PROPERTY AT ALL TIMES .............. 221 .................................................................. 229
KEEP BUILDINGS IN TENANTABLE REQUISITES ............................................ 230
REPAIR...................................................... 221 VIII. ACTIONS BY AND AGAINST
RIGHT TO POSSESSION AND EXECUTORS AND ADMINISTRATORS 231
MANAGEMENT OF THE REAL AND A. ACTIONS BY AND AGAINST
PERSONAL PROPERTIES ....................... 221 EXECUTORS ................................. 231
D.2. RESTRICTIONS ON POWERS OF B. RECOVERY OF PROPERTY
EXECUTORS AND ADMINISTRATORS CONCELEAD, EMBEZZLED OR
.................................................... 221 FRADULENTLY CONVEYED ............ 231
EXECUTOR OR ADMINISTRATOR WHEN RECOVERY BY CREDITOR OF
CHARGEABLE WITH ALL ESTATE AND PROPERTY FRAUDULENTLY
INCOME .................................................... 221 CONVEYED MAY BE DONE ............ 232
PROHIBITED FROM PROFITING BY C. SALES, MORTGAGES, AND OTHER
INCREASE OR LOSING BY DECREASE IN ENCUMBRANCES ......................... 232
VALUE ...................................................... 222 FLOWCHART: SETTLEMENT OF ESTATE
ACCOUNTABLE FOR INCOME FROM OF DECEASED PERSONS .......................234
REALTY USED BY HIM ............................ 222 IX. DISTRIBUTION AND PARTITION .. 236
ACCOUNTABLE IF HE NEGLECTS OR BEFORE THERE COULD BE A
DELAYS TO RAISE OR PAY MONEY ...... 222 DISTRIBUTION OF ESTATE, THE
ONLY NECESSARY EXPENSES SHALL BE FOLLOWING STAGES MUST BE
ALLOWED ................................................ 222 FOLLOWED: .............................................236
EXECUTOR OR ADMINISTRATOR TO A. LIQUIDATION .......................... 236
MAKE INVENTORY AND RENDER B. PROJECT OF PARTITION .......... 236
ACCOUNT ................................................ 222 C. REMEDY OF AN HEIR ENTITLED TO
ACCOUNTING MANDATORY ................. 223 RESIDUE BUT NOT GIVEN HIS SHARE
EXAMINATION ON OATH BY COURT ... 223 .................................................... 237
E. APPOINTMENT OF SPECIAL D. INSTANCES WHEN PROBATE
ADMINISTRATOR .......................... 223 COURT MAY ISSUE WRIT OF
POWERS AND DUTIES OF SPECIAL EXECUTION .................................. 237
ADMINISTRATOR.................................... 224 X. ESCHEAT ..................................... 237
WHEN SPECIAL ADMINISTRATOR CEASES A. WHEN TO FILE .......................... 237
DUTIES ..................................................... 224 B. REQUISITES FOR FILING OF
F. REVOCATION, DEATH, PETITION ...................................... 237
RESIGNATION AND REMOVAL OF C. REMEDY OF RESPONDENT
EXECUTORS AND ADMINISTRATORS AGAINST PETITION; PERIOD FOR
................................................... 224 FILING A CLAIM. .......................... 238
EFFECT OF REMOVAL, DEATH, OR XI. TRUSTEES ................................. 239
RESIGNATION ......................................... 225
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A. DISTINGUISHED FROM D. WHEN NOT PROPER OR

EXECUTOR/ADMINISTRATOR ....... 239 APPLICABLE ................................ 255
B. CONDITIONS OF THE BOND ..... 239 E. WHEN WRIT DISALLOWED OR
C. PROCEDURAL REQUISITES FOR DISCHARGED ............................... 255
THE REMOVAL AND RESIGNATION OF F. DISTINGUISHED FROM WRIT OF
A TRUSTEE .................................. 240 AMPARO AND HABEAS DATA ....... 256
D. GROUNDS FOR REMOVAL AND G. RULES ON CUSTODY OF MINORS
RESIGNATION OF A TRUSTEE ...... 240 AND WRIT OF HABEAS CORPUS IN
E. EXTENT OF AUTHORITY OF RELATION TO CUSTODY OF MINORS
TRUSTEE ..................................... 240 (A.M. NO. 03-04-04-SC) .............. 256
XII. GUARDIANSHIP ......................... 241 XV. WRIT OF AMPARO (A.M. 07-9-12-SC)
A. GUARDIANSHIP OF INCOMPETENT ...................................................... 260
PERSONS NOT MINORS ................ 241 A. COVERAGE .............................. 260
.................................................. 241 B. DISTINGUISH FROM HABEAS
.................................................. 241 CORPUS AND HABEAS DATA ........ 260
.................................................. 241 C. AMPARO VS SEARCH WARRANT
.................................................. 241 ................................................... 260
GENERAL POWERS AND DUTIES OF D. PETITION ................................ 260
GUARDIANS ............................................. 241 E. THE RETURN ............................ 261
CONDITIONS OF THE BOND OF THE EFFECT OF FAILURE TO FILE RETURN
GUARDIAN .............................................. 243 ................................................... 262
B. RULE IN GUARDIANSHIP OVER OMNIBUS WAIVER RULE .............. 262
MINOR [A.M. NO. 03-02-05-SC] ... 243 F. HEARING ................................. 262
XIII. ADOPTION ................................ 247 G. OTHER ACTIONS ..................... 263
A. DISTINGUISH DOMESTIC INSTITUTION OF SEPARATE ACTION
ADOPTION FROM INTER-COUNTRY ................................................... 263
ADOPTION .................................... 247 EFFECT OF FILING A CRIMINAL
B. DOMESTIC ADOPTION ACT ...... 250 ACTION ....................................... 263
INSTANCES WHEN ADOPTION MAY BE CONSOLIDATION ......................... 263
RESCINDED; EFFECTS OF RESCISSION OF H. INTERIM RELIEFS AVAILABLE TO
ADOPTION ................................................ 251 PETITIONER AND RESPONDENT ... 263
C. INTER-COUNTRY ADOPTION ..... 251 I. QUANTUM OF PROOF IN
(1) FOREIGN NATIONALS, AND ... 251 APPLICATION FOR ISSUANCE OF
FUNCTIONS OF THE RTC ........................ 251 WRIT OF AMPARO ........................ 264
(1) FILING OF PETITION MAY BE XVI. WRIT OF HABEAS DATA [A.M. NO.
MADE WITH THE FAMILY COURT 08-1-16-SC] .................................... 265
HAVING JURISDICTION OVER THE A. SCOPE OF THE WRIT ................ 265
PLACE WHERE THE CHILD RESIDES B. AVAILABILITY OF WRIT ............ 266
OR MAY BE FOUND. [SEC. 28, AM 02- C. DISTINGUISHED FROM HABEAS
6-02 SC] ....................................... 251 CORPUS AND AMPARO ................ 266
(2) COURT SHALL DETERMINE D. THE PETITION ......................... 266
WHETHER OR NOT PETITION IS E. THE RETURN ........................... 266
SUFFICIENT IN FORM AND F. INSTANCES WHEN DEFENSES MAY
SUBSTANCE AND A PROPER CASE BE HEARD IN CHAMBERS .............. 267
FOR INTER-COUNTRY ADOPTION. 251 G. OTHER ACTIONS ...................... 267
(3) TRANSMIT THE PETITION TO CONSOLIDATION .......................... 267
THE ICAB FOR APPROPRIATE ACTION. EFFECT OF FILING CRIMINAL ACTION
252 .................................................... 267
BEST INTEREST OF THE MINOR INSTITUTION OF SEPARATE ACTION
STANDARD.............................................. 252 .................................................... 267
XIV. WRIT OF HABEAS CORPUS ....... 252 XVII. CHANGE OF NAME ................... 267
WRIT OF HABEAS CORPUS ............ 252 XVIII. CANCELLATION OR CORRECTION
PROCEDURE ........................................ 254 OF ENTRIES IN THE CIVIL REGISTRY 269
A. CONTENTS OF THE PETITION ... 254 A. ENTRIES SUBJECT TO
B. THE RETURN ........................... 254 CANCELLATION OR CORRECTION IN
C. DISTINGUISH PEREMPTORY WRIT RELATION TO R.A. 9048 .............. 269
FROM PRELIMINARY CITATION .... 255
vii
RA 9048, AS AMENDED BY RA 10172 B. WHO MAY FILE; CRIMES THAT

................................................... 270 CANNOT BE PROSECUTED DE OFICIO
XIX. ABSENTEES .............................. 271 ................................................... 286
A. PURPOSE OF THE RULE ............ 271 B.1. WHO MAY FILE COMPLAINT OR
B. WHO MAY FILE; WHEN TO FILE . 271 INFORMATION ........................................ 286
XX. APPEALS IN SPECIAL B.2. EVENTS SUBSEQUENT TO FILING286
PROCEEDINGS ................................. 272 B.2.A. DEATH OF OFFENDED PARTY .. 286
A. JUDGMENTS AND ORDERS FOR B.2.B. DESISTANCE BY OFFENDED PARTY
WHICH APPEAL MAY BE TAKEN ..... 272 ................................................................... 287
B. WHEN TO APPEAL .................... 272 B.2.C. PARDON BY OFFENDED PARTY 287
C. MODES OF APPEAL ................... 272 SUBSEQUENT MARRIAGE ..................... 287
D. RULE ON ADVANCE DISTRIBUTION C. CONTROL OF PROSECUTION .... 287
.................................................... 272 C.1. IN GENERAL ...................................... 287
COMPARATIVE TABLE OF WRITS ...... 273 C.2. BEFORE THE COURT OF APPEALS
AND THE SUPREME COURT ................. 288
C.3. EXTENT OF THE PROSECUTORS
CONTROL ................................................ 288
Criminal Procedure 281 C.3.A. PRIOR TO FILING OF THE CASE 288
C.3.B. AFTER FILING OF THE CASE ...... 288
I. GENERAL MATTERS ..................... 282 C.3.C. LIMITATIONS OF CONTROL BY THE
CRIMINAL JURISDICTION ...................... 282 COURT ..................................................... 288
A. JURISDICTION OVER SUBJECT C.3.D. EFFECT OF LACK OF
MATTER AND JURISDICTION OVER INTERVENTION OF FISCAL ................... 288
PERSON OF THE ACCUSED D. SUFFICIENCY OF COMPLAINT OR
DISTINGUISHED .......................... 282 INFORMATION ............................. 288
A.1 JURISDICTION OVER SUBJECT TEST OF SUFFICIENCY .......................... 289
MATTER ................................................... 282 D.1 NAME OF THE ACCUSED ................ 289
STATUTE APPLICABLE ........................... 282 D.2 DESIGNATION OF OFFENSE .......... 289
IMPOSABLE PENALTY ............................ 282 D.3 CAUSE OF THE ACCUSATION ........ 289
PRINCIPLE OF ADHERENCE OF WHERE THE LAW PRESCRIBES
JURISDICTION ......................................... 282 EXCEPTIONS: .......................................... 290
A.2. JURISDICTION OVER THE PERSON OF RULE ON NEGATIVE AVERMENTS ....... 290
THE ACCUSED ........................................ 282 WHERE COMPLEX CRIME IS CHARGED
B. REQUISITES FOR EXERCISE OF .................................................................. 290
CRIMINAL JURISDICTION ............. 283 D.4 PLACE OF COMMISSION OF THE
C. JURISDICTION OF CRIMINAL OFFENSE ................................................. 290
COURTS ...................................... 283 D.5 DATE OF COMMISSION OF THE
C.1. REGULAR (CIVIL) COURTS .............. 283 OFFENSE ................................................. 290
C.2. MILITARY COURTS .......................... 285 D.6 NAME OF THE OFFENDED PARTY 290
D. WHEN INJUNCTION MAY BE OFFENSES AGAINST PROPERTY ......... 290
ISSUED TO RESTRAIN CRIMINAL OFFENDED PARTY IS A JURIDICAL
PROSECUTION ............................. 285 PERSON .................................................. 290
II. PROSECUTION OF OFFENSES ..... 285 E. DUPLICITY OF THE OFFENSE;
A. CRIMINAL ACTIONS; HOW EXCEPTION ................................. 290
INSTITUTED ................................. 285 REMEDY ................................................... 291
A.1. IN GENERAL ..................................... 285 MODES OF COMMITTING OFFENSE NOT
A.2. OFFENSES REQUIRING PRELIMINARY DUPLICITOUS .......................................... 291
INVESTIGATION ...................................... 285 F. AMENDMENT OR SUBSTITUTION
A.3. OTHER OFFENSES .......................... 285 OF COMPLAINT OR INFORMATION 291
A.4. IN METROPOLITAN MANILA AND KINDS OF AMENDMENT:........................ 291
OTHER CITIES ......................................... 285 F.1. AMENDMENT BEFORE PLEA IN FORM
A.5. EFFECT OF INSTITUTION ON AND SUBSTANCE.................................... 291
PRESCRIPTIVE PERIOD.......................... 285 F.2. AMENDMENT AFTER PLEA AND
SUSPENSION OF PRESCRIPTIVE PERIODS DURING TRIAL ........................................ 292
IN CASES FALLING UNDER THE F.2.A. AS TO FORM ................................ 292
AUTHORITY OF THE LUPON ................. 286 F.2.B. AS TO SUBSTANCE ..................... 292
F.3. SUBSTITUTION ................................ 292
viii
F.4. AMENDMENT AND SUBSTITUTION COVERED BY THE RULE ON

DISTINGUISHED...................................... 292 SUMMARY PROCEDURE ............... 299
G. VENUE OF CRIMINAL ACTIONS 292 H. REMEDIES OF ACCUSED IF THERE
H. INTERVENTION OF OFFENDED WAS NO PRELIMINARY
PARTY ......................................... 293 INVESTIGATION ........................... 299
III. PROSECUTION OF CIVIL ACTION 294 H.1. EFFECT OF DENIAL OF RIGHT ....... 299
A. RULE ON IMPLIED INSTITUTION OF REMEDIES OF THE ACCUSED IF THERE
CIVIL ACTION WITH CRIMINAL WAS NO PI: ............................................. 300
ACTION ....................................... 294 H.2. RESTRAINING PRELIMINARY
B. WHEN CIVIL ACTION MAY INVESTIGATION ...................................... 300
PROCEED INDEPENDENTLY ......... 294 I. INQUEST .................................. 300
B.1. INDEPENDENT CIVIL ACTIONS ...... 294 PROCEDURE........................................... 300
B.2. RESERVATION OF RIGHT TO FILE V. ARREST ....................................... 301
CIVIL ACTION .......................................... 294 A. IMMUNITY ................................ 301
B.3. SEPARATE ACTION FILED BY THE A.1. PARLIAMENTARY IMMUNITY .......... 301
ACCUSED ................................................ 294 A.2. DIPLOMATIC IMMUNITY ................. 301
C. WHEN SEPARATE CIVIL ACTION IS B. HOW MADE ............................... 301
SUSPENDED ................................ 294 C. ARREST WITHOUT WARRANT,
D. EFFECT OF DEATH OF THE WHEN LAWFUL ............................. 301
ACCUSED OR CONVICT ON CIVIL C.1. IN FLAGRANTE DELICTO ................. 301
ACTION ....................................... 294 C.2. HOT PURSUIT ARREST .................. 302
E. PREJUDICIAL QUESTION .......... 295 C.3. ARREST OF ESCAPED PRISONER 302
E.1. ELEMENTS ........................................ 295 C.4. RULES ON ILLEGALITY OF ARREST
E.2. EFFECT ............................................. 295 .................................................................. 302
E.3. WHERE TO FILE PETITION FOR C.4.A. EFFECT ......................................... 302
SUSPENSION .......................................... 295 C.4.B. WAIVER ........................................ 302
F. RULE ON FILING FEES IN CIVIL C.4.C. WHEN CURED ............................. 303
ACTION DEEMED INSTITUTED WITH D. METHOD OF ARREST ............... 303
THE CRIMINAL ACTION ................ 295 D.1. BY OFFICER WITH WARRANT ........ 303
IV. PRELIMINARY INVESTIGATION ... 296 D.1.A. DUTIES OF ARRESTING OFFICER
A. NATURE OF RIGHT .................. 296 .................................................................. 303
A.1. DEFINITION ...................................... 296 D.1.B. RIGHTS OF THE ARRESTING
A.2. RIGHT TO PRELIMINARY OFFICER .................................................. 303
INVESTIGATION ...................................... 296 D.2. BY OFFICER WITHOUT WARRANT 303
A.3. WAIVER OF RIGHT .......................... 296 D.3. BY PRIVATE PERSON (CITIZENS
A.4. WHEN RIGHT DEEMED WAIVED ... 296 ARREST) .................................................. 304
A.5. WHEN RIGHT NOT DEEMED WAIVED E. REQUISITES OF A VALID WARRANT
.................................................................. 296 OF ARREST .................................. 304
B. PURPOSES OF PRELIMINARY E.1. ESSENTIAL REQUISITES ................. 304
INVESTIGATION ........................... 296 E.2. WHEN ISSUED ................................. 304
C. WHO MAY CONDUCT F. DETERMINATION OF PROBABLE
DETERMINATION OF EXISTENCE OF CAUSE FOR ISSUANCE OF WARRANT
PROBABLE CAUSE ........................ 297 OF ARREST .................................. 304
C.1. PROSECUTOR .................................. 297 G. PROBABLE CAUSE OF FISCAL AND
C.2. COURT.............................................. 297 JUDGE DISTINGUISHED ............... 304
C.3. COMELEC ......................................... 297 VI. BAIL .......................................... 305
C.4. OMBUDSMAN ................................. 297 A. NATURE .................................. 305
C.5. PROCEDURE FOR PRELIMINARY A.1. DEFINITION ...................................... 305
INVESTIGATION ...................................... 297 A.2. PURPOSE ........................................ 305
D. RESOLUTION OF THE A.3. REQUIREMENT OF CUSTODY ....... 305
INVESTIGATING PROSECUTOR ..... 298 B. WHEN A MATTER OF RIGHT;
E. REVIEW ................................... 298 EXCEPTIONS ............................... 305
F. WHEN WARRANT OF ARREST MAY B.1. CAPITAL OFFENSE .......................... 305
ISSUE .......................................... 299 B.2. EXTRADITION PROCEEDINGS ...... 305
G. CASES NOT REQUIRING B.3. WHEN NOT AVAILABLE ................. 306
PRELIMINARY INVESTIGATION NOR C. WHEN A MATTER OF DISCRETION
................................................... 306
ix
D. HEARING OF APPLICATION FOR J. RIGHTS OF PERSONS UNDER

BAIL IN CAPITAL OFFENSES ......... 306 CUSTODIAL INVESTIGATIONS ....... 314
D.1. IN GENERAL ..................................... 306 J.1. RIGHT TO BE ASSISTED BY COUNSEL
D.2. MINORS CHARGED WITH CAPITAL AT ALL TIMES........................................... 315
OFFENSE ................................................. 306 J.2. RIGHT TO BE ALLOWED VISITS....... 315
D.3. DUTIES OF JUDGE HEARING THE J.3. CONSEQUENCES OF VIOLATION OF
PETITION FOR BAIL ................................ 307 CUSTODIAL RIGHTS ............................... 315
D.4. WHERE APPLICATION FOR BAIL IS J.3.A. FAILURE TO INFORM .................... 315
FILED ........................................................ 307 J.3.B. OBSTRUCTION, PREVENTION OR
E. GUIDELINES IN FIXING AMOUNT OF PROHIBITION OF RIGHT TO VISITS AND
BAIL ............................................. 307 CONFERENCES ....................................... 315
F. WHEN BAIL NOT REQUIRED ...... 307 VIII. ARRAIGNMENT AND PLEA ......... 316
G. INCREASE OR REDUCTION OF BAIL A. ARRAIGNMENT AND PLEA; HOW
................................................... 308 MADE ........................................... 316
G.1. INCREASED BAIL ............................. 308 PLEA ......................................................... 316
G.2. REDUCED BAIL ............................... 308 A.1. DUTY OF THE COURT BEFORE
H. FORFEITURE AND CANCELLATION ARRAIGNMENT ....................................... 316
OF BAIL ....................................... 308 A.2. PROCEDURE OF ARRAIGNMENT .. 316
H.1. FORFEITURE OF BAIL ..................... 308 A.2.A. HOW MADE .................................... 317
H.2. CANCELLATION OF BAIL ............... 309 A.2.B. WHEN HELD .................................. 317
H.2.A. APPLICATION BY BONDSMEN... 309 A.2.C. SPECIFIC RULES ............................ 317
H.2.B. AUTOMATIC CANCELLATION .... 309 B. WHEN A PLEA OF NOT GUILTY
I. APPLICATION NOT A BAR TO SHOULD BE ENTERED ................... 317
OBJECTIONS ON ILLEGAL ARREST, C. WHEN ACCUSED MAY ENTER A
LACK OF OR IRREGULAR PLEA OF GUILTY TO A LESSER
PRELIMINARY INVESTIGATION ..... 309 OFFENSE ...................................... 318
J. HOLD/ALLOW DEPARTURE ORDER C.1. DURING ARRAIGNMENT ................. 318
AND BUREAU OF IMMIGRATION C.2. AFTER ARRAIGNMENT BUT BEFORE
WATCHLIST ................................. 309 TRIAL ........................................................ 318
VII. RIGHTS OF THE ACCUSED ........... 311 C.3. AFTER TRIAL HAS BEGUN .............. 318
A. RIGHT TO BE PRESUMED D. ACCUSED PLEADS GUILTY TO
INNOCENT UNTIL THE CONTRARY IS CAPITAL OFFENSE; DUTY OF THE
PROVED BEYOND REASONABLE COURT ......................................... 318
DOUBT .......................................... 311 E. SEARCHING INQUIRY ................ 318
EQUIPOSE RULE ....................................... 311 F. IMPROVIDENT PLEA OF GUILTY TO
B. RIGHT TO BE INFORMED OF THE A CAPITAL OFFENSE ..................... 319
NATURE AND CAUSE OF THE F.1. WHEN IMPROVIDENT PLEA MAY BE
ACCUSATION AGAINST HIM ........... 311 WITHDRAWN ........................................... 319
C. RIGHT TO BE PRESENT AND G. GROUNDS FOR SUSPENSION OF
DEFEND IN PERSON AND BY ARRAIGNMENT ............................ 320
COUNSEL AT EVERY STATE OF THE G.1. UNSOUND MENTAL CONDITION OF
PROCEEDINGS ............................... 311 THE ACCUSED AT THE TIME OF THE
C.1. RIGHT TO BE PRESENT ..................... 311 ARRAIGNMENT ...................................... 320
REQUIREMENTS OF WAIVER: ................ 312 G.2. EXISTENCE OF PREJUDICIAL
C.2. TRIAL IN ABSENTIA ......................... 312 QUESTION ............................................... 320
C.3. RIGHT TO COUNSEL ........................ 312 G.3. PENDENCY OF PETITION FOR
C.4. RIGHT TO DEFEND IN PERSON...... 312 REVIEW .................................................... 320
D. RIGHT TO TESTIFY AS WITNESS IN G.4 OTHER PENDING INCIDENTS ........ 320
HIS BEHALF .................................. 312 IX. MOTION TO QUASH ..................... 321
E. RIGHT AGAINST SELF- A. WHEN FILED ............................. 321
INCRIMINATION ............................ 313 B. GROUNDS ................................ 321
F. RIGHT TO CONFRONTATION ..... 313 B.1. FACTS CHARGED DO NOT
G. RIGHT TO COMPULSORY PROCESS CONSTITUTE AN OFFENSE .................... 321
.................................................... 313 B.2. COURT HAS NO JURISDICTION OVER
H. RIGHT TO SPEEDY, IMPARTIAL THE OFFENSE CHARGED ....................... 321
AND PUBLIC TRIAL ....................... 313 B.3. COURT HAS NO JURISDICTION OVER
I. RIGHT TO APPEAL ..................... 314 THE PERSON OF THE ACCUSED ........... 322
x
B.4. OFFICER WHO FILED THE D. FINALITY .................................. 337

INFORMATION HAD NO AUTHORITY TO XIII. NEW TRIAL OR RECONSIDERATION
DO SO ...................................................... 322 ....................................................... 337
B.5. COMPLAINT OR INFORMATION DOES A. GROUNDS FOR NEW TRIAL ....... 337
NOT CONFORM SUBSTANTIALLY TO THE A.1. ERRORS OF LAW OR
PRESCRIBED FORM ............................... 322 IRREGULARITIES ..................................... 337
B.6. MORE THAN ONE OFFENSE IS A.2. NEW AND MATERIAL EVIDENCE ... 337
CHARGED ................................................ 322 B. GROUNDS FOR RECONSIDERATION
B.7. CRIMINAL ACTION OR LIABILITY HAS ................................................... 338
BEEN EXTINGUISHED ............................ 322 C. EFFECTS OF GRANTING NEW TRIAL
B.8. CONTAINS AVERMENTS THAT IF OR RECONSIDERATION ............... 338
TRUE WOULD CONSTITUTE A LEGAL D. APPLICATION OF THE NEYPES
EXCUSE OR JUSTIFICATION .................. 323 DOCTRINE IN CRIMINAL CASES .... 338
B.9. ACCUSED HAS BEEN PREVIOUSLY XIV. APPEAL ................................... 339
CONVICTED OR ACQUITTED OF THE A. EFFECT OF AN APPEAL ............ 339
OFFENSE CHARGED, OR THE CASE B. WHERE TO APPEAL .................. 339
AGAINST HIM WAS DISMISSED OR C. HOW APPEAL TAKEN ............... 339
OTHERWISE TERMINATED WITHOUT HIS D. WHO MAY APPEAL ................... 339
CONSENT ................................................ 323 E. PROCEDURE IN THE LOWER
C. MOTION TO QUASH AND COURTS ...................................... 339
DEMURRER DISTINGUISHED ........ 325 F. PROCEDURE IN THE COURT OF
D. EFFECTS OF SUSTAINING THE APPEALS ..................................... 340
MOTION TO QUASH ..................... 326 F.1. PARTIES AND TITLE ........................ 340
D.1. FILING ANOTHER COMPLAINT OR F.2. BRIEFS.............................................. 340
INFORMATION ........................................ 326 F.3. EXTENSION OF TIME FOR FILING
D.2. DISCHARGE OF THE ACCUSED .... 326 BRIEFS ..................................................... 340
D.3. REMEDIES OF THE PROSECUTION F.4. FORM OF BRIEFS ............................ 340
.................................................................. 326 F.5. CONTENT OF BRIEFS ..................... 340
X. PRE-TRIAL ................................... 327 F.6. DISMISSAL OF APPEAL FOR
A. NATURE AND OBJECTIVE OF PRE- ABANDONMENT OR FAILURE TO
TRIAL ........................................... 327 PROSECUTE; GROUNDS ........................ 341
B. PRE-TRIAL AGREEMENT .......... 328 F.7. PROMPT DISPOSITION OF APPEAL 341
C. PRE-TRIAL ORDER .................. 328 G. THE COURT OF APPEALS .......... 341
XI. TRIAL ........................................ 330 G.1. SCOPE OF THE CAS JUDGMENT ... 341
A. PRESENCE OF PERSONS AS G.2. CAS POWER TO RECEIVE EVIDENCE
REQUIRED BY LAW ...................... 330 ...................................................................342
A.1. OF ACCUSED .................................... 330 G.3. QUORUM IN THE CA .......................342
A.2. OF WITNESSES ................................ 330 G.4. POST-CA JUDGMENT......................342
B. RESPONSIBILITY OF COUNSEL . 330 G.5. APPLICABLE CIVIL PROCEDURE
C. TRIAL IN ABSENTIA ................. 330 RULES....................................................... 343
D. DELAY IN CONDUCT OF TRIAL .. 331 H. PROCEDURE IN THE SUPREME
E. DISCHARGE OF ACCUSED TO BE COURT ........................................ 343
STATE WITNESS ........................... 331 H.1. UNIFORM PROCEDURE .................. 343
F. DEMURRER TO EVIDENCE ......... 332 H.2. WHAT THE SC MAY DO ON REVIEW
XII. JUDGMENT ................................ 333 ................................................................... 343
A. REQUISITES ............................. 333 H.3. MODES BY WHICH A CASE MAY
A.1. FORM ................................................ 333 REACH THE SC ........................................ 343
A.2. JUDGE WHO RENDERS DECISION 333 H.4. REVIEW OF CA DECISIONS ........... 344
A.3. CONTENTS OF JUDGMENT ............ 333 H.5. GROUNDS FOR DISMISSAL OF
B. STATE LIABILITY FOR UNJUST APPEAL ................................................... 345
CONVICTION ................................. 335 XV. SEARCH AND SEIZURE .............. 346
C. PROMULGATION OF JUDGMENT; A. NATURE OF SEARCH WARRANT 346
INSTANCES OF PROMULGATION OF A.1. IN GENERAL ..................................... 346
JUDGMENT IN ABSENTIA .............. 336 B. APPLICATION FOR SEARCH
C.1. IN GENERAL ..................................... 336 WARRANT .................................... 347
C.2. PROMULGATION IN CERTAIN B.1. WHERE FILED ................................... 347
CIRCUMSTANCES ................................... 336 B.2. SUBSTANCE OF APPLICATION ..... 348
xi
C. ISSUANCE AND FORM OF SEARCH E. FACTUM PROBANS VERSUS

WARRANT ................................... 348 FACTUM PROBANDUM .................. 361
D. SERVICE OF THE SEARCH F. ADMISSIBILITY OF EVIDENCE ... 362
WARRANT ................................... 348 G. BURDEN OF PROOF AND BURDEN
E. POST-SERVICE ........................ 349 OF EVIDENCE .............................. 364
E.1. RECEIPT OF PROPERTY SEIZED .... 349 H. PRESUMPTIONS ...................... 365
E.2. DELIVERY AND INVENTORY OF I. LIBERAL CONSTRUCTION OF THE
PROPERTY .............................................. 349 RULES OF EVIDENCE ................... 368
F. PROBABLE CAUSE ................... 349 J. QUANTUM OF EVIDENCE (WEIGHT
F.1. PROBABLE CAUSE IN SEARCH AND SUFFICIENCY OF EVIDENCE) 368
WARRANTS ............................................. 349 J.1. PROOF BEYOND REASONABLE
F.2. PERSONAL EXAMINATION BY JUDGE DOUBT..................................................... 368
OF THE APPLICANT AND WITNESSES . 349 J.2. PREPONDERANCE OF EVIDENCE . 369
F.3. PARTICULARITY OF PLACE TO BE J.3. SUBSTANTIAL EVIDENCE ............... 369
SEARCHED AND THINGS TO BE SEIZED J.4. CLEAR AND CONVINCING EVIDENCE
.................................................................. 350 .................................................................. 369
G. EXCEPTIONS TO THE SEARCH II. JUDICIAL NOTICE AND JUDICIAL
WARRANT REQUIREMENT ............. 351 ADMISSIONS ................................... 370
G.1. SEARCH INCIDENTAL TO LAWFUL A. WHAT NEED NOT BE PROVED .. 370
ARREST..................................................... 351 B. MATTERS OF JUDICIAL NOTICE 370
G.2. CONSENTED SEARCH .................... 352 B.1. WHEN MANDATORY ................. 370
G.3. SEARCH OF A MOVING VEHICLE .. 352 B.2. WHEN DISCRETIONARY ................. 370
G.4. CHECKPOINTS; BODY CHECKS IN B.3. WHEN HEARING NECESSARY ......... 371
AIRPORT .................................................. 352 B.4. JUDICIAL NOTICE OF FOREIGN LAWS,
G.5. PLAIN VIEW SITUATION ................. 353 LAW OF NATIONS AND MUNICIPAL
G.6. STOP AND FRISK SITUATION ........ 353 ORDINANCE ............................................ 372
G.7. ENFORCEMENT OF CUSTOMS LAW C. JUDICIAL ADMISSIONS ............. 373
.................................................................. 353 III. OBJECT (REAL) EVIDENCE ........... 374
G.8. OTHER EXCEPTIONS ...................... 354 A. NATURE OF OBJECT EVIDENCE
H.1. WHO MAY AVAIL .............................. 354 374
H.2. MEANS ............................................. 354 B. REQUISITES FOR ADMISSIBILITY
H.3. CIVIL AND CRIMINAL LIABILITY..... 355 374
H.4. WAIVER OF IMMUNITY AGAINST C. CATEGORIES OF OBJECT EVIDENCE
UNREASONABLE SEARCH AND SEIZURE .................................................... 375
.................................................................. 355 C.1. THE THING ITSELF ........................ 375
FLOWCHART: .......................................... 356 C.2. DEMONSTRATIVE EVIDENCE ........ 375
SEARCH WARRANT PROCESS ............. 356 C.3. EPHEMERAL ELECTRONIC
FLOWCHART: .......................................... 357 COMMUNICATIONS ................................ 375
POST-ARREST PROCEDURE FOR D. VIEW OF AN OBJECT OR SCENE 376
WARRANTLESS ARRESTS ..................... 357 E. CHAIN OF CUSTODY IN RELATION
XIV. PROVISIONAL REMEDIES ......... 358 TO SEC. 21 OF THE COMPREHENSIVE
A. NATURE .................................. 358 DANGEROUS DRUGS ACT OF 2002
B. KINDS OF PROVISIONAL REMEDIES .................................................... 376
................................................... 358 F. RULE ON DNA EVIDENCE [AM NO.
B.1. IN GENERAL ..................................... 358 06-11-5-SC] .................................. 377
B.2. PRELIMINARY ATTACHMENT ........ 358 F.1. APPLICATION FOR DNA TESTING
ORDER ..................................................... 377
F.2. POST-CONVICTION DNA TESTING 377
F.3. ASSESSING DNA EVIDENCE ........... 377
Evidence 359 IV. DOCUMENTARY EVIDENCE .......... 378
A. MEANING OF DOCUMENTARY
I. GENERAL PRINCIPLES ................. 360 EVIDENCE .................................... 378
A. CONCEPT OF EVIDENCE ........... 360 B. REQUISITES FOR ADMISSIBILITY
C. EVIDENCE IN CIVIL CASES VERSUS .................................................... 378
EVIDENCE IN CRIMINAL CASES .... 360 C. BEST EVIDENCE RULE .............. 378
D. PROOF VERSUS EVIDENCE ....... 361 C.1. APPLICABILITY .................................. 378
C.2. ORIGINAL DOCUMENT ................... 379
xii
C.3. EXCEPTIONS [SEC. 3, RULE 130] ... 379 F.4. REASON FOR EXCLUSION OF
D. RULES ON ELECTRONIC EVIDENCE HEARSAY EVIDENCE ............................. 402
[AM NO. 01-7-01-SC] .................... 380 F.5. EXCEPTIONS TO THE HEARSAY RULE
D.1. APPLICABILITY ................................. 380 .................................................................. 402
D.2. ADMISSIBILITY OF ELECTRONIC G. OPINION RULE ....................... 406
DOCUMENTS .......................................... 380 G.1. OPINION OF EXPERT WITNESS [SEC.
D.4. METHOD OF PROOF ....................... 381 49, RULE 130] .......................................... 406
E. PAROL EVIDENCE RULE ........... 382 G.2. OPINION OF ORDINARY WITNESS
E.1. APPLICABILITY ................................. 383 [SEC. 50, RULE 130] ................................ 407
E.2. INTRODUCTION AND PRESENTATION H. CHARACTER EVIDENCE .......... 408
OF PAROL EVIDENCE............................. 383 H.1. CRIMINAL CASES ............................ 408
E.3. COLLATERAL AGREEMENTS ......... 383 H.2. CIVIL CASES .................................... 408
F. AUTHENTICATION AND PROOF OF I. RULE ON EXAMINATION OF A
DOCUMENTS ............................... 384 CHILD WITNESS [AM NO. 004-07-SC]
F.1. PUBLIC AND PRIVATE DOCUMENTS ................................................... 408
.................................................................. 384 I.1. APPLICABILITY OF THE RULE.......... 409
F.7. ATTACKING RECORDS .................... 386 I.2. MEANING OF CHILD WITNESS [SEC.
F.8. PROOF OF NOTARIAL DOCUMENTS 4(A)] ......................................................... 409
.................................................................. 386 CHILD WITNESSES MAY TESTIFY IN A
F.9. HOW TO EXPLAIN ALTERATIONS IN A NARRATIVE FORM AND LEADING
DOCUMENT [SEC. 31, RULE 132]............ 386 QUESTIONS MAY BE ALLOWED BY THE
V. TESTIMONIAL EVIDENCE .............. 387 TRIAL COURT IN ALL STAGES OF THE
A. QUALIFICATIONS OF A WITNESS EXAMINATION IF THE SAME WILL
.................................................... 387 FURTHER THE INTEREST OF JUSTICE.
B. COMPETENCY VERSUS [PEOPLE V. SANTOS, G.R. NO. 172322
CREDIBILITY ................................ 388 (2006)] ........................................... 409
C. DISQUALIFICATIONS OF I.3. COMPETENCY OF CHILD WITNESS 409
WITNESSES ................................. 388 I.4. EXAMINATION OF A CHILD WITNESS
C.1. BY REASON OF MENTAL CAPACITY .................................................................. 409
OR IMMATURITY ..................................... 389 I.5. HEARSAY EXCEPTION IN CHILD
C.2. BY REASON OF MARRIAGE ........... 389 ABUSE CASES [SEC. 28] ......................... 410
C.3. BY REASON OF DEATH OR INSANITY I.6. SEXUAL ABUSE SHIELD RULE ........ 410
OF ADVERSE PARTY (ALSO KNOWN AS VI. OFFER AND OBJECTION ............... 411
DEAD MANS STATUTE OR A. OFFER OF EVIDENCE ................. 411
SURVIVORSHIP RULE) ........................ 390 B.WHEN TO MAKE AN OFFER [SEC. 35,
C.4. BY REASON OF PRIVILEGED RULE 132] ..................................... 412
COMMUNICATIONS ................................ 390 C. OBJECTION [SEC. 36, RULE 132] 412
D. EXAMINATION OF A WITNESS .. 394 C.1. CONCEPT .......................................... 412
D.1. RIGHTS AND OBLIGATIONS OF A C.2. MANNER ........................................... 412
WITNESS [SEC. 3, RULE 132] .................. 394 C.3. PURPOSES OF OBJECTION [RIANO]
D.2. ORDER OF EXAMINATION OF AN ................................................................... 413
INDIVIDUAL WITNESS ............................ 394 C.4. CLASSIFICATION OF OBJECTIONS 413
D.3. LEADING AND MISLEADING C.5. WHEN TO OBJECT ........................... 413
QUESTIONS [SEC. 10, RULE 132] ........... 395 D. RULING ON THE OBJECTION [SEC.
D.4. IMPEACHING A WITNESS .............. 395 38, RULE 132] ............................... 413
D.5. JUDICIAL AFFIDAVIT RULE [AM 12-8- E. STRIKING OUT AN ANSWER [SEC.
8-SC] ........................................................ 396 39, RULE 132] ............................... 414
E. ADMISSIONS AND CONFESSIONS F. TENDER OF EXCLUDED EVIDENCE
.................................................... 397 [SEC. 40, RULE 132] ...................... 414
E.1. EXTRAJUDICIAL ADMISSIONS ........ 397
E.2. RES INTER ALIOS ACTA RULE ....... 398
E.3. OTHER FORMS OF ADMISSIONS ..400
F. HEARSAY RULE ........................ 401
F.1. GENERAL RULE ON HEARSAY ........ 401
F.2. MEANING OF HEARSAY .................. 401
F.3. DOCTRINE OF INDEPENDENTLY
RELEVANT STATEMENTS ....................... 401
xiii
E.1. WHEN AVAILABLE ........................... 422

E.2. WHERE TO FILE............................... 422
E.3. PROCEDURE ................................... 422
Rules of Procedure for E.4. DISTINCTIONS BETWEEN WRIT OF
Environmental Cases 206 KALIKASAN AND WRIT OF CONTINUING
MANDAMUS ............................................423
IV. CRIMINAL PROCEDURE .............. 423
I. SCOPE AND APPLICABILITY OF THE
A. WHO MAY FILE ........................ 423
RULE ............................................... 417
B. INSTITUTION OF CRIMINAL AND
II. CIVIL PROCEDURE ....................... 418
CIVIL ACTION .............................. 423
A. PROHIBITION AGAINST
C. ARREST WITHOUT WARRANT,
TEMPORARY RESTRAINING ORDER
WHEN VALID ............................... 423
AND PRELIMINARY INJUNCTION ... 418
D. STRATEGIC LAWSUIT AGAINST
B. TEMPORARY ENVIRONMENTAL
PUBLIC PARTICIPATION [SLAPP] .. 424
PROTECTION ORDER (TEPO) ......... 418
E. PROCEDURE IN THE CUSTODY AND
B.1. GROUND FOR ISSUANCE ................ 418
DISPOSITION OF SEIZED ITEMS ... 424
B.2. PERIOD OF EFFECTIVITY ................. 419
F. BAIL ........................................ 424
B.3. DUTY OF COURT .............................. 419
G. ARRAIGNMENT AND PLEA ....... 425
B.4. GROUND TO DISSOLVE TEPO ........ 419
G.1. WHEN ............................................... 425
C. DECLARATION OF DEFAULT MOTU
G.2. PLEA-BARGAINING ........................ 425
PROPRIO ...................................... 419
H. PRE-TRIAL .............................. 425
D. PRE-TRIAL CONFERENCE;
I. SUBSIDIARY LIABILITIES ........... 425
CONSENT DECREE ........................ 419
V. EVIDENCE ................................... 425
E. PROHIBITED PLEADINGS AND
A. PRECAUTIONARY PRINCIPLE ... 425
MOTIONS ..................................... 419
B. DOCUMENTARY EVIDENCE ...... 425
F. PERIOD TO TRY AND DECIDE .... 419
B.1. PHOTOGRAPHIC, VIDEO AND SIMILAR
G. JUDGMENT AND EXECUTION;
EVIDENCE MUST BE AUTHENTICATED 425
RELIEFS IN A CITIZEN SUIT ........... 419
B.2. ENTRIES IN OFFICIAL RECORDS AS
G.1. RELIEFS IN A CITIZEN SUIT ............. 419
PRIMA FACIE EVIDENCE........................ 425
G.2. NO DAMAGES CAN BE AWARDED IN
A CITIZEN SUIT ....................................... 420
G.3. JUDGMENT NOT STAYED BY APPEAL
.................................................................. 420
H. PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS ............ 420
I. STRATEGIC LAWSUIT AGAINST
PUBLIC PARTICIPATION (SLAPP) .. 420
I.1. SLAPP AS A DEFENSE ...................... 420
I.2. QUANTUM OF EVIDENCE ................. 421
I.3. RESOLUTION OF THE DEFENSE OF A
SLAPP ....................................................... 421
III. SPECIAL CIVIL ACTIONS .............. 421
A. WRIT OF KALIKASAN ................ 421
A.1. WHO MAY FILE .................................. 421
A.2. ACTS COVERED BY THE WRIT ........ 421
A.3. WHERE TO FILE ................................ 421
A.4. PROCEDURE .................................... 421
B. PROHIBITED PLEADINGS AND
MOTIONS .................................... 422
C. DISCOVERY MEASURES ........... 422
C.1. OCULAR INSPECTION ..................... 422
C.2. PRODUCTION OR INSPECTION OF
DOCUMENTS .......................................... 422
D. APPEAL ................................... 422
E. WRIT OF CONTINUING MANDAMUS
................................................... 422
xiv
UP LAW BOC CIVIL PROCEDURE REMEDIAL LAW
REMEDIAL LAW
CIVIL
PROCEDURE
1 OF 425
I. General Concepts A.3 PROSPECTIVITY/ RETROACTIVITY
GENERAL RULE: Rules of procedure may

A. CONCEPT OF REMEDIAL LAW be modified at any time to become effective
at once, so long as the change does not affect
Rem edial law traditional term given to
vested rights. Moreover, it is equally
the rules which prescribe the procedure for
axiomatic that there are no vested rights to
the protection and enforcement of all claims
rules of procedure. [Zulueta v. Asia Brewery, ,
arising from the rights and duties created by
G.R. No. 138137 (2001)]
law [Riano]
That branch of law which prescribes the EXCEPTIONS: as enumerated in Tan, Jr. v.
method of enforcing rights or obtaining CA (G.R. No. 136368 (2002), citing Agpalo:
redress for their invasion [Bustos v. Lucero, procedural rules do not apply to
G.R. No. L-2068 (1948)]. pending actions:
(1) where the statute itself or by necessary
A.1 SOURCE
implication provides that pending actions
Remedial law is mostly in the Rules of Court.
are excepted from its application;
Circulars of the Supreme Court implementing
(2) if applying the rule to pending actions
the Rules of Court (e.g. Rules on Summary
would impair vested rights;
Procedure) are also sources of remedial law.
(3) when to do so would not be feasible or
The Rules of Court, do not originate from the would work injustice;
legislature and cannot be called laws in the (4) if doing so would involve intricate
strict sense. However, since they are problems of due process or impair the
promulgated by authority of law, they have independence of the courts.
the force and effect of law, if not in conflict
with positive law. The rule is subordinate to B. SUBSTANTIVE LAW VIS--VIS
the statute, and in case of conflict, the statute REMEDIAL LAW
will prevail. [Riano citing Alvero v. Dela Rosa,
G.R. No. L-286 (1946); Shioji v Harvey, G.R. Substantive Law - creates, defines and
No. 18940 (1922)] regulates rights and duties regarding life,
liberty or property which when violated gives
A.2 APPLICABILITY rise to a cause of action [Bustos v. Lucero, G.R.
The Rules of Court shall apply in all the No. L-2068 (1948)]
courts, except as otherwise provided
by the SC. [Sec. 2, Rule 1] SUBSTANTIVE LAW REMEDIAL LAW
It shall govern the procedure to be observed Creates, defines, or Legislation providing
in civil or crim inal actions, and special regulates rights, means or methods
proceedings. [Sec. 3, Rule 1] concerning life, liberty whereby causes of
or property or the action may be
It does not apply to the following cases: powers of agencies or effectuated, wrongs
(1) Election cases, instrumentalities for redressed, and relief
(2) Land registration cases, the administration of obtained; also called
(3) Cadastral cases public affairs Adjective Law
(4) Naturalization cases, Vested rights are
It has no vested rights
possible
(5) Insolvency proceedings
Governs acts and
(6) Other cases not provided for in the Prospective in
transactions which took
Rules of Court application
place (retroactive)
SC is expressly
EXCEPT: by analogy or in a suppletory Cannot be enacted by empowered to
character and whenever practicable and the SC promulgate procedural
convenient [Sec. 4, Rule 1] rules
2 OF 425
C. RULE MAKING POWER OF THE

SUPREME COURT The power of the Supreme Court to suspend
its own rules or to except a particular case
Sec. 5(5), Art. VIII, of the 1987 CONST provides from its operations whenever the purposes of
that that the Supreme Court shall have the justice require it, cannot be questioned. [De
power to promulgate rules concerning: Guzman v. Sandiganbayan, G.R. No.
(1) the protection and enforcement of 103276(1996)]
constitutional rights,
(2) pleading, practice, and procedure in all Compliance with the procedural rules is the
courts; general rule, and abandonment thereof
(3) admission to the practice of law; should only be done in the most exceptional
(4) the Integrated Bar; circumstances. [Pilapil v. Heirs of Briones, G.R.
(5) legal assistance to the underprivileged No. 150175 (2007)]
The same section sets forth the limitations to Litigation is not a game of technicalities, but
the power: every case must be prosecuted in accordance
(1) The rules shall provide a simplified and with the prescribed rules of procedure to
inexpensive procedure for speedy ensure an orderly and speedy administration
disposition of cases; of justice. Only for the most persuasive of
(2) The rules shall be uniform for courts of the reasons can such rules be relaxed to relieve a
same grade; and litigant of an injustice not commensurate
(3) The rules shall not diminish, increase or with the degree of his thoughtlessness in not
modify substantive rights. complying with the procedure prescribed.
[Novateknika v. PNB, G.R. No. 194104 (2013)]
The 1987 Constitution, however, took away
the power of Congress to repeal, alter or Where strong considerations of substantive
supplement rules concerning pleading, justice are manifest in the petition, the strict
practice and procedure. The power to application of the rules of procedure may be
promulgate rules is no longer shared relaxed, in the exercise of its equity
by the Court with Congress, more so jurisdiction. A rigid application of the rules of
with the executive. [Echegaray v. Secretary of procedure will not be entertained if it will
Justice, G.R. No. 132601 (1999)] obstruct rather than serve the broader
interests of justice in the light of the
C.1 POWER OF THE SC TO AMEND prevailing circumstances in the case under
PROCEDURAL RULES consideration. [CMTC Intl Marketing Corp. v.
The SC has the sole prerogative to amend, Bhagis Intl Trading Corp., G.R. No. 170488
repeal, or even establish new rules for a more (2012)]
simplified and inexpensive process, and the
speedy disposition of cases. [Neypes v. CA, Parties praying for the liberal interpretation
G.R. No. 141524 (2005)] of the rules must be able to hurdle that heavy
burden of proving that they deserve an
The constitutional faculty of the Court to exceptional treatment. It was never the
promulgate rules necessarily carries with it Courts intent to forge a bastion for erring
the power to overturn judicial precedents on litigants to violate the rules with impunity.
points of remedial law through the [Prieto v. Alpadi Development Corp., G.R. No.
amendment of the Rules of Court. [Pinga v. 191025 (2013)]
Heirs of Santiago, G.R. No. 170354 (2006)]
Concomitant to a procedure adopting a
C.2 POWER OF SC TO SUSPEND liberal application of the rules should be an
The Rules of Court shall be liberally effort on the part of the party invoking
construed in order to promote their objective liberality to explain his failure to abide by the
of securing a just, speedy and inexpensive rules. [Duremdes v. Duremdes, G.R. No.
disposition of every action and proceeding. 138256 (2003)]
[Sec. 6, Rule 1]
3 OF 425
What constitutes good and sufficient cause D.2 CLASSIFICATION OF PHIL. COURTS
that would merit suspension of the rules is
discretionary upon the courts. [CIR v. Mirant i. Courts of original and appellate
Pagbilao Corp., G.R. No. 159593 (2006)] jurisdiction [Regalado]
Original Appellate
The reasons which would warrant suspension Actions or Have the power to
of the Rules are: proceedings may be review on appeal the
(1) The existence of special and compelling originally decisions or orders of
circumstances; commenced a lower court
(2) The merits of the case;
(3) A cause not entirely attributable to the Appellate jurisdiction refers to a process
fault or negligence of the party favored by which is but a continuation of the original suit,
the suspension; not a commencement of a new action.
(4) A lack of any showing that the reviw [Morales v. CA, G.R. No. 126623 (1997)]
sought is merely frivolous or dilatory; and
(5) The rights of the other party will not be ii. Courts of general and special
unjustly prejudiced thereby. [Sarmiento v. jurisdiction [Regalado]
Zaratan, G.R. No. 167471 (2007)] General Special
Competent to decide
D. NATURE OF PHILIPPINE COURTS their own jurisdiction No power to decide
and to take their own jurisdiction
D.1 MEANING OF A COURT cognizance of all and can only try
kinds of cases, unless cases permitted by
Court an organ of government belonging otherwise provided statute
to the judicial department, the function of by the law or Rules
which is the application of the laws to
controversies brought before it as well as the iii. Constitutional and statutory courts
public administration of justice. Constitutional Statutory
Owe creation and
It is also the place where justice is
existence to the
administered. [Riano citing Blacks Law
Constitution and
Dictionary, Am. Jur. and C. J. S.] Created, organized
cannot be legislated
and with jurisdiction
As Distinguished from a Judge: A court out of existence or
exclusively
is an organ of government with a personality deprived by law of the
determined by law
separate and distinct from the judge who sits jurisdiction and
on it. [People v. Carlos, G.R. No. L-239 (1947)] powers unqualifiedly
vested in them
Court Judge
Tribunal officially iv. Courts of law and equity
Officer of such Law Equity
assembled under
tribunal
authority of law Settle cases
Comparable to a A physical or natural according to the
corporation person Settle cases principles of equity,
according to law referring to principles
Jurisdiction does not attach to the of justice, fairness
judge but to the court. The continuity of and fair play
a court and the efficacy of its proceedings are
not affected by the death, resignation, or
cessation from the service of the judge
presiding over it. [ABC Davao Auto Supply v.
CA, G.R. No. 113296 (1998)]
4 OF 425
Philippine courts are basically courts of law, D.3 PRINCIPLE OF JUDICIAL HIERARCHY
not courts of equity. Equity, which has been
aptly described as a justice outside legality, Doctrine of hierarchy of courts: Where
is applied only in the absence of, and never courts have concurrent jurisdiction over a
against, statutory law. Aequetas nunquam subject matter, a case must be filed before
contravenit legis. [GF Equity, Inc. v. Valenzona, the lowest court possible having the
G.R. No. 156841 (2005)] appropriate jurisdiction, except if one can
advance a special reason which would allow
Equity is available only in the absence of law
direct recourse to a higher court.
and not as its replacement. [PTA of ST.
Matthew Christian Academy v. Metropolitan
The principle of hierarchy of courts requires
Bank and Trust Co., G.R. No. (2010)]
that recourses should be made to the lower
NOTE. In Carceller v. CA [G.R. No. 124791 courts before they are made to the higher
(1999)], the Supreme Court stated courts. [Republic v. Caguioa, G.R. No. 174385
immediately preceding the dispositive portion (2013)]
that: Courts of law, being also courts of
equity, may not countenance such grossly Parties must observe the hierarchy of courts
unfair results without doing violence to its before they can seek relief directly from the
solemn obligation to administer fair and SC the rationale is two-fold:
equal justice for all. (1) It would be an imposition upon the limited
time of the Court; and
v. Superior and Inferior Courts
(2) It would inevitably result in a delay, in the
[Regalado]
adjudication of cases, which are remanded
Superior Inferior
or referred to the lower court as the proper
Are lower in rank, in
forum, or a trier of facts. [People v
Have the power of relation to another
Azarraga, G.R. No. 187117 (2011)]
review or supervision court and subject to
over another and review and
A disregard of the doctrine of hierarchy of
lower court supervision by the
courts warrants, as a rule, the outright
latter
dismissal of a petition. [De Castro v. Carlos,
G.R. No. 194994 (2013)]
vi. Courts of record and not of record
Of record Not of record
The SC may disregard the doctrine if
Proceedings are
warranted by the nature and importance of
enrolled and are
the issues raised in the interest of speedy
bound to keep a
justice and to avoid future litigations.
written record of all
trials and
Direct resort to the SC has been allowed in
proceedings handled Not required to keep
the following cases:
by them [Regalado] a written record or
(1) Where there are special and important
transcript of
reasons clearly stated in the petition;
There is a strong proceedings held
(2) When dictated by public welfare and the
presumption as to therein
advancement of public policy;
the veracity of its
(3) When demanded by the broader interest
records that cannot
of justice;
be collaterally
(4) When the challenged orders were patent
attacked except in
nullities;
cases of fraud
(5) When analogous exceptional and
compelling circumstances called for and
All Philippine courts, including inferior courts,
justified the immediate and direct
are now courts of record. [Riano]
handling by the Court. [Republic v.
Caguioa, G.R. No. 174385 (2013)]
5 OF 425
D.4 DOCTRINE OF NON-INTERFERENCE

Also known as the doctrine of judicial II. Jurisdiction
stability
Jurisdiction: authority to decide a cause.
Courts of equal and coordinate jurisdiction [Tolentino v. Leviste, G.R. No. 156118 (2004)]
cannot interfere with each others orders
[Lapu-Lapu Devt and Housing Corp. v. Group Judicial Power includes the duty of the
Management Corp., G.R. No. 141407 (2002)] courts of justice:
(1) To settle actual controversies
The principle also bars a court from reviewing involving rights, which are legally
or interfering with the judgment of a co-equal demandable and enforceable; and
court over which it has no appellate (2) To determine W ON there has been
jurisdiction or power of review. [Villamor v. grave abuse of discretion amounting
Salas, G.R. No. 101041 (1991)] to lack or excess of jurisdiction on the part
of any branch or instrumentality of
The doctrine applies with equal force to Government. [Sec. 1, Art. VIII, 1987
administrative bodies. When the law provides Constitution]
for an appeal from the decision of an
administrative body to the SC or CA, it means Traditional vs expanded jurisdiction
that such body is co-equal with the RTC in [Araullo v. Aquino, G.R. No. 209287 (2015)]
terms of rank and stature, and logically
beyond the control of the latter [Phil. Sinter Traditional Expanded
Corp. v. Cagayan Electric Power, G.R. No. Addresses the
127371 (2002)]. relationship of parties
to any branch or
The rationale for the rule is founded on the Involves instrumentality of the
concept of jurisdiction: a court that acquires controversies government, and
jurisdiction over the case and renders brought about by allows direct but
judgment therein has jurisdiction over its rights whether limited redress
judgment, to the exclusion of all other public or private against the
coordinate courts, for its execution and over which are government
all its incidents, and to control, in furtherance demandable and available only when a
of justice, the conduct of ministerial officers enforceable against grave abuse of
acting in connection with this judgment. one another discretion on the part
[Cabili v. Balindong, A.M. No. RTJ-10-2225 of government is
(2011)] alleged to have been
committed
GENERAL RULE: No court has the
authority to interfere by injunction with the Judicial review: power of the Court to
judgment of another court of coordinate declare a law, treaty, international or
jurisdiction or to pass upon or scrutinize and executive agreement, presidential decree,
much less declare as unjust a judgment of proclamation, order, instruction, ordinance,
another court or regulation unconstitutional
EXCEPTION: The doctrine of judicial A. ASPECTS OF JURISDICTION

stability does not apply where a third party
claimant is involved this is in consonance
[BOSTON EQUITY RESOURCES, INC.
with the well-established principle that no V. CA, G.R. NO. 173946 (2013)]
man shall be affected by any proceeding to
which he is a stranger. [Sps. Crisologo v. A.1 JURISDICTION OVER THE SUBJECT
Omelio, A.M. No. RTJ-12-2321 (2012), citing MATTER
Sec. 16, Rule 39, and quoting Naguit v. CA, Jurisdiction over the subject matter
G.R. No. 137675 (2000)] the power of a particular court to hear the
type of case that is then before it [Riano citing
Blacks Law Dictionary]
6 OF 425
Jurisdiction over the subject matter of a case

It is the power to hear and determine cases of is conferred by law and determined by the
the general class to which the proceedings in allegations in the complaint which comprise
question belong. [Reyes v. Diaz, G.R. No. L- a concise statement of the ultimate facts
48754 (1941)] constituting the plaintiff's cause of action.
[City of Dumaguete v. PPA, G.R. No. 168973
i. Jurisdiction Versus the Exercise of (2011)]
Jurisdiction
Jurisdiction refers to the power or authority of Jurisdiction over the subject matter is
the court. [Arranza v. BF Homes, G.R. No. conferred only by the Constitution or law, it
131683 (2000)] while the exercise of this cannot be:
power or authority is the exercise of (1) Fixed by the will of the parties;
jurisdiction. (2) Acquired, waived, enlarged, or
diminished by any act or omission of the
Jurisdiction is not the same as the exercise of
parties; or
jurisdiction. As distinguished from the
(3) Conferred by the acquiescence of the
exercise of jurisdiction, jurisdiction is the
courts. [De Jesus v. Garcia, G.R. No. L-
authority to decide a cause, and not the
26816 (1967)]
decision rendered therein. Where there is
(4) Subject to compromise [Art. 2035(5), Civil
jurisdiction over the person and the subject
Code]
matter, the decision on all other questions
arising in the case is but an exercise of the
Generally, the jurisdiction of a court is
jurisdiction. And the errors which the court
determined by the statute in force at the
may commit in the exercise of jurisdiction are
commencement of the action, unless such
merely errors of judgment which are the
statute provides for its retroactive application.
proper subject of an appeal. [Tolentino v.
[Baritua v. Mercader, G.R. No. 136048 (2001)]
Leviste, G.R. No. 156118 (2004)]
ii. Error of Jurisdiction as Once vested by the allegations in the
Distinguished from Error of Judgm ent complaint, jurisdiction also remains vested
Error of jurisdiction Error of judgment irrespective of whether or not the plaintiff is
One where the act One which the court entitled to recover upon all or some of the
complained of was (1) may commit in the claims asserted therein. [City of Dumaguete v.
without jurisdiction, in exercise of its PPA, G.R. No. 168973 (2011)]
excess of jurisdiction, jurisdiction. It
or with grave abuse of includes errors of Jurisdiction is not affected by the pleas set up
discretion amounting procedure or mistakes by the defendant in his answer or in a motion
to lack of jurisdiction. in the courts findings. to dismiss, otherwise, jurisdiction would be
Correctible only by the dependent on his whims. [Sindico v. Diaz, G.R.
extraordinary writ of No. 147444 (2004)]
certiorari.
NOTE: Sec. 8, Rule 40 NOTE: The MTCC does not lose jurisdiction
allows an RTC with over ejectment cases by mere allegation of a
Correctible by appeal.
original jurisdiction tenancy relationship. However, if after
over a case brought on
hearing, tenancy had in fact been shown to
appeal from a lower
be the real issue, the court should dismiss the
court to decide the
case for lack of jurisdiction. [Hilado v. Chavez,
case on the merits.
Ground for reversal
G.R. No. 134742 (2004)]
Renders a judgment only if it is shown that
void or voidable. prejudice has been
caused.
iii. How Conferred and Determ ined

[Medical Plaza Makati Condominium v. Cullen,
G.R. No. 181416 (2013)]
7 OF 425
iv. Doctrine of Prim ary Jurisdiction v. Doctrine of Adherence of

The doctrine of primary jurisdiction holds that Jurisdiction
if a case is such that its determination Also known as doctrine of continuity of
requires the expertise, specialized training jurisdiction
and knowledge of the proper administrative
bodies, relief must first be obtained in an Once the jurisdiction of a court attaches, it
administrative proceeding before a remedy is continues until the case is finally terminated.
supplied by the courts even if the matter may The trial court cannot be ousted therefrom by
well be within their proper jurisdiction. subsequent happenings or events, although
[Province of Aklan v. Jody King Construction of a character that would have prevented
and Devt Corp., G.R. No. 197592 (2013)] jurisdiction from attaching in the first
instance. [Baritua v. Mercader, G.R. No.
The objective of the doctrine of primary 136048 (2001)]
jurisdiction is to guide the court in
determining whether it should refrain from As a consequence, jurisdiction is not affected
exercising its jurisdiction until after an by a new law placing a proceeding under the
administrative agency has determined some jurisdiction of another tribunal, except:
question or some aspect of some question (1) Where there is an express provision in the
arising in the proceeding before the court. statute
[Province of Aklan v. Jody King Construction (2) The statute is clearly intended to apply to
and Devt Corp., G.R. No. 197592 (2013)] actions pending before its enactment.
[People v. Cawaling, G.R. No. 117970
Exceptions: (1998)]
(1) Where there is estoppel on the part of the
party invoking the doctrine; vi. Objections to Jurisdiction over the
(2) Where the challenged administrative act is Subject Matter
patently illegal, amounting to lack of When it appears from the pleadings or
jurisdiction; evidence on record that the court has no
(3) Where there is unreasonable delay or jurisdiction over the subject matter, the court
official inaction that will irretrievably shall dismiss the same. [Sec. 1, Rule 9]
prejudice the complainant;
(4) Where the amount involved is relatively The Court ex mero motu may take cognizance
small; of lack of jurisdiction at any point in the case
(5) Where the question involved is purely where the fact is developed. The court has a
legal and will ultimately have to be clearly recognized right to determine its own
decided by the courts; jurisdiction in any proceeding. [Fabian v.
(6) Where judicial intervention is urgent; Desierto, G.R. No. 129742 (1998)].
(7) When its application may cause great and
The earliest opportunity of a party to raise the
irreparable damage;
issue of jurisdiction is in a motion to dismiss
(8) Where the controverted acts violate due
filed before the filing or service of an answer.
process;
Lack of jurisdiction over subject matter is a
(9) When the issue of non-exhaustion of
ground for a motion to dismiss. [Sec. 1(b),
administrative remedies has been
Rule 16]
rendered moot;
(10) When there is no other plain, speedy, If no motion is filed, the defense of lack of
adequate remedy; jurisdiction may be raised as an affirmative
(11)When strong public interest is involved; defense in the answer. [Sec. 16(6), Rule 16].
and
When the court dismisses the complaint for
(12) In quo warranto proceedings.
lack of jurisdiction over subject matter, it is
[Province of Aklan v. Jody King
submitted that the court should not remand
Construction and Devt Corp., G.R. No.
the case to another court with the proper
197592 (2013)]
jurisdiction. Its only has authority to dismiss
and not to make any other order. [Riano]
8 OF 425
vi. Effect of Estoppel on Objections to

Jurisdiction Jurisdiction over the person of the defendant
is necessary for the court to validly try and
GENERAL RULE: Jurisdiction over the
decide a case only in an action in personam. It
subject matter may be raised at any stage of
is not a prerequisite in an action in rem or
the proceedings, even for the first time on
quasi in rem, provided that the court acquires
appeal. The reason for this is that jurisdiction
jurisdiction over the res. [Alba v. CA, G.R. No.
is conferred by law, and lack of it affects the
164041 (2005)]
very authority of the court to take cognizance
of the action. [Asiatrust Development Bank v
An objection to jurisdiction over the person of
First Aikka Development, Inc., G.R. No. 179558
the defendant may be raised as a ground in a
(2011)]
Motion to Dismiss [Sec. 1(a), Rule 16] or as an
EXCEPTION: Tijam v. Sibonghanoy [G.R. No. affirmative defense in an Answer [Sec. 6, Rule
L-21450 (1968)] espoused the doctrine of 16].
estoppel by laches, which held that a party
may be barred from questioning a courts However, if not raised in such Motion or
jurisdiction after invoking the courts Answer, it is deemed waived. It is not one of
authority in order to secure affirmative relieve those defenses not deemed waived under
against its opponent laches would prevent Section 1, Rule 9. [Boston Equity Resources,
the issue of lack of jurisdiction from being Inc. v. CA, G.R. No. 173946 (2013)]
raised for the first time on appeal by a litigant
whose purpose is to annul everything done in A.3 JURISDICTION OVER THE ISSUES
a trial in which it has actively participated. An issue is a disputed point or question to
[Francel Realty Corp. v. Sycip, G.R. No. 154684 which parties to an action have narrowed
(2005)] down their several allegations and upon
which they are desirous of obtaining a
NOTE: Tijam must be construed as an
decision.
exception to the general rule and applied
only in the most exceptional cases whose
The SC had occasion to note that in some
factual milieu is similar to that in the latter
instances it has been held that the court must
case. [Figueroa v. People, G.R. No. 147406
also have jurisdiction over the issues that is,
(2008)]
the issue being tried and decided by the court
be within the issues raised in the pleadings
A.2 JURISDICTION OVER THE PARTIES
[Reyes v. Diaz, G.R. No. L-48754 (1941)]
A Court must acquire jurisdiction over the
persons of indispensable parties before it can
Generally, jurisdiction over the issues is
validly pronounce judgments personal to the
conferred and determined:
parties. [Regner v. Logarta, G.R. No. 168747
(2007)] (1) by the pleadings of the parties, which
present the issues to be tried and
The manner by which the court acquires determine whether or not the issues are of
jurisdiction over the parties depends on fact or law [Reyes v. Diaz, G.R. No. L-
whether the party is the plaintiff or the 48754 (1941)];
defendant. (2) by stipulation of the parties as when, in
the pre-trial, the parties enter into
Courts acquire jurisdiction over a party stipulations of facts or enter into
plaintiff upon the filing of the complaint. agreement simplifying the issues of the
[Regner v. Logarta, G.R. No. 168747 (2007)] case [Sec. 2, Rule 18];
(3) by waiver or failure to object to evidence
Jurisdiction over the person of the defendant on a matter not raised in the pleadings.
is acquired: Here the parties try with their express or
(1) By his voluntary appearance in court implied consent or issues not raised by the
and his submission to its authority; or pleadings. [Sec. 5, Rule 10]
(2) By service of summons. [Sec. 20, Rule 14;
Macasaet v. Co, G.R. No. 156759 (2013)]
9 OF 425
A.4 JURISDICTION OVER THE RES OR Estrada v. Desierto, G. R. No. 156160

PROPERTY IN LITIGATION (2004)]
Res, in civil law is a thing or object. It is
everything that may form an object of rights The certiorari jurisdiction of the Supreme
as opposed to a persona, which is the Court has been rigorously streamlined, such
subject of rights. It includes object, subject that Rule 65 only admits cases based on the
matter or status. [Riano citing Blacks Law specific grounds provided therein. The Rule
Dictionary] applies if there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary
Jurisdiction over the res refers to the courts course of law. The independent action for
jurisdiction over the thing or the property certiorari will lie only if grave abuse of
which is the subject of the action. discretion is alleged and proven to exist.
[Lagua v. CA, G.R. No. 173390 (2012)]
Jurisdiction over the res may be acquired:
(1) By seizure of the thing under legal process NOTE: That in Araullo v. Aquino III, G.R. No.
whereby, it is brought into actual custody 209287 (2014), the SC held that petitions for
of the law (custodia legis); or, certiorari and prohibition are appropriate
(2) From the institution of legal proceedings remedies to raise constitutional issues and to
wherein, under special provisions of law, review and/or prohibit or nullify the acts of
the power of the court over the property is legislative and executive officials. With
recognized and made effective (potential respect to the Court, however, the remedies
jurisdiction over the res). [Biaco v. of certiorari and prohibition are necessarily
Philippine Countryside Rural Bank, G.R. No. broader in scope and reach, and the writ of
161417 (2007); El Banco Espaol-Filipino v. certiorari or prohibition may be issued to
Palanca, G.R. No. L-11390 (1918)] correct errors of jurisdiction committed not
only by a tribunal, corporation, board or
As early as Perkins v. Dizon [G.R. No. 46631 officer exercising judicial, quasi-judicial or
(1939)], the Court held: In order that the ministerial functions but also to set right,
court may exercise power over the res, it is undo and restrain any act of grave abuse of
not necessary that the court should take discretion amounting to lack or excess of
actual custody of the property, potential jurisdiction by any branch or instrumentality
custody thereof being sufficient. There is of the Government, even if the latter does not
potential custody when, from the nature of exercise judicial, quasi-judicial or ministerial
the action brought, the power of the court functions.
over the property is impliedly recognized by
law. [Marcos, Jr. v. Republic, G.R. No. 189434 Concurrent Original Jurisdiction
(2014)] (1) With CA
(a) Petitions for certiorari, prohibition, and
B. JURISDICTION OF COURTS mandamus against:
(i) Regional Trial Courts;
B.1 SUPREME COURT (ii) Civil Service Commission;
Exclusive Original Jurisdiction (iii) Central Board of Assessment
Petitions for certiorari, prohibition and Appeals;
mandamus against: (iv) NLRC and other Quasi-Judicial
(1) Court of Appeals Agencies
(2) Commission on Elections NOTE: That, although there is
(3) Commission on Audit concurrent jurisdiction as the
(4) Court of Tax Appeals En Banc 1987 Constitution grants this to
(5) Sandiganbayan the SC, SC A.M. No. 07-7-12
(6) Ombudsman in criminal and non- issued on 4 December 2007
administrative disciplinary cases provides that if the petition
[Ombudsman v. Heirs of Margarita Vda. De involves an act/omission of a
Ventura, G.R. No. 151800 (2009), citing Quasi-Judicial Agency, the
10 OF 425
petition shall only be cognizable the CA, via Rule 43 of the Rules of Court. This
by the CA and must be filed there. constitutes an exception to the general rule
(b) Petitions for writ of kalikasan that appeals on pure questions of law are
brought to the SC. [Santos v. Committee on
(2) With RTC in cases affecting ambassadors, Claims Settlement, G.R. No. 158071 (2009)]
public ministers and consuls.
The SC may resolve factual issues in certain
exceptional circumstances:
(3) With CA and RTC
(a) Petitions for certiorari, prohibition and (1) The conclusion is grounded on
mandamus against lower courts and speculations, surmises or conjectures
bodies; (2) The inference is manifestly mistaken,
(b) Petitions for quo warranto; absurd or impossible;
(c) Petitions for writs of habeas corpus. (3) There is grave abuse of discretion;
(4) The judgment is based on a
(4) With CA, RTC and Sandiganbayan misapprehension of facts;
(a) Petitions for writ of amparo and habeas (5) The findings of fact are conflicting;
data. (6) There is no citation of specific evidence on
which the factual findings are based;
Appellate Jurisdiction (7) The finding of absence of facts is
By way of petition for review on certiorari contradicted by the presence of evidence
(appeal by certiorari under Rule 45) against: on record;
(1) CA (8) The findings of the CA are contrary to
(2) Sandiganbayan those of the trial court;
(3) RTC on pure questions of law (9) The CA manifestly overlooked certain
(4) CTA in its decisions rendered en banc relevant and undisputed facts that, if
(5) MetC, MTC, MCTC in the exercise of their properly considered, would justify a
delegated jurisdiction, where the decision, different conclusion;
had it been rendered by RTC, would be (10) The findings of the CA are beyond the
appealable directly to the SC [Sec. 34, BP issues of the case;
129, as amended] (11) Such findings are contrary to the
admissions of both parties.
Only pure questions of law are involved when [Josefa v. Zhandong, G.R. No. 150903 (2003)]
no evidentiary matters are to be evaluated by
the SC. If the only issue is whether or not the B.2 COURT OF APPEALS
conclusions of the trial court are in
consonance with law and jurisprudence, then Exclusive Original Jurisdiction
the issue is a pure question of law. [Urbano v. (1) Actions for annulment of judgments of
Chavez, G.R. No. 87977 (1990)] the RTC [see: Sec. 9(2), BP 129; Sec. 1,
Rule 47]
This appellate jurisdiction applies:
(1) In cases involving the constitutionality or Concurrent Original Jurisdiction
validity of a law or treaty, international or (1) With SC
executive agreement, law, presidential (a) Petitions for certiorari, prohibition, and
decree, proclamation, order, instruction, mandamus against:
ordinance or regulation, legality of a tax, (i) Regional Trial Courts;
impost, assessment, toll or penalty, (ii) Civil Service Commission;
jurisdiction of a lower court; and (iii) Central Board of Assessment
(2) All cases in which the jurisdiction of any Appeals;
court is in issue; (iv) NLRC and other Quasi-Judicial
(3) All cases in which an error or question of Agencies
law is involved NOTE: That, although there is
Note that the SC has held that appeals from concurrent jurisdiction as the
quasi-judicial agencies even only on a 1987 Constitution grants this to
question of law alone may be brought to the SC, SC A.M. No. 07-7-12
11 OF 425
issued on 4 December 2007 assessments, refunds of internal revenue

provides that if the petition taxes, fees or other charges, penalties in
involves an act/omission of a relation thereto, or other matters arising
Quasi-Judicial Agency, the under the NIRC or other laws
petition shall only be cognizable administered by BIR;
by the CA. (2) Inaction by CIR in the above-mentioned
(b) Petitions for writ of kalikasan cases, where the NIRC or other applicable
law provides a specific period of
(2) With SC and RTC action, in which case the inaction shall be
(a) Petitions for certiorari, prohibition and deemed an implied denial;
mandamus against lower courts and (3) Decisions, orders or resolutions of the
bodies; RTCs in local taxes originally decided or
(b) Petitions for quo warranto; resolved by them in the exercise of their
(c) Petitions for writs of habeas corpus. original or appellate jurisdiction;
(4) Decisions of the Commissioner of Customs
(3) With SC, RTC and Sandiganbayan in cases involving liability for customs
(a) Petitions for writ of amparo and habeas duties, fees or other charges, seizure,
data. detention or release of property affected,
fines, forfeitures or other penalties in
Exclusive Appellate Jurisdiction relation thereto, or other matters arising
(1) By ordinary appeal: under the Customs law or other laws
(a) From the RTC and the Family Courts administered by BOC;
(b) Over decisions of the MTCs in cadastral (5) Decisions of the Central Board of
or land registration cases pursuant to Assessment Appeals in the exercise of its
its delegated jurisdiction appellate jurisdiction over cases involving
the assessment and taxation of real
(2) By petition for review: property originally decided by the
(a) From judgments of the RTC rendered provincial or city board of assessment
in its appellate jurisdiction. appeals;
(b) From decisions, resolutions, orders or (6) Decision of the Secretary of Finance on
awards of the Civil Service Commission customs cases elevated to him
and other bodies mentioned in R43; automatically for review from decisions of
and the Commissioner of Customs which are
NOTE: The SC has clarified that the adverse to the government under Sec.
enumeration of the quasi-judicial 2315 of the Tariff and Customs Code;
agencies under Sec. 1, Rule 43 is not (7) Decisions of Secretary of Trade and
exclusive the said Rule is meant to be Industry in the case of non-agricultural
applied to any quasi-judicial agency articles, and the Secretary of Agriculture in
and not just those to those quasi- the case of agricultural articles, involving
judicial agencies listed. [Wong v. Wong, dumping duties and countervailing duties
G.R. No. 180364 (2014), quoting under Secs. 301 and 302, respectively, of
Cayao-Lasam v. Sps. Ramolete, G.R. No. the Tariff and Customs Code, and
159132 (2008)] safeguard measures under RA 8800,
(c) From decisions of the Office of the where either party may appeal the
Ombudsman in administrative decision to impose or not to impose said
disciplinary cases. duties.
Exclusive Original Jurisdiction
B.3 COURT OF TAX APPEALS (1) In tax collection cases involving final and
UNDER RA 9282 and RULE 5, AM 05-11-07 executory assessments for taxes, fees,
CTA charges and penalties, where the principal
amount of taxes and fees claimed,
Exclusive Appellate Jurisdiction: exclusive of charges and penalties, at least
(1) Decisions of Commissioner of Internal P1M.
Revenue in cases involving disputed
12 OF 425
(2) Over all criminal cases arising from B.4 SANDIGANBAYAN [P.D. 1606, AS
violation of the NIRC and the TCC and AMENDED BY R.A. 7975 AND R.A. 10660]
other laws, part of laws, or special laws
administered by the BIR or the BOC where Original Jurisdiction:
the principal amount of taxes and fees, (1) Violations of RA 3019, or the Anti-Graft
exclusive of charges and penalties claimed and Corrupt Practices Act
is less than P1M or where there is no (2) Violations of RA 1379, or the Anti-Ill-
specified amount claimed (the offenses or Gotten Wealth Act
penalties shall be tried by the regular (3) Sequestration cases, under Executive
courts and the jurisdiction of the CTA shall Order Nos. 1, 2, 14, and 14-A
be appellate); (4) Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC) where one or more of the principal
Exclusive Appellate Jurisdiction accused are occupying the following
(1) In criminal offenses positions in the government, whether in
(a) Over appeals from the judgment, permanent, acting or interim capacity, at
resolutions or orders of the RTC in tax the time of the commission of the offense:
cases originally decided by them, in (a) Officials of the executive branch
their respective territorial jurisdiction, occupying the positions of regional
and director and higher, otherwise
(b) Over petitions for review of the classified as Grade 27 and higher, of
judgments, resolutions or orders of the the Compensation and Position
RTC in the exercise of their appellate Classification Act of 1989 (RA 6758),
jurisdiction over tax cases originally specifically including:
decided by the MeTCs, MTCs, and (i) Provincial governors, vice-
MCTCs in their respective jurisdiction. governors, members of the
(2) In tax collection cases sangguniang panlalawigan, and
(a) Over appeals from the judgments, provincial treasurers, assessors,
resolutions or orders of the RTC in tax engineers, and other provincial
collection cases originally decided by department heads
them in their respective territorial (ii) City mayors, vice-mayors,
jurisdiction; and members of the sangguniang
(b) Over petitions for review of the panlungsod, city treasurers,
judgments, resolutions or orders of the assessors, engineers, and other
RTC in the exercise of their appellate city department heads
jurisdiction over tax collection cases (iii) Officials of the diplomatic service
originally decided by the MeTCs, MTCs occupying the position of consul
and MCTCs in their respective and higher
jurisdiction. (iv) Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
(v) Officers of the Philippine National
Police while occupying the
position of provincial director and
those holding the rank of senior
superintendent and higher
(vi) City and provincial prosecutors
and their assistants, and officials
and prosecutors in the Office of
the Ombudsman and special
prosecutor;
(vii) Presidents, directors or trustees,
or managers of government-
owned or controlled corporations,
13 OF 425
state universities or educational corresponding to Salary Grade 27 or higher,

institutions or foundations. or military and PNP officers mentioned above.
(b) Members of Congress and officials
thereof classified as G-27 and up under Appellate Jurisdiction over final
RA 6758 judgments, resolutions or orders of the RTC
(c) Members of the Judiciary without whether in the exercise of their original or
prejudice to the provisions of the appellate jurisdiction as provided.
Constitution
(d) Chairmen and Members of the Concurrent Original Jurisdiction with
Constitutional Commissions without SC, CA, and RTC for petitions for writs of
prejudice to the provisions of the habeas data and amparo
Constitution
(e) All other national and local officials NOTE: The requisites that the offender
classified as Grade 27 and higher under occupies salary Grade 27 and the offense
RA 6758 must be intimately connected with the official
(5) Other offenses or felonies whether simple function must concur for the SB to have
or complexed with other crimes jurisdiction
committed by the public officials and
employees mentioned in subsection a. of B.5 REGIONAL TRIAL COURTS
section 4 (as amended) in relation to their
office. Exclusive Original Jurisdiction
(6) Civil and criminal cases filed pursuant to (1) The subject matter of the action is
and in connection with EO Nos. 1, 2, 14-A incapable of pecuniary estimation [Sec.
(Sec. 4, RA 8249) 19(1), BP 129]
(7) Petitions for mandamus, prohibition,
certiorari, habeas corpus, inunctions, and Test (Principal Nature of an Action): If
other ancillary writs and processes in aid it is primarily for the recovery of a sum of
of its appellate jurisdiction, and petitions money, the claim is considered capable of
of similar nature, including quo warranto, pecuniary estimation. On the other hand,
arising or that may arise in cases filed or where the basic issue is something other than
which may be filed under Executive Order the right to recover a sum of money, and the
Nos. 1, 2, 14 and 14-A, issued in 1986. money claim is purely incidental to, or a
consequence of, the principal relief sought,
NOTE: Without the office, the crime cannot such actions are cases where the subject of
be committed. the litigation is incapable of pecuniary
estimation. [Heirs of Padilla v. Magdua, G.R.
NOTE: The RTC shall have Exclusive Original No. 176858 (2010), quoting Singson v. Isabela
jurisdiction where the information Sawmill, G.R. No. L-27343 (1979)]
(1) Does not allege any damage to the
government or any bribery; or, An action to nullify a Deed of
(2) Alleges damage to the government or Assignment and Conveyance is not
bribery arising from the same or closely one involving a subject m atter
related transactions or acts in an amount incapable of pecuniary estim ation if
not exceeding P1,000,000. the plaintiff also seeks to the transfer
of possession and control of
Subject to rules promulgated by the SC the properties: In Home Guaranty v. R-II
cases falling under the jurisdiction of the RTC Builders [G.R. No. 192649 (2011)], an action
shall be tried in a judicial region other than that sought the nullification of a Deed of
where the official holds office. Assignment and Conveyance was
characterized by the respondent on an MR
NOTE: Exclusive Original jurisdiction shall before the SC as one involving a subject
be vested in the proper RTC, MeTC, MTC, and matter incapable of pecuniary estimation.
MCTC, as the case may be where none of The SC disagreed and held that since the
the accused are occupying positions action was not solely for the annulment of the
14 OF 425
Deed of Assignment and Conveyance

indeed, the respondent consistently sought (2) Civil actions involving title to, or
the transfer of possession and control of possession of real property, or any interest
properties following the its ruling in Ruby therein, where assessed value exceeds
Shelter Builders and Realty Development Corp. P20,000 outside Metro Manila, or exceeds
v. Formaran III, G.R. No. 175914 (2009), the P50,000 in Metro Manila [Sec. 19(2), BP
subject of the action was not incapable of 129]
pecuniary estimation.
EXCEPTION: Forcible entry and unlawful
However, if the principal nature of an detainer cases [Sec. 33(2), BP 129]
action to cancel a contract to sell,
where the defendant has already An action "involving title to real property"
taken possession of the property, means that the plaintiff's cause of action is
involves a determ ination on whether a based on a claim that he owns such property
suspensive condition has been or that he has the legal rights to have
fulfilled then the subject m atter exclusive control, possession, enjoyment, or
involved is one that is incapable of disposition of the same. Title is the "legal link
pecuniary estimation: In Olivarez Realty v. between (1) a person who owns property and
Castillo [G.R. No. 196251 (2014)], the action (2) the property itself." [Heirs of Sebe v. Heirs
instituted in the trial court was one for the of Sevilla, G.R. No. 174497 (2009)]
cancellation of a contract to sell, and prior to
the institution of the action the defendant (3) If the amount involved exceeds P300,000
had already proceeded to occupy the property outside Metro Manila or exceeds
involved. In this instance, the SC held that the P400,000 in Metro Manila in the
action involved a subject matter that was following cases [BP 129, as amended by
incapable of pecuniary estimation. The RA 7691]:
difference in the ruling of the SC here and in (a) Actions in admiralty and maritime
Home Guaranty lies in that fact that in jurisdiction, where the amount refers
Olivarez Realty, what the plaintiff had to the demand or claim [Sec. 19(3)]
principally sought was a determination that a (b) Matters of probate (testate or
suspensive condition for the perfection of the intestate), where the amount refers to
contract had not been fulfilled: the trial the gross value of the estate [Sec.
court principally determined whether 19(4)]
Olivarez Realty Corporation failed to pay (c) Other actions involving personal
installments of the propertys purchase price property, where the amount refers to
as the parties agreed upon in the deed of the value of the property
conditional sale. The principal nature of (d) Demand for money, where the amount
Castillos action, therefore, is incapable of refers to the demand exclusive of
pecuniary estimation. interest, damages of whatever kind,
attorneys fees, litigation expenses and
SEE ALSO: Heirs of Bautista v. Lindo [G.R. costs [Sec. 19(8)].
No. 208232 (2014)], where an action to
redeem a land subject of a free patent was The exclusion of damages of whatever kind
characterized by the SC as one whose subject applies to cases where the damages are
matter was incapable of pecuniary estimation merely incidental to or a consequence of the
since the reacquisition of the land was merely main cause of action. However, if the claim
incidental to and an offshoot of the exercise for damages is the main cause of action, or
of the right to redeem the land, pursuant to one of the causes of action, the amount of
Sec. 119 of CA 141. such claim shall be considered [Admin Circ.
No. 09-94]
This also includes expropriation proceedings,
which are considered incapable of pecuniary (4) All actions involving the contract of
estimation. [Barangay San Roque v. Heirs of marriage and family relation [Sec. 19(5),
Francisco Pastor, G.R. No. 138896 (2000)] BP 129], and all civil actions falling within
15 OF 425
the exclusive original jurisdiction of the fall due or in cases where the
Juvenile and Domestic Relations Court corporation, partnership of association
and of the Court of Agrarian Reform [Sec. has no sufficient assets to cover its
19(7), BP 129] liabilities, but is under the
management of a Rehabilitation
See Jurisdiction of Family Courts, infra. Receiver or Management Committee.
In areas where there are no Family Courts, (7) Petitions for Declaratory Relief [Sec. 1,
the cases within their jurisdiction shall be Rule 63]
adjudicated by the RTC [Sec. 17, RA 8369]
Concurrent Original Jurisdiction
(5) All cases not within the exclusive (1) With SC in cases affecting ambassadors,
jurisdiction of any court, tribunal, person, public ministers and consuls.
or body exercising judicial or quasi-judicial (2) With SC and CA
functions (General Original (a) Petitions for certiorari, prohibition and
Jurisdiction) [Sec. 19(6), BP 129] mandamus against lower courts and
bodies;
(6) Jurisdiction to Hear and Decide Intra- (b) Petitions for quo warranto;
Corporate Controversies [Sec. 52, (c) Petitions for writs of habeas corpus.
Securities and Regulations Code] (3) With SC, CA and Sandiganbayan
(a) Cases involving devises or schemes (a) Petitions for writ of amparo and habeas
employed by or any acts, of the board data.
of directors, business associates, its (4) With Insurance Commissioner for claims
officers or partnership, amounting to not exceeding P100,000
fraud and misrepresentation which
may be detrimental to the interest of Appellate Jurisdiction over cases decided
the public and/or of the stockholders, by lower courts in their respective territorial
partners, members of associations or jurisdictions, except those made in the
organizations registered with the SEC exercise of delegated jurisdiction, which are
(b) Controversies arising out of intra- appealable in the same manner as decisions
corporate or partnership relations, of the RTC [Sec. 34, BP 129, as amended].
between and among stockholders,
members or associates; between any or Special Jurisdiction - SC may designate
all of them and the corporation, certain branches of RTC to try exclusively
partnership or association of which criminal cases, juvenile and domestic
they are stockholders, members or relations cases, agrarian cases, urban land
associates, respectively; and between reform cases not falling within the jurisdiction
such corporation , partnership or of any quasi-judicial body and other special
association and the state insofar as it cases in the interest of justice.
concerns their individual franchise or
right to exist as such entity
(c) Controversies in the election or
appointments of directors, trustees,
officers or managers of such
corporations, partnerships or
associations
(d) Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases where the corporation,
partnership of association possesses
sufficient property to cover all its debts
but foresees the impossibility of
meeting them when they respectively
16 OF 425
B.6 FAMILY COURTS [RA 8369] B.7 METROPOLITAN TRIAL COURTS/

(1) Criminal cases where one or more of the MUNICIPAL TRIAL COURTS
accused is below 18 or one or more of the
victims was a minor; Exclusive Original Jurisdiction
(2) Petitions for guardianship, custody of (1) If the amount involved does not exceed
children and habeas corpus involving P300,000 outside Metro Manila or does
children; not exceed P400,000 in Metro Manila in
(3) Petitions for adoption of children and the the following cases:
revocation thereof; (a) Actions in admiralty and maritime
(4) Complaints for annulment of marriage, jurisdiction;
declaration of nullity of marriage and (b) Matters of probate (testate or
those relating to status and property intestate);
relations of husband and wife or those (c) Other actions involving personal
living together under different status and property;
agreements, and petitions for dissolution (d) Demand for money;
of conjugal partnership of gains; (2) Actions involving title to, or possession of,
(5) Petitions for support and/or real property, or any interest therein where
acknowledgment; the assessed value of the property or
(6) Summary judicial proceedings brought interest therein does not exceed P20,000
under the provisions of the Family Code; outside Metro Manila or does not exceed
(7) Petitions for declaration of status of P50,000 in Metro Manila
children as abandoned, dependent or (3) Inclusion and exclusion of voters
neglected children, petitions for voluntary (4) Those governed by the Rules on Summary
or involuntary commitment of children, Procedure
the suspension, termination or restoration (5) Forcible entry and unlawful detainer
of parental authority and other cases (FEUD)
cognizable under PD 603, EO 56, s. 1986, (a) With jurisdiction to resolve issue of
and other related laws; ownership to determine ONLY issue of
(8) Petitions for the constitution of the family possession (provisional only)
home; (b) Irrespective of the amount of damages
(9) Cases against minors cognizable under or unpaid rentals sought to be recover
the Dangerous Drugs Act, as amended; (c) Where attorneys fees are awarded, the
(10) Violations of RA 7610, or the Special same shall not exceed P20,000
Protection of Children Against Child {Should these three be just a child of
Abuse, Exploitation and Discrimination FEUD, as done in this version of the
Act; and reviewer, or should these three be
(11) Cases of domestic violence against listed as separate items, as done in the
Women and Children original version?}
(6) Other civil cases, except probate
proceeding, where the total amount of the
plaintiffs claim does not exceed
P200,000 in MM, exclusive of interests
and costs. {Editor does not know the
basis for this item.}
Special Jurisdiction over petition for writ

of habeas corpus OR application for bail in
criminal cases in the absence of all RTC
judges in the province or city
17 OF 425
Delegated Jurisdiction to hear and Concurrent Jurisdiction of Sharia

decide cadastral and land registration cases District Courts
where: The Sharia courts shall have original
(1) There is no controversy over the land jurisdiction concurrently with existing civil
(2) In case of contested lands, the value does courts for:
not exceed P100, 000: (1) Petitions of Muslim for the constitution of
(a) The value is to be ascertained: the family home, change of name and
(i) By the claimants affidavit commitment of an insane person to an
(ii) By agreement of the respective asylum;
claimants, if there are more than (2) All other personal and legal actions not
one mentioned in par. (d) of the immediately
(iii) From the corresponding tax preceding topic, wherein the parties
declaration of the real property involved are Muslims
Exception: those for forcible entry and
NOTE: MTC decisions in cadastral and land unlawful detainer, which shall fall under
registration cases are appealable in the same the exclusive jurisdiction of the MTC.
manner as RTC decisions (3) All special civil actions for interpleader or
declaratory relief wherein the parties are
1st level courts: Muslims or the property involved belongs
(a) Metropolitan Trial Court Metro Manila; exclusively to Muslims
(b) Municipal Trial Courts in Cities situated
in cities Appellate Jurisdiction of Sharia
(c) Municipal Circuit Trial Court composed District Courts
of multi-sala Such courts have appellate jurisdiction over
(d) Municipal Trial Courts in one all cases tried in the Sharia Circuit Courts
municipality within their territorial jurisdiction.
B.8 SHARIA COURTS Exclusive Original Jurisdiction of

Sharia Circuit Courts
Exclusive Original Jurisdiction of (1) Offenses defined and punished under PD
Sharia District Courts 1083
(1) All cases involving custody, guardianship, (2) Disputes relating to:
legitimacy, paternity and filiation arising (a) Marriage;
under the Code of Muslim Personal Laws; (b) Divorce under PD 1083;
(2) All cases involving disposition, distribution (c) Betrothal or breach of contract to
and settlement of estate of deceased marry;
Muslims, probate of wills, issuance of (d) Customary dowry (mahr);
letters of administration of appointment (e) Disposition and distribution of property
administrators or executors regardless of upon divorce;
the nature or aggregate value of the (f) Maintenance and support and
property; consolatory gifts (muta); and
(3) Petitions for the declaration of absence (g) Restitution of marital rights
and death for the cancellation and (3) Disputes relative to communal properties
correction of entries in the Muslim
Registries; The Sharia District Court or the Sharia
(4) All actions arising from the customary Circuit Court may constitute an Agama
contracts in which the parties are Muslims, Arbitration Council to settle certain cases
if they have not specified which law shall amicably and without formal trial. The
govern their relations; and Council is composed of the Clerk of Court as
(5) All petitions for mandamus, prohibition, Chairperson and a representative of each of
injunction, certiorari, habeas corpus and all the conflicting parties.
other auxiliary writs and processes in aid
of its appellate jurisdiction C. JURISDICTION OVER SMALL
CLAIMS
18 OF 425
MTCs, MeTCs and MCTCs shall have (3) Motion for new trial, or for reconsideration
jurisdiction over actions for payment of of a judgment, or for reopening of trial;
money where the value of the claim does not (4) Petition for relief from judgment;
exceed P200,000 exclusive of interest and (5) Motion for extension of time to file
costs [Sec. 2, AM 08-8-7-SC, February 1, pleadings, affidavits, or any other paper;
2016]. (6) Memoranda;
(7) Petition for certiorari, mandamus, or
Applicability [Sec. 2, AM 08-8-7-SC, prohibition against any interlocutory order
February 1, 2016]: all actions which are issued by the court;
purely civil in nature, where the claim or relief (8) Motion to declare the defendant in
prayed for by the plaintiff is solely for default;
payment or reimbursement of sum of money. (9) Dilatory motions for postponement;
(10) Reply;
The claim or demand may be: (11) Third-party complaints; and
(1) For money owed under a contract of lease, (12) Interventions.
loan, services, sale, or mortgage
(2) For liquidated damages arising from E. CASES COVERED BY BARANGAY
contracts; CONCILIATION
(3) The enforcement of a barangay amicable The Lupon of each barangay shall have the
settlement or an arbitration award authority to bring together the parties
involving a money claim covered by this actually residing in the same municipality or
Rule pursuant to Sec. 417 of the LGC. city for amicable settlement of all disputes.
D. CASES COVERED BY RULES ON EXCEPT:

SUMMARY PROCEDURE (1) Where one party is the government or any
subdivision or instrumentality thereof
Civil Cases subject to Summary (2) Where one party is a public officer or
Procedure employee, and the dispute relates to the
(1) All cases of forcible entry and unlawful performance of his official functions
detainer (FEUD), irrespective of the (3) Offenses punishable by imprisonment
amount of damages or unpaid rentals exceeding one (1) year or a fine exceeding
sought to be recovered; and P5,000
(2) All other cases, except probate (4) Offenses where there is no private
proceedings where the total amount of the offended party
plaintiffs claim does not exceed P100,000 (5) Where the dispute involves real properties
(outside Metro Manila) or P200,000 (in located in different cities or municipalities
Metro Manila), exclusive of interest and unless the parties thereto agree to submit
costs. their differences to amicable settlement
by an appropriate lupon
Probate proceedings are not covered by the (6) Disputes involving parties who actually
Rule on Summary Procedure even if the gross reside in barangays of different cities or
value of the estate does not exceed the municipalities, except where such
above-mentioned amounts. barangay units adjoin each other and the
parties thereto agree to submit their
Prohibited Pleadings differences to amicable settlement by an
[Sec. 19, 1991 Revised Rule on Summary appropriate lupon
Procedure] (7) Such other classes of disputes which the
(1) Motion to dismiss the compliant except on President may determine in the interest of
the ground of justice or upon the recommendation of the
(a) Failure to comply with barangay Secretary of Justice
conciliation proceedings; or
(b) Lack of jurisdiction over the subject (8) Any complaint by or against corporations,
matter partnerships, or juridical entities. The
(2) Motion for a bill of particulars; reason is that only individuals shall be
19 OF 425
parties to barangay conciliation

proceedings either as complainants or III. Commencement of
respondents
(9) Disputes where urgent legal action is
Actions to Trial
necessary to prevent injustice from being
committed or further continued, A. ACTIONS
specifically: An ordinary suit in a court of justice by which
(a) A criminal case where the accused is one party prosecutes another for the
under police custody or detention enforcement or protection of a right or the
(b) A petition for habeas corpus by a prevention or redress of a wrong [Potente v.
person illegally detained or deprived of Saulog Transit, G.R. No. L-12300 (1959)]
his liberty or one acting in his behalf
(c) Actions coupled with provisional An action is the legal and formal demand of
remedies, such as preliminary ones right from another person made and
injunction, attachment, replevin and insisted upon in a court of justice. The
support pendente lite determinative operative act, which converts a
(d) Where the action may be barred by claim into an action, is its filing with a court of
statute of limitation justice. [Riano]
(10) Labor disputes or controversies
arising from employer-employee This is distinguished from the cause of action,
relationship which is the fact or combination of facts
(11)Where the dispute arises from the CARL which affords a party a right to judicial
(12) Actions to annul judgment upon a interference in his behalf [Into v. Valle, G.R.
compromise which can be directly filed in No. 145379 (2005)] and which is the basis of
court. ordinary civil actions. [Sec. 1, Rule 2]
NOTE: It is a condition precedent under Rule A.1 KINDS OF ACTIONS

16; can be dismissed but without prejudice
CIVIL ACTION
F. TOTALITY RULE One by which a party sues another for the
Where there are several claims or causes of enforcement or protection of a right, or the
actions between the same or different parties, prevention or redress of a wrong [Sec. 3(a),
embodied in the same complaint, the par. 1, Rule 1]
am ount of the dem and shall be the Ordinary civil action civil action
totality of the claim s in all the claim s that is governed by the rules for ordinary
of action, irrespective of whether the causes civil actions
of action arose out of the same or different Special civil action civil that is
transactions [Sec. 33[1], BP 129]. subject to the specific rules prescribed for
a special civil action but also governed by
the rules for ordinary civil actions [Sec.
3(a), par. 2, Rule 1]
CRIMINAL ACTION
One by which the State prosecutes a person
for an act or omission punishable by law [Sec.
3(b), Rule 1]
20 OF 425
Kinds of Ordinary Civil Actions Special

Action
(1) As to place Proceeding
(a) Transitory action founded on privity As to appeal from an Interlocutory Order
of contract between parties; brought in Cannot be directly
the place where the party resides and immediately Can be immediately
(b) Local - action founded on privity of appealed to the and directly
estate only and there is no privity of appellate court until appealed to the
contract; brought in a particular place after final judgment appellate court
(2) As to object on the merits
(a) Action in rem
(b) Action quasi in rem A.3 PERSONAL ACTIONS AND REAL
(c) Action in personam ACTIONS
(3) As to foundation The distinction is importation for purposes of
(a) Real determining venue: The question whether or
(b) Personal not venue has been properly laid depends to
a great extent on the kind of action (real or
A.2 CIVIL ACTIONS VERSUS SPECIAL personal) presented by the Complaint.
PROCEEDINGS [PICOP v. Samson, G.R. No. L-30175 (1975)]
Civil Action one by which a party sues
REAL ACTION
another for the enforcement or protection of
a right, or the prevention or redress of a An action affecting title to or possession of
real property, or interest therein. [See Sec. 1,
wrong. [Sec. 3(a), par. 1, Rule 1]
Rule 4]
Special Proceeding remedy by which a
party seeks to establish a status, a right, or a A real action is local, i.e. its venue depends
upon the location of the property involved in
particular fact. [Sec. 3(c), Rule 1]
the litigation. [Sec. 1, Rule 4; BPI v.
Special Hontanosas, G.R. No. 157163 (2014)]
Action
Proceeding
Not every action involving real property is a
As to Parties
real action because the realty may only be
Involves at least 1
incidental to the subject matter of the suit.
Involves at least 2 party or 2 or more
See again the cases of Heirs of Bautista and
parties parties in proper
Olivarez Realty: in both cases, the SC held
cases
that the conveyance of real property was only
As to cause of action
incidental to the determination of things that
Does not involve the were incapable of pecuniary estimation.
Involves a right and a
violation of a right,
violation of such right PERSONAL ACTION
instead is concerned
by the defendant, All other actions [Sec. 2, Rule 4]
with the
which causes some
establishment of a A personal action is transitory, i.e. its
damage or prejudice
right (or of a status venue depends upon the residence of the
upon the plaintiff
or a particular fact) plaintiff or of the defendant, at the option of
As to formalities the plaintiff. [Sec. 2, Rule 4; BPI v.
Requires the Hontanosas, G.R. No. 157163 (2014)]
Requires no such
application of legal
formalities, as it
remedies in
may be granted
accordance with the
upon application
prescribed rules
As to governing rules
Ordinary rules of Special rules of
procedure procedure
21 OF 425
A.4 LOCAL AND TRANSITORY ACTIONS ACTION QUASI IN REM

Local action Transitory action One which seeks to directly subject the
One that could be property or interest of named defendants to
One that could be the obligation or lien of the plaintiff.
prosecuted in any
instituted in one
one of several places
specific place [Manila ACTION IN PERSONAM
[Manila Railroad v.
Railroad v. Attorney- One which seeks to enforce personal rights
Attorney-General,
General, G.R. No. L- and obligations brought against the person.
G.R. No. L-6287
6287 (1911)] Its purpose is to impose, through the
(1911)]
Its venue depends judgment of the court, some liability directly
Venue depends upon upon the residence of upon the person of the defendant.
the location of the the plaintiff or of the
property involved in defendant, at the The rule is that: (1) a judgment in rem is
the litigation [BPI v. option of the plaintiff binding upon the whole world, such as a
Hontanosas, G.R. No. [BPI v. Hontanosas, judgment in a land registration case or
157163 (2014)] G.R. No. 157163 probate of a will; and (2) a judgment in
(2014)] personam is binding upon the parties and
their successors-in-interest but not upon
E.g. Action to recover E.g. Action to recover strangers. [Munoz v. Yabut, G.R. No. 142676
real property sum of money (2011)]
If action is founded on privity of contract In actions in personam, courts must

between parties, then the action is transitory. acquire jurisdiction over the person of
[De la Cruz v. El Seminario de la Archidiocesis the parties: recall the Regner case [Regner
de Manila, G.R. No. L-5402 (1911)] v. Logarta, G.R. No. 168747 (2007)], which
clarified that a court must acquire jurisdiction
But if there is no privity of contract and the over the persons of indispensable parties
action is founded on privity of estate only, before it can validly pronounce judgments
such as a covenant that runs with the land in personal to the parties this ruling is
the hands of remote grantees, then the action applicable to actions in personam.
is local and must be brought in the place
where the land lies. [De la Cruz v. El Seminario In actions in rem and quasi in rem ,
de la Archidiocesis de Manila, G.R. No. L-5402 jurisdiction over the person of the
(1911)] parties is not essential: see again the
Biaco case [Biaco v. Phil. Countryside Rural
A.5 ACTIONS IN REM, IN PERSONAM, OR Bank, G.R. No. 161417 (2007)], where the SC
QUASI IN REM clarified that in a proceeding in rem or quasi
The distinction is important to determine in rem, jurisdiction over the person of the
whether or not jurisdiction over the person of defendant is not a prerequisite to confer
the defendant is required, and the type of jurisdiction on the court provided that the
summons to be employed. [Riano] court acquires jurisdiction over the res.
ACTION IN REM
One which seeks to determine the state or
condition of a thing.
22 OF 425
Table: Actions in rem, in personam, A.6 INDEPENDENT CIVIL ACTIONS [SEC. 3,

and quasi in rem RULE 111]
Action An independent civil action may be brought
Action in Action in
quasi in in the cases provided by:
rem personam
rem (1) Art. 32, Civil Code (Violation of
Directed Directed Constitutional rights by a public officer or
Directed
against against employee, or a private individual)
against the
particular particular (2) Art. 33 (defamation, fraud, or physical
thing itself
persons persons injuries)
Jurisdiction (3) Art. 34 (refusal or failure to render aid or
over the protection by a member of the police
Jurisdiction force); and
Jurisdiction person of
over the (4) Art. 2176 (quasi-delict)
over the defendant is
person of
person of not required
the Physical injuries under Art. 33 is used in
defendant as long as
defendant the generic sense, and not in reference to the
required jurisdiction
not required offenses defined in the Revised Penal Code. It
over the res
is required also includes consummated, frustrated, and
Proceeding attempted homicide and death arising from
to subject delict. [Madeja v. Hon. Caro, G.R. No. L-51183
the interest (1983)]
Action to of a named
Proceeding
to determine
impose a defendant B. CAUSE OF ACTION
responsibility over a
the state or
or liability particular CAUSE OF ACTION
condition of
upon a person property to The act or omission by which a party violates
a thing
directly an a right of another. [Sec. 2, Rule 2]
obligation
or lien Every ordinary civil action must be based on a
burdening it cause of action [Sec. 1, Rule 2]
Judgment is
binding only A cause of action stems from the sources of
Judgment
Judgment is upon obligations under Art. 1156 of the Civil Code:
binging
binding on impleaded (1) Law,
upon
the whole parties or (2) Contract,
particular
world their (3) Quasi-contract,
persons
successors in (4) Acts and omissions punishable by law
interest and
E.g. Action (5) Quasi-delict. [Sagrada Orden etc v.
E.g. Probate E.g. for partition; NACOCO, G.R. No. L-3756 (1952)]
proceeding, Collection foreclosure
cadastral suit, Action of real Elements of a Cause of Action:
proceeding for Damages estate (1) Plaintiffs legal right;
mortgage (2) Defendants correlative obligation to
respect plaintiffs right;
(3) Defendants act/omission in violation of
plaintiffs right [Ma-ao Sugar Central v.
Barrios, G.R. No. L-1539 (1947)]
A cause of action must exist at the time of the

filing of the complaint else, the case shall
be dismissible for being a groundless suit.
[Swagman Hotels and Travel v. CA, G.R. No.
161135 (2005), reiterating Surigao Mine
23 OF 425
Exploration v. Harris, G.R. No. L-45543

(1939)] The complaint must contain a concise
statement of the ultimate or essential facts
B.1 RIGHT OF ACTION VERSUS CAUSE OF constituting the plaintiffs cause of action.
ACTION The focus is on sufficiency, not veracity, of the
Right of action Cause of action material allegations. [Anchor Savings Bank v.
The remedial right or Furigay, G.R. No. 191178 (2013)]
The delict or
right to relief granted
wrongful act or TEST OF SUFFICIENCY
by law to a party to
omission committed The test of sufficiency of a cause of action
institute an action
by the defendant in rests on whether, hypothetically admitting
against a person who
violation of the the facts alleged in the complaint to be true,
has committed a
primary rights of the the court can render a valid judgment upon
delict or wrong
plaintiff the same, in accordance with the prayer in
against him
Right to sue as a the complaint. [Heirs of Maramag v. Maramag,
consequence of the The delict or wrong G.R. No. 181132 (2009)]
delict
Determined by the However, there is no hypothetical admission
Whether such acts of the veracity of the allegations if:
averments in the
give him right of (1) The falsity of the allegations is subject to
pleading regarding
action determined by judicial notice;
the acts committed
substantive law (2) The allegations are legally impossible;
by the defendant
(3) The allegations refer to facts which are
There can be no right of action without a inadmissible in evidence;
cause of action being first established (4) By the record or document in the pleading,
[Regalado citing Espaol v. The Chairman of the allegations appear unfounded; or
PVA, G.R. No. L-44616 (1985)] (5) There is evidence which has been
presented to the court by stipulation of the
For an instance where the right of action of a parties or in the course of hearings related
plaintiff was suspended, see again the Ma-ao to the case [Heirs of Maramag v. Maramag,
Sugar Central case [Ma-ao Sugar Central v. G.R. No. 181132 (2009)].
Barrios, G.R. No. L-1539 (1947)] where the SC
had occasion to hold that an EO providing for When the ground for dismissal is that the
a debt moratorium not only suspended the complaint states no cause of action, such fact
execution of the judgment that the court can be determined only from the facts
could render so far as it ordered the payment alleged in the complaint and from no other,
of debts and other monetary obligations, but and the court cannot consider other matters
also suspended the filing of suit in the courts aliunde. [Manaloto v. Veloso III, G.R. No.
of justice for the enforcement of the payment 171635 (2010)]
of debts and other monetary obligations.
Note, however, that there have been
B.2 FAILURE OF THE COMPLAINT TO instances when the SC considered matters
STATE A CAUSE OF ACTION aside from the facts alleged in the
Even if in reality, the plaintiff has a cause of com plaint, such as:
action against the defendant, the complaint (1) Documents attached to the complaint
may be dismissed if the complaint or [Agrarian Reform Beneficiaries Association
pleading asserting the claim states no cause v. Nicolas, G.R. No. 168394 (2008)] this
of action. [Sec. 1(g), Rule 16] case refers to actionable documents which
by express provision of the Rules of Court
The cause of action must unmistakably be are deemed part of the pleading.
stated or alleged in the complaint. All the (2) Appended annexes, other pleadings, and
elements required by substantive law must admissions on record [Zepeda v. China
clearly appear from a mere reading of the Banking Corp., G.R. No. 172175 (2006)]
complaint. [Riano] the jurisprudence establishing this
24 OF 425
supposed exception ultimately points to For a single cause of action or violation of a

dismissals based on a lack of a cause right, the plaintiff may be entitled to several
of action, opposed to a failure of the reliefs. It is the filing of separate complaints
complaint to state a cause of action. for these several reliefs that constitutes
splitting up of the cause of action which is
Failure of the complaint to state a proscribed by the rule against the splitting of
cause of action versus lack of cause of a cause of action. [City of Bacolod v. SM
action Brewery, G.R. No. L-25134 (1969)]
Failure to state a cause of action and lack of
In the event that a plaintiff has omitted to
cause of action are really different from each
include in the complaint one or several other
other. On the one hand, failure to state a
reliefs to which he may be entitled, the
cause of action refers to the insufficiency of
proper remedy of the plaintiff is not to
the pleading, and is a ground for dismissal
institute another or several other actions
under Rule 16 of the Rules of Court. On the
instead he should move to amend the
other hand, lack of cause [of] action refers
com plaint to include the omitted relief or
to a situation where the evidence does not
reliefs. [Bayang v. CA, G.R. No. L-53564
prove the cause of action alleged in the
(1987)]
pleading. [Macaslang v. Zamora, G.R. No.
156375 (2011)]
EFFECTS:
The filing of one or a judgment upon the
B.3 SPLITTING A SINGLE CAUSE OF
merits in any one is available as a ground for
ACTION; EFFECTS
the dismissal of the others. [Sec. 4, Rule 2].
SPLITTING A CAUSE OF ACTION
The act of instituting two or more suits on the The remedy is for the defendant to file a
basis of the same cause of action. [Sec. 4, Motion to Dismiss under Rule 16.
Rule 2]
(1) Filing of the first complaint may be
Splitting a single cause of action is the act of pleaded in abatement of the second
dividing a single or indivisible cause of action complaint, on the ground of litis
into several parts or claims and instituting pendentia [Sec. 1(e), Rule 16]; or
two or more actions upon them. A single (2) A judgment upon the merits in any of the
cause of action or entire claim or demand complaints is available as ground for
cannot be split up or divided in order to be dismissal of the others based on res
made the subject of two or more different judicata [Sec. 1(f), Rule 16]
actions. [Chu v. Sps. Cunanan, G.R. No.
A party may not institute more than one suit
156185 (2011)]
for a single cause of action. [Sec. 3, Rule 2]
TEST OF SINGLENESS OF CAUSE OF
Rationale
ACTION
(1) To prevent repeated litigation between
The tests to ascertain whether two suits
the same parties in regard to the same
relate to a single or common cause of action
subject or controversy;
are:
(2) To protect the defendant from
(1) Whether the same evidence would
unnecessary vexation. Nemo debet vexare
support and sustain both causes of action
pro una et eadem causa (No man shall be
(Sam e Evidence Test)
twice vexed for one and the same cause);
(2) Whether the defenses in one case may be
(3) To avoid the costs and expenses incident
used to substantiate the complaint in the
to numerous suits. [City of Bacolod v. SM
other
Brewery, G.R. No. L-25134 (1969)]
(3) Whether the cause of action in the second
case existed at the time of filing of the
first complaint [Umale v. Canoga Park
Development Corp., G.R. No. 167246
(2011)]
25 OF 425
B.4 JOINDER AND MISJOINDER OF

CAUSES OF ACTION If there is no objection to the improper joinder
or the court did not motu proprio direct a
JOINDER OF CAUSES OF ACTION severance, then there exists no bar in the
The assertion of as many causes of action as simultaneous adjudication of all the
a party may have against another in one erroneously joined causes of action, as long
pleading alone. [Sec. 5, Rule 2] as the court trying the case has jurisdiction
over all of the causes of action therein
It is also the process of uniting two or more notwithstanding the misjoinder. [Ada v.
demands or rights of action in one action. Baylon, G.R. No. (2012)]
[Riano]
If the court has no jurisdiction to try the
Ratio: To avoid a multiplicity of suits and to misjoined action, then it must be severed.
expedite disposition of litigation at minimum Otherwise, adjudication rendered by the court
cost [Ada v. Baylon, G.R. No. (2012)] with respect to it would be a nullity. [Ada v.
Baylon, G.R. No. (2012)]
The rule however is purely permissive as
there is no positive provision of law or any C. PARTIES
rule of jurisprudence which compels a party
to join all his causes of action and bring them PLAINTIFF
at one and the same time. [Nabus v. CA, G.R. One having an interest in the matter of the
No. 91670 (1991)] action or in obtaining the relief demanded.
There is no sanction against non-joinder of The term may either refer to the claiming
separate causes of action since a plaintiff party, counter-claimant, cross-claimant, or
needs only a single cause of action to third-party plaintiff. [Sec. 1, Rule 3]
maintain an action [Regalado].
DEFENDANT
Requisites [Sec. 5, Rule 2] One claiming an interest in the controversy or
(1) The party joining the causes of action shall the subject thereof adverse to the plaintiff.
comply with the rules on joinder of parties;
(2) The joinder shall not include special civil Term may refer to the original defending
actions or actions governed by special party, the defendant in a counterclaim, the
rules; cross-defendant, or the third (fourth, etc.)-
(3) Where causes of action are between the party defendant. [Sec. 1, Rule 3] It also
same parties but pertain to different includes an unwilling co-plaintiff, or one
venues or jurisdictions, the joinder may be who should be joined as plaintiff but refuses
allowed in the RTC provided one of the to give his consent thereto. [Sec. 10, Rule 3]
causes of action are within that courts
jurisdiction and venue lies therein; W ho may be Parties [Sec. 1, Rule 3]
(4) Where the claims in all the causes of (1) Natural persons;
action are principally for recovery of (2) Juridical persons [Art. 44, Civil Code];
money, the aggregate amount claimed (a) The State and its political subdivisions;
shall be the test of jurisdiction (totality (b) Other corporations, institutions and
rule) entities for public interest or public
purpose, created by law; and
MISJOINDER OF CAUSES OF ACTION (c) Corporations, partnerships, and
Misjoinder is not a ground for dismissal of an associations for private interest or
action [Sec. 6, Rule 2] purpose to which the law grants a
judicial personality, separate and
An erroneously joined cause of action may, on distinct from that of each shareholder,
motion of a party or on the initiative of the partner, or member.
court, be severed and proceeded with (3) Entities authorized by law. [Riano]
separately. [Sec. 6, Rule 2]
26 OF 425
(a) A corporation by estoppel is precluded

from denying its existence, and the Interest means material interest or an
members are liable as general partners interest in issue to be affected by the decree
[Sec. 21, Corporation Code] or judgment of the case, as distinguished
(b) A partnership with capital of at least from mere curiosity about the question
P3,000 which fails to comply with the involved. [Ang v. Sps. Ang, G.R. No. 186993
registration requirements is liable as a (2012)]
partnership to third persons [Arts. 1768,
1772, Civil Code] The interest must be real, which a present
(c) The estate of a deceased person is a and substantial interest as distinguished
juridical entity that has a personality of from a mere expectancy or a future,
its own [Limjoco v. Intestate Estate of contingent, subordinate, or consequential
Fragrante, G.R. No. L-770 (1948)] interest. [Rayo v. Metrobank, G.R. No. 165142]
(d) The Roman Catholic Church may be a It should be material and direct, as
party; as to its properties, the distinguished from a mere incidental interest.
Archbishop or diocese to which they [Mayor Rhustam Dagadag v. Tongnawa, G.R.
belong may be a party. [Ponce v. No. 161166-67 (2005)]
Roman Catholic]
(e) A legitimate labor union may sue and Unless authorized by law or the Rules, every
be sued in its registered name [Art. action must be prosecuted or defended in the
242(e), Labor Code] name of the real party in interest. [Sec. 2,
Rule 3]
LEGAL CAPACITY TO SUE
Legal capacity to sue or be sued means that Husband and wife shall sue and be sued
the party is free from general disability (e.g. jointly, except as provided by law. [Sec. 4,
minority or insanity) or, in case of juridical Rule 3]
entities, that it must be duly registered in
accordance with law Exceptions:
(1) Judicial separation of property
Facts showing the capacity of a party to sue (2) Abandonment
or be sued, or the authority of a party to sue (3) Exclusive property of spouses
or be sued in a representative capacity, or the (4) Suits with respect to the practice of
legal existence of an organized association of profession
persons that is made a party, must be averred.
[Sec. 4, Rule 8] REPRESENTATIVES AS PARTIES
A representative is one acting in fiduciary
Legal capacity to Legal personality capacity, such as a trustee of an express trust,
sue to sue a guardian, an executor or administrator, or a
Plaintiffs general party authorized by law or the Rules of Court.
disability to sue, on [Sec. 3, Rule 3]
Plaintiff is not the
account of minority,
real party in interest Where the action is allowed to be prosecuted
insanity,
incompetence, etc. or defended by a representative party, the
Ground for a Motion Ground is failure of beneficiary shall be included in the title of the
to Dismiss is lack of complaint to state a case and shall be deemed to be the real party
capacity to sue [Sec. cause of action. in interest.
1(d), Rule 16] [Sec. 1(g), Rule]
An agent acting in his own name and for the
C.1 REAL PARTY-IN-INTEREST benefit of an undisclosed principal may sue or
REAL PARTY-IN-INTEREST be sued without joining the principal, except
The party who stands to be benefited or if the contract involves things belonging to
injured by the judgment in the suit, or the the principal.
party entitled to the avails of the suit. [Sec. 2,
Rule 3]
27 OF 425
A minor or a person alleged to be A person is not an indispensable party if his

incompetent may sue or be sued, with the interest in the controversy or subject matter is
assistance of his father, mother, guardian, or separable from the interest of the other
if he has none, a guardian ad litem. [Sec. 5, parties, so that it will not necessarily be
Rule 3] directly or injuriously affected by a decree
which does not complete justice between
Minors (represented by their parents) are real them. [Riano]
parties in interest under the principle of
intergenerational responsibility. [Oposa v. Indispensable
Necessary parties
Factoran, G.R. No. 101083 (1993)] parties
Must be joined Should be joined
Failure to Name a Real Party-in- under any and all whenever possible
Interest conditions
If the suit is not brought in the name of or Action can proceed
against the real party-in-interest, a Motion to Presence is a
even in their absence;
Dismiss may be filed on the ground that the condition sine qua
interest is separable
complaint states no cause of action. non for exercise of
from that of the
[Balagtas v. CA, G.R. No. 109073 (1999)]] judicial power
indispensable party
The case may be
Remedies: determined but the
(1) Amendment of pleadings [Alonso v. No valid judgment if
judgment will not
Villamor, G.R. No. L-2352 (1910)]; or not joined.
resolve the entire
(2) Complaint may be deemed amended to controversy
include the real party-in-interest Interests are so far
[Balquidra v. CFI Capiz, G.R. No. L-40490 Interest in the
separable that a final
(1977)] controversy such
decree can be made
that a final decree
in their absence
As an exception, the real litigant may be held would necessarily
without affecting
bound as a party even if not formally affect their rights..
them.
impleaded provided he had his day in court.
[Albert v. University Publishing Co., G.R. No. L- C.3 INDIGENT PARTIES
9300 (1958)] INDIGENT PARTY
(1) One who has no money or property
C.2. INDISPENSABLE AND NECESSARY sufficient and available for food, shelter,
PARTIES and basic necessities [Sec. 21, Rule 3]
INDISPENSABLE PARTY (a) Include an exemption from payment of
A real party-in-interest without whom no docket and other lawful fees, and of
final determination can be had of an action. transcripts of stenographic notes which
[Sec. 7, Rule 3] the court may order to be furnished
him.
NECESSARY PARTY (b) Amount of the docket and other lawful
Not an indispensable party but ought to be fees which the indigent was exempted
joined as a party if complete relief is to be from paying shall be a lien on any
accorded as to those already parties, or for a judgment rendered in the case
complete determination or settlement of the favorable to the indigent, unless the
claim subject of the action [Sec. 8, Rule 3] court otherwise provides.
(c) If the party is not actually
Although joinder of parties is generally indigent under this Rule, the
permissive [Sec. 6, Rule 3] the joinder of a proper docket and other lawful fees
party becomes compulsory when the one shall be assessed and collected by the
involved is an indispensable party. [Sec. 7, clerk of court. If payment is not made
Rule 3] within the time fixed by the court,
execution shall issue or the payment
28 OF 425
thereof, without prejudice to such other C.4 ALTERNATIVE DEFENDANTS

sanctions as the court may impose. Where the plaintiff is uncertain against whom
(2) One whose gross income and that of their of several persons he is entitled to relief, he
immediate familys do not exceed an may join any or all of them in the alternative,
amount double the monthly minimum although a right to relief against one may be
wage of an employee, and who does not inconsistent with a right to relief against the
own real property with a fair market value other. [Sec. 13, Rule 3]
of more than Php 300,000 [Sec. 19, Rule
141]. C.5 COMPULSORY AND PERMISSIVE
(a) Legal fees shall be a lien on any JOINDER OF PARTIES
judgment rendered in the case
favorable to the indigent litigant, COMPULSORY JOINDER [Sec. 7, Rule 3]
unless the court otherwise provides. Parties in interest without whom no final
(b) Any falsity in the affidavits shall be determination can be had of an action (i.e.
sufficient cause to dismiss the indispensable parties) shall be joined either
complaint or action or to strike out the as plaintiffs or defendants.
pleading of that party, without
prejudice to whatever criminal liability The absence of an indispensable parties
may have been incurred. renders all subsequent actions of the trial
court null and void for want of authority to act,
When an application to litigate as an indigent not only as to the absent parties but even as
litigant is filed, the court shall scrutinize the to those present. [Moldes v. Villanueva, G.R.
affidavits and supporting documents to No. 161955 (2012)]
determine if the applicant complies with the
standards prescribed in Sec. 19, Rule 141. If so, Non-Joinder of Necessary Parties [Sec.
the authority to litigate as indigent litigant is 9, Rule 3]
automatically granted and the grant is a When a pleading asserting a claim, omits to
matter of right. join a necessary party, the pleader must:
(1) Set forth the name of the necessary party,
However, if the trial court finds that one or if known, and
both requirements have not been met, then it (2) State the reason why the necessary party
would set a hearing to enable the applicant is omitted. [Sec. 9, par. 1, Rule 3]
to prove that the applicant complies with Sec.
21, par. 1, Rule 3. The adverse party may Non-joinder of a necessary party does not
adduce countervailing evidence. The trial prevent the court from proceeding in the
court will then rule on the application. In action. The judgment rendered therein shall
addition, Section 21, Rule 3 also provides that not prejudice the rights of such necessary
the adverse party may later still contest the party [Sec. 9, par. 3, Rule 3]
grant of such authority at any time before
judgment is rendered by the trial court. If the PERMISSIVE JOINDER [Sec. 6, Rule 3] Parties
court determines after hearing, that the party can be joined, as plaintiffs or defendants, in
declared as an indigent is in fact not, the one single complaint or may themselves
proper docket and other lawful fees shall be maintain or be sued in separate suits.
assessed and collected by the clerk of court. If
payment is not made within the time fixed by Requisites:
the court, execution shall issue or the (1) Right to relief arises out of the same
payment of prescribed fees shall be made, transaction or series of transactions
without prejudice to such other sanctions as Transaction not only a stipulation or
the court may impose. [Sps. Algura v. City of agreement but any event resulting in
Naga, G.R. No. 150135 (2006)] wrong, whether the wrong was done by
violence, neglect, or breach of contract
Series of transactions transactions
connected with the same subject of the
action
29 OF 425
(2) A question of law or fact common to all becomes apparent, a motion to strike the
the plaintiffs or defendants names of the parties must be made.
(3) Such joinder is not otherwise proscribed
by the rules on jurisdiction and venue Objections to misjoinder cannot be raised for
the first time on appeal [Lapanday
NOTE: Compare to Joinder of Causes of Agricultural & Development Corporation v.
Action where it is enough if the causes of Estita, G.R. No. 162109 (2005)]
action arise out of the same contract, as there
is no need for a common question of fact or C.7 CLASS SUIT
law.
Requisites [Sec. 12, Rule 3]
C.6 MISJOINDER AND NON-JOINDER OF (1) Subject matter of the controversy is
PARTIES one of common or general interest to many
persons;
MISJOINDER (2) The persons are so numerous that it is
When one is made a party to the action impracticable to join them all as parties,
although he should not be impleaded. and to bring them all before the court;
(3) Parties actually before the court are
NON-JOINDER sufficiently numerous and representative
When one is not joined when he is supposed of the class as to fully protect the interests
to be joined but is not impleaded in the action. of all concerned;
[Riano] (4) The representative sues or defends for the
benefit of all.
Neither misjoinder nor non-joinder of parties
is a ground for dismissal of an action. [Sec. 11, In a class suit, any party in interest shall have
Rule 3] the right to intervene to protect his individual
interest. [Sec. 12, Rule 3]
Non-joinder of an indispensable party
is not a ground for outright dismissal of the If a class suit is improperly brought, the
action. If the plaintiff refused to implead an action is subject to dismissal regardless of
indispensable party despite order of the court, the cause of action. [Sec. 1(d), Rule 16]
that court m ay dism iss the com plaint
for the plaintiffs failure to comply with the However, no class suit may be dismissed
order. [Pamplona Plantation v. Tinghil, G.R. upon the instance of the plaintiff or
No. 159121 (2005)]. compromised, without the approval of the
court. [Sec. 2, Rule 17]
If the court finds the reason for the non-
joinder of a necessary party A taxpayer's suit or a stockholder's derivative
unmeritorious, it may order the inclusion of suit is in the nature of a class suit, although
such necessary party, if jurisdiction over his subject to the other requisites of the
person may be obtained. Failure to comply corresponding governing law especially on
with such order without justifiable cause is the issue of locus standi. [Regalado]
deemed a waiver of the claim against
such party. [Sec. 9, pars. 1-2, Rule 3] A derivative suit is action brought by
minority shareholders in the name of the
Parties may be dropped or added by order of corporation to redress wrongs committed
the court on motion of any party or on its own against it, for which the directors refuse to
initiative at any stage of the action and on sue. It is a remedy designed by equity and has
such terms as are just. [Sec. 11, Rule 3] been the principal defense of the minority
shareholders against abuses by the majority.
Objections to defects in parties
Objections should be made at the earliest In a derivative action, the real party in interest
opportunity. At the moment such defect is the corporation itself, not the shareholders
30 OF 425
who actually instituted it [Lim v. Lim Yu, G.R.

No. 138343 (2001)] Failure to comply is a ground for disciplinary
action.
There is no class suit in an action filed by
associations of sugar planters to recover ACTION OF COURT UPON NOTICE OF
damages in behalf of individual planters for DEATH
an allegedly libelous article in an Upon receipt of notice, shall determine if
international magazine. There is no common claim is extinguished by such death.
or general interest in reputation of a specific (1) Claim does not survive: the proper
individual. Each of the sugar planters has a action would be to dismiss the case.
separate and distinct reputation in the Substitution would not be required.
community not shared by the others. (2) Claim survives: the court shall order the
[Newsweek, Inc. v. Intermediate Appellate legal representative of the deceased to
Court, G.R. No. 63559 (1986)] appear and be substituted for him within
30 days, or within such time as may be
A class suit does not require a commonality granted.
of interest in the questions involved in the
suit. What is required by the Rules is a SURVIVAL OF ACTION
common or general interest in the subject Survival depends on the nature of the action
matter of the litigation. [Mathay v. and the damage sought
Consolidated Bank & Trust Company, G.R. No. (1) Causes of Action that Survive:
L-23136 (1974)] (a) The wrong complained of affects
primarily and principally property and
C.8 SUITS AGAINST ENTITIES WITHOUT property rights
JURIDICAL PERSONALITY (b) Injuries to the person are merely
incidental
Requisites [Sec. 15, Rule 3] (c) E.g. Purely personal actions like
(1) There are 2 or more persons not organized support
as a juridical entity; (2) Causes of Action that do not Survive:
(2) They enter into a transaction; (a) The injury complained of is to the
(3) A wrong is committed against a 3rd person
person in the course of such transaction. (b) Property and property rights affected
are incidental
Persons associated in an entity without (c) E.g. actions to recover real and
juridical personality may be sued under the personal property or to enforce liens
name by which they are generally or thereon
commonly known, but they cannot sue under
such name. [Sec. 15, Rule 3] Court may order the opposing party to
procure the appointment of an administrator
The service of summons may be effected or executor of the estate in the ff. cases:
upon all the defendants by serving upon any (1) No legal representative is named; or
of them, or upon the person in charge of the (2) The one so named fails to appear within
office or place of business maintained under the specified period. [Sec. 16, Rule 3]
such name. [Sec. 8, Rule 14]
The substitute defendant need not be
C.9 EFFECT OF DEATH OF A PARTY- summoned. The order of substitution shall be
LITIGANT served upon the parties substituted for the
court to acquire jurisdiction over the
DUTY OF COUNSEL UPON DEATH OF substitute party. [Ferreria v Vda de Gonzales,
CLIENT [Sec. 16, Rule 3] G.R. No. L-11567 (1986)]
(1) Inform court of such fact within 30 days
after the death;
(2) Give the name and address of the legal
representatives.
31 OF 425
DEATH OR SEPARATION OF A PARTY WHO TRANSFER OF INTEREST DURING

IS A PUBLIC OFFICER PENDENCY OF ACTION
Requisites [Sec. 17, Rule 3] GENERAL RULE: The rule does not
(1) That the public officer is a party to an consider the transferee an indispensable
action in his official capacity; party. Hence, the action may proceed without
(2) That during the pendency of the action, he the need to implead him.
either dies/resigns or otherwise ceases to
hold office; EXCEPTION When the substitution by or
(3) That any party shows to the satisfaction of joinder of the transferee is ordered by court.
the court, within 30 days after the [Sec. 19, Rule 3]
successor takes office, that there is a
substantial need to continue or maintain The case is dismissed if the plaintiffs interest
the action; is transferred to defendant unless there are
(4) That the successor adopts or continues his several plaintiffs, in which case the remaining
predecessors action, or threatens to do plaintiffs can proceed with their own cause of
so; and action.
(5) The party or officer affected:
(a) Assented to the substitution, or D. VENUE
(b) Was given reasonable notice of the Venue is related only to the place of trial or
application, and opportunity to be the geographical location in which an action
heard or proceeding should be brought and does
not equate to the jurisdiction of the court.
ACTION ON CONTRACTUAL MONEY CLAIMS [Spouses Mendiola v. CA, G. R. No. 159746
Requisites [Sec. 20, Rule 3] (2012)]
(1) The action must primarily be for recovery
of money, debt or interest thereon; It is a procedural, not a jurisdictional matter.
(2) The claim arose from express or implied [Phil. Banking v. Tensuan, G.R. No. 104649
contract; (1994)]
(3) Defendant dies before the entry of final
judgment in the court in which the action Choosing the venue of an action is not left to
was pending. a plaintiffs caprice; the matter is regulated
(4) The defendants death will not result in by the Rules of Court. [Ang v. Sps. Ang, G.R.
the dismissal of the action. No. 186993 (2012)]
Effect On Dismissal
There shall be substitution in the manner A motu propio dismissal based on improper
provided under Sec. 16, Rule 3, and the action venue is patently incorrect. [Sec. 1, Rule 9;
will continue until the entry of final judgment. Dolot v. Paje, G.R. No. 199199 (2013)]
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a Unless and until the defendant objects to the
claim against the decedents estate without venue in a motion to dismiss, the venue
need of proving the claim. cannot truly be said to have been improperly
laid because the venue, although technically
INCOMPETENCY OR INCAPACITY OF A wrong, may be acceptable to the parties for
PARTY DURING THE PENDENCY OF THE whose convenience the rules of venue had
ACTION been laid. [Dacuycoy v. IAC, G.R. No. 74854
The Court, upon motion with notice, may (1991)]
allow the action to be continued by or against
the incapacitated person, assisted by his However, the court may effect a motu propio
legal guardian or guardian ad litem. [Sec. 18, dismissal for improper venue, inter alia, in
Rule 3] actions covered by the Rules on Summary
Procedure [Sec. 4], Rule of Procedure for
Small Claims cases [Sec. 9], and in ejectment
cases [Sec. 5, Rule 70].
32 OF 425
(2) objects of distinct transactions separate

D.1 VENUE VERSUS JURISDICTION actions should be filed in each place
Venue Jurisdiction unless properly joined.
Power of the court to
Place where the D.3 VENUE OF PERSONAL ACTIONS
hear and decide a
action is instituted All other actions may be commenced and
case
Jurisdiction over the tried, at the plaintiffs election,:
subject matter and (1) Where the plaintiff or any of the principal
over the nature of plaintiffs resides;
May be waived (2) Where the defendant or any of the
the action is
conferred by law and principal defendants resides;
cannot-be waived (3) In case of a non-resident defendant,
Procedural Substantive where he may be found. [Sec. 2, Rule 4]
Is fixed by law and
May be changed by The plaintiff or the defendant must be
cannot be the
the written residents of the place where the action has
subject of the
agreement of the been instituted at the time the action is
agreement of the
parties commenced. [Ang v. Sps. Ang, G.R. No.
parties
Establishes a relation 186993 (2012)]
Establishes a
between plaintiff and
relation between the The residence of a person is his personal,
defendant, or
court and the subject actual or physical habitation or his actual
petitioner and
matter residence or place of abode, which may not
respondent
Not a ground for a necessarily be his legal residence or domicile
motu propio dismissal provided he resides therein with continuity
Lack of jurisdiction and consistency. [Boleyley v. Villanueva, G.R.
over the subject No. 128734 (1999)]
Exceptions:
matter is a ground
- cases on summary
for a motu proprio A corporation cannot be allowed to file
procedure
dismissal. personal actions in a place other than its
- Small claims cases
- ejectment cases principal place of business unless such place
is also the residence of a co-plaintiff or
D.2 VENUE OF REAL ACTIONS defendant. [Davao Light v. Court of Appeals,
Real actions shall be commenced and tried in G.R. No. 111685 (2001)]
the proper court which has jurisdiction over
the area wherein the real property involved or D.4 VENUE OF ACTIONS AGAINST NON-
a portion thereof is situated. [Sec 1(1), Rule 4] RESIDENTS
Non-resident found in the Philippines
Forcible entry and detainer actions shall be (1) For personal actions
commenced and tried in the municipal court (a) Where the plaintiff, or any of the
of the municipality or city wherein the real principal plaintiffs, resides; or
property involved, or a portion thereof, is (b) Where the non-resident defendant
situated. [Sec. 1(2), Rule 4] may be found [Sec. 2, Rule 4]
(2) For real actions -- where the property is
If the property is located at the boundaries of located [Sec. 1, Rule 4]
2 places, file the case in either place (at the
plaintiffs option). Non-resident not found in the
Philippines
If the case involves 2 properties located in 2 (1) Involves personal status of plaintiff
different places: where plaintiff resides
(1) objects of the same transaction file it in (2) Involves property of defendant in the
any of the 2 places; Philippines where the property, or any
portion thereof, is situated or found [Sec.
3, Rule 4]
33 OF 425
venue. [Briones v. CA and Cash Asia, G.R. No.

When there is more than one defendant or 204444 (2015)]
plaintiff, the residences of the principal
parties should be the basis for determining E. PLEADINGS
proper venue [Herrera] Pleadings are the written statements of the
respective claims and defenses of the parties,
D.5 WHEN THE RULES ON VENUE DO NOT submitted to the court for appropriate
APPLY judgment [Sec. 1, Rule 6]
(1) If a specific rule or law provides
otherwise (e.g. action for damages arising Every pleading shall contain in a methodical
from libel); and logical form, a plain, concise and direct
(2) If there is a stipulation as to venue statement of the ultimate facts on which the
which is permitted if the agreement: party pleading relies for his claim or defense,
(a) Is in writing; as the case may be, omitting the statement of
(b) Was made before the filing of the mere evidentiary facts. [Sec. 1, Rule 8]
action; and
(c) Is the exclusive venue. [Sec. 4, Rule 4] Pleadings versus Motions
Pleading Motion
D.6 EFFECTS OF STIPULATION ON VENUE Purpose is to submit Purpose is to apply
Written stipulations as to venue may be a claim or defense for an order not
restrictive in the sense that the suit may be for appropriate included in the
filed only in the place agreed upon, or merely judgment judgment
perm issive in that the parties may file their Cannot be initiatory;
suit not only in the place agreed upon but Always made in a
also in the places fixed by law. [Briones v. CA May be initiatory
case already filed in
and Cash Asia, G.R. No. 204444 (2015)] court
Always filed before May be filed even
To be binding, the parties must have agreed judgment after judgment
on the exclusive nature of the venue of any Only 9 kinds of Any application for
prospective action between them. The pleading are allowed relief not by a
agreement of parties must be restrictive and by the rules pleading is a motion
not permissive. [Regalado] May be oral when
made in open court
In the absence of qualifying or Must be written
or in the course of a
restrictive words (e.g. hearing or trial
only/solely/exclusively in such court),
venue stipulation is m erely permissive;
E.1 KINDS OF PLEADINGS
that is, the stipulated venue is in addition to
Pleadings Allowed
the venue provided for in the rules. [Polytrade
(1) Complaint
Corp. v. Blanco, G.R. No. L-27033 (1969)]
(2) Answer
(3) Counterclaim
The court may declare agreements on venue
(4) Cross-claim
as contrary to public policy if such stipulation
(5) Third (fourth, etc.)-party Complaint
unjustly denies a party a fair opportunity to
(6) Complaint-in-intervention
file suit in the place designated by the Rules
(7) Reply [Sec. 2, Rule 6]
[Regalado, citing Hoechst Philippines v Torres,
(8) Counter-counterclaims [Sec. 9, Rule 6]
G.R. No. L-44351 (1978)].
(9) Counter-crossclaims [Sec. 9, Rule 6]
However, a complaint directly assailing the
validity of the written instrument itself should
not be bound by the exclusive venue
stipulation contained therein and should be
filed in accordance with the general rules on
34 OF 425
COMPLAINT Kinds of Defenses [Sec. 5, Rule 6]

The pleading alleging the plaintiffs cause/s (1) Negative Defenses - Specific denials of
of action. [Sec. 3, Rule 6] the material facts alleged in the pleading
of the claimant essential to his cause of
Function action.
(1) To inform the defendant clearly and (2) Affirmative Defenses - Allegations of
definitely of the claims made against him new matters which, while hypothetically
so that he may be prepared to meet the admitting the material allegations in the
issues at trial. claimants pleading, would nevertheless
(2) To inform the defendant of all material prevent or bar recovery, by way of
facts on which the plaintiff relies to confession and avoidance.
support his demand.
(3) To state the theory of a cause of action A denial does not become specific merely
which forms the bases of plaintiffs claim because it is qualified by that word. [Agton v.
of liability. [Tantuico v. Republic, G.R. No. CA, G.R. No. L-37309 (1982)]
89114 (1991)]
A general denial will be deemed an
Ultim ate Facts are essential facts admission of the material averments in the
constituting the plaintiffs cause of action. A complaint. [Sec. 11, Rule 8]
fact is essential if it cannot be stricken out
without leaving the statement of the cause of Modes of Specific Denial
action insufficient. [Remitere v. Montinola, (1) Specific Absolute Denial - Defendant
G.R. No. L-19751 (1966)] must specify each material allegation of
fact the truth of which he does not admit,
Non-Ultim ate Facts: and, whenever applicable, set forth the
(1) Evidentiary or immaterial facts; substance of matters relied upon to
(2) Legal conclusions, conclusions or support the denial
inferences of facts from facts not stated, (2) Partial Specific Denial - If pleader
or incorrect inferences or conclusions decides to deny only a part or a
from facts stated; qualification of an averment:
(3) Conclusions of law alleged in the (a) He shall specify so much of it as is true
complaint are not binding on the court. and material
(4) The details of probative matter or (b) He shall deny the remainder
particulars of evidence, statements of law, (3) Denial by Disavowal of Knowledge
inferences and arguments. The defendant states that he is without
knowledge or information sufficient to
ANSWER form a belief as to the truth of a material
The pleading where the defendant sets forth averment; has the effect of a denial [Sec.
his affirmative and/or negative defenses. [Sec. 10, Rule 8]
4, Rule 6]
Negative Pregnant - a denial pregnant
It may be directed toward a complaint, a with the admission of the substantial facts in
counterclaim, a cross-claim, or a third (fourth, the pleading responded to which are not
etc.)-party complaint. squarely denied. It is in effect an admission of
the averment it is directed to. [Philamgen v.
Sweet Lines, G.R. No. 87434 (1993)]
While it is a denial in form, its substance

actually has the effect of an admission
because of a too literal denial of the
allegation sought to be denied. This arises
when the pleader merely repeats the
allegations in a negative form. [Riano]
35 OF 425
COUNTERCLAIM (3) It must be cognizable by the regular

Any claim which a defending party may have courts of justice, and within the courts
against an opposing party. [Sec. 6, Rule 6] jurisdiction both as to the amount and
the nature. [Sec. 7, Rule 6]
Kinds of Counterclaims
Compulsory Permissive A plaintiff who fails or chooses not to answer
counterclaim counterclaim a compulsory counterclaim may not be
Arises out of or is declared in default, principally because the
necessarily issues raised in the counterclaim are deemed
connected with the Neither arises out of automatically joined by the allegations in the
transaction or nor is necessarily complaint. [Gojo v. Goyala, G.R. No. L-26768
occurrence that is the connected with such (1970)]
subject matter of the subject matter
opposing party's The filing of a motion to dismiss and the
claim. setting up of a compulsory counterclaim are
Does not require for incompatible remedies. If he files a motion to
May require the dismiss, he will lose his counterclaim. But if
its adjudication the
presence of third he opts to set up his counterclaim, he may
presence of third
parties over whom still plead his ground for dismissal as an
parties of whom the
the court cannot affirmative defense in his answer. [Financial
court cannot acquire
acquire jurisdiction. Building Corp. v. Forbes Park Association, G.R.
jurisdiction.
Not barred even if No. 133119 (2000)]
Barred if not set up in
not set up in the
the action. On Amounts
action.
Must be answered, In an original action before the RTC, the
Need not be counterclaim may be considered
otherwise, the
answered; no compulsory regardless of the amount.
defendant can be
default. [Sec. 7, Rule 6]
declared in default.
Not an initiatory If a counterclaim is filed in the MTC in
pleading; does not Initiatory pleading excess of its jurisdictional limits, the
require CNFS excess is considered waived. [Agustin v.
Bacalan, G.R. No. L-46000 (1985)]
NOTE: Under OCA Circular No. 96-2009, However, in another case, the remedy
citing A.M. No. 04-2-04 SC, the payment of where a counterclaim is beyond the
filing fees for compulsory counterclaims jurisdictional amount of the MTC is to set
remains suspended effective September 21, off the claims and file a separate action to
2004. It clarified that the portion of the collect the balance. [Calo v. Ajax, G.R. No.
decision in Korea Technologies v. Lerma, G.R. L-22485 (1968)] Note, however, that the
No. 143581, which stated that docket fees are counterclaim in question here was
required to be paid in compulsory permissive.
counterclaims has been deleted in a revised
issuance. Permissive Counterclaim
A counterclaim is permissive if it does not
Compulsory Counterclaim arise out of, nor is necessarily connected with,
the subject matter of the opposing partys
Requisites: claim This is not barred even if not set up in
(1) It arises out of, or is necessarily the action.
connected with the transaction or
occurrence, constituting the subject Must have independent jurisdictional ground
matter of the opposing party's claim; [Herrera]. Hence, the filing of a separate
(2) It does not require for its adjudication the docket fee.
presence of third parties of whom the
court cannot acquire jurisdiction; NOTE: If the counterclaim, even if it arises
out of, or is necessarily connected with, the
36 OF 425
subject matter of the opposing partys claim, In all these cases, the rules expressly provide
matures or is acquired by a party after serving that the dismissal shall be without
his pleading, i.e. the Answer, it is merely prejudice to the right of the
permissive. [Sec. 9, Rule 11] defendant to pursue his counterclaim
in the sam e or in a separate action.
Determ ining whether Com pulsory or
Permissive How Raised
(Also known as logical relationship (1) By including it in the Answer
test) A compulsory counterclaim or a cross-
claim that a defending party has at the
A positive answer on all four the following tim e he files his answer shall be
tests would indicate that the counterclaim is contained therein. [Sec. 8, Rule 11]
compulsory: (2) By filing after the Answer
(1) Are the issues of fact and law raised by the (a) A counterclaim may be set up, by leave
claim and counterclaim largely the same? of court, by am endm ent before
(2) Would res judicata bar a subsequent suit judgm ent, when:
on defendants claims, absent the (i) it is not set up due to oversight,
compulsory counterclaim rule? inadvertence, or excusable
(3) Will substantially the same evidence neglect, or
support or refute plaintiffs claim as well (ii) when justice requires [Sec. 10,
as the counterclaim? Rule 11]
(4) Is there any logical relation between the (b) A counterclaim, which either matured
claim and counterclaim? [GSIS v. Heirs of or was acquired by a party after serving
Caballero, G.R. No. 158090 (2010)] his pleading, with permission of the
court, may be set up in a supplemental
There is a logical relationship where pleading before judgment. [Sec. 9,
conducting separate trials of the respective Rule 11]
claims would entail substantial duplication of
effort and time and involves many of the CROSS-CLAIM
same factual and legal issues. [Meliton v. CA, Any claim by one party against a co-party
G.R. No. 101883 (1992)] arising out of the transaction or occurrence
that is the subject matter either of the
Effect on Counterclaim when original action or of a counterclaim therein.
Complaint is dismissed Such cross-claim may include a claim that
The case may be dismissed, with a the party against whom it is asserted is or
counterclaim set up under any of the may be liable to the cross-claimant for all or
following circumstances: part of a claim asserted in the action against
(1) Dismissal under Sec. 6, Rule 16 where the cross-claimant. [Sec. 8, Rule 6]
the defendant does not file motion to
dismiss but raises the ground as an A cross-claim is generally compulsory. A
affirmative defense cross-claim not set up shall be barred. [Sec. 2,
(2) Dismissal under Sec. 2, Rule 17 where Rule 9]
the plaintiff files a motion to dismiss the
case, after the defendant had filed a Exceptions (perm issive cross-
responsive pleading claim s) are when:
(3) Dismissal under Sec. 3, Rule 17 where (1) The claim is outside the courts
the complaint is dismissed due to the fault jurisdiction;
of the plaintiff (2) The court cannot acquire jurisdiction over
3rd parties whose presence is necessary
for the adjudication of said cross-claim.
(3) The Cross-claim matured or was acquired
after service of Answer
37 OF 425
Effect on Cross-claim when Com plaint counterclaim)

is dism issed Leave of
No need for a No need for
The dismissal of the complaint carries with it court is
leave of court leave of court
the dismissal of a cross-claim, which is purely needed
defensive; but not a cross-claim seeking an
affirmative relief. [Torres v. CA, G.R. No. L- 3rd-party complaint Complaint in
25889 (1973)] intervention
Brings into the action
Improper Cross-Claims a 3rd person who was Same
(1) Where the cross-claim is improper, the not originally a party
remedy is certiorari [Malinao v. Luzon Initiative is with the Initiative is with a
Surety (1964)] person already a party non-party who seeks
(2) The dismissal of a cross-claim is to the action to join the action
unappealable when the order dismissing
the complaint becomes final and 3rd-party complaint Counterclaim
executory [Ruiz, Jr. v. CA (1993)] Need not be within the Must be within the
(3) A cross-claim is not allowed after jurisdiction of the court jurisdiction of the
declaration of default of cross-claimant trying the main case court trying the main
[Tan v. Dimayuga, (1962)] It would be case
tantamount to setting aside the order of Diminishes/defeats Need not
default because then the cross-claimant the recovery sought by diminish/defeat the
would re-obtain standing in court as party the opposing party recovery sought by
litigant the opposing party
Cannot exceed the May exceed in
THIRD (FOURTH, ETC.)-PARTY amount stated in the amount or be
COMPLAINTS original complaint different in kind from
It is a claim that a defending party may, with that sought in the
leave of court, file against a person not a original complaint
party to the action, for contribution,
indemnity, subrogation, or any other relief, in Under this Rule, a person not party to an
respect of his opponent's claim. [Sec. 11, Rule action may be impleaded by the defendant
6] either:
(1) On allegation of liability to the latter,
There could also be a 4th/etc.-party covered by the phrase contribution,
complaint with the same purpose and indemnity, or subrogation
function. (2) On the ground of direct liability to the
3rd Party plaintiff; or both, as covered by the
Cross-claim Counterclaim phrase any other relief. [Samala v.
complaint
Against a Victor, G.R. No. L-53969 (1989)]
Against a co- Against an person not a
party opposing party party to the Tests to Determine W hether the 3 rd -
action Party Complaint is in Respect of
May arise out of Plaintiffs Claim
or be (1) WON it arises out of the same transaction
Must arise
necessarily on which the plaintiff's claim is based, or
out of the
connected with although arising out of another/different
transaction Must be in
the transaction transaction, is connected with the
that is the respect of
or the subject plaintiffs claim;
subject the
matter of the (2) WON the 3rd-party defendant would be
matter of the opponents
opposing liable to the plaintiff or to the defendant
original (plaintiffs)
partys claim for all/part of the plaintiffs claim against
action or of a claim
(compulsory the original defendant;
counterclaim
counterclaim), (3) WON the 3rd-party defendant may assert
therein
or it may not any defenses which the 3rd-party plaintiff
(permissive
38 OF 425
has or may have to the plaintiffs claim. W hen Allowed

[Capayas v. CFI, G.R. No. L-475 (1946)] Intervention shall be allowed when a person
has:
Additional Rules (1) A legal interest in the matter in litigation;
Leave of court to file a 3rd-party complaint or
may be obtained by motion filed under Rule (2) A legal interest in the success of any of the
15. parties; or
(3) An interest against the parties; or
Summons on third (fourth, etc.)-party (4) When he is so situated as to be adversely
defendants must be served for the court to affected by a distribution or disposition of
obtain jurisdiction over his person, since he is property in the custody of the court or of
not an original party. an officer thereof. [Sec. 1, Rule 19;
Fernandez v. CA, A.M. OCA IPI No. 12-201-
Where the trial court has jurisdiction over the CA-J (2013)]
main case, it also has jurisdiction over the
third-party complaint, regardless of the The Court has full discretion in permitting or
amount involved as a 3rd-party complaint is disallowing intervention, which must be
merely auxiliary to and is a continuation of exercised judiciously and only after
the main action. [Republic v. Central Surety, consideration of all the circumstances
G.R. No. L-27802 (1968)] obtaining in the case. [Mago v. CA, G.R. No.
115624 (1999)]
A third-party complaint is not proper in an
action for declaratory relief. [Commissioner of It is not an absolute right as it can be secured
Customs v. Cloribel, G.R. No. L-21036 (1977)] only in accordance with the terms of
applicable statute or rule. [Office of
COMPLAINT-IN-INTERVENTION Ombudsman v. Samaniego (2010)]
Intervention is a remedy by which a third
party, not originally impleaded in a Legal Interest
proceeding, becomes a litigant therein to Interest must be of a direct and immediate
enable him to protect or preserve a right or character so that the intervenor will either
interest which may be affected by such gain or lose by the direct legal operation of
proceeding. the judgment. The interest must be actual
and material, a concern which is more than
Pleadings-in-Intervention [Sec. 3, Rule mere curiosity, or academic or sentimental
19] desire; it must not be indirect and contingent,
(1) Complaint-in-intervention If intervenor indirect and remote, conjectural,
asserts a claim against either or all of the consequential or collateral. [Virra Mall
original parties. Tenants v. Virra Mall, G.R. No. 182902 (2011)]
(2) Answer-in-intervention If intervenor
unites with the defending party in resisting Requisites for a Valid Intervention
a claim against the latter. (1) There must be a motion for intervention
filed before judgment is rendered by the
Intervention is never an independent action, trial court.
but is ancillary and supplemental to an (2) Movant must show in his motion:
existing litigation, and in subordination to the (a) That he has a legal interest:
main proceeding. [Saw v. CA, G.R. No. 90580 (i) in the matter of litigation,
(1991)] (ii) in the success of either party in
the action, or
Its purpose is "to settle in one action and by a (iii) against both parties.
single judgment the whole controversy (b) That the movant is so situated as to be
(among) the persons involved." [First adversely affected by a distribution or
Philippine Holdings v. Sandiganbayan (1996), other disposition of property in the
G.R. No. 88345; Rule 19] custody of the court or an officer
thereof
39 OF 425
(c) That the intervention must not unduly Effect of Failure to Reply
delay or prejudice the adjudication of GENERAL RULE: Filing a reply is merely
the rights of the original parties; and optional. New facts that were alleged in the
(d) That the intervenors rights may not be answer are deemed controverted should a
fully protected in a separate party fail to reply thereto.
proceeding.
EXCEPTION: When a Reply is necessary
How to Intervene (a) To set up affirmative defenses on the
(1) With leave of court, the court shall counterclaim [Rosario v. Martinez (1952)]
consider the 2 factors (b) Where the answer alleges the defense of
(2) Motion to intervene may be filed at any usury in which case a reply under oath
time before judgment is rendered by trial should be made; otherwise, the allegation
court of usurious interest shall be deemed
(3) Copy of the pleadings-in-intervention admitted [Rule 8, Sec. 8; Sun Bros. v.
shall be attached to the motion and Caluntad (1966)]
served on the original parties (c) Where the defense in the answer is based
on an actionable document, a reply under
Time to Intervene [Sec. 2, Rule 19] oath must be made; otherwise, the
genuineness and due execution of the
GENERAL RULE: The motion to intervene document shall be deemed admitted. [Sec.
must be filed at any time before the rendition 11, Rule 8; Toribio v. Bidin (1985)]
of judgment by the trial court
COUNTER-COUNTERCLAIM
EXCEPTIONS: A claim asserted against an original counter-
(1) With respect to indispensable parties, claimant.
intervention may be allowed even on
appeal [Falcasantos v. Falcasantos (1952)] COUNTER-CROSS-CLAIM
(2) When the intervenor is the Republic [Lim v. A claim filed against an original cross-
Pacquing (1995)] claimant.
(3) Intervention may be allowed after
judgment where necessary to protect E.2 PLEADINGS ALLOWED IN SPECIAL
some interest which cannot otherwise be RULES
protected, and for the purpose of
preserving the intervenors right to appeal REVISED RULES ON SUMMARY
[Pinlac v. CA (2003)] PROCEDURE
The only pleadings allowed to be filed are:
Rem edies for Denial of Motion for (1) Complaints
Intervention (2) Compulsory counterclaims pleaded in the
(1) The movant may file a motion for Answer
reconsideration since the denial of a (3) Cross-claims pleaded in the Answer; and
motion for intervention is an interlocutory (4) Answers thereto [Sec. 3[A], II]
order.
(2) Alleging grave abuse of discretion,
movant can also file a certiorari case.
REPLY
The plaintiffs response to the defendant's
answer, the function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Sec. 10, Rule 6]
40 OF 425
Prohibited Pleadings, Motions, or The defendant may also elect to file a

Petitions [Sec. 19] counterclaim against the plaintiff that does
(1) Motion to dismiss the complaint or to not arise out of the same transaction or
quash the complaint or information occurrence, provided that the amount and
except on the ground of lack of nature thereof are within the coverage of this
jurisdiction over the subject matter, or Rule and the prescribed docket and other
failure to comply with required barangay legal fees are paid.
conciliation proceedings;
(2) Motion for a bill of particulars; NOTE: Courts decision shall be contained in
(3) Motion for new trial, or for reconsideration Form 13-SCC
of a judgment, or for opening of trial;
(4) Petition for relief from judgment; Prohibited Pleadings and Motions [Sec.
(5) Motion for extension of time to file 14]
pleadings, affidavits or any other paper; (1) Motion to dismiss the complaint except on
(6) Memoranda the ground of lack of jurisdiction;
(7) Petition for certiorari, mandamus, or (2) Motion for a bill of particulars;
prohibition against any interlocutory order (3) Motion for new trial, or for reconsideration
issued by the court; of a judgment, or for reopening of trial;
(8) Motion to declare the defendant in (4) Petition for relief from judgment;
default; (5) Motion for extension of time to file
(9) Dilatory motions for postponement; pleadings, affidavits, or any other paper;
(10) Reply; (6) Memoranda;
(11)Third party complaints; and (7) Petition for certiorari, mandamus, or
(12) Interventions. prohibition against any interlocutory order
issued by the court;
RULE OF PROCEDURE FOR SMALL CLAIMS (8) Motion to declare the defendant in
Forms: default;
(1) Instead of a Complaint, a Statem ent of (9) Dilatory motions for postponement;
Claim using Form 1-SCC shall be filed (10) Reply;
[Sec 5] (11)Third-party complaints; and
(2) Answer shall be filed by way of a (12) Interventions.
Response using Form 3-SCC [Sec. 10]
(3) Defendant may file counterclaim if he E.3 PARTS OF A PLEADING
possesses a claim against the plaintiff that
(a) Is within the coverage of this Rule, Caption that part of the pleading which
exclusive of interest and costs; sets forth the:
(b) Arises out of the same transaction or (1) The name of the court;
event that is the subject matter of the (2) The title of the action (i.e. the names of
plaintiffs claim; the parties); and
(c) Does not require for its adjudication the (3) The docket number, if assigned. [Sec. 1,
joinder of third parties; and Rule 7]
(d) Is not the subject of another pending
action, the claim shall be filed as a Body that part of the pleading which sets
counterclaim in the Response; forth its designation, the allegations of
otherwise, the defendant shall be party's claims or defenses, the relief prayed
barred from suit on the counterclaim. for, and its date.
(1) Paragraphs must be numbered, and
each paragraph number must contain a
single set of circumstances
(2) Headings should be used if there is more
than one cause of action in the Complaint,
and if paragraphs in the Answer address
one or more causes of action from the
Complaint.
41 OF 425
(3) Should specify relief sought, but it may Verification is required in the
add a general prayer for such further or following instances:
other relief as may be deemed just or (1) Pleadings filed in the inferior courts in
equitable; also called the prayer cases covered by the Rules on Summary
(4) Every pleading shall be dated. [Sec. 2, Procedure [Sec. 3, B]
Rule 7] (2) Petition for relief from judgment or order
[Sec. 3, Rule 38]
SIGNATURE AND ADDRESS (3) Petition for review from RTC to the CA
Every pleading must be signed by the party [Sec. 1, Rule 42]
or counsel representing him. The (4) Petition for review from quasi-judicial
address must be stated and such address agencies to the CA [Sec. 5, Rule 43]
must not be a post office box. [Sec. 3, Rule 7] (5) Appeal by certiorari from the CTA to the
SC [Sec. 12, RA 9282 amending Sec. 19,
An unsigned pleading produces no legal RA 1125]
effect. However, the court may allow such (6) Appeal by certiorari from CA to the SC
deficiency to be remedied if it appears that: [Sec. 1, Rule 45]
(1) It was due to mere inadvertence; and (7) Petition for annulment of judgments or
(2) It was not intended for delay [Sec. 3, Rule final orders and resolutions [Sec. 1, Rule
7] 47]
(8) Complaint for injunction [Sec. 4, Rule 58]
Effect of Signature of Counsel (9) Application for appointment of receiver
This constitutes a certificate by him that: [Sec. 1, Rule 59]
(1) He has read the pleading (10) Application for support pendente lite
(2) That to the best of his knowledge, [Sec. 1, Rule 69]
information, and belief there is good (11) Petition for certiorari against
ground to support it; and judgments, final orders, or resolutions of
(3) That it is not interposed for delay [Sec. 3, constitutional commissions [Sec. 2, Rule
Rule 7] 64]
(12) Petition for certiorari [Sec. 1, Rule 65]
VERIFICATION (13) Petition for prohibition [Sec. 2, Rule
A pleading need not be under oath, verified 65]
or accompanied by affidavit, unless otherwise (14) Petition for mandamus [Sec. 3, Rule
provided by law or rules. [Sec. 4, Rule 7] 65]
(15) Petition for quo warranto [Sec. 1, Rule
66]
(16) Complaint for expropriation [Sec. 1,
Rule 67]
(17) Complaint for forcible entry or
unlawful detainer [Sec. 4, Rule 70]
(18) Petition for indirect contempt [Sec. 4,
Rule 71]
(19) Petition for appointment of a general
guardian [Sec. 2, Rule 93]
(20) Petition for leave to sell or encumber
property of the ward by a guardian [Sec. 1,
Rule 95]
(21) Petition for declaration of
competency of a ward [Sec. 1, Rule 97]
(22) Petition for habeas corpus [Sec. 3,
Rule 102]
(23) Petition for change of name [Sec. 2,
Rule 103]
42 OF 425
(24) Petition for voluntary judicial (3) Relief sought [Huibonhoa v. Concepcion,
dissolution of a corporation [Sec. 1, Rule G.R. No. 153785 (2005)]
104]
(25) Petition for cancellation or correction Certificate of Non-Forum Shopping
of entries in the civil registry [Sec. 1, Rule (CNFS)
108] A sworn statement in which the plaintiff or
principal party certifies in a complaint or
How verified [Sec. 4, Rule 7] initiatory pleading:
By an affidavit declaring that: (1) That he has not commenced any action or
(1) That the affiant has read the pleading; filed any claim involving the same issues
and in any court or tribunal, and to the best of
(2) That the allegations therein are true and his knowledge, no such other action is
correct of his personal knowledge or pending;
based on authentic documents. (2) That if there is such other pending action
or claim, a complete statement of the
W ho Executes Verification present status thereof; and
Verification is deemed substantially complied (3) That if he should learn that the same or a
with when one who has ample knowledge to similar action has been filed or is pending,
swear to the truth of the allegations in the he shall report such fact within 5 days to
complaint or petition signs the verification, the court receiving his initiatory pleading.
and when matters alleged in the petition [Sec. 5, Rule 7]
have been made in good faith or are true and
correct. [Altres v. Empleo, G.R. No. 180986 CNFS is not required in a compulsory
(2008)] counterclaim, as this is not an initiatory
pleading. [UST Hospital v. Surla, G.R. No.
Effect of noncompliant or defective 129718 (1998)] However, a certification is
verification needed in permissive counterclaims [Korea
Noncompliance therewith or a defect therein Exchange Bank v. Gonzales, G.R. No. 142286-
does not necessarily render the pleading 87 (2005)]
fatally defective. The court may order its
submission or correction or act on the W ho Executes the CNFS
pleading if the attending circumstances are It is the plaintiff or principal party who
such that strict compliance with the Rule may executes the certification under oath. [Sec.
be dispensed with in order that the ends of 5, Rule 7]
justice may be served thereby. [Altres v.
Empleo, G.R. No. 180986 (2008)] Rationale: The plaintiff, not the counsel, is
in the best position to know whether he or it
FORUM SHOPPING has actually filed or caused the filing of a
The repeated availment of several judicial petition. Certification signed by counsel
remedies in different courts, simultaneously without proper authorization is defective, and
or successively, all substantially founded on a valid cause for dismissal. [Anderson v. Ho,
the same transactions and the same essential G.R. No. 172590 (2013)]
facts and circumstances, and all raising
substantially the same issues, either pending If, for justifiable reasons, the party-pleader is
in or already resolved adversely by some unable to sign, he must execute a Special
other court. [Asia United Bank v. Goodland Power of Attorney designating his counsel of
Company, Inc., G.R. No. 191388 (2011)] record to sign on his behalf. [Vda. de Formoso
v. PNB, G.R. No. 154704 (2011)]
Test to determine existence of Forum
Shopping Verification/CNFS for Corporation
Whether in the 2 or more cases pending, The certification must be executed by an
there is identity of: officer, or member of the board of directors,
(1) Parties or by one who is duly authorized by a board
(2) Rights or causes of action resolution; otherwise, the complaint will have
43 OF 425
to be dismissed. [Cosco Philippines Shipping, E.4 ALLEGATIONS IN A PLEADING

Inc. v. Kemper Insurance, Co., G.R. No. 179488
(2012)] IN GENERAL
Every pleading shall contain a statement of
However, the Court has ruled that a President the ultimate facts on which the party
of a corporation can sign the verification and pleading relies for his claim or defense
CNFS, without the benefit of a board (1) In a methodical and logical form
resolution. It also allowed the following to (2) A plain, concise and direct statement
sign: (3) Statement of mere evidentiary facts
(1) The Chairperson of the Board; omitted [Sec. 1, Rule 8]
(2) The General Manager or acting GM;
(3) A personnel officer; and If a defense relied on is based on law, state in
(4) An employment specialist in a labor case. a clear and concise manner:
(1) Pertinent provisions of the law
However, the better procedure would be to (2) Applicability of the law to him
append a board resolution to obviate
questions regarding the authority of the Facts that must be averred
signatory. [South Cotabato Communications particularly Circumstances showing
Corp. v. Sto. Tomas, G.R. No. 173326 (2010)] fraud or mistake when averred [Sec. 5, Rule
8]
Belated submission of written authority has
been found to be substantial compliance with Facts that may be averred generally
the rule, especially when the acts were also (1) Conditions precedent [Sec. 3, Rule 8]
ratified by the Board. [Swedish Match (2) Capacity to sue or be sued;
Philippines v. Treasurer of the City of Manila, (3) Capacity to sue or be sued in a
G.R. No. 181277 (2013)] representative capacity; [Sec. 4, Rule 8]
(4) Legal existence of an organization [Sec. 4,
Effect of noncom pliant CNFS Rule 8]
Defect Effect (5) Malice/intent/knowledge or other
Not curable by mere condition of the mind; [Sec. 5, Rule 8]
amendment (6) Judgments of domestic/foreign courts,
tribunals, boards or officers (without need
Failure to comply Cause for dismissal to show jurisdiction); [Sec. 6, Rule 8]
with the of the case, without (7) Official documents/acts. [Sec. 9, Rule 8]
requirements prejudice unless
otherwise provided, Condition Precedent If the cause of
upon motion and action depends upon a condition precedent,
after hearing its fulfillment or legal excuse for non-
False certification Constitutes indirect fulfillment must be averred.
contempt, without
Noncompliance A general averment of the performance or
prejudice to
with any occurrence of all conditions precedent shall
administrative and
undertaking be sufficient [Sec. 3, Rule 8]
criminal actions
Ground for
summary dismissal, All valid conditions precedent to the
with prejudice institution of a particular action, whether
Willful and prescribed by statute, fixed by agreement of
deliberate forum Direct contempt the parties, or implied by law must be
shopping performed or complied with before
Cause for commencing the action. Such fact must be
administrative pleaded.
sanctions
44 OF 425
Failure to comply with a condition precedent

is a ground for a motion to dismiss [Sec. 1(j), Pleading the document
Rule 16] (1) The substance of such document shall be
set forth in the pleading; and the original
Examples of Conditions Precedent: or a copy shall be attached as an exhibit;
(1) Exhaustion of administrative remedies or
(2) Investigation by a fiscal is a prerequisite to (2) Said copy may with like effect be set forth
annulment of marriage when defendant in the pleading [Sec. 7, Rule 8]
defaults [Tolentino v. Villanueva (1974)]
(3) No suit shall be filed or maintained A variance in the substance of the document
between members of the same family set forth in the pleading and the document
unless it should appear that earnest annexed thereto does not warrant dismissal
efforts at compromise have been made of the action [Convets Inc. v. National Dev. Co.,
but that the same have failed. [Art. 222, G.R. No. L-10232 (1958)]
Family Code; Versoza v. Versoza (1968)]
(4) Arbitration; How to Contest [Sec. 8, Rule 8]
(5) Barangay Conciliation (1) By specific denial under oath; and
(2) By setting forth what is claimed to be the
Capacity facts
The following must be averred:
(1) Facts showing the capacity of a party to Denial need not be under oath when:
sue or be sued; or (1) The adverse party does not appear to be a
(2) The authority to sue or be sued in a party to the instrument, or
representative capacity; (2) Compliance with an order for inspection of
(3) Or the legal existence of an organized the document has been refused.
association of persons that is made a party
[Sec. 4, Rule 8] Effect of Failure to Deny Under Oath
(1) The genuineness and due execution is
NOTE: A party desiring to raise an issue as to deemed admitted
the legal existence or capacity of any party to (2) The document need not be formally
sue or be sued in a representative capacity offered in evidence
shall do so by specific denial which shall
include supporting particulars within the Due Execution and Genuineness - That
pleader's knowledge. the party whose signature it bears admits
that he signed it or that it was signed by
Judgment - In pleading a judgment or another for him with his authority; that it was
decision of a domestic or foreign court, in words and figures exactly as set out in the
judicial or quasi-judicial tribunal, or of a pleading of the party relying upon it; that the
board or officer, it is sufficient to aver the document was delivered and that any formal
judgment or decision without setting forth requisites required by law, such as a seal, an
matter showing jurisdiction to render it. [Sec. acknowledgment, or revenue stamp, which it
6, Rule 8] lacks, are waived by him. [Hibberd v. Rohde
and Mcmillian, G.R. No. 8418 (1915)]
Official documents or acts sufficient to
aver that the document was issued, or the act SPECIFIC DENIALS
done, in compliance with law. [Sec. 9, Rule 8] The purpose of requiring the defendant to
make a specific denial is to make him disclose
PLEADING IN AN ACTIONABLE DOCUMENT the matters alleged in the complaint which
An actionable docum ent is the written he succinctly intends to disprove at the trial,
instrument upon which the action or defense together with matters which he relied upon to
is based. Where a pleader relies upon a support the denial. The parties are compelled
document, its substance must be set out in to lay their cards on the table. [Philippine
the pleading either by its terms or by its legal Bank of Communications v. Go, G.R. No.
effects [Sec. 7, Rule 8] 175514 (2011)]
45 OF 425
NOTE: Under CB Circular No. 905, the Usury

Modes of Specific Denial Law of 1912 is currently suspended.
(1) Specific Absolute Denial - Defendant
must specify each material allegation of E.5 EFFECT OF FAILURE TO PLEAD
fact the truth of which he does not admit,
and, whenever applicable, set forth the FAILURE TO PLEAD DEFENSES AND
substance of matters relied upon to OBJECTIONS
support the denial GENERAL RULE: Defenses and objections
(2) Partial Specific Denial - If pleader not pleaded in the answer or motion to
decides to deny only a part or a dismiss are deemed waived. [Omnibus
qualification of an averment: Motion Rule, Sec. 1, Rule 9]
(a) He shall specify so much of it as is true
and material EXCEPTIONS:
(b) He shall deny the remainder (1) Lack of jurisdiction over the subject
(3) Denial by Disavowal of Knowledge matter;
The defendant states that he is without (2) Litis pendentia
knowledge or information sufficient to (3) Res judicata
form a belief as to the truth of a material (4) Action barred by statute of limitations.
averment; has the effect of a denial [Sec. 1, Rule 9]
NOTE: Denial by disavowal of knowledge NOTE: These exceptions also empower the
must be availed of with sincerity and in good courts to motu proprio dismiss an action
faith certainly neither for the purpose of where such grounds appear from the
confusing the adverse party as to what pleadings or the evidence on record [Sec. 1,
allegations of the complaint are really put in Rule 9].
issue nor for the purpose of delay. [Barnes v.
Reyes, G.R. No. L-9531 (1958)] FAILURE TO PLEAD COMPULSORY
COUNTERCLAIMS AND CROSS-CLAIMS
Effect of Failure to m ake Specific GENERAL RULE: A compulsory
Denials counterclaim, or a cross-claim, not set up
shall be barred. [Sec. 2, Rule 9]
GENERAL RULE: Allegations not
specifically denied are deemed admitted [Sec. EXCEPTION: If due to oversight,
11, Rule 8] inadvertence, excusable neglect, etc. the
compulsory counterclaim or a cross-claim,
EXCEPT: with leave of court, may be set up by
(1) Allegations as to the amount of amendment before judgment. [Sec. 10, Rule
unliquidated damages; 11]
(2) Allegations immaterial to the cause of
action E.6 DEFAULT
(3) Allegations of merely evidentiary or Failure of the defendant to answer within the
immaterial facts may be expunged from proper period. [Sec. 3, Rule 9]
the pleading or may be stricken out on
motion. [Sec. 12, Rule 8] Dual stages of default
(4) Conclusions of law. (1) Declaration of Order of Default
when defendant fails to answer within the
Specific Denial requires an oath in the time specified in the rules, the court shall,
following cases: upon motion of the plaintiff and proof of
(1) Denial of the genuineness and due such failure, declare defendant in default
execution of an actionable document; [Sec. (2) Rendition of Judgment by Default
8, Rule 8] and thereafter, on the basis of the allegation of
(2) Denial of allegations of usury. [Sec. 11, the complaint or after receiving plaintiffs
Rule 8] evidence, the court shall render judgment
46 OF 425
granting him such relief as the complaint (a) Proceed to render judgment granting
and the facts proven may warrant the claimant such relief as his pleading
may warrant; or
Judgm ent by (b) Require the claimant to submit
Order of default
default evidence, which need not be received
Issued by the court by the court personally but may be
Rendered by the
on plaintiffs motion, received by the clerk of court
court following a
for failure of the A declaration of default is not tantamount
default order or after
defendant to to an admission of the truth or validity of
it received ex parte
seasonably file his the plaintiffs claims. [Monarch Insurance v.
plaintiffs evidence
responsive pleading CA, G.R. No. 92735 (2000)]
Interlocutory (3) A defending party declared in default
Final Appealable retains the right to appeal from the
unappealable
judgment by default. However, the
W hen Declaration of Default is Proper grounds that may be raised in such an
There is only one instance when a party appeal are restricted to any of the
defendant can properly be declared in default following:
and that is when he fails to file his answer (a) The failure of the plaintiff to prove the
within the reglementary period [Rule 11], or material allegations of the complaint;
within such extended time as he is allowed by (b) The decision is contrary to law; and
the court. [Sec. 11, Rule 11] (c) The amount of judgment is excessive or
different in kind from that prayed for.
Requisites before a Declaration of [Otero v. Tan, G.R. No. 200134 (2012)]
Default
(1) The court must have validly acquired Relief from an Order of Default [Lina v.
jurisdiction over the person of the CA, G.R. No. L-63397]
defendant either by service of summons or (1) After notice of the Order and before
voluntary appearance Judgment file a motion under oath
(2) The defendant failed to file his answer to set aside the Order; must show:
within the time allowed therefor (a) Failure to file Answer was due to fraud,
(3) There must be a m otion by the accident, mistake, excusable
plaintiff to declare the defendant in negligence; and
default with notice to the latter (b) That he has a meritorious defense (i.e.
(4) There must be notice to the defendant by through an affidavit of merit)
serving upon him a copy of such motion (2) After rendition of Judgment, before
(5) There must be proof of such failure to judgm ent becom es final and
answer executory may file:
(6) There must be a hearing to declare (a) a motion for new trial under Rule
defendant in default 37; or
(b) appeal from the judgment for being
Effect of Order of Default contrary to the evidence or law
(1) The party declared in default cannot take (3) After Judgment becomes final and
part in the trial. However, he may still executory may file a petition for
participate as a witness [Cavili v. Florendo, relief under Rule 38 (within 60 days from
G.R. No. 73039 (1987)] and is entitled to notice of the judgment, but within 6
notices of subsequent proceedings. [Sec. 3, months from entry thereof) or
Rule 9] annulm ent of judgm ent under Rule 47
In all, the defendant should receive the
following notices: These remedies presuppose that there was a
(a) Motion to declare him in default; valid order of default but the defendant may
(b) Order declaring him in default; also file a petition for certiorari when he is
(c) Subsequent proceedings; improperly declared in default. [Riano]
(d) Service of final orders and judgments.
(2) The court may either:
47 OF 425
Partial Default DEFAULT IN ORDINARY

When the complaint states a common cause PROCEDURE
of action against several defendants, only
some of whom answer, the court should
declare defaulting defendants in default, and After the lapse of time If motion denied:
proceed to trial on answers of others to file an answer, the Defendant allowed
plaintiff may move to to file an answer
If the defense is personal to the one who declare the defendant
answered, it will not benefit those who did
in default
not answer.
Extent of Relief to be Awarded

(1) A judgment rendered against a party in If motion granted:
default shall not exceed the amount or be Court issues order of
different in kind from that prayed for nor default and renders
award unliquidated damages judgment or require
(2) If the claim is not proved, the case should plaintiff to submit
be dismissed evidence ex parte
As held in Datu Samad Mangelen v. CA, G.R.
No. 88954 (1992):
(1) In a judgment based on evidence Before judgment by
presented ex parte, judgment should default is rendered,
neither exceed the amount, nor be defendant may:
different in kind from that prayed for. (1) Move to set aside
Court maintains
(2) On the other hand, in a judgment where order of default upon
order of default
an answer was filed but defendant did not showing of FAME and
appear at the hearing, the award may that he has a
exceed the amount or be different in kind meritorious defense;
from that prayed for. (2) Avail of Rule 65 in
proper cases
W here Default Not Allowed
Default is not allowed, in the following cases:
(1) An action for annulment or declaration of Court sets aside order
nullity of marriage of default and
(2) For legal separation defendant is allowed
(3) Special civil actions of certiorari, to file an answer
prohibition and mandamus where
comment instead of an answer is required Presentation of
to be filed plaintiffs
(4) Summary procedure evidence ex-parte
(5) In expropriation proceedings, whether or
not a defendant has previously appeared Case set for pre-trial
or answered, he may present evidence as
to the amount of compensation to be paid
for his property in the trial of the issue of
just compensation. [Sec. 3, par. 3, Rule 67]
If plaintiff proves his If plaintiff fails
allegations: to prove his
Judgment by default allegations:
Case is
dismissed
48 OF 425
E.7 FILING AND SERVICE OF PLEADINGS prescribed filing fee, BUT

SUBSEQUENTLY, the judgment
PAYMENT OF DOCKET FEES awards a claim not specified in the
GENERAL RULE: The court acquires pleading, or cannot then be estimated,
jurisdiction over the case only upon payment or a claim left for determination by the
of prescribed fees. Without payment, the case court, then the additional filing fee
is considered not filed. Payment of docket shall constitute a lien on the judgment
fees is mandatory and jurisdictional. (5) Lim itation on the claim s covered by
fees as lien, Metrobank v. Perez, G.R. No.
It is not simply the filing of the complaint or 181842 (2010)
appropriate initiatory pleading but the Claims not specified or claims although
payment of the prescribed docket fee that specified are left for determination of
vests a trial court with jurisdiction over the the court are lim ited only to
subject matter or nature of the action [Proton any damages that m ay
Pilipinas v. Banque National de Paris, G.R. No. arise after the filing of the
151242 (2005)] com plaint or sim ilar pleading for
then it will not be possible for the
Effect of Failure to Pay Docket Fees at claimant to specify nor speculate as to
Filing the amount thereof
(1) The Manchester Rule: Manchester v. CA,
G.R. No. 75919 (1987) FILING VERSUS SERVICE OF PLEADINGS
Automatic Dismissal Filing is the act of presenting the pleading
Any defect in the original pleading or other paper to the clerk of court. [Sec. 2,
resulting in underpayment of the Rule 13]
docket fees cannot be cured by Service is the act of providing a party or his
amendment, such as by the reduction counsel with a copy of the pleading or paper
of the claim as, for all legal purposes, concerned. [Sec. 2, Rule 13]
there is no original complaint over
which the court has acquired Papers required to be filed and
jurisdiction served: [Sec. 4, Rule 13]
(2) Relaxation of the Manchester Rule, (1) Pleading subsequent to the complaint;
Sun Insurance v. Asuncion, G.R. No. 79937 (2) Appearance;
(1989) (3) Written Motion;
NOT automatic dismissal (4) Notice;
Court may allow payment of fees within (5) Order;
a reasonable time but in no case (6) Judgment;
beyond the expiration of the applicable (7) Demand;
prescriptive period of the action filed. (8) Offer of Judgment;
(3) Exception to the Sun Insurance (9) Resolution;
doctrine, Gochan v. Gochan, G.R. No. (10) Similar papers.
146089 (2001)
The Sun Insurance rule allowing
payment of deficiency does not apply
where plaintiff never demonstrated any
willingness to abide by the rules to pay
the docket fee but stubbornly insisted
that the case filed was one for specific
performance and damages.
(4) Further modification, Heirs of Hinog v.
Melicor, G.R. No. 140954 (2005)
Fees as lien
Where the trial court acquires
jurisdiction over a claim by the filing of
the pleading and the payment of the
49 OF 425
PERIODS OF FILING PLEADINGS Extension of Time to Plead

Period Reckoning Point Upon motion and on such terms as may be
Answer to the Complaint just, the court may extend the time to plead
Service of summons, provided in these Rules. The court may also,
General rule: unless a different upon like terms, allow an answer or other
Within 15 days period is fixed by the pleading to be filed after the time fixed by
court [Sec. 1, Rule 11] these Rules. [Sec. 11, Rule 11]
Foreign private
juridical entity MANNER OF FILING
defendant, summons Receipt of summons Personal Filing
through government [Sec. 2, Rule 11] By personally presenting the original copy of
official: Within 30 the pleading, notice, appearance, motion,
days order, or judgment to the clerk of court. [Sec.
Non-resident 3, Rule 13]
defendant, with
Service of Deemed filed upon the receipt of the
extraterritorial
extrajudicial same by the clerk of court who shall endorse
service of summon:
summons [Sec. 15, on it the date and hour of filing.
reasonable time not
Rule 14]
less than 60 days set
by court Filing by Registered Mail [Sec. 3, Rule
Answer to amended Complaint 13]
Filing by mail should be through the registry
Amendment was Service of a copy of service (i.e. by depositing the pleading in the
matter of right: the amended post office).
Within 15 days complaint
Amendment not Notice of the order Deemed filed on the date it was
matter of right: admitting the same deposited with the post office, as shown by
Within 10 days [Sec. 3, Rule 11] the post office stamp on the envelope or the
Answer to Counterclaim or Cross-Claim registry receipt.
From service [Sec. 4,
Within 10 days NOTE: Filing a pleading by facsimile is not
Rule 11]
Answer to third (fourth, etc)-party complaint sanctioned. But fax was allowed in an
Same rule as answer extradition case [Justice Cuevas v. Juan
Within 15 days to the complaint Antonio Muoz (2000)]
[Sec. 5, Rule 11]
Reply Filing by Private Carrier
From service of the If a party avails of a private carrier, the date of
Within 10 days pleading responded the courts actual receipt of the pleading (not
to [Sec. 6, Rule 11] the date of delivery to the private carrier) is
deemed to be the date of the filing of that
Answer to supplemental complaint
pleading. [Benguet Electric Cooperative v.
From notice of the
NLRC, G.R. No. 89070 (1992)]
order admitting the
Within 10 days same, unless a
different period is
fixed by the court
50 OF 425
MODES OF SERVICE
Personal Service [Sec. 6, Rule 13] Service of Judgm ents, Final Orders, or
(1) Delivering personally a copy to the party, Resolutions
who is not represented by a counsel, or to Service is done either:
his counsel; or (1) Personally
(2) Leaving a copy in counsels office with his (2) By registered mail
clerk or with a person having charge (3) By publication, if:
thereof; or (a) A party is summoned by publication;
(3) Leaving the copy between 8am and 6pm and
at the partys or counsels residence, if (b) Such party failed to appear in the
known, with a person of sufficient age and action
discretion then residing thereon if not
person is found in his office, or if his office NOTE: There is NO substituted service of
is unknown, or if he has no office judgments and final orders.
Service by Mail [Sec. 7, Rule 13] PRIORITIES IN MODES OF SERVICE AND

(1) Ordinary Mail - it does not constitute FILING
filing until the papers are actually
delivered into the custody of clerk or judge GENERAL RULE: Personal filing and
(a) Service may be done by ordinary mail if service is preferred. [Sec. 11, Rule 13]
no registry service is available in the
locality of either sender or addressee Resort to other modes of filing and service
(2) Registered Mail - The date of mailing is must be accompanied by an explanation why
the date of filing the service/filing was not done personally. If
(a) Date of filing is determinable from 2 there is no written explanation, the paper is
sources: considered not filed.
(i) From the post office stamp on
the envelope Exception: Papers emanating from the
(ii) From the registry receipt court.
(b) It is done by depositing in the post
office: COMPLETENESS AND PROOF OF FILING
(c) In a sealed envelope
(d) Plainly addressed to the party or his GENERAL RULE: The filing of a pleading or
counsel paper is proved by its existence in the record
(i) At his office if known of the case [Sec. 12, Rule 13]
(ii) Otherwise, at his residence if
known EXCEPTION: When the pleading or paper is
(e) Postage fully pre-paid not in the record, its filing may be proved as
(f) With instructions to the postmaster to shown below
return the mail to the sender after 10
days if undelivered Completeness of
Proof of filing
Filing
[Sec. 12, Rule 13]
Substituted Service [Sec. 8, Rule 13] [Sec. 3, Rule 13]
Done by delivery of the copy to the clerk of Personal filing
court with proof of failure of both personal Written or stamped
and service by mail Upon receipt by
acknowledgment by the
Proper only when: the clerk of court
clerk of court
(1) Service cannot be made personally or by Filing by registered mail
mail (1) Registry receipt,
(2) Office and place of residence of the party On the date the
and
or his counsel being unknown pleading was
(2) Affidavit of the
deposited with
person who did the
Service is complete at the time of such the post office
mailing
delivery.
51 OF 425
In the case of filing by registered mail, when Duties of sender when service is effected by
the paper does not appear in the record, the registered mail:
affidavit of the person who did the mailing (1) The registry return card shall be filed
must contain: immediately upon its receipt by the
(1) A full statement of the date and place of sender; or
depositing the mail in the post office (2) The unclaimed letter together with the
(2) The fact that the paper was in a sealed certified or sworn copy of the notice given
envelope addressed to the court by the postmaster to the addressee shall
(3) The fact that postage was fully paid likewise be filed immediately. [Sec. 13,
(4) The fact that there were instructions to the Rule 13]
postmaster to return the mail to the
sender after 10 days if undelivered Service to the lawyer binds the party. But
service to the party does not bind the lawyer,
COMPLETENESS AND PROOF OF SERVICE unless ordered by the court in the following
Com pleteness of circumstances:
Proof of service
service [Sec. 10, (1) When it is doubtful who the attorney for
[Sec. 13, Rule 13]
Rule 13] such party is; or
Personal service (2) When the lawyer cannot be located; or
(1) Written admission (3) When the party is directed to do
of the party served; something personally, as when he is
or ordered to show cause. [Retoni, Jr. v. CA,
(2) Official return of G.R. No. 96776 (1993)]
the server; or
Upon actual Notice to the lawyer who appears to have
(3) Affidavit of the
delivery been unconscionably irresponsible cannot be
party serving, with
a full statement of considered as notice to his client, as it would
the then be easy for the lawyer to prejudice the
date/place/manne interests of his client by just alleging that he
r of service. just forgot every process of the court affecting
Service by ordinary m ail his clients, because he was so busy. [Bayog v.
Affidavit of person Natino, G.R. No. 118691 (1996)]
10 days after
mailing of facts
mailing, unless E.8 AMENDMENT AND SUPPLEMENTAL
showing compliance
otherwise provided PLEADINGS
with Sec. 7 of Rule 13.
by the court
Service by registered m ail How to Am end Pleadings [Sec. 1, Rule 10]
Whichever is earlier (1) Adding an allegation of a party;
of: (2) Adding the name of a party;
(1) Affidavit of person (3) Striking out an allegation of a party;
(1) Actual receipt
mailing showing (4) Striking out the name of a party;
by the
compliance as (5) Correcting a mistake in the name of a
addressee; or
above; and party; and
(2) 5 days after
(2) Registry receipt (6) Correcting a mistaken or inadequate
addressee
issued by the post allegation or description in any other
received
office respect
postmaster's
notice
A new copy of the entire pleading,
Substituted Service incorporating the amendments, which shall
At the time of delivery of the copy to the clerk be indicated by appropriate marks, shall be
of court together with proof of failure of both filed. [Sec. 7, Rule 10]
personal service and service by mail
Purpose: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the
52 OF 425
most expeditious and inexpensive manner. If the court has no jurisdiction in the
[Sec. 1, Rule 10] subject matter of the case, the
amendment of the complaint cannot be
As a general policy, liberality in allowing allowed so as to confer jurisdiction on the
amendments is greatest in the early stages of court over the property. [PNB v. Florendo,
a law suit, decreases as it progresses and G.R. No. L-62082 (1992)]
changes at times to a strictness amounting to (3) If amendment is for curing a premature or
a prohibition. This is further restricted by the inexistent cause of action.
condition that the amendment should not The cause of action must exist at the time
prejudice the adverse party or place him at a the action was begun, and the plaintiff will
disadvantage. [Barfel Development v. CA, G.R. not be allowed by an amendment to
No. 98177 (1993)] introduce a cause of action which had no
existence when the action was
AMENDMENTS AS A MATTER OF RIGHT commenced. [Surigao Mine Exploration v.
A party may amend his pleading once as a Harris et al, G.R. No. L-45543 (1939)]
matter of right, at any time before a (4) If amendment is for purposes of delay.
responsive pleading is served, thus:
(1) Amendment of complaint is before an FORMAL AMENDMENTS
answer is served. Instances:
(2) Amendment of answer is before a reply is (1) Mere defect in the designation of the
filed, or before the period for filing a reply parties;
expires, and (2) Other clearly clerical or typographical
(3) Amendment of reply any time within 10 errors
days after it is served
The formal amendment must not cause
A motion to dismiss is not a responsive prejudice to the adverse party.
pleading and does not preclude the exercise
of the plaintiffs right to amend his complaint. How form al am endm ents are effected
[Remington Industrial Sales v. CA, G.R. No. (1) May be summarily corrected by the court
133657 (2002)] at any stage of the action
(2) A party may, by motion, call for the formal
AMENDMENTS BY LEAVE OF COURT amendment
Leave of court is necessary in the following
instances: AMENDMENTS TO CONFORM TO OR
(1) Further amendments after the party has AUTHORIZE PRSENTATION OF EVIDENCE
already amended his pleading as a matter [Sec. 5, Rule 10]
of right; and This is an instance wherein the court acquires
(2) When a responsive pleading has already jurisdiction over the issues even if the same
been served. are not alleged in the original pleadings,
where the trial of said issues is with the
Requisites express or implied consent of the parties.
(1) A motion for leave of court to amend
pleading is filed W hat Sec. 5 contem plates
Amended pleading should be attached to (1) Allows a complaint which failed to state a
the motion [Sec. 9, Rule 15] cause of action to be cured either by:
(2) Notice is given to the adverse party (a) Evidence presented without objection
(3) Parties are given opportunity to be heard or
(b) In the event of an objection sustained
W hen amendment may not be allowed by the court, by an amendment of the
(1) If the cause of action, defense or theory of complaint with leave of court
the case is changed. (2) Also allows admission of evidence on a
(2) If amendment is intended to confer defense not raised in a motion or answer:
jurisdiction to the court. (a) if no objection is made thereto; or
53 OF 425
(b) in the event of such objection, upon Amended versus Supplemental

amendment of the answer with leave of Pleadings
court Supplemental
Amendments
pleadings
However, where the plaintiff has no cause of Grounds for
action at the tim e of the filing of the Reason for
supplemental
com plaint, this defect cannot be cured or amendment is
pleading arose after
remedied in this manner by the acquisition or available at time of
the filing of the first
accrual of one while the action is pending. the first pleading
pleading
Either as a matter of
Two Scenarios Always by leave of
right or by leave of
(1) No objection to the evidence is raised court
court
Issues not raised in pleadings are tried Merely supplements,
Supersedes the
by express or implied consent of the and exists side-by-
parties; they are treated in all respects original
side with the original
as if they had been raised. A new copy of the Does not require a
Such amendments as may be entire pleading must new copy of the
necessary to cause the pleadings to be filed entire pleading
conform to the evidence may be made
upon motion of any party at any Supplemental pleadings are not allowed on
tim e, even after judgm ent separate and distinct causes of action but a
Failure to amend does not affect the supplemental pleading may raise a new
result of the trial of those issues cause of action as long as it has some
(2) Objection to the evidence is raised relation to the original cause of action set
Objection on the ground that it is not forth in the original complaint. [Ada v. Baylon,
within the issues made by the G.R. No. 182435 (2012)]
pleadings
Court may allow the pleadings to EFFECT OF AMENDED PLEADING
be amended and shall do so freely (1) An amended pleading supersedes the
when the presentation of the merits of pleading that it amends
the action will be subserved (2) Admissions in the superseded pleading
As safeguard, the court may grant a can still be received in evidence against
continuance to enable the objecting the pleader (as extrajudicial admissions)
party to meet such evidence (3) Claims or defenses alleged therein but not
incorporated or reiterated in the amended
SUPPLEMENTAL PLEADINGS pleading are deemed waived [Sec. 8, Rule
A pleading which sets forth transactions, 10]
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Sec. 6, Rule 10]
Purpose: To bring into the records new facts

which will enlarge or change the kind of relief
to which the plaintiff is entitled [Ada v. Baylon,
G.R. No. 182435 (2012)]
How Made: Upon motion of a party, with

reasonable notice and upon terms as are just.
The admission or non-admission of a

supplemental pleading is not a matter of
right but is discretionary on the court.
54 OF 425
F. SUMMONS validly try and decide the case. [Velayo-Fong v.

The writ by which the defendant is notified of Velayo, G.R. No. 155488 (2006)]
the action brought against him [Licaros v.
Licaros, G.R. No. 150656 (2003)] ACTIONS IN REM AND QUASI IN REM
Not to acquire jurisdiction over the
Upon the filing of the complaint and the defendant but mainly to satisfy the
payment of legal fees, the clerk of court shall constitutional requirement of due process
issue the corresponding summons to the Jurisdiction over the defendant is not
defendants. [Sec. 1, Rule 14] required and the court acquires
jurisdiction over an action as long as it
CONTENTS
acquires jurisdiction over the res
(1) Summons shall be:
(a) Directed to the defendant F.2 VOLUNTARY APPEARANCE
(b) Signed by clerk of court under seal
Any form of appearance in court, by the
(2) Summons shall contain:
defendant, by his agent authorized to do so,
(a) The name of the court, and the names or by attorney, is equivalent to service except
of the parties to the action; where such appearance is precisely to object
(b) A direction that the defendant answer the jurisdiction of the court over the person of
within the time fixed by the Rules; and the defendant [Carballo v. Encarnacion, G.R.
(c) A notice that unless the defendant so No. L-5675 (1953)]
answers, plaintiff will take judgment by
default and may be granted the relief GENERAL RULE: Defendant's voluntary
applied for. appearance in the action shall be equivalent
(3) The following shall be attached to the
to service of summons. [Sec. 20, Rule 14]
original and each copy of the summons:
(a) A copy of the complaint; and
EXCEPTIONS: Conditional appearance to
(b) An order for appointment of guardian file a motion to dismiss challenging the
ad litem (if any) courts jurisdiction.
(1) Special appearance operates as an
WHO MAY SERVE SUMMONS
exception to the general rule on voluntary
(1) The sheriff
appearance;
(2) His deputy
(2) Objections to the jurisdiction of the court
(3) Other proper court officer
over the person of the defendant must be
(4) Any suitable person authorized by the
explicitly made, i.e., set forth in an
court, for justifiable reasons. [Sec. 3, Rule
unequivocal manner; and
14]
(3) Failure to do so constitutes voluntary
submission to the jurisdiction of the court,
The enumeration of persons who may validly
especially in instances where a pleading or
serve summons is exclusive. [Herrera]
motion seeking affirmative relief is filed
F.1 NATURE AND PURPOSE OF SUMMONS and submitted to the court for resolution.
IN RELATION TO ACTIONS IN PERSONAM, [Phil Commercial Intl Bank v. Spouses Dy,
IN REM, AND QUASI IN REM G.R. No. 171137 (2009)]
ACTIONS IN PERSONAM Inclusion in the motion to dismiss of grounds

other than lack of jurisdiction over the
To acquire jurisdiction over the person of defendants person, is not deem ed a
the defendant in a civil case; voluntary appearance. [Sec. 20, Rule 14]
To give notice to the defendant that an
action has been commenced against him. However, seeking affirmative relief other
than dismissal of the case is a manifestation
Where the action is in personam, that is, one of voluntary submission to the courts
brought against a person on the basis of his jurisdiction. The active participation of a party
personal liability, jurisdiction over the person in the proceedings is tantamount to an
of the defendant is necessary for the court to invocation of the courts jurisdiction and a
55 OF 425
willingness to abide by the resolution of the

case, and will bar said party from later on SUBSTITUTED SERVICE OF SUMMONS
impugning the courts jurisdiction. [Phil It is only when the defendant cannot be
Commercial Intl Bank v. Spouses Dy, G.R. No. served personally within a reasonable time
171137 (2009)] and for justifiable reasons that a substituted
service may be made. [Sec. 7, Rule 14]
F.3 MODES OF SERVICE OF SUMMONS
Modes
How Done
(1) Personal Service [Sec. 6, Rule 14]
(1) By leaving copies of the summons at the
(2) Substituted Service [Sec. 7, Rule 14]
defendants residence with some person of
(3) Service by Publication [Sec. 14-16, Rule 14]
suitable age and discretion residing
therein; or
NOTE: There is no service of summons solely
(2) By leaving the copies at defendants office
by registered mail except as an additional
or regular place of business with some
requirement to service by publication.
competent person in charge thereof
Where service is made by publication, a copy
Requisites
of the summons and order of the court shall
It is necessary to establish the following:
be sent by registered mail to last known
(1) Indicate the impossibility of service of
address of defendant. [Sec. 15, Rule 14]
summons within a reasonable time;
(2) Specify the efforts exerted to locate the
NOTE: Service to a foreign corporation is
defendant; and
done through (a) its resident agent, or (b) the
(3) State that the summons was served upon:
government agent designated in the absence
(a) a person of sufficient age and
of the former, or (c) on any of its officers or
discretion who is residing in the
agents within the Philippines. [Sec. 12, Rule
address, or
14]
(b) a person in charge of the office or
PERSONAL SERVICE regular place of business, of the
defendant.
How Done [Sec. 6, Rule 14] (4) It is likewise required that the pertinent
(1) By handing a copy of summons to him; or facts proving these circumstances be
(2) If he refuses to receive it, by tendering it stated in the proof of service or in the
to him officers return. [Sps. Tiu v. Villar, A.M. No.
P-11-2986 (2012)]
Personal Service of Personal Service of
Pleadings Summons Residence is the place where the person
Sec. 6, Rule 13 Sec. 6, Rule 14 named in the summons is living at the time of
Personal service when the service is made, even though he
includes: may be temporarily out of the country at that
1. Service on the time [Venturanza v. CA, G.R. No. 77760 1987]]
party or his
counsel; or Office or Regular Place of Business is
2. By leaving a copy the office or place of business of defendant at
with the clerk or the time of service
person having
Service is only made
charge of his Person in Charge
on defendant himself
office; or Individual must have sufficient knowledge to
3. Leaving it with a understand the obligation of the defendant in
person of the summons, its importance, and the
sufficient age and prejudicial effects arising from inaction on the
discretion at the summons. [Prudential Bank v. Magdamit, G.R.
partys or No. 183795 (2014)]
counsels
residence
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SERVICE BY PUBLICATION (2) By publication in a newspaper of general

(CONSTRUCTIVE SERVICE) circulation in such places and for such
time as court may order; in which case, a
(1) Service upon Unknown Defendant [Sec. 14,
copy of the summons and order of the
Rule 14]
court shall be sent by registered mail to
(2) Extraterritorial Service of Summons [Sec.
the last known address of defendant; or
15, Rule 14]
(3) In any other manner the court may deem
(3) Service upon a Resident temporarily out of
sufficient.
the Philippines [Sec. 16, Rule 14]
Any order granting such leave shall specify a
Service upon Unknown Defendant [Sec.
reasonable time within which defendant
14, Rule 14
must answer, which shall not be less than 60
Applicable in cases where:
days after notice.
(1) Defendant is sued as an unknown owner;
or
Service upon a Resident tem porarily
(2) His whereabouts are unknown and cannot
out of the Philippines [Sec. 16, Rule 14]
be ascertained with diligent inquiry
(1) Defendant is a resident of the Philippines;
Service of summons may be effected by
and
publication in a newspaper of general
(2) Is temporarily out of the country
circulation and in such places and for such
time as the court may order
Summons may, by leave of court, be effected
as in the case of extraterritorial service but
The Section applies to any action, making
unlike in Sec. 15, Rule 14 it may be effected in
no distinction between actions in rem, in
this manner for any action, not
personam and quasi in rem.
distinguishing between actions in rem, in
personam, and quasi in rem.
Extraterritorial Service of Sum m ons
[Sec. 15, Rule 14]
Even without such Section, as the defendant
has a residence in the Philippines, summons
(1) Defendant is a nonresident;
may also be served through substituted
(2) He is not found in the Philippines; and
service under Sec. 7, Rule 14.
(3) The action is either in rem. or quasi in rem
[Jose v. Boyon, G.R. No. 147369 (2003)]
Summons may be effected to a resident
defendant, temporarily outside the
The actions in rem or quasi in rem, which
Philippines, by:
would justify extraterritorial service of
(1) Substituted service [Sec. 7, Rule 14]
summons are:
(2) Service by publication [Sec. 15, Rule 14]
(1) Those which affect the personal status of
the plaintiff,
SPECIAL CLASSES OF DEFENDANTS
(2) Those which relate to, or the subject of
which is, property within the Philippines in Upon an Entity without Juridical
which defendant claims a lien or interest, Personality [Sec. 8]
actual or contingent; Applicable in cases where:
(3) Those in which the relief demanded (1) Persons are associated in an entity
consists, wholly or in part, in excluding the without juridical personality; and
defendant from any interest in property (2) They are sued under the name by which
located in the Philippines, or they are generally or commonly known
(4) Those wherein property of defendant
within the Philippines has been attached Service is effected upon all of them by:
(1) Serving summons upon any of them; or
Service of summons is effected, by leave of (2) Serving summons upon the person in
court, in the following modes: charge of their office or place of business
(1) By personal service, as under Sec. 6, Rule
14;
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Upon Prisoners [Sec. 9] (c) By facsimile or any recognized

Where the defendant is a prisoner confined in electronic means, which can generate
a jail or institution, service shall be by the proof of service;
management of such institution, who is (d) By such other means directed by the
deemed deputized as a special sheriff. court.
Upon Minors and Incom petents [Sec. Upon Public Corporations [Sec. 13]
10] Service is effected:
Service upon minors is effected upon: (1) Upon the Republic of the Philippines to
(1) The minor defendant; and the Solicitor General;
(2) His legal guardian, or any of his parents (2) Upon provinces, cities, municipalities, and
like public corporations through the
Service upon incompetents is effected upon: executive head, or on such officers as law
(1) The defendant personally; and or the court may direct.
(2) His legal guardian
F.4 RETURN AND PROOF OF SERVICE
In either case, if there be no legal guardian,
the plaintiff shall apply for the appointment RETURN [Sec. 4, Rule 14]
of a guardian ad litem, whom he shall also
serve upon. When service has been completed, the server
shall:
Upon Dom estic Private Juridical (1) Serve a copy of the return to the plaintiffs
Entity [Sec. 11] counsel, personally or by registered mail,
Service is effected upon: within 5 days from service of summons;
(1) The president, and
(2) Managing partner, (2) The server shall return the summons,
(3) General manager, accompanied by proof of service, to the
(4) Corporate secretary, clerk who issued it.
(5) Treasurer, or
(6) In- house counsel It is required to be given to the plaintiffs
counsel in order to enable him:
Upon a Foreign Private Juridical (1) To move for a default order should the
Entity [Sec. 12] defendant fail to answer on time, or
Service is effected: (2) In case of non-service, so that alias
(1) When the defendant is transacting summons may be sought
business in the Philippines:
(a) Upon the resident agent; or In either of the 2 cases, server must serve a
(b) Upon the government agent copy of the return on plaintiffs counsel within
designated by law; or 5 days from completion or failure of service
(c) Any officer or agent of the corporation.
Note that service in the cases of (b) and (c) ALIAS SUMMONS [Sec. 5, Rule 14]
require that there is no resident agent Upon plaintiffs demand, the clerk may issue
(2) When the defendant is not registered in an alias summons if either:
the Philippines, or has no agent, with (1) Summons is returned without being
leave of court: served on any/all of the defendants.
(a) By personal service coursed through (2) Summons was lost.
the appropriate foreign court, with the
assistance of the DFA; The server shall also serve a copy of the
(b) By publication in a newspaper of return on the plaintiff's counsel within 5 days
general circulation in the country therefrom, stating the reasons for the failure
where the defendant may be found; of service
and by serving a copy of the summons
and court order by registered mail at
the defendants last known address;
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PROOF OF SERVICE [Sec. 18, Rule 14] G. MOTIONS IN GENERAL

Proof service shall be made in writing, and
shall state A motion is any application for relief other
(1) the manner, place, date of service; than by a pleading
(2) any papers which served with the process;
and Motions versus Pleadings
(3) the name of the person who received the Motion Pleading
same. Contains allegations Contains allegations
of facts of the ultimate facts
Proof of service shall be sworn to when made Prays for a relief Prays for a relief
by a person, other than the sheriff or his Grant of the relief
Grant of relief
deputy. does not extinguish
extinguishes the
the action
action (final relief)
If effected by publication, proof of service (interlocutory relief)
shall be by: Generally in writing
(1) The affidavit of the printer, his foreman, or (with some Always in writing
principal clerk; or of the editor, business or exceptions)
advertising manager
(2) A copy of the publication; and GENERAL RULE: A motion does not pray
(3) An affidavit showing the deposit in the for judgment
post office, with postage prepaid, directed
for registered mail to the last known Exceptions:
address of the defendant of: (1) Motion for judgment on the pleadings.
(a) A copy of the summons; and (2) Motion for summary judgment.
(b) The order of publication. (3) Motion for judgment on demurrer to
evidence.
Effect of Defect of Proof of Service
(1) Where sheriffs return is defective, G.1. CONTENTS AND FORM OF MOTION
presumption of regularity in the
performance of official functions will not Contents [Sec. 3, Rule 15]
lie (1) Relief sought to be obtained
(2) Defective return is insufficient and (2) Grounds upon which it is based
incompetent to prove that summons was (3) With supporting affidavits and other
indeed served papers if:
(3) Party alleging valid summons will now (a) Required by the Rules, or
prove that summons was indeed served (b) Necessary to prove facts alleged
(4) If there is no valid summons, court did not therein
acquire jurisdiction which renders null and
void all subsequent proceedings and Form [Sec. 2, Rule 15]
issuances Generally, in writing, except:
(1) Motions for continuance made in the
presence of the adverse party or those
made in the course of the hearing or trial
(2) Those made in open court even in the
absence of the adverse party or those
made in the course of a hearing or trial
G.2 KINDS OF MOTIONS

(1) Litigated M otions -- one which
requires the parties to be heard before a
ruling on the motion is made by the court;
written motions are generally litigated
motions
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(2) Ex Parte Motions one which does not Exceptions to the rule on Notice of
require such ruling, and upon which the Hearing:
court may act without prejudicing the (1) Ex parte motions;
rights of the other party (2) Urgent motions;
(3) Motion of Course - one for a relief or (3) Motions agreed upon by the parties to be
remedy, to which the movant is entitled as heard on shorter notice, or jointly
a matter of right; factual allegations submitted by the parties;
contained therein do not require (4) Motions for summary judgment which
verification or investigation must be served at least 10 days before its
(4) Special Motions one involving hearing.
discretion of the court and requiring
investigation on the facts alleged Proof of Service [Sec. 6, Rule 15]
(5) Pro Forma Motions one which fails to A written motion set for hearing will not be
indicate the time and place of the hearing acted upon by the court if there is no proof of
service thereof.
G.3 NOTICE OF HEARING AND HEARING
OF MOTIONS Exceptions:
Litigated written motions shall be set for (1) If the motion is one which the court can
hearing by the movant or applicant. [Sec. 4, hear ex parte.
Rule 15] (2) If the court is satisfied that the rights of
the adverse parties are not affected by the
GENERAL RULE: Motions shall be motion.
scheduled for hearing on Motion Day (3) If the party is in default; such a party is not
(1) On Friday afternoons; or entitled to notice.
(2) Afternoon of the next working day, if
Friday is a non-working day. [Sec. 7, Rule G.4. OMNIBUS MOTION RULE
15] A motion attacking a pleading, order,
judgment, or proceeding must include all
EXCEPTION: Motions which require objections then available. All objections not
immediate action included in the motion are deemed waived.
[Sec. 8, Rule 15]
NOTICE OF HEARING
Notice shall be addressed to all parties, and Purpose: To require the movant to raise all
shall specify the time and date of the hearing available exceptions for relief during a single
which shall not be later than 10 days from the opportunity so that multiple and piece-meal
filing of the motion. [Sec. 5, Rule 15] objections may be avoided
Motion and notice of hearing must be served Exception:

at least 3 days before the date of hearing; (1) Lack of jurisdiction over subject matter
[Sec. 4, Rule 15] (2) Litis pendentia
(3) Res judicata
Purpose: To prevent surprise upon the (4) Prescription [Sec. 8, Rule 15; icow Sec. 1,
adverse party and to enable the latter to Rule 9]
study and meet the arguments of the motion.
H. MOTION FOR BILL OF
Notice must be addressed to the counsels. A PARTICULARS
notice of hearing addressed to the clerk of
court, and not to the parties, is no notice at Bill of Particulars is a detailed
all. Accordingly, a motion that does not explanation respecting any matter which is
contain a notice of hearing to the adverse not averred with sufficient definiteness or
party is nothing but a mere scrap of paper, as particularity in the complaint as to enable a
if it were not filed. [Provident International party to properly prepare his responsive
Resources v. CA, G.R. No. 119328 (1996)] pleading [Sec. 1, Rule 12]
60 OF 425
An action cannot be dismissed on the ground H.2 ACTION OF THE COURT

that the complaint is vague or indefinite. The Upon filing of the motion, the clerk must
remedy of the defendant is to move for a Bill immediately bring it to the attention of the
of Particulars, or avail of the proper mode of court. [Sec. 2, Rule 12]
discovery. [Galeon v. Galeon, G.R. No. L-
30380 (1973)] The court may either:
(1) Deny
H.1. PURPOSE AND WHEN APPLIED FOR (2) Grant the motion outright
The purpose of the motion is to seek an (3) Allow the parties the opportunity to be
order from the court directing the pleader to heard
submit a bill of particulars, which avers
matters with sufficient definiteness or H.3 COMPLIANCE WITH THE ORDER
particularity to enable the movant to prepare If motion is granted, either in whole or in part,
his responsive pleading. the pleader must file a Bill of Particulars or a
more definite statement, within 10 days from
It is not to enable the movant to prepare for notice of order, unless the court fixes a
trial. When this is the purpose, the different period.
appropriate remedy is to avail of Discovery
Procedures under Rules 23 to 29. [Riano] The bill of particulars or a more definite
statement ordered by the court may be filed
W hen Applied For either as a separate pleading or in an
(1) Before responding to a pleading amended pleading, and a copy of which must
(2) If sought to clarify a reply, within 10 days be served on the adverse party. [Sec. 3, Rule
from service thereof 12]
The motion should point out: A Bill of Particulars becomes part of the
(1) The defects complained of; pleading for which it was intended. [Sec. 6,
(2) The paragraph wherein they are Rule 12]
contained;
(3) The details desired. [Sec. 1, Rule 12] Effect of Non-Compliance [Sec. 4, Rule
12]
The only question to be resolved in such (1) In case of non-compliance or insufficient
motion is whether the allegations in the compliance with the order for Bill of
complaint are averred with sufficient Particulars, the court may:
definiteness or particularity to enable the (a) Order the striking out of the pleading
movant to properly prepare his responsive (or portion thereof) to which the order
pleading and to prepare for trial. [Tantuico, Jr. is directed; or
v. Republic, G.R. No. 89114 (1991)] (b) Make such order as it may deem just.
(2) If the plaintiff fails to obey, his complaint
What cannot be done in a Bill of Particulars: may be dismissed with prejudice unless
(1) To supply material allegations necessary otherwise ordered by the court. [Sec. 4,
to the validity of a pleading Rule 12; Sec. 3, Rule 17]
(2) To change a cause of action or defense (3) If defendant fails to obey, his answer will
stated in the pleading be stricken off and his counterclaim
(3) To state a cause of action or defense other dismissed, and he will be declared in
than the one stated default upon motion of the plaintiff. [Sec.
(4) To set forth the pleaders theory of his 3, Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17]
cause of action or a rule of evidence on
which he intends to reply H.4 EFFECT ON THE PERIOD TO FILE
(5) To furnish evidentiary information [Virata v. RESPONSIVE PLEADING
Sandiganbayan, G.R. No. 103527 (1993)] Provided that the Motion for Bill of
Particulars is sufficient in form and substance,
it stays the period for the movant to file
his responsive pleading.
61 OF 425
The movant may file his responsive pleading: (2) The court has allowed the filing of a
(1) Within the period he was entitled at the motion to dismiss where the evidence that
time the motion was filed; or would constitute a ground for dismissal
(2) Within 5 days was discovered during trial
whichever is higher.
GENERAL RULE: A court may not dismiss
Such period shall be reckoned from: a case motu propio, unless a motion to that
(1) Service of the Bill of Particulars or more effect is filed by a party.
definite pleading; or
(2) Notice of denial of his Motion for Bill of EXCEPTIONS:
Particulars. (1) Upon the grounds stated in Sec. 1, Rule 9;
(2) Due to fault of the plaintiff, under Sec. 3,
J. MOTION TO DISMISS Rule 17;
A remedy of the defendant, which attacks the (3) Pursuant to Sec. 4, Revised Rule on
entire pleading and seeks its dismissal based Summary Procedure.
on:
(1) Grounds which are patent on the face of J.1. GROUNDS
the complaint; (1) Lack of jurisdiction over the defendants
(2) Defenses available to the defendant at the person
time of the filing of the complaint (2) Lack of jurisdiction over the subject matter
of the claim
The Motion hypothetically admits the truth of (3) Improper venue
the factual allegations stated in the (4) Plaintiffs lack of legal capacity to sue
complaint. (5) Litis pendentia
(6) Res judicata
It is not a responsive pleading. It is not a (7) Prescription
pleading at all. (8) Failure to state a cause of action
(9) Extinguished claim
It is subject to the omnibus motion rule since (10) Unenforceable claim under the
it is a motion that attacks a pleading. Hence, Statute of Frauds
it must raise all objections available at the (11) Non-compliance with a condition
time of the filing thereof. precedent for filing claim
Types of Dismissal of Action: NOTE: Complaints cannot be dismissed on

(1) Upon Motion to Dismiss under Rule 16; ground not alleged in a motion to dismiss.
(2) Dismissal under Rule 17: The motion may be based on only one of the
(a) Upon notice by plaintiff; grounds enumerated in Sec. 1, Rule 16
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff. LACK OF JURISDICTION OVER THE PERSON
(3) Upon Demurrer to Evidence after plaintiff OF THE DEFENDANT
has presented his evidence under Rule 33; This objection must be raised:
(4) Dismissal of an appeal. (1) At the very first opportunity;
(2) Before any voluntary appearance is made.
Period to File
In La Naval Drug Corp. v. CA, et al., [G.R. No.
GENERAL RULE: Within the time for, but 103200 (1994)] the Court held that while lack
before filing of, the answer to the complaint of jurisdiction over the person of defendant
or pleading asserting a claim may be duly and seasonably raised, his
voluntary appearance in court without
EXCEPTIONS: qualification is a waiver of such defense.
(1) For special reasons which may be allowed
even after trial has begun, a motion to Sec. 20, Rule 14 makes a categorical
dismiss may be filed statement that the inclusion in a motion to
dismiss of other grounds aside from lack of
62 OF 425
jurisdiction over the person of the defendant (2) When he does not have the character
shall not be deemed voluntary appearance on which he claims, which is a matter of
his part. evidence (e.g. when he is not really a duly
appointed administrator of an estate).
LACK OF JURISDICTION OVER THE [Recreation and Amusement Association of
SUBJECT MATTER the Philippines v. City of Manila, G.R. No. L-
If the complaint shows lack of jurisdiction 7922 (1957)]
over subject matter on its face, the court may
dismiss the case outright even without a Lack of legal capacity to sue refers to
motion to dismiss. [Sec. 1, Rule 9] plaintiffs disability; while lack of legal
personality to sue refers to the fact that the
A motion to dismiss on this ground may also plaintiff is not a real party in interest, in which
be raised case the ground for dismissal would be that
(1) Before answer; the complaint states no cause of action.
(2) After answer is filed;
(3) After hearing had commenced; The issue of plaintiffs lack of legal capacity to
(4) At any stage of the proceeding, even for sue cannot be raised for the first time on
the first time on appeal and even if no appeal where the defendant dealt with the
such defense is raised in the answer. former as a party in the proceedings below
[Univ. of Pangasinan Faculty Union v. Univ. of
NOTE: The rule refers to the subject matter Pangasinan, G.R. No. 64821-23 (1993)]
of each particular claim and not only to that
of the suit. Hence. other initiatory pleadings LITIS PENDENTIA
included.
Requisites
Where a party invokes the jurisdiction of a (1) Identity of parties, or at least such as
court to obtain affirmative relief and fails, he representing the same interest in both
cannot thereafter repudiate such jurisdiction. actions;
While the issue of jurisdiction may be raised (2) Identity of rights asserted and relief
at any time, he is estopped as it is prayed for, the relief being founded on the
tantamount to speculating on the fortunes of same facts; and
litigation [Crisostomo, et al. v. CA, G.R. No. (3) Identity of the two cases such that
27166 (1970)] judgment in one would amount to res
judicata on the action under consideration
[Film Development Council of the
IMPROPER VENUE
Philippines v. SM Prime Holdings, Inc.
Unless and until the defendant objects to the
(2013)]
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
It is not required to allege that there be a
improperly laid. [Diaz v. Adiong, G.R. No.
prior pending case. It is sufficient to allege
106847 (1993)]
and prove the pendency of another case, even
if same had been brought later.
Where a motion to dismiss for improper
venue is erroneously denied, the remedy is
It is not required that the later case be
prohibition [Enriquez v. Macadaeg, G.R. No.
dismissed in favor of the earlier case. To
L-2422]
determine which case should be abated,
apply:
PLAINTIFF HAS NO LEGAL CAPACITY TO (1) The More Appropriate Action Test;
SUE (2) The Interest of Justice Test, taking into
The plaintiff lacks legal capacity to sue: account:
(1) When he does not possess the necessary (a) Nature of the controversy;
qualification to appear at the trial (e.g. (b) Comparative accessibility of the court
when he plaintiff is not in the full exercise to the parties;
of his civil rights); (c) Other similar factors.
63 OF 425
establish the former and the present causes

In both tests, the parties good faith shall be of action. [DBP v. Pundogar (1993)]
taken into consideration.
Rationale: The sum and substance of the
The 1st case shall be abated if it is merely an whole doctrine is that a matter once judicially
anticipatory action or defense against an decided is finally decided because of:
expected suit. The 2nd case will not be (1) Public policy and necessity makes it the
abated if it is not brought to harass. interest of the State that there should be
[Vitrionics Computers v. RTC (1993)] an end to litigation;
(2) The hardship on the individual that he
RES JUDICATA should be vexed twice for the same cause.
[Nabus v. CA (1991)]
Two concepts of res judicata [Topacio v.
Banco Savings and Mortgage Bank (2010)] STATUTE OF LIMITATIONS
(1) Bar by prior judgm ent [Sec. 47(b), Prescription applies only when the complaint
Rule 39] on its face shows that indeed the action has
Judgment on the merits in the first case already prescribed.
constitutes an absolute bar to the
subsequent action not only as to every If the fact of prescription is not indicated on
matter which was offered and the face of the complaint and the same may
received to sustain or defeat the claim or be brought out later, the court must defer
demand, but also to any other decision on the motion until such time as
adm issible m atter which m ight proof may be presented on such fact of
have been offered for that purpose and prescription.
to all matters that could have been
adjudged in that case. Prescription Laches
(2) Conclusiveness of judgment [Sec. Concerned with the Concerned with the
47(c), Rule 39] fact of delay effect of delay
The second action is upon a different A matter of time A matter of equity
claim or demand, the judgment in the first Statutory Not statutory
case operates as an estoppel only with Applies in law Applies in equity
regard to those issues directly Not based on fixed
controverted, upon the determination of Based on fixed time
time
which the judgment was rendered.
Defense of prescription is waived and cannot
Requisites for Bar by Prior Judgm ent be considered on appeal if not raised in the
(1) Former judgment or order must be final; trial court [Ramos v. Osorio, G.R. No. L-27306
(2) The judgment or order must be on the (1971)]
merits;
(3) The decision must have been rendered by However, if the allegations of the complaint,
a court having jurisdiction over the subject or evidence presented, clearly indicate that
matter and the parties; the action has prescribed, or where there is
(4) There must be, between the two actions, no issue in fact as to prescription, defense of
identity: prescription is not deemed waived by failure
(a) of parties; to allege the same [Chua Lamko v. Dioso, G.R.
(b) of subject matter; and No. L-6293 (1955)]
(c) of causes of action [Topacio v. Banco
Filipino Savings and Mortgage Bank Estoppel and prescription cannot be invoked
(2010)] against the State [Republic v. CA, G.R. No.
116111 (1999)]
The test of identity of cause of action lies not
in the form of the action but on whether or A motion to dismiss on the ground of
not the same evidence would support and prescription will be given due course only if
the complaint shows on its face that the
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action has already prescribed [Sison v.

McQuaid, G.R. No. L-6304 (1953)] Complaint states no
No cause of action
cause of action
If it is not apparent on its face, take note that Insufficiency of Insufficiency of
Sec. 3 prohibits deferment of the resolution of allegations in the factual basis for the
the motion. Thus: pleading action
(1) Evidence may be received in support of the May be raised at any
motion under Sec. 2, Rule 16; or time, after the
(2) The motion to dismiss should be denied May be raised in a questions of fact
without prejudice to the complaints Motion to Dismiss at have been resolved
dismissal if evidence disclose that the any time but before on the basis of the
action had already prescribed [Sec. 1, Rule the filing the answer stipulations,
9] to the complaint or admissions, or
pleading asserting a evidence presented
COMPLAINT STATES NO CAUSE OF ACTION claim [Macaslang v.
Failure to state a cause of action (not lack of Zamora, G.R. No.
cause of action) is the ground for a MTD. The 156375 (2011)]
former means there is insufficiency in the Dismissal due to lack
allegations in the pleading. The latter means Dismissal due to of cause of action is
that there is insufficiency in the factual basis failure to state a made after questions
of the action. cause of action can of fact have been
be made at the resolved on the basis
The failure to state a cause of action must be earliest stages of an of stipulations,
evident on the face of the complaint itself. action and without admissions or
prejudice evidence presented
Test: Assuming the allegations and and with prejudice
statements to be true, does the plaintiff have
a valid cause of action? EXTINGUISHED CLAIM
That the claim/demand set forth in the
A MTD based upon the ground of failure to plaintiff's pleading has been paid, waived,
state a cause of action imports a hypothetical abandoned or otherwise extinguished.
admission by the defendant of the facts
alleged in the complaint. UNENFORCEABLE CLAIM UNDER THE
STATUTE OF FRAUDS
If the court finds the allegations of the Art. 1403(2) of the Civil Code requires certain
complaint to be sufficient but doubts their contracts to be evidenced by some note or
veracity, it must deny the MTD and require memorandum in order to be enforceable, to
the defendant to answer and then proceed to wit:
try the case on its merits. (1) An agreement that by its terms is not to be
performed within a year from the making
A complaint containing a premature cause of thereof;
action may be dismissed for failure to state a (2) A special promise to answer for the debt,
cause of action. default, or miscarriage of another;
(3) An agreement made in consideration of
If the suit is not brought against the real marriage, other than a mutual promise to
party-in-interest, a motion to dismiss may be marry;
filed on the ground that the complaint states (4) An agreement for the sale of goods,
no cause of action. [Tanpinco v. IAC, G.R. No. chattels or things in action, at a price not
76225 (1992)] less than five hundred pesos, unless the
buyer accept and receive part of such
goods and chattels, or the evidences, or
some of them, of such things in action, or
pay at the time some part of the purchase
money; but when a sale is made by
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auction and entry is made by the (1) Arguments on questions of law

auctioneer in his sales book, at the time of (2) Evidence on questions of fact, except
the sale, of the amount and kind of those not available at that time
property sold, terms of sale, price, names
of the purchasers and person on whose If the case should later go to trial, evidence
account the sale is made, it is a sufficient presented in the hearing shall automatically
memorandum; be part of the evidence of the party
(5) An agreement for the leasing for a longer presenting the same.
period than one year, or for the sale of real
property or of an interest therein; Evidence need not be presented when the
(6) A representation as to the credit of a third ground relied upon is failure to state a cause
person. of action, which must generally be
determined on the basis of the facts alleged
Unlike a motion to dismiss on the ground that in the complaint.
the complaint states no cause of action, a
motion invoking the Statute of Frauds may be Lack of formal hearing is not fatal when the
filed even if the absence of a cause of action issues raised were fully discussed in the
does not appear on the face of the complaint. motion and opposition. [Castillo v. CA, G.R.
Such absence may be proved during the No. L-52008 (1988)]
hearing of the motion to dismiss on said
ground. [Yuviengco et al. v. Dacuycuy, etc., et After hearing, the court may:
al., G.R. No. L-55048 (1981)] (1) Dismiss the action/claim
(2) Deny the MTD
NON-COMPLIANCE WITH CONDITION (3) Order amendment of the pleadings [Sec. 3,
PRECEDENT Rule 16]
Where the plaintiff has not exhausted all
administrative remedies, the complaint not The court cannot defer the resolution of the
having alleged the fact of such exhaustion, motion for the reason that the ground relied
the same may be dismissed for lack of cause upon is not indubitable, and must clearly and
of action [Pineda v. CFI Davao, et al.] distinctly state the reasons for its resolution.
Where the complaint does not state that it is J.3. BAR BY DISMISSAL
one of the excepted cases, or it does not
allege prior availment of conciliation process, GENERAL RULE: The action/claim may be
or it does not have a certification that no re-filed.
conciliation or settlement had been reached
under PD1508, case should be dismissed on EXCEPTION: The action cannot be re-filed
motion [Morata v. Go, et al., G.R. No. L-62339 (although subject to appeal) if it was
(1983)] dismissed on any of the following grounds:
(1) Res judicata;
Where the defendant had participated in the (2) Prescription;
trial court without any invocation of PD 1508, (3) Extinguishment of the claim/demand;
and the judgment therein had become final (4) Unenforceability under the Statute of
and executory, but said defendant thereafter Frauds. [Sec. 1(f), (h), (i), Rule 16]
sought the annulment of the decision for
alleged lack of jurisdiction, the same was J.4. REMEDIES OF PLAINTIFF WHEN THE
denied under the doctrine of estoppel and COMPLAINT IS DISMISSED
laches [Royales, et al., v. IAC, G.R. No. L- If the motion is granted, the complaint is
65072 (1984)] dismissed. Such dismissal is final, and not
interlocutory.
J.2. RESOLUTION OF MOTION
A motion to dismiss is a litigated motion The plaintiff has several options:
and should be heard. During the hearing, (1) Where dismissal for certain grounds are
parties shall submit: not tantamount to adjudication on the
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merits (e.g. improper venue), the plaintiff prosecution of the counterclaim in the same
may refile the complaint. or separate action.
(2) Where it is for a ground which bars re-
filing, the plaintiff may appeal from the J.7. DISTINGUISHED FROM DEMURRER TO
order of dismissal; EVIDENCE [RULE 33]
(3) Where the dismissal was tainted with A motion to dismiss under this Rule differs
grave abuse of discretion, the plaintiff may from a motion to dismiss under Rule 33 on
also avail of a petition for certiorari. demurrer to evidence:
[Riano] Motion to Dismiss Demurrer to Evidence
Grounded on Based on
J.5. REMEDIES OF DEFENDANT WHEN THE preliminary insufficiency of
MOTION IS DENIED objections evidence
If the motion is denied, the denial is May be filed by any
interlocutory. May be filed only by
defending party
the defendant
against whom a
GENERAL RULE: The filing of an answer against the complaint
claim is asserted in
and going through the usual trial process, of the plaintiff
the action
and later, the filing of a tim ely appeal Should be filed
from the adverse judgment are the proper within the time for May be filed for the
remedies against a denial of a motion to but prior to the filing dismissal of the case
dismiss. of the answer of the only after the plaintiff
defending party to has completed the
If the motion is denied, the movant shall the pleading presentation of his
file his answer: asserting the claim evidence
(1) Within the balance of the period against him
prescribed under Rule 11 to which he was If denied, defendant
entitled at the time of serving his motion; must file an answer, If denied, defendant
or or else he may be may present evidence
(2) Within 5 days declared in default
whichever is higher. [Rule 16, Sec. 4] If granted, plaintiff
If granted, plaintiff
appeals and the order
If the pleading is ordered to be amended, the may appeal or if
of dismissal is
movant shall file his answer within the period subsequent case is
reversed, defendant
prescribed by Rule 11, counted from service of not barred, he may
loses his right to
amended pleading, unless a longer period is re-file the case
present evidence
prescribed by the court.
K. DISMISSAL OF ACTIONS
EXCEPTION The denial may be assailed by
certiorari, prohibition or mandamus, if there is
K.1. DISMISSAL UPON NOTICE BY
a showing that the denial was tainted by with
PLAINTIFF
grave abuse of discretion amounting to
Dismissal by plaintiff as a matter of right
lack of jurisdiction.
Dismissal is effected by mere notice of
J.6. WHEN GROUNDS PLEADED AS
dismissal, which is a matter of right, before
AFFIRMATIVE DEFENSES
service of:
If no motion to dismiss had been filed, any of
(1) The answer; or
the grounds for dismissal may be pleaded as
affirmative defenses and a preliminary (2) A motion for summary judgment
hearing may be had at courts discretion. [Sec.
The dismissal as a matter of right ceases
6, Rule 16]
when an answer or a motion for summary
judgment is served on the plaintiff, not
A defendant with a counterclaim should
when the answer or the motion is filed
plead these grounds as affirmative defenses
with the court.
as dismissal of the complaint under this
section shall be without prejudice to the
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Withdrawal is not autom atic but requires Effect on Counterclaim :

an order by the court confirming the If counterclaim has been pleaded by
dismissal. Until confirmed, the withdrawal defendant prior to service upon him of
does not take effect. The requirement is in plaintiffs motion for dismissal, dismissal
keeping with the respect due the court. shall be limited to the complaint
[Herrera]
The defendant either:
However, it is not the order which operates to (1) Prosecute his counterclaim in a separate
dismiss the complaint. As stated by the rule, action; or
it merely confirms the dismissal already The court should render the
effected by the filing of the notice. [Riano] corresponding order granting the
plaintiffs motion and reserving his
GENERAL RULE: Dismissal is without right to prosecute his claim in a
prejudice separate complaint
(2) Have the same resolved in the same action
EXCEPTIONS: Defendant must manifest such
(1) Where the notice of dismissal so provides; preference to the trial court within 15
or days from notice of the plaintiffs
(2) Where the plaintiff has previously motion to dismiss
dismissed the same case in a court of
competent jurisdiction (Two Dismissal These alternative remedies of the defendant
Rule) are available to him regardless of whether his
(3) Where the notice of dismissal is premised counterclaim is compulsory or permissive.
on a reason which would prevent refiling
of the complaint (e.g. extinguishment or K.3. DISMISSAL DUE TO FAULT OF THE
res judicata) [Riano] PLAINTIFF
The case may be dismissed motu proprio or
Two Dismissal Rule upon the defendants motion if, without
Applies when the following are met: justifiable cause, plaintiff:
(1) Plantiff had twice dismissed actions; (1) Fails to appear on the date of the
(2) Both actions based on , or including, the presentation of his evidence-in-
same claims; chief on the complaint;
(3) In a court of competent jurisdiction. (a) The plaintiffs failure to appear at the
trial after he has presented his
The second dismissal operates as an evidence and rested his case does not
adjudication on the m erits. warrant the dismissal of the case on
the ground of failure to prosecute. It is
K.2. DISMISSAL UPON MOTION OF merely a waiver of his right to cross-
PLAINTIFF examine and to object to the
Under this section, dismissal of the complaint admissibility of evidence. [Jalover v.
is subject to the discretion of the court and Ytoriaga, G.R. No. L-35989 (1977)]
upon such terms and conditions as may be (b) Since plaintiffs presence is now
just. required only during the presentation
of his evidence in chief, his absence
GENERAL RULE: Dismissal is without during the presentation of defendant or
prejudice other parties evidence, or even at
rebuttal or subsequent stages, is not a
EXCEPTIONS: ground for dismissal.
(1) When otherwise stated in the motion to (2) Fails to prosecute his action for an
dismiss; or unreasonable length of time (nolle
(2) When stated to be with prejudice in the prosequi);
order of the court (a) The test for dismissal of a case due to
failure to prosecute is WON, under the
circumstances, the plaintiff is
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chargeable with want of due diligence GENERAL RULE: Dismissal is with

in failing to proceed with reasonable prejudice, and operates as an adjudication on
promptitude. [Calalang v. CA, G.R. No. the merits
103185 (1993)]
(b) The dismissal of an action pursuant to EXCEPTIONS:
this rule rests upon the sound (1) The court declares otherwise, without
discretion of the court [Smith Bell and prejudice to the right of the defendant to
Co. v. American President Lines Ltd. prosecute his counter-claim in the same or
(1954)] separate action
(c) The action should never be dismissed (2) If court has not yet acquired jurisdiction
on a non-suit for want of prosecution over the person of the defendant
when the delay was caused by the
parties looking towards a settlement. Effect on Counterclaim :
[Goldloop Properties Inc. v. CA, G.R. No. Defendant is granted the choice to prosecute
99431 (1992)] that counterclaim in either the same or a
(3) Fails to comply with the Rules or separate action
any court order.
(a) The order must be valid Defendant is not required to manifest his
(b) Failure to comply with order: preference within a 15-day period as in Sec. 2.
(c) Dismissal for failure to comply with
order to amend complaint to make The motions to dismiss in this section and in
claims asserted more definite is ground Sec. 6, Rule 16 are filed by a defendant who
for dismissal [Santos v. General Wood has already deliberated on the course of
Craft, G.R. No. L-28996 (1982)] action he intends to take on his counterclaim
(d) Failure to comply with an order to and which he may even manifest right in his
include indispensable parties is ground motion to dismiss.
for dismissal [Aranico-Rubino v. Aquino,
G.R. No. L-46641 (1977)] The dismissal in Sec. 2 is at the instance of
(e) The failure to comply with order of new plaintiff, hence, defendant is granted the
judge to recall witness so he may time and duty to manifest preference within
observe demeanor is sufficient ground 15 days from notice, after an opportunity to
for dismissal [Castillo v. Torres, G.R. No. study the situation.
9181 (1915)]
(4) Failure to comply with rules K.4. DISMISSAL OF COUNTERCLAIM,
(a) The failure of the parties to submit a CROSS-CLAIM, OR THIRD-PARTY
compromise agreement within period COMPLAINT
granted to them by court is not a Provisions of Rule 17 shall apply to the
ground for dismissal [Goldloop dismissal of any counterclaim, cross-claim, or
Properties Inc. v. CA, G.R. No. 99431 third-party complaint
(1992)]
(b) Dismissal is improper where a 3rd party Voluntary dismissal by claimant by notice as
complaint has been admitted and the in Sec. 1, shall be made:
3rd party defendant had not yet been (1) Before a responsive pleading or motion for
summoned [Sotto v. Valenzuela, G.R. summary judgment is served; or
No. L-12732 (1959)] (2) If there is none, before introduction of
(c) A case may be dismissed for failure to evidence at trial or hearing
answer written interrogatories under
Rule 25 even without an order from the
court to answer. [Arellano v. CFI-
Sorsogon, G.R. No. L-34897 (1975)]
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L. PRE-TRIAL Pre-trial is M andatory

Pre-Trial is a mandatory conference and Mandatory nature is addressed to both court
personal confrontation before the judge and parties:
between the parties and their respective Court must set the case for pre-trial and
counsel, called by the court after the joinder notify the parties as well as counsel to
of issues in a case or after the last pleading appear
has been filed and before trial, for the Parties with their counsel are obliged to
purpose of settling the litigation obey the order of the court to that effect
expeditiously or simplifying the issues
without sacrificing the necessary demands of Primary Objective
justice. Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of
It is a procedural device by which the court is a case are properly raised.
called upon, after the filing of the last
pleading, to compel the parties and their Thus, to obviate the element of surprise,
lawyers to appear before it, and negotiate an parties are expected to disclose at a pre-trial
amicable settlement or otherwise make a conference all issues of law and fact which
formal settlement and embody in a single they intend to raise at the trial, except such
document the issues of fact and law involved as may involve privileged or impeaching
in the action, and such other matters as may matters. The determination of issues at a pre-
aid in the prompt disposition in the case, such trial conference bars the consideration of
as: other questions on appeal. [Caltex v. CA, G.R.
(1) Number of witnesses No. 97753 (1992)]
(2) Tenor or character of their testimonies
(3) Documentary evidence; nature and L.2. NOTICE OF PRE-TRIAL
purpose of each After the last pleading has been served and
(4) Number of trial dates [Herrera] filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set
L.1. NATURE AND PURPOSE for pre-trial. [Sec. 1, Rule 18]
Purpose of pre-trial is to consider: [Sec. 2, Within 5 days from date of filing of the
Rule 18] reply, plaintiff must promptly move ex
(1) Possibility of an amicable settlement or of parte that the case be set for pre-trial
a submission to alternative modes of conference.
dispute resolution; If the plaintiff fails to file said motion
(2) Simplification of the issues; within the given period, the branch clerk
(3) Necessity/desirability of amendments to shall issue a Notice of Pre-Trial [AM
the pleadings; No. 03-1-09-SC]
(4) Possibility of obtaining stipulations or
admissions of facts and of documents to The last pleading need not be literally
avoid unnecessary proof; construed as the actual filing of the last
(5) Limitation of the number of witnesses; pleading. For purpose of pre-trial, the
(6) Advisability of a preliminary reference of expiration of the period for filing the last
issues to a commissioner; pleading is sufficient [Sarmiento v. Juan, G.R.
(7) Propriety of rendering judgment on the No. L-56605 (1983)]
pleadings, or summary judgment, or of
dismissing the action should a valid The notice shall be served on counsel, or on
ground therefor be found to exist; the party if he has no counsel. [Sec. 3, Rule
(8) Advisability/necessity of suspending the 18]
proceedings; and
(9) Other matters that may aid in the prompt The sufficiency of the written notice of pre-
disposition of the action. trial is irrelevant where evidence shows that
counsel and the parties actually knew of the
pre-trial [Bembo v. CA, G.R. No. 116845
(1995)]
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When we say that a defendant is in default

L.3. APPEARANCE OF PARTIES it speaks of his failure to file responsive
It is the duty of both the parties and their pleading and not his non-appearance at pre-
counsel to appear at the pre-trial. [Sec. 4, trial.
Rule 18]
Remedies of Non-suited Party
W hen non-appearance is excused [Sec. (1) For a non-suited plaintiff:
4, Rule 18] Since the dismissal is with prejudice, it
Non-appearance of a party may be excused has the effect of an adjudication on the
only if either: merits.
(1) Valid cause is shown for it; The proper remedy of the plaintiff is
(2) A representative appears in his behalf, appeal, not certiorari [Chingkoe v.
fully authorized in writing: Republic, G.R. No. 183608 (2013)]
(a) To enter into an amicable settlement; (2) For a non-suited defendant:
(b) To submit to alternative modes of Since the order allowing presentation
dispute resolution; and of the evidence ex parte does not
(c) To enter into stipulations/admissions dispose of the case, it is interlocutory.
of facts and of documents. The remedy of the defendant is to file a
motion for reconsideration, and if
The written special authority must be in the denial is with grave abuse of discretion,
form of a special power of attorney as file a petition for certiorari [Riano]
authority to enter into amicable settlement
must be in such form. [Sec. 23, Rule 138; Art. L.4. PRE-TRIAL BRIEF
1878(3), Civil Code] Parties shall file and serve their respective
pre-trial briefs, ensuring receipt by adverse
Effect of Failure to Appear; Order of party at least 3 days before the date of the
Non-suit pre-trial.
(1) Of the plaintiff the case shall be
dismissed with prejudice, unless the court It is mandatory for parties to file their pre-
orders trial briefs as failure shall have the same
(2) Of the defendant the plaintiff shall be effect as failure to appear at the pre-trial.
allowed to present evidence ex parte, and [Sec. 6, Rule 18]
judgment shall be rendered based thereon
[Sec. 5, Rule 18] Contents
(1) Statement of their willingness to enter
The non-appearance of defendant in pre-trial into amicable settlement or alternative
is not a ground to declare him in default. modes of dispute resolution, indicating
Thus, we distinguish: the desired terms thereof;
Failure to appear by (2) Summary of admitted facts and proposed
Default by defendant
defendant [Sec. 5, Rule stipulation of facts;
[Sec. 3, Rule 9]
18] (3) Issues to be tried/resolved;
Upon motion and notice (4) Documents/exhibits to be presented,
Not required stating the purpose thereof;
to defendant.
Requires proof of failure (5) Manifestation of their having availed or
Not required their intention to avail themselves of
to answer
Court renders discovery procedures or referral to
Court may render
judgment based on the commissioners;
judgment without
evidence presented ex (6) Number and names of the witnesses, and
receiving evidence
parte the substance of their respective
Judgment by Default Judgment Ex Parte testimonies. [AM No. 03-1-09-SC]
Relief awarded must be Relief awarded may be
the same in nature and of different nature and Remedy of defendant is to file a motion for
amount as prayed for in amount from the relief
reconsideration, showing that his failure to
the complaint prayed for
file a trial brief was due to fraud, accident,
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mistake, or excusable negligence. The filing (5) Should the action proceed to trial, the
of pre-trial brief is mandatory, and is not explicit definition and limit of the issues to
excused simply because the defendant was be tried.
not represented by counsel. [Saguid v. CA,
G.R. No. 150611 (2003)] Effect of Pre-Trial Order
The contents of the order shall control the
No evidence shall be allowed to be presented subsequent course of the action, unless:
and offered during the trial in support of a (1) Modified before trial to prevent manifest
partys evidence-in-chief other than those injustice [Sec. 7, Rule 18]
identified and pre-marked during the pre- (2) Issues impliedly included therein or may
trial, except if allowed by the court for good be inferable therefrom by necessary
cause shown. [AM No. 03-1-09-SC] implication [Philippine Export and Foreign
Loan Guarantee Corp. v. Amalgamated
L.5. PROCEEDINGS DURING AND AFTER Management and Development Corp., G.R.
PRE-TRIAL No. 177729 (2011)]
(3) Amendment to conform to evidence [Sec.
Record of Pre-Trial 5, Rule 10]
The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the L.6. DISTINCTION BETWEEN PRE-TRIAL IN
court shall issue the pre-trial order. [Sec. 7, CIVIL CASE AND IN CRIMINAL CASE
Rule 18] Criminal Case [Rule
Civil Case [Rule 18]
118]
ONE DAY EXAMINATION OF WITNESS RULE Set when the plaintiff Ordered by the court
The court shall ask the parties to agree on moves ex parte to set and no motion is
specific dates for continuous trial, adhere to the case for pre-trial required from either
the case flow chart determined by the court, [Sec. 1] party [Sec. 1]
and use the time frame for each stage in Ordered by the court
setting the trial dates. after arraignment,
Made after the last and within 30 days
Adherence to the One Day Examination of pleading has been from the date the
Witness Rule shall be required where the served and filed [Sec. court acquired
witness shall be fully examined in one day 1] jurisdiction over the
only, subject to the courts discretion during person of the
the trial on whether or not to extend the accused [Sec. 1]
examination for justifiable reasons. [AM No. Possibility of
03-1-09-SC] Possibility of an
amicable settlement
amicable settlement
of criminal liability
MOST IMPORTANT WITNESS RULE as an important
not among its
The court shall determine the most important objective [Sec. 2(a)]
purposes [Sec. 1]
witnesses, limit the number of such witnesses The sanctions for Sanctions are
and require the parties and/or counsels to non-appearance are imposed upon the
submit to the branch clerk of court the names, imposed upon the counsel for the
addresses and contact numbers of the plaintiff and the accused or the
witnesses to be summoned by subpoena. The defendant [Sec. 4] prosecutor [Sec. 3]
court may also refer the case to trial by A pre-trial brief is
commissioner under Rule 32. [AM No. 03-1- specifically required A pre-trial brief is not
09-SC] to be submitted [Sec. specifically required.
6]
Contents of Pre-Trial Order
(1) Matters taken up in the conference; Pre-trial under Criminal Cases require stricter
(2) Action taken thereon; procedure:
(3) Amendments allowed on the pleadings; Civil Case: The arrangements and
(4) Agreements/admissions made by the admissions are not required to be signed
parties as to any matters considered; by both parties and their counsels;
72 OF 425
instead contained in the record of pre- participates to assist in the resolution of issue
trial and pre-trial order [Sec. 7, Rule 18] [Sec. 3(a), RA 9285]
Recently, the proceedings during the
preliminary conference are recorded in Policy: To actively promote party autonomy
the Minutes of Preliminary Conference in the resolution of disputes or the freedom of
to be signed by both parties and/or the party to make their own arrangements to
counsel. Note that either the party or his resolve their disputes [Sec. 2, RA 9285]
counsel may sign. [AM No. 03-1-09-SC]
Exception to the Application of RA
Criminal Case All agreements or 9285 [Sec. 6]
admissions made during the pre-trial (1) Labor disputes covered by the Labor
conference are reduced in writing and Code;
signed by both the accused and counsel; (2) The civil status of persons;
otherwise, they cannot be used against (3) Validity of a marriage;
the accused. [Sec. 2, Rule 118] (4) Any ground for legal separation;
(5) The jurisdiction of courts;
L.7. ALTERNATIVE DISPUTE RESOLUTION (6) Future legitime;
One the purposes of pre-trial is the (7) Criminal liability; and
consideration of the possibility of amicable (8) Those which by law cannot be
settlement, or of a submission to alternative compromised.
modes of dispute resolution. [Sec. 2(a), Rule
18] Modes of Alternative Dispute
Resolution [Sec. 3, RA 9285]
The pre-trial briefs of parties must include (1) Arbitration -- a voluntary dispute
the parties statement of their willingness to resolution process in which one or more
enter into an amicable settlement indicating arbitrators, appointed in accordance with
the desired terms thereof or to submit the the agreement of the parties, or rules
case to any of the alternative modes of promulgated pursuant to this Act, resolve
dispute resolution [Sec. 6, Rule 18; AM No. a dispute by rendering an award
03-1-09-SC] (a) Dom estic Arbitration an arbitration
that is not international; governed by
At the start of the pre-trial conference, the RA 876 (Arbitration Law) [Sec. 32, RA
judge shall immediately refer the parties 9285]
and/or their counsel if authorized by their (b) International Arbitration An
clients to the Philippine Mediation Center arbitration is international if:
mediation unit for purposes of mediation if The parties to an arbitration
available. IF mediation fails, the judge will agreement have, at the time of the
schedule the continuance of the preliminary conclusion of that agreement, their
conference. [AM No. 03-1-09-SC] places of business in different
States; or
The judge should not allow the termination of One of the following places is
pre-trial siply because of the manifestation of situated outside the State in
the parties that they cannot settle the case. which the parties have their places
He should expose the parties to the of business [Art. 3, Model Law on
advantages of pre-trial [AM No. 03-1-09-SC] International Commercial
Arbitration]
ALTERNATIVE DISPUTE RESOLUTION (2) Mediation a voluntary process in which
SYSTEM a mediator, selected by the disputing
Any process or procedure used to resolve a parties, facilitates communication and
dispute or controversy, other than by negotiation, and assist the parties in
adjudication of a presiding judge of a court or reaching a voluntary agreement regarding
an officer of a government agency, as defined a dispute; includes conciliation [Sec. 7, RA
in the Act, in which a neutral third party 9285]
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(3) Mini-Trial a structured dispute the parties to appear at a particular time and
resolution method in which the merits of a date for hearing and allowing him to file a
case are argued before a panel comprising comment or opposition to petition within 15
senior decision makers with or without the days from receipt of notice.
presence of a neutral third person after
which the parties seek a negotiated Hearing shall not be set no later than 5 days
settlement from lapse of period for filing opposition or
(4) Early Neutral Evaluation a process comment.
wherein parties and their lawyers are
brought together early in a pre-trial phase Sum m ary Hearing - In all cases, as far as
to present summaries of their cases and practicable, the summary hearing shall be
receive a nonbinding assessment by an conducted in one (1) day and only for
experienced, neutral person, with purposes of clarifying facts.
expertise in the subject in the substance of
the dispute Prohibited Submissions [Rule 1.6]
(5) Combinations of alternative dispute (1) Motion to dismiss;
resolution processes: Med-Arb - step (2) Motion for bill of particulars;
dispute resolution process involving both (3) Motion for new trial or for reopening of
mediation and arbitration trial;
(4) Petition for relief from judgment;
Special Rules of Court on ADR [AM No. (5) Motion for extension, except in cases
07-11-08-SC] where an ex-parte temporary order of
The Special ADR Rules shall apply to and protection has been issued;
govern the following cases [Rule 1.1] (6) Rejoinder to reply;
(1) Relief on the issue of Existence, Validity, or (7) Motion to declare a party in default; and
Enforceability of the Arbitration (8) Any other pleading specifically
Agreement; disallowed under any provision of the
(2) Referral ADR Special ADR Rules.
(3) Interim Measures of Protection;
(4) Appointment of Arbitrator; No summons [Rule 1.9]
(5) Challenge to Appointment of Arbitrator; In cases covered by the Special ADR Rules, a
(6) Termination of Mandate of Arbitrator; court acquires authority to act on the petition
(7) Assistance in Taking Evidence; or motion upon proof of jurisdictional facts,
(8) Confirmation, Correction or Vacation of i.e., that the respondent was furnished a copy
Award in Domestic Arbitration; of the petition and the notice of hearing.
(9) Recognition and Enforcement or Setting
Aside of an Award in International
Commercial Arbitration;
(10) Recognition and Enforcement of a
Foreign Arbitral Award;
(11) Confidentiality/Protective Orders;
and
(12) Deposit and Enforcement of
Mediated Settlement Agreements.
Service and Filing of Petition

The petitioner shall serve, either by personal
service or courier, a copy of the petition upon
the respondent before the filing thereof.
Proof of service shall be attached to the
petition filed in court.
Notice is served once the court finds petition

sufficient in form and substance, directing
74 OF 425
PRE TRIAL
NO SETTLEMENT AMICABLE
FAILURE TO APPEAR SETTLEMENT
Agreements made by
parties; Amendments to
If plaintiff is absent If defendant is absent,
pleading; Schedule of
when so required to court may hear evidence
Trial
attend, court may of plaintiff ex parte
dismiss the case
TRIAL
If evidence is insufficient
to prove plaintiffs cause
of action or defendants
counterclaim, court
rules in favor of either
one or dismisses the
case
COURT RENDERS
DECISION
75 OF 425
M. INTERVENTION of which is limited by considering "whether or

A proceeding in a suit or an action by which a not the intervention will unduly delay or
third person is permitted by the court to make prejudice the adjudication of the rights of the
himself a party, either: original parties and whether or not the
(1) Joining plaintiff in claiming what is sought intervenors rights may be fully protected in a
by the complaint; separate proceeding. [Virra Mall Tenants v.
(2) Joining with defendant in resisting the Virra Mall, G.R. No. 182902 (2011)]
claims of the plaintiff; or
(3) demanding something adverse to both of M.2. TIME TO INTERVENE
them. [Herrera] The motion to intervene may be filed at any
tim e before rendition of judgm ent by
Intervention is never an independent action, the trial court.
but is ancillary and supplemental to the
existing litigation. Its purpose is to afford one Effected by:
not an original party, yet having a certain (1) A motion to intervene
right/interest in the pending case, the (2) Attaching the pleading-in-intervention;
opportunity to appear and be joined so he and
could assert or protect such right/interest. (3) Also serving the motion and pleading-in-
[Carino v. Ofilada, G.R. No. 102836 (1993)] intervention on the original parties [Sec. 2,
Rule 19]
M.1. REQUISITES FOR INTERVENTION
(1) The legal interest: GENERAL RULE: Allowance of intervention
(a) In the matter in controversy; or is discretionary with the court
(b) In the success of either of the parties;
or EXCEPTION: When the intervenor is an
(c) Against both; or indispensable party
(d) So situated as to be adversely affected
by a distribution or other disposition of M. 3. PLEADINGS-IN-INTERVENTION
property in the custody of the court or (1) Complaint-in-intervention If
of an office thereof; intervenor asserts a claim against either or
(2) Intervention will not unduly delay or all of the original parties.
prejudice the adjudication of rights of (2) Answer-in-intervention If intervenor
original parties unites with the defending party in resisting
(3) Intervenors rights may not be fully a claim against the latter.
protected in a separate proceeding (3) Answer to complaint-in-
[Lorenza Ortega v. CA, G.R. No. 125302 intervention [Sec. 4, Rule 19] - It must
(1998)] be filed within 15 days from notice of the
order admitting the complaint-in-
MEANING OF LEGAL INTEREST intervention, unless a different period is
Interest must be of a direct and fixed by the court.
immediate character so that the intervenor
will either gain or lose by the direct legal M.4. REMEDIES OF THE PARTIES
operation of the judgment. The interest must (1) If intervention is denied
be actual and material, a concern which is (a) Aggrieved party may appeal
more than mere curiosity, or academic or (b) Mandamus will not lie except in case
sentimental desire; it must not be indirect of grave abuse of discretion
and contingent, indirect and remote, (2) If intervention is granted
conjectural, consequential or collateral. [Virra (a) A grant of a motion to intervene is
Mall Tenants v. Virra Mall, G.R. No. 182902 interlocutory
(2011)] (b) Hence, anyone who objects can file a
petition for certiorari for improper
Notwithstanding the presence of a legal granting of intervention
interest, permission to intervene is subject to
the sound discretion of the court, the exercise
76 OF 425
N. SUBPOENA N.1. SUBPOENA DUCES TECUM

A process directed to a person requiring him: A process directed to a person requiring him
(1) To attend and to testify at the hearing or to bring with him books, documents, or other
the trial of an action, or at any things under his control [Sec. 1, Rule 21]
investigation conducted by competent
authority, or for the taking of his The subpoena duces tecum is, in all respects,
deposition; or like the ordinary subpoena ad testificandum,
(2) To bring with him any books, documents, with the exception that it concludes with an
or other things under his control [Sec. 1, injunction that the witness shall bring with
Rule 21] him and produce at the examination the
books, documents, or things described in the
Subpoena Summons subpoena.
An order to appear
and testify or to An order to answer Before this subpoena may issue, the court
produce books and complaint must first be satisfied that the following tests
documents are met:
May be served to a Served on the (1) Test of relevancy the books,
non-party defendant documents, or other things requested
Needs tender of must appear prima facie relevant to the
Does not need issue subject of the controversy;
kilometrage,
tender of (2) Test of definiteness such books must
attendance fee and
kilometrage and be reasonably described by the parties to
reasonable cost of
other fees be readily identified
production fee
W ho may issue [Sec. 2, Rule 21] N.2. SUBPOENA AD TESTIFICANDUM

(1) Court before whom the witness is required A process directed to a person requiring him
to attend to attend and to testify at the hearing or the
(2) Court of the place where the deposition is trial of an action, or at any investigation
to be taken conducted by competent authority or for the
(3) Officer or body authorized by law to do so taking of his deposition [Sec. 1, Rule 21]
in connection with investigations
conducted by said officer or body; or N.3. SERVICE OF SUBPOENA
(4) Any justice of the SC or of the CA, in any Service of subpoena shall be made in the
case or investigation pending within the same manner as personal or substituted
Philippines service of summons. [Sec. 6, Rule 21]
All processes issued by the MTC and MCTC in Formalities

cases falling within their jurisdiction may be (1) The original is exhibited to the person
served anywhere in the Philippines without served;
the necessity of certification by the judge of (2) A copy is delivered to him; and
the RTC [Sec. 38(2), BP 129] (3) Tender is made to him of the following:
(a) Fees for one days attendance;
Form and contents [Sec. 3, Rule 21] (b) Kilometrage allowed by the Rules; and
(1) Shall state the name of the court and the (c) In the case of subpoena duces tecum,
title of the action or investigation the reasonable cost of producing the
(2) Shall be directed to the person whose books, documents and things
attendance is required demanded.
(3) For subpoena duces tecum, shall also
contain a reasonable description of the Note: Tender of these amounts need not be
books, or things demanded which must made if subpoena is issued by or on behalf of
appear to the court to be prima facie the Republic, or an officer or agency thereof
relevant
77 OF 425
W hen made: must be such as to allow the (b) That there was no tender of witness
witness reasonable time for preparation and fees and kilometrage.
travel to the place of attendance
O. MODES OF DISCOVERY
N.4. COMPELLING ATTENDANCE OF Discovery a device employed by a party to
WITNESS obtain information about relevant matters on
The court which issued the subpoena may, the case from the adverse party in the
upon proof of service and failure of witness to preparation for trial [Riano]
attend, issue a warrant for the arrest of the
witness and make him pay the cost of such Purpose: To permit mutual knowledge
warrant and seizure, if the court should before trial of all relevant facts gathered by
determine that his disobedience was willful both parties so that either party may compel
and without just cause [Sec. 8, Rule 21] the other to disgorge facts whatever he has in
his possession [Riano citing C.J.S.]
The refusal to obey a subpoena without
adequate cause shall be deemed contempt of Modes of Discovery
the court issuing it. [Sec. 9, Rule 21] (1) Depositions pending actions [Rule 23]
(2) Depositions before action or pending
EXCEPTION: appeal [Rule 24]
Provisions regarding the compelling of (3) Interrogatories to parties [Rule 25]
attendance [Sec. 8] and contempt [Sec. 9] do (4) Admission by adverse party [Rule 26]
not apply where: (5) Production or inspection of documents or
(1) Witness resides more than 100km from his thing [Rule 27]
residence to the place where he is to (6) Physical and mental examination of
testify by the ordinary course of travel persons [Rule 28]
[viatory right]; or
(2) Permission of the court in which the O.1 DEPOSITIONS
detention prisoners case is pending was [Rules 23-24]
not obtained Deposition taking of testimony out of
court of any person, whether party to the
Note: Viatory right applies only in civil action or not but at the instance of a party to
cases, not criminal cases. [Genorga v. Quitain, the action [Riano]
AM No. 981-CFI (1977)]
Kinds of Depositions
N.5. QUASHING OF SUBPOENA (1) Depositions pending action [Rule 23]
Quashing of subpoena is done by the court, called deposition de bene esse
upon motion promptly made at or before the (2) Depositions before action or pending
time specified in the subpoena. [Sec. 4, Rule appeal [Rule 24] called depositions in
21] perpetuam rei m em oriam
GROUNDS TAKING OF DEPOSITION

(1) For quashing subpoena duces tecum:
(a) That the subpoena is unreasonable and W hen Depositions Pending Action
oppressive; Taken [Sec. 1, Rule 23]
(b) That the articles sought do not appear (1) W ith leave of court
prima facie relevant to the issues; (a) After jurisdiction has been obtained
(c) That the applicant does not advance over any defendant or over the property
the cost for the production of the which is the subject of the action, but
articles desired; or (b) Before an answer has been served
(d) That there was no tender of witness (2) W ithout leave of court after answer
fees and kilometrage. has been served
(2) For quashing subpoena ad testificandum
(a) That the witness is not bound thereby, NOTE: The taking of deposition of a person
or confined in prison is always by leave of court,
78 OF 425
whether before or after service of the answer. and may be impeached like a court
[Sec. 1, Rule 23] witness. [Sec. 3]
(5) The officer before whom the deposition is
Before whom Depositions are taken being taken has no authority to rule
[Secs. 10-11, Rule 23] on objections interposed during the
(1) Within the Philippines: course of the deposition but any
(a) Judge objections shall be noted by him upon the
(b) Notary Public, or deposition. Any evidence that is objected
(c) Any person authorized to administer to shall be taken subject to the objection.
oaths, as stipulated by the parties in [Sec. 17]
writing
(2) Outside the Philippines Effect of Taking Depositions [Sec. 7,
(a) On notice before a secretary of Rule 23]
embassy or legation, consul general, A party shall not be deemed to make a
consul, vice-consul, or consular agent person his own witness for any purpose by
of the Philippines taking his deposition because depositions are
(b) Before such person or officer as may be taken for discovery and not for use as
appointed by commission or under evidence.
letter rogatory or
(c) Any person authorized to administer USES AND SCOPE OF DEPOSITION
oaths as stipulated by parties in writing
General Uses of Deposition:
Disqualification by interest [Sec. 13, (1) Intended as a means to compel disclosure
Rule 23] of facts resting in the knowledge of a party
No deposition shall be taken before the or other person, which are relevant in a
following: suit or proceeding
(1) A relative by affinity or consanguinity (2) Dual functions:
within the 6th degree of any party; (a) A method of discovery
(2) An employee or counsel of any of the (b) A method of presenting testimony in
parties lieu of oral open court testimony
(3) A relative within the same degree or
employee of such counsel; Scope of Exam ination [Sec. 2, Rule 23]
(4) Any person financially interested in the Deponent may be examined as to any matter:
action (1) Not privileged;
(2) Relevant to the subject of the pending
Taking Depositions upon Oral action; and
Examination (3) Under such limitations as the court may
(1) A party desiring to take the deposition order under Secs. 16 and 18.
shall give reasonable notice in
writing to every party stating the time These may relate to:
and place for taking the deposition and (1) Any claim or defense of any other party;
the name and address of each person to (2) The existence, description, nature, custody,
be examined. [Sec. 15] condition, and location of books,
(2) After notice is served, the court may make documents and other tangible things; or
any order for protection of the parties (3) The identity or location of persons having
and the deponent. [Sec. 16] knowledge of relevant facts.
(3) The attendance of the witnesses may be
compelled by the use of subpoena. [Sec. Specific Uses of Depositions [Sec. 4,
1] Rule 23]
(4) The deponent may be examined The use of depositions depends on whether
following the procedures for deponent is a party or not.
witnesses in a trial, and may be asked (1) For contradicting or impeaching the
questions on direct, cross, re-direct or re- testimony of the former deponent, now
cross. He has the same rights as a witness testifying as a witness
79 OF 425
Only used to contradict, not as proof of (2) The deposition is used to impeach or
specific facts contradict opponent.
Cannot be used for this person if
deponent does not testify OBJECTIONS TO ADMISSIBILITY
(2) For any purpose, if the deponent was an Objection may be made at the trial or hearing
adverse party to receiving in evidence any deposition or part
May be used as an admission thereof for any reason which would require
Cannot, however, be used in the trial of the exclusion of the evidence if the witness
a case against a defendant who was were then present and testifying. [Sec. 6,
not a party to the action when the Rule 23]
deposition was taken
(3) Deposition of a witness or party may be TERMINATION OF TAKING OF DEPOSITION
used for any purpose under the OR LIMITATION OF SCOPE
following circum stances:
(a) Witness-deponent is dead there must How done
be proof or presumption of death, and (1) A motion or petition for termination or
proof that the deposition was lawfully limit examination is filed by any party or
taken of the deponent
(b) Witness resides more than 100 km (2) Filed in the court where the action is
from the place of trial or hearing, or is pending OR the RTC of the place where
out of the country -- unless absence deposition is being taken
was procured by the proponent of the
deposition W hen done: At any time during the taking
(c) Disability of a witness due to age, of deposition
sickness, infirmity, or imprisonment
proven by certificate of attending Grounds:
physician That the examination is being conducted:
(d) Inability to procure attendance of (1) In bad faith, or
witness by subpoena (2) In such manner as unreasonably to annoy,
(e) Exceptional circumstances embarrass or oppress the deponent or
party
GENERAL RULE: A deposition is not a
substitute for the actual testimony in open Effect of Errors and Irregularities in
court of a party or witness. If the witness is Depositions [Sec. 29, Rule 23]
available to testify, he should be presented in Error and
Effect
court to testify. If available to testify, a Irregularities
partys or witness deposition is inadmissible Waived
As to notice for
in evidence for being hearsay. [Dasmarinas Unless written objection is
taking
Garments Inc. v. Reyes, G.R. No. 108229 promptly served upon
depositions
(1993)]. party giving notice
Waived
EXCEPTION: Depositions may be used as Objection to Unless made:
evidence under the circumstances in Sec. 4. taking (1) Before taking of
deposition deposition begins or
Effect of Using Deposition [Sec. 8, Rule because of (2) As soon thereafter as
23] disqualification disqualification
of officer becomes known or
GENERAL RULE: If a party offers the before whom it could be discovered
deposition in evidence, then he is deemed to is to be taken with reasonable
have made the deponent his witness. diligence
Objection to Not waived by failure to
EXCEPTIONS: the make them before or
(1) The deposition is that of an opposing party, competency of during the taking of
or a witness or deposition
80 OF 425
Error and (6) That after being sealed, the deposition

Effect
Irregularities shall be opened only by order of the court;
competency or Unless the ground of the (7) That secret processes, developments, or
relevancy or objection is one which research need not be disclosed;
materiality of might have been obviated (8) That the parties shall simultaneously file
testimony or removed if presented at specified documents or information
that time enclosed in sealed envelopes to be opened
In the manner of taking, in as directed by the court;
the form of questions or
answers, in the oath or DEPOSITIONS BEFORE ACTION OR
affirmation, or in conduct PENDING APPEAL [Rule 24]
Occurring at of parties and errors of Referred to as perpetuation of testimony
oral any kind which might be (depositions in perpetuam rei memoriam)
examination obviated or removed if because their objective is to perpetuate the
and other promptly prosecuted are testimony of a witness for future use, in the
particulars waived event of further proceedings in said court.
Unless reasonable
objection thereto is made W ho may avail:
at the time of taking the Any person:
deposition (1) Who wants to perpetuate his own
Waived testimony; or
Unless served in writing (2) Who wants to perpetuate the testimony of
Objections to upon the party another person
the form of propounding them within
written the time allowed for Procedure for Deposition before
interrogatories serving succeeding cross Action
under Sec. 25 or other interrogatories (1) File a verified petition in the court of the
and 26 and within 3 days after place of the residence of any expected
service of last adverse party, entitled in the name of the
interrogatories authorized petitioner and stating:
Waived (a) That the petitioner expects to be a
In the manner party to an action in a court of the
Unless motion to
in which Philippines but is unable to bring it
suppress depositions or
testimony is or cause it to be brought;
some part thereof is made
transcribed or (b) The subject matter of the expected
with reasonable
in the action and his interest therein;
promptness after such
preparation (c) The facts which he desires to
defect is ascertained, or
under Sec. 17, establish by the proposed testimony
with due diligence might
19, 20, and 26 and his reasons for desiring to
have been ascertained
perpetuate it;
Orders of the court regarding deposition (d) The names or a description of the
taking persons he expects will be adverse
(1) That the deposition shall not be taken; parties and their addresses so far
(2) That it may be taken at some designated as known; and
place other than that stated in the notice; (e) The nam es and addresses of the
(3) That it may be taken only on written persons to be examined and the
interrogatories; substance of the testimony which
(4) That certain matters shall not be inquired he expects to elicit, and
into (f) Asking for an order authorizing the
(5) That the scope of the examination shall be taking of the depositions of the persons
held with no one present except the sought to be examined named in the
parties to the action and their officers or petition for the purpose of
counsel; perpetuating their testimony.
81 OF 425
(2) Notice and service to each person testimony is proper to avoid a failure or
nam ed in the petition as an expected delay of justice, it may make an order
adverse party, together with a copy of the allowing the deposition to be taken.
petition, stating that the petitioner will
apply to the court, at a time and place O.2. WRITTEN INTERROGATORIES OF
named therein, for the order described in ADVERSE PARTIES [RULE 25]
the petition.
(a) At least 20 days before the date of the Purpose: This mode of discovery is availed of
hearing, the court shall cause notice by the party to the action for the purpose of
thereof to be served on the parties and eliciting material and relevant facts from
prospective deponents in the manner any of the adverse party. [Sec. 1, Rule 25]
provided for service of summons.
(3) Order and Examination: If the court is Scope and Use: Interrogatories have the
satisfied that the perpetuation of the may relate to the same matter as may be
testimony may prevent a failure or delay of inquired into under Depositions Pending
justice, it shall make an order designating Action and may also be used for the same
or describing the persons whose purposes provided. [Sec. 5, Rule 24]
deposition may be taken and specifying
the subject matter of the examination and W ritten Interrogatories v.
whether the depositions shall be taken Interrogatories to Parties
upon oral examination or written Written Interrogatories to
interrogatories. Interrogatories Parties
Taken before a
Use of Deposition No deposition officer.
deposition officer
If a deposition to perpetuate testimony is Questions are
taken under this Rule, or if, although not so prepared
taken, it would be admissible in evidence, it beforehand, and
may be used in any action involving the same The questioning is
submitted to the
subject matter subsequently brought in direct.
deposition officer
accordance with the provisions of sections 4 who will ask the
and 5 of Rule 23. [Sec. 6, Rule 24] deponent
The deposition of any
Procedure for Deposition Pending Interrogatories are
person may be taken,
Appeal: served on parties to
whether he is a party
(1) During the pendency of an appeal, the the action
or not.
court in which the judgment was rendered
may allow the taking of depositions of SERVICE OF INTERROGATORIES TO
witnesses to perpetuate their testimony in PARTIES
the event of further proceedings in the Any party desiring to elicit material and
said court. relevant facts from any adverse party shall
(2) The party who desires to perpetuate the file and serve upon the adverse party
testimony may make a motion in the said written interrogatories to be answered by the
court for leave to take the depositions, party served.
upon the same notice and service thereof
as if the action was pending therein. The Manner of Service
motion shall state: (1) Without leave of court After answer has
(a) The names and addresses of the been served; and for the first set of
persons to be examined and the interrogatories
substance of the testimony which he (2) With leave of court before the answer
expects to elicit from each, and has been served; and for subsequent sets
(b) The reason for perpetuating their of interrogatories
testimony.
(3) Order allowing the deposition: If the court NOTE: No party may, without leave of court,
finds that the perpetuation of the serve more than one set of interrogatories to
82 OF 425
be answered by the same party. [Sec. 4, Rule EFFECT OF FAILURE TO SERVE

25] A party not served with written
interrogatories may not be compelled by
ANSWERS adverse party to:
Written interrogatories and the answers (1) Give testimony in open court; or
thereto must both be filed and served. (2) Give deposition pending appeal [Sec. 6,
[Sec. 2, Rule 25] Hence, the answers may Rule 25]
constitute as judicial admissions [Sec. 4, Rule
129] Exception: Allowed by the court for good
cause shown and to prevent a failure of
Form: The answer must be fully in writing, justice
signed and sworn to by the person making
them. O.3. REQUEST FOR ADMISSION [RULE 26]
Rule 26, as a mode of discovery,
Service and Filing contemplates interrogatories seeking
Shall be filed and served on the party clarification in order to determine the truth of
submitting interrogatories within 15 days the allegation in a pleading.
after service of interrogatories, unless the
court extends or shortens period on motion Purposes:
and for good cause. (1) To allow one party to request the adverse
in writing to admit certain material and
OBJECTIONS TO INTERROGATORIES relevant matters which most likely will not
Objections may be presented to the court be disputed during the trial.
within 10 days after service of the (2) To avoid unnecessary inconvenience to the
interrogatories, with notice as in case of a parties in going through the rigors of proof,
motion. [Sec. 3, Rule 25] before the trial, a party may request the
other to:
Effect: Answers shall be deferred until (a) Admit the genuineness of any material
objections are resolved and relevant document described in
and exhibited with the request; or
Grounds (b) Admit the truth of any material and
(1) The interrogatories require: relevant matter of fact set forth in the
(a) Statements of conclusions of law; request [Sec. 1, Rule 26]
(b) Answers to hypothetical questions or
opinion; How m ade:
(c) Mere hearsay; or (1) A party files and serves upon any other
(d) Matters not within the personal party a written request
knowledge of the interrogated party (2) Copies of the documents shall be served
(2) Frivolous interrogatories need not be with the request unless already furnished
answered. [Herrera]
The request for admission must be served
CONSEQUENCES OF FAILURE TO ANSWER on the party, not the counsel. This is an
On failure to answer of a party served with exception to the general rule that notices
interrogatories, the court, on motion and shall be served upon counsel and not upon
notice, may: the party. [Duque v. CA, G.R. 125383 (2002)]
(1) Strike out all or any part of any pleading of
that party; W hen made: At any time after issues have
(2) Dismiss the action; been joined, which is to say,
(3) Render judgment by default against the
party; and IMPLIED ADMISSION BY ADVERSE PARTY
(4) Order payment by such party of Each of the matters which an admission is
reasonable expenses including attorneys requested shall be deemed admitted unless
fees. [Sec. 5, Rule 29] the party to whom request is directed files
and serves upon the party requesting
83 OF 425
admission a sworn statement [Sec. 2, Rule in accordance with the claim of the party
26] obtaining the order;
(2) That the disobedient party be disallowed
Contents from supporting or opposing designated
(1) Denying specifically the matters of which claims or defenses;
an admission is requested, or (3) That pleadings or parts thereof be stricken
(2) Setting forth in detail the reasons why he out; or
cannot truthfully either admit or deny (4) That further proceedings be stayed until
those matters compliance; or that actions or any parts
thereof be dismissed or that judgment be
Period: Such party must file and serve such rendered by default against the
statement: disobedient party; or
(1) Within a period not less than 15 days (5) That the disobedient party be arrested.
designated in the request; or [Sec. 3, Rule 29]
(2) Within such further time as the court may
allow on motion EFFECT OF ADMISSION
Any admission made by a party pursuant to
Objections shall be submitted to the court by such request is for the purpose of the pending
the party requested within the period for and action only [Sec. 3, Rule 26]
prior to filing of his sworn statement.
Compliance with the sworn statement shall It shall not:
be deferred until objections are resolved. [Sec. (1) Constitute an admission by him for any
2, Rule 26] other purpose; nor
(2) Be used against him in any other
CONSEQUENCES FOR FAILURE TO proceeding
ANSWER REQUEST
The proponent may apply to the proper court EFFECT OF FAILURE TO FILE AND SERVE
for an order to compel an answer. [Sec. 1, REQUEST FOR ADMISSION
Rule 29] Applicability: The party fails to file and
serve a request for admission on the adverse
If application is granted, the court: party for facts at issue, which are:
(1) Shall require the refusing party to answer; (1) Material and relevant fact at issue, and
and (2) Are, or ought to be, within the personal
(2) May require the refusing party or counsel knowledge of the adverse party
to pay reasonable expenses for obtaining
the order, the refusal to answer was Effect: The party shall not be permitted to
without substantial justification. present evidence on such facts, unless
allowed by the court for good cause and to
If application is denied and it was filed prevent a failure of justice [Sec. 5, Rule 29]
without substantial justification, the court
may require the refusing party or counsel to O.4. PRODUCTION OR INSPECTION OF
pay reasonable expenses for opposing the DOCUMENTS OR THINGS [RULE 27]
application. Applicable only to a pending action and the
things subject of the motion must be within
Refusal to answer after being directed by the the possession, control, or custody of a party.
court would constitute contem pt of court.
PROCEDURE [Sec. 1, Rule 27]
Refusal to obey would also allow the court to A motion is filed by the party seeking
make such orders regarding the refusal as are production or inspection, showing good
just, such as: cause therefor.
(1) That the matters regarding which
questions were asked be taken as The court may issue an order:
established for the purposes of the action (1) for the party to produce and permit
inspection, copying or photographing, by
84 OF 425
or on behalf of the moving party, of any O.5. PHYSICAL OR MENTAL EXAMINATION

designated documents or tangible things, OF PERSONS [RULE 28]
(a) not privileged, Applicable in an action in which the mental or
(b) constituting or containing material physical condition of a party is in controversy.
evidence, and [Sec. 1, Rule 28]
(c) in the partys in his possession, custody
or control PROCEDURE [Sec. 2, Rule 28]
(2) for the party to permit entry upon A motion for the examination is filed in the
designated land or other property, in his court where the action is pending:
possession or control, for inspection, (1) showing good cause for the examination;
measuring, surveying, or photographing (2) with notice to the party to be examined,
property or any designated relevant and all other parties; and
object or operation. (3) specifying the time, place, manner,
conditions, scope, and person conducting
The order shall state: the examination.
(1) The time, place, and manner of making
the inspection and taking copies and Since the results of the examination are
photographs, and intended to be made public, the same are not
(2) Such terms and conditions as are just covered by physician-patient privilege [Sec.
24(b), Rule 130]
PRODUCTION OF DOCUMENTS VS
SUBPOENA DUCES TECUM REPORT OF FINDINGS [Sec. 3, Rule 28]
Production or The party examined may request delivery of a
Subpoena Duces
Inspection of copy of the detailed written report, with the
Tecum
Documents findings of the examining physician. Upon
A means of such request and delivery, the party causing
compelling the examination is entitled upon request to
A mode of discovery
production of receive a like report of any examination,
evidence previously or thereafter made, of the same
Limited to the parties May be directed to mental or physical condition.
of the action non-party
Issued upon motion If such report is not delivered:
May be issued upon (a) Due to refusal of the party examined,
with notice to the
ex parte application the court may make an order requiring
adverse party
May be asked before May be asked only delivery on such terms as are just;
and/or during trial during trial (b) Due to failure or refusal of the
Must show good Need not show good physician, the court may exclude his
cause cause testimony when offered at trial.
Grounds for quashal:
(1) Unreasonable, WAIVER OF PRIVILEGE [Sec. 4, Rule 28]
oppressive, Where the party examined requests and
May be quashed for obtains a report on the results of the
irrelevant
lack of good cause examination, the consequences are:
(2) Failure to
shown (1) He has to furnish the other party a copy of
advance
reasonable costs the report of any previous or subsequent
of production examination of the same physical and
Disobedience would mental condition; and
allow court to issue Disobedience (2) He waives any privilege he may have in
orders as in the case constitutes contempt that action or any other involving the same
of refusal to answer of court controversy regarding the testimony of any
request for admission other person who has so examined him or
may thereafter examine him
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O.6. CONSEQUENCES OF REFUSAL TO COMPLY [RULE 29]

Form of Refusal Sanctions
The court may, upon proper application, compel a refusing deponent to
answer [Sec. 1]
(1) If granted, and refusal to answer is without substantial justification,
court may require the refusing party to pay proponent the
Refusal to answer any reasonable expenses incurred in obtaining the order
question (2) If denied, and filed without substantial justification, court may
[Sec. 1 and 2] require proponent to pay refusing party the reasonable expenses
incurred in obtaining the order
A refusal to answer after being directed by court to do so may be

constituted as contempt of court
Refusal to be Sworn [Sec. 2] Cite the disobedient deponent in contempt of court
The court may make the following orders:
(1) Prohibit the disobedient party to introduce evidence of physical or
mental condition
Refusal to answer designated (2) Refuse to allow the disobedient party to support or oppose claims or
questions or refusal to defenses
produce documents or to (3) Strike out pleadings or parts thereof
submit to physical or mental (4) Stay further proceedings
examination (5) Dismiss the action or proceeding or any part thereof
[Sec. 3] (6) Render a judgment by default against disobedient party
(7) Direct the arrest of any party disobeying any of such orders except
an order to submit to a physical or mental examination
(8) Other orders as may be just
The court, upon proper application, issue an order requiring the other
party to pay him reasonable expenses incurred, including attorneys fees
Refusal to admit under Rule PROVIDED that party requesting proves genuineness of such document
26 or truth
[Sec. 4] UNLESS court finds:
(1) There were good reasons for denial
(2) Admissions sought were of no importance
The court on motion and notice may:
Failure of party to attend or (1) Strike out all or any part of any pleading of disobedient party
serve answers to written (2) Dismiss the action or proceeding or any part thereof
interrogatories (3) Enter a judgment by default against disobedient party
[Sec. 5] (4) Order payment of reasonable expenses incurred by the other
including attorneys fees
Note: Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines. [Sec. 6,
Rule 29]
P. TRIAL pre-trial and the determination of granting or

Trial is the judicial process of investigating denying a motion. [Trocio v. Labayo [1973]]
and determining the legal controversies,
starting with the production of evidence by GENERAL RULE: When an issue exists,
the plaintiff and ending with his closing trial is necessary. Decision should not be
arguments [Acosta v. People [1962]]. made without trial.
A hearing is a broader term. It is not EXCEPTIONS:

confined to the trial and presentation of the A civil case may be adjudicated upon without
evidence because it actually embraces the need for trial in any of the following
several stages in the litigation. It includes the cases:
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(1) Where the pleadings tender no issue at all, postponement has no absolute right to
judgm ent on the pleadings may be expect that his motion would be granted.
directed by the court [Rule 34] [Republic v. Sandiganbayan, G.R. No. 123997
(2) Where from the pleadings, affidavits, (1999)]
depositions and other papers, there is
actually no genuine issue, the court may Requisites of Motion to Postpone Trial
render a summary judgment [Rule 35] (1) For absence of evidence [Sec. 3, Rule 30]
(3) Where the parties have entered into a Motion accompanied by affidavit showing:
com prom ise or an amicable settlement (a) That the materiality or relevancy of the
either during the pre-trial or while the trial evidence; and
is in progress [Rule 18; Art. 2028, Civil (b) That diligent efforts had been exerted
Code] to procure the evidence
(4) Where the complaint has been (2) For illness of party or counsel [Sec. 4, Rule
dismissed with prejudice, or when the 30] Motion accompanied by affidavit or
dismissal has the effect of an adjudication sworn certification showing:
on the merits [Sec. 5, Rule 16; Sec. 3, Rule (a) The presence of such party or counsel
17; Sec. 5, Rule 7] at the trial is indispensable; and
(5) Where the case falls under the Rules on (b) That the character of his illness is such
Sum m ary Procedure, and as to render his non-attendance
(6) Where the parties agree, in writing, excusable
upon the facts involved in the litigation
and submit the case for judgment on the P.2. AGREED STATEMENT OF FACTS
facts agreed upon, without the The parties may agree, in writing, upon the
introduction of evidence. [Sec. 6, Rule 30] facts involved in the litigation and submit the
[Riano] case for judgment in the facts agreed upon,
without the introduction of evidence
Notice of Trial
Upon entry of a case in the trial calendar, the If the parties agree only on some of the facts
clerk shall notify parties the date of its trial, in issue, trial shall be held as to the disputed
ensuring receipt of the notice at least 5 days facts in such order as the court shall prescribe.
before the trial date. [Sec. 1, Rule 30] [Sec. 6, Rule 30]
P.1. ADJOURNAMENTS AND Stipulation in Civil Stipulation in

POSTPONEMENTS Cases Criminal Cases
A court may adjourn a trial from day to day, May be signed alone Must be signed by
and to any stated time, as the expeditious by the counsel, who both counsel and
and convenient transaction of business may has an SPA accused
require May be made Strict; it must always
verbally or in writing be in writing
Lim itations
The court has no power to adjourn a trial for: An agreed statement of facts is conclusive on
(1) A period longer than one month for each the parties, as well as on the court. Neither of
adjournment; or the parties may withdraw from the
(2) More than 3 months in all agreement, nor may the court ignore the
same. [McGuire v. Manufactures Life, G.R. L-
EXCEPTION: The court may go beyond 3581 (1950)]
these limitations, if authorized in writing by
the Court Administrator. P.3. ORDER OF TRIAL
Trial shall be limited to the issues stated in
Postponement the pre-trial order, except in the following
A motion for postponement should not be cases:
filed on the last hour especially when there is (1) The court orders separate trial under Sec.
no reason why it could not have been 2, Rule 31 in the furtherance of
presented earlier. A party asking for convenience or to avoid prejudice; or
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(2) When for special reasons the court directs parties. [Republic v. Heirs of Oribello, G.R. No.
otherwise 199501 (2013)]
General Order of Trial W hen proper: When actions involving a

(1) Plaintiffs evidence in chief common question of fact or law are pending
(2) Defendants evidence in chief and before the court [Sec. 1, Rule 31]
evidence in support of his counterclaim,
cross-claim and 3rd-party complaint Court action:
rd
(3) 3 -party defendant shall adduce evidence The court may:
of his defense, counterclaim, cross-claim, (1) Order a joint hearing or trial of any or all
and 4th party complaint matters in issue in the actions
th
(4) 4 -party defendant shall adduce evidence, (2) Order all actions consolidated; or
and so forth (3) Make such orders concerning proceedings
(5) Parties against whom any counterclaim or therein as may tend to avoid unnecessary
cross-claim has been pleaded shall costs or delay
adduce evidence in support of their
defense, in the order to be prescribed by Purpose: To avoid multiplicity of suits,
court guard against oppression or abuse, prevent
(6) Parties may then respectively adduce delay, clear congested dockets, simplify the
rebutting evidence only, unless the court work of the trial court and save unnecessary
permits them to adduce evidence upon costs and expenses
original case
(7) Upon admission of evidence, case Where a case has been partially tried before
submitted for decision, unless court one judge, the consolidation of the same with
directs parties to argue or to submit another related case pending before another
respective memoranda or any further judge who had no opportunity to observe the
pleading [Sec. 5, Rule 30] demeanor of the witness during trial makes
the consolidation not mandatory. [PCGG v.
Reverse Order Sandiganbayan, G.R. No. 102370-71 (1992)]
The defendant presents evidence ahead of
the plaintiff, when the defendant relies in his The rules do not distinguish between cases
Answer only upon an affirmative defense. filed before the same branch or judge and
those that are pending in different branches
Where the answer of the defendant admitted or before different judges of the same court,
the obligation stated in the complaint, in order that consolidation may be proper, as
although special defenses were pleaded, the long as the cases involve the resolution of
plaintiff has every right to insist that it was for questions of law or facts in common with
the defendant to come forward with evidence each other [Active Woods Products Co. Inc. v.
to support his special defenses. [Yu v. Mapayo, CA, G.R. No. 86602 (1990)]
G.R. No. L-29742 (1972)]
Kinds of Consolidation [Republic v. Heirs
The reasoning behind this is that the plaintiff of Oribello, G.R. No. 199501 (2013)]
need not present evidence since judicial (1) Quasi-consolidation where all,
admissions do not require proof [Sec. 2, Rule except one, of several actions are stayed
129] until one is tried, in which case, the
judgment in the one trial is conclusive as
P.4. CONSOLIDATION OR SEVERANCE OF to others; not actually consolidation but
HEARING OR TRIAL referred to as such
Consolidation a procedural device, (2) Actual consolidation where several
granted to the court as an aid in deciding how actions are combined into one, lose their
case in its docket are to be tried, so that the separate identity, and become one single
business of the court may be dispatched action in which judgment is rendered
expeditiously while providing justice to the (3) Consolidation for Trial where
several actions are ordered to be tried
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together, but each retains its separate P.6. TRIAL BY COMMISSIONERS

character, and requires the entry of Commissioner - A person to whom a case
separate judgment pending in court is referred, for him to take
testimony, hear the parties and report
When proper: A single action has a number thereon to the court, and upon whose report,
of claims, counterclaims, cross-claims, third- if confirmed, judgment is rendered
party complaints or issues which may be
separately tried for convenience, or to avoid GENERAL RULE: Trial by commissioner
prejudice. depends largely upon the discretion of the
court
When separate trial of claims is conducted by
the court under this section, it may render EXCEPTIONS: In the following instances,
separate judgments on each claim [see Sec. 5, appointment of a commissioner is necessary:
Rule 36] (1) Expropriation [Rule 67]
(2) Partition [Rule 69]
This provision permitting separate trials (3) Settlement of Estate of a Deceased Person
presupposes that the claims involved are in case of contested claims; and
within the jurisdiction of the court (4) Submission of Accounting by executors or
When one of the claims is not within its administrators
jurisdiction, the same should be dismissed,
so that it may be filed in the proper court Kinds of Trial by Commissioners
(1) Reference by consent of both parties.
P.5. DELEGATION OF RECEPTION OF (2) Reference ordered on motion.
EVIDENCE
Reference by Consent
GENERAL RULE: The judge of the court The court may order any or all of the issues in
where the case is pending shall personally a case to be referred to a commissioner by
receive the evidence to be adduced by the written consent of both parties. [Sec. 1, Rule
parties. [Sec. 9, Rule 30] 32]
EXCEPTION: The court may delegate the Commissioners are to be:

reception of evidence to its clerk of court who (1) Agreed upon by the parties; or
is a member of the bar in: (2) Appointed by the court
(1) Default hearings;
(2) Ex parte hearings; Reference Ordered on M otion
(3) Cases where parties agree in writing. The court may direct reference to a
commissioner, upon application of a party or
The clerk of court has no power to rule on upon its own motion, in the ff. cases:
objections to any question or the admission of (1) When trial of an issue of fact requires
exhibits. Objections shall be resolved by the examination of long account;
court upon submission of the clerks report (2) When taking of an account is necessary;
and TSN within 10 days from termination of (3) When question of fact, other than upon
the hearing. pleadings, arises upon motion or
otherwise, in any stage, or for carrying a
The rule requires that, where the reception of judgment into effect [Sec. 2, Rule 32]
evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither Order of Reference: [Sec. 3, Rule 32]
agreement by parties nor their acquiescence When a reference is made, the clerk shall
can justify its violation. [Umali-Paco v. Quilala, furnish the commissioner with a copy of the
AM RTJ-02-1699 (2003)] order of reference, which may contain the
following:
(1) Specifications or limitations of the powers
of the commissioner;
89 OF 425
(2) A direction to report only upon particular (3) He shall attach all exhibits, affidavits,
issues, to do or perform particular acts, or depositions, papers, and transcripts, if any,
to receive and report evidence only of testimonial evidence presented before
(3) The date for beginning and closing the him
hearings, and that for the filing of his
report Notice and Hearing on the Report
[Secs. 10-11, Rule 32]
Powers of Commissioner Upon filing of the report of the commissioner:
(1) Exercise power to regulate the proceeding (1) Parties shall be notified by the clerk
before him (2) Parties shall be allowed 10 days within
(2) Do all acts and take all measures which to object to the findings of the
necessary or proper for the efficient report
performance of his duties
(3) Issue subpoena and subpoenas duces NOTE: Objections based upon grounds
tecum which were available to the parties during the
(4) Swear witnesses proceedings before the commissioner shall
(5) Rule upon the admissibility of evidence, not be considered by the court, unless
unless otherwise provided in the order of they were made before the
reference com m issioner
NOTE: Refusal of a witness to obey such Upon expiration of the 10-day period to file
subpoena or to give evidence before him is objections, the report shall be set for hearing.
deemed contempt of the court which After such hearing, the court shall issue an
appointed the commissioner. [Sec. 7, Rule 32] order:
(1) Adopting, modifying, or rejecting the
Proceedings before the Commissioner report, in whole or in part
[Sec. 5, Rule 32] (2) Recommitting it with instructions; or
(1) Upon receipt of the order of reference, the (3) Requiring the parties to present further
commissioner shall set a time and place evidence before the commissioner or the
for the first meeting of parties or their court
counsel
(2) Notices shall be sent to parties or counsel Q. DEMURRER TO EVIDENCE
(3) Hearing is to be held within 10 days after
date of order of reference A species of motion to dismiss that may be
(4) If a party fails to appear, the commissioner
invoked based on insufficiency of evidence [i.e.
may: [Sec. 6] upon the facts and the law the plaintiff has
(a) Proceed ex parte; or
shown no right to relief]. [Sec. 1, Rule 33]
(b) Adjourn the proceedings to a future
date giving notice to the absent party It is invoked after the plaintiff has presented
or his counsel all the evidence available to him
Report of the Comm issioner [Sec. 9, Judgment on Demurrer to Evidence

Rule 32] judgment rendered by the court dismissing a
The report is filed with the court upon case upon motion of defendant, made after
completion of the trial, hearing or proceeding plaintiff has rested his case, on the ground
before the commissioner. that upon the facts presented and the law on
the matter, plaintiff has not shown any right
Contents: to relief.
(1) Report in writing upon the matters
submitted to him by the order of reference
(2) When his powers are not specified or
limited, he shall set forth his findings of
fact and conclusions of law
90 OF 425
Dem urrer of Evidence v. Motion to Q.3. WAIVER OF RIGHT TO PRESENT

Dism iss EVIDENCE
Demurrer to Evidence Motion to Dismiss If the order granting the demurrer is reversed
Presented after the Presented before on appeal, the defendant loses his right to
plaintiff has rested filing of a responsive present evidence. [Sec. 1, Rule 33; Republic v.
his case pleading Tuvera, G.R. No. 148246 (2007)]
Based on the Based on those
insufficiency of grounds enumerated Q.4. DEMURRER IN CIVIL AND CRIMINAL
evidence in Rule 16 CASES
If denied, the Civil Cases Criminal Cases
If denied, the Court may motu
defendant may file Defendant files a
defendant may proprio dismiss the
his responsive demurrer.
present his evidence action for
pleading
If granted, the insufficiency of
Court cannot motu
If granted, the complaint is prosecutions
propio dismiss the
complaint is dismissed; plaintiff evidence, after it has
case for insufficiency
dismissed; plaintiffs may appeal or re-file, rested its case. [Sec.
of plaintiffs evidence
remedy is to appeal depending on the 23, Rule 119]
ground for dismissal. May be filed with or
Defendant need not
without leave of
ask for leave of court
Q.1. EFFECT OF DENIAL court.
If the demurrer is denied, the defendant shall If court denies the
have the right to present his evidence. demurrer
(1) filed with leave,
If court denies the
The court should not proceed to grant the accused may
demurrer, defendant
relief demanded by the plaintiff but should present evidence.
will present his
set the date for reception of the defendants (2) filed without
evidence
evidence. [Northwest Airlines v. CA, G.R. No. leave, accused
120334 (1998)] can no longer
present evidence.
An order denying the demurrer is If prosecutions
If plaintiffs evidence
interlocutory, and not subject to appeal. It evidence insufficient,
insufficient, court will
can be subject to a petition for certiorari, in court will grant
grant demurrer by
case of grave abuse of discretion or demurrer by
dismissing the
oppressive exercise of judicial authority. rendering judgment
complaint
[Katigbak v. Sandiganbayan, G.R. No. 140183 of acquittal.
(2003)] The judgment of
Judgment of
dismissal is
acquittal is not
Q.2. EFFECT OF GRANT appealable; If
appealable;
If the demurrer is granted, the case shall be reversed, court will
Double jeopardy sets
dismissed. decide based on
in.
plaintiffs evidence.
As a final order, the remedy of the plaintiff is
to appeal. If the appeal is granted, the
defendant-movant loses the right to present
evidence.
The appellate court should not remand the

case for further proceedings but should
render judgment on the basis of the evidence
submitted by the plaintiff. [Consolidated Bank
and Trust Corp. v. Del Monte Motor Works, Inc.,
G.R. No. 143338 (2005)]
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IV. Judgments and holder may confess judgment as the

makers attorney-in-fact.
Final Orders This is considered void in our
jurisdiction for denying a party his right
to a day in court [PNB vs. Manila Oil
A. JUDGMENTS IN GENERAL (1992)]
The final ruling by a court of competent (b) Judgment by confession relicta
jurisdiction regarding the rights and verification after pleading and
obligations of the parties, or other matters before trial, the defendant:
submitted to it in an action or proceeding (i) confessed the plaintiffs cause of
[Macahilig v. Heirs of Magalit (2000)] action; and
(ii) withdrew his plea or other
A.1. REQUISITES OF A VALID JUDGMENT allegations, whereupon
[Riano] judgment was entered against
(1) Court or tribunal must be clothed with him without proceeding to trial.
authority to hear and determine the (3) Judgment upon the merits one
matter before it. [Acosta v. COMELEC rendered after consideration of the
(1998)] evidence submitted by the parties during
(2) Court must have jurisdiction over the the trial of the case.
parties and the subject matter. A judgment is on the merits when it
(3) Parties must have been given an amounts to a legal declaration of the
opportunity to adduce evidence in their respective rights and duties of the parties,
behalf. [Acosta v. COMELEC (1998)] based upon the disclosed facts.
(4) Evidence must have been considered by (4) Clarificatory Judgment one
the tribunal in deciding the case. [Acosta v. rendered to clarify an ambiguous
COMELEC (1998)] judgment or one difficult to comply with.
(5) Judgment must be in writing, personally (5) Judgment Nunc Pro Tunc literally,
and directly prepared by the judge. now for then. It is a judgment intended
[Corpus v. Sandiganbayan (2004)] to enter into the record the acts which had
(6) Judgment must state clearly the facts and already been done, but which do not
the law upon which the decision is based, appear in the records. [Lichauco v. Tan
signed by the judge and filed with the Pho (1923)]
clerk of court. [Sec. 1, Rule 36; Sec. 14, Art. It can only be issued when the thing
VIII, 1987 Constitution] ordered has previously been made, but by
inadvertence has not been entered.
A.2. KINDS OF JUDGMENT [Briones-Vasquez vs. CA (2005)]
(1) Judgment by Com prom ise one (6) Judgment sin perjuicio refers to a
conferred on the basis of a compromise judgment with a dispositive portion only. It
agreement entered into between the is not allowed and cannot have any effect.
parties. It is immediately executory in the (7) Conditional Judgm ent one whose
absence of a motion to set aside on the effectivity depends upon the occurrence or
ground of fraud, accident, mistake, or non-occurrence of an event; generally void
excusable negligence, as it constitutes a because of the absence of a disposition
waiver of the right to appeal. [Cu-Unjieng v. Mabalacat Sugar Co. (1940)]
(2) Judgment by Confession one (8) Several Judgm ent one rendered by a
rendered by the court when a party court against one or more defendants and
expressly agrees to the other partys claim not against all of them, leaving the action
or acknowledges the validity of the claim to proceed against the others. [Sec. 4,
against him. Rule 36]
(a) Judgm ent by cognovit actionem Proper when the liability of each party is
one rendered upon confession made clearly separate and distinct from his co-
pursuant to a clause in a promissory parties such that:
note or contract that upon default, the
92 OF 425
(a) the claims against each of them could (4) Signed by the judge
have been the subject of separate suits, (5) Filed with the clerk of court.
and
(b) the judgment for or against one of B.2. PARTS OF A JUDGMENT [Riano, Herrera]
them will not necessarily affect the (1) Opinion of the Court
other. Also called the body, or the ratio
Where a common cause of action exists, a decidendi
several judgment is not proper. Contains the findings of facts and
(9) Separate Judgm ent one rendered conclusions of law
disposing of a claim among several others (2) Disposition of the case
presented in a case, after a determination Also called the dispositive portion, or
of the issues material to a particular claim the fallo
and all counterclaims arising out of the Part of the judgment that is subject to
transaction or occurrence that is the execution, as constituting the
subject matter of said claim. [Sec. 5, Rule judgment of the court
36] It is the dispositive part of the judgment
Proper when more than one claim for that actually settles and declares the
relief is presented in an action for the rights and obligations of the parties,
determination as to the issues material to finally, definitively, and authoritatively
the claim has been made. [Light Rail Transit Authority v. CA (2004)]
(10) Memorandum Decision a (3) Signature of the judge
decision of the appellate court which
adopts the findings and conclusions of the B.3. DISTINCTION BETWEEN JUDGMENT
trial court. AND OPINION OF THE COURT
(11) Declaratory Judgm ent one The judgment or fallo must be distinguished
rendered in a special civil action for from the Opinion.
declaratory relief.
(12) Foreign Judgment. The Opinion is the informal expression of the
views of the court and cannot prevail against
A.3. JUDGMENT WITHOUT TRIAL its final order or decision. While the two may
Trial is not necessary in the following be combined in one instrument, the opinion
instances: forms no part of the judgment. So there is a
(1) Judgment on the Pleadings [Rule 34] distinction between the findings and
(2) Summary Judgment [Rule 35] conclusions of a court and its judgment.
(3) Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule While they may constitute its decision and
18; Art. 2028, Civil Code] amount to a rendition of a judgment they are
(4) Dismissal with prejudice [Sec. 5, Rule 16; not the judgment itself. They amount to
Sec. 3, Rule 17; Sec. 5, last par., Rule 7] nothing more than an order for judgment,
(5) Under the Rules on Summary Procedure which, of course, must be distinguished from
(6) Agreed statement of facts [Sec. 6, Rule the judgment. [Freeman on Judgments, Vol. I,
30] 5th Edition, page 6, quoted in Casilan v.
Salcedo (1969)]
Note: Also enumerated in Part III.P.
(Trial) B.4. CONFLICT BETWEEN DISPOSITION
AND OPINION OF THE COURT
B. CONTENTS OF A JUDGMENT
GENERAL RULE: Where there is a conflict
B.1. FORM OF JUDGMENT [Sec. 1, Rule 36] between the fallo and the body of the decision,
(1) In writing the fallo controls.
(2) Personally and directly prepared by the
judge Basis: The fallo is the final order. The
(3) Stating clearly & distinctly the facts and opinion in the body is merely a statement
the law on which it is based
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ordering nothing [Poland Industrial Limited v. (2) Annulment of marriage; and

National Development Company (2005)] (3) Legal Separation
(4) Unliquidated damages; claims for such
EXCEPTION: This rule applies only when damages must be alleged and proved
the dispositive part is definite, clear, and (5) Admission refers only to allegations of fact
unequivocal [Union Bank v. Pacific Equipment and not conclusions of law
Corporation (2008)] (6) Insufficiency of facts; proper remedy is
amendment
Where the inevitable conclusion from the
body of the decision is that there was a NOTE: The concept will not apply when no
mistake in the dispositive portion, the body of answer is filed. It will come into operation
the decision will prevail. [Rosales v. CA, G.R. when an answer is served and filed but the
No. 137566 (2001)] same fails to tender an issue, or admits the
material allegations of the adverse partys
NOTE: see again sin perjuicio judgments pleading. [Riano]
C. JUDGMENT ON THE PLEADINGS When no answer is filed, the remedy is to

move that the defendant be declared in
Judgment on the Pleadings is a judgment default. [Sec. 3, Rule 9]
rendered by the court if the answer fails to
tender an issue, or otherwise admits the
D. SUMMARY JUDGMENTS
material allegations of the adverse partys
pleading. It is rendered without a trial, or A judgment which the court may render
even without a pre-trial before trial, but after both parties have
pleaded, upon application by one party
A motion for a Judgment on the Pleadings, supported by affidavits, depositions, or other
where the answer admits the material documents, with notice upon the adverse
averments of the complaint, is one that may party who may file an opposition supported
be considered ex parte because upon the also by such documents, should the court
particular facts thus presented and laid down find, after summarily hearing both parties
before the court, the plaintiff is entitled to a with their respective proofs, that there
judgment [Dino v. Valencia, G.R. No. L-43886 exists no genuine issue between them.
(1989)] [Herrera]
A Judgment on the Pleadings cannot be The trial court cannot motu propio decide
rendered by the court motu propio. It can only that summary judgment on an action is in
be done where there is a prior motion to that order. The defending party or claimant, as the
effect by the appropriate party. [Sec. 1, Rule case may be, must invoke the rule by filing a
34; Riano; but see Luzon Development Bank v. motion. The adverse party must then be
Conquilla, G.R. No. 163338 (2005)] notified of the motion and furnished with
supporting documents before hearing is
GROUNDS FOR JUDGMENT ON THE conducted. [Pineda v. Heirs of Eliseo Guevara,
PLEADINGS [Sec. 1, Rule 34] G.R. No. 143188 (2007)]
(1) The answer fails to tender an issue
because of: Proper when it appears to the court that:
(a) General denial of the material (1) There exists no genuine issue as to any
allegations of the complaint; material fact, except as to the amount of
(b) Insufficient denial of the material damages; and
allegations of the complaint; or (2) The party presenting the motion must be
(2) The answer otherwise admits material entitled to judgment as a matter of law
allegations of the adverse partys pleading
Genuine Issue - an issue of fact which calls
Judgment on the Pleadings is not proper in for the presentation of evidence as
the ff. cases: distinguished from a sham, fictitious,
(1) Declaration of Nullity of Marriage contrived, or false claim. [Philippine Bank of
94 OF 425
Communications v. Go, G.R. No. 175514 summary judgment. Trial should deal only
(2011)] with the facts not yet specified or established.
Test: Whether or not the pleadings, Duty of the Court [Sec. 4, Rule 35]
affidavits and exhibits in support of the (1) Ascertain which material facts exist
motion are sufficient to overcome the without substantial controversy, and
opposing papers and to justify the finding which are actually and in good faith
that, as a matter of law, that there is no controverted, by:
defense to the action, or the claim is clearly (a) Examining the pleadings and evidence
meritorious. [Estrada v. Consolacion, G.R. No. before it; and
L-40948 (1976)] (b) Interrogating counsel
(2) Make an order, which:
W hen Filed (a) Specifies the facts without substantial
(1) If sought by the claimant only after the controversy and deemed established,
answer is served; [Sec. 1, Rule 35] including extent of damages
(2) If sought by the defendant at any time (b) Directs further proceedings as are just
[Sec. 2, Rule 35] (3) Conduct trial on the controverted facts
NOTE: Filing of a motion for summary Effect: A partial summary judgment is not a
judgment does not interrupt the running of final judgment, but merely a pre-trial
the period for filing an answer. Hence, the adjudication that said issues in the case shall
movant must also file a Motion for Extension be deemed established for the trial of the
of Time to File Answer. case. [Guevarra v. CA, G.R. No. L-49017
(1983)]
Procedure [Sec. 3, Rule 35]
(1) Movant files a motion for summary D.2 AFFIDAVITS AND ATTACHMENTS
judgment with supporting affidavits,
depositions or admission Form [Sec. 5, Rule 35]
(2) Service to the adverse party at least 10 (1) Made on personal knowledge
days the hearing (2) Setting forth such facts as would be
(3) Adverse party may serve opposing admissible in evidence
affidavits, depositions or admissions at (3) Showing affirmatively that the affiant is
least 3 days before the hearing competent to testify to the matters stated
(4) Hearing Court shall determine if a therein.
genuine issue as to any material fact exists, (4) Certified true copies of all papers or parts
and if the movant is entitled to a summary thereof referenced in the affidavit shall be
judgment as a matter of law attached or served with the affidavit.
(5) Court renders summary judgment
Affidavits in bad faith those presented
NOTE: Damages must still be proven even if under this Rule which appear to the court at
not denied. any time as presented in bad faith or solely
for the purpose of delay
Bases for Sum m ary Judgm ent
(1) Affidavits made on personal knowledge; Effect:
(2) Depositions of the adverse or a 3rd party The court:
[Rule 23] (1) shall order the offending party or counsel
(3) Answers to interrogatories [Rule 25] to pay the other party the amount of
(4) Admissions of the adverse party [Rule 26] reasonable expenses which the filing of
the affidavits caused him to incur; and
D.1 WHEN THE CASE IS NOT FULLY (2) may, after hearing, adjudge the offending
ADJUDICATED party or counsel guilty of contempt [Sec. 6,
Partial Summary Judgment applies Rule 35]
when for some reason there can be no full
95 OF 425
E. SUMMARY JUDGMENT V. F. RENDITION OF JUDGMENTS AND

JUDGMENT ON THE PLEADINGS V. FINAL ORDERS
JUDGMENT BY DEFAULT
Summary Judgment On Judgment By Rendition of Judgm ent
Judgment The Pleadings Default Pronouncement of the judgment in open
Based on the
Based solely on
Based on the court does not constitute rendition of
pleadings, complaint and judgment. It is the filing of the signed
the pleadings
depositions, evidence, if decision with the clerk of court that
(complaint and
admissions, presentation is constitutes rendition. Even if the judgment
answer)
and affidavits required
has already been put in writing and signed, it
Generally
is still subject to amendment if it has not yet
available only
Available to been filed with the clerk of court. [Ago v. CA,
to the plaintiff,
both plaintiff Available to G.R. No. L-17898 (1962)]
unless the
and plaintiff
defendant
defendant This includes an amended decision because
presents a
counterclaim an amended decision is a distinct and
There is no
The answer
separate judgment and must follow the
genuine issue established procedural rule. [Herrera]
fails to tender No issue as no
between the
an issue or answer is filed
parties Promulgation refers to the process by which a
there is an by the
i.e. There may
admission of defending decision is published, officially announced,
be issues but
these are
material party made known to the public, or delivered to the
allegations clerk of court for filing, coupled with notice to
irrelevant
10-day notice 3-day notice 3-day notice the parties or their counsel
required required rule applies
May be Period for Rendition
interlocutory [Sec. 15, Art. VIII, 1987 Constitution]
On the merits On the merits
or on the (1) All cases filed must be decided or resolved
merits by the Supreme Court within 24 months
Available only Available in from the date of their submission for
Available in
in actions to any action decision.
any action
recover a except (2) Unless reduced by the SC, within 12
except
debt, or for a annulment of
liquidated
annulment of
marriage,
months for lower collegiate courts and
marriage, legal within 3 months for all other lower courts.
sum of money legal
separation, or
or for separation, or
declaration of A case is deemed submitted for resolution
declaratory declaration of
nullity cases upon the filing of the last pleading, brief or
relief nullity cases
If sought by memorandum required by the Rules of Court
plaintiff, it or by the court.
must be filed
at any time An extension of the period may be set by the
after an SC upon request by the judge concerned on
answer is
There is account of heavy caseload or by other
served. There is no
already an reasonable excuse. Without an extension, a
If sought by answer filed
answer filed delay in the disposition of cases is
defendant,
may be filed tantamount to gross inefficiency on the part
at any time of the judge. [Arap v Mustafa, SCC-01-7
even before (2002)]
there is
answer
96 OF 425
G. ENTRY OF JUDGMENT AND Exceptions:

FINAL ORDER (1) Correction of clerical errors [Filipinas
Palmoil Processing, Inc. v. Dejapa, G.R. No.
The entry of judgment refers to the physical 167332 (2011)]
act performed by the clerk of court in entering (2) Nunc Pro Tunc entries [Filipinas Palmoil
the dispositive portion of the judgment in the Processing, Inc. v. Dejapa, G.R. No. 167332
book of entries of judgment after the same (2011)]
has become final and executory. [Riano] (3) Whenever circumstances transpire after
finality of the decision, rendering its
W hen entered: If no appeal, or motion for execution unjust and inequitable. [Apo
new trial or reconsideration is filed within the Fruits Corp. v. Land Bank of the Phils., G.R.
time provided in the Rules, the judgment or No. 164195 (2010)]
final order shall forthwith be entered by the (4) In cases of special and exceptional nature,
clerk in the book of entries of judgments [Sec. when it is necessary in the interest of
2, Rule 36] justice to direct modification in order to
harmonize the disposition with the
Contents of Record in the Book of prevailing circumstances [Industrial
Entries: Timber Corp. v. Ababon, G.R. No.164518
(1) Dispositive part of the judgment or final (2006)]
order (5) In case of void judgments [FGU Insurance v.
(2) Signature of the clerk; and RTC Makati, G.R. No. 161282 (2011)]
(3) Certification that such judgment or final (6) Where there is a strong showing that a
order has become final and executory. grave injustice would result from an
application of the Rules [Almuete v. People,
NOTE: The date of finality is deem ed the G.R. No. 179611 (2013)]
date of entry. (7) When there are grounds for annulment of
judgment or petition for relief [Gochan v.
A judgment becomes final and executory Mancao, G.R. No. 182314 (2013)]
when the period for appeal has elapsed
without a party having perfected an appeal, Amended/clarified Supplemental
or if there has been an appeal, it has been judgment decision
resolved by the highest tribunal. An entirely new
Does not take the
decision and
This is the date of entry of judgment even if place of or extinguish
supersedes the
the physical act of entering the judgment in the original judgment
original judgment
the book of entries is done later. [Riano] Court makes a
thorough study of the
H. AMENDMENTS TO JUDGMENT original judgment
and renders the
Serves to add to the
amended and
GENERAL RULE: Once a judgment original judgment
becomes final and executory, such judgment clarified judgment
only after considering
can no longer be disturbed, altered, or
modified all the factual and
legal issues
Under the Doctrine of Im m utability of
Judgments, a judgment that has attained
finality can no longer be disturbed. The
reason of two-fold:
(1) To avoid delay in the administration of
justice, and to make orderly the discharge
of judicial business; and
(2) To put an end to judicial controversies at
the expense of occasional errors. [Riano]
97 OF 425
V. Post-Judgment (d) The evidence is of such weight that if

admitted, would probably alter the
Remedies result of the action
GROUNDS FOR MOTION FOR

Rem edies before Finality of Judgm ent
RECONSIDERATION [Sec. 1, Rule 37]
(1) Motion for reconsideration [Rule 37]
(1) Damages awarded are excessive
(2) Motion for new trial [Rule 37]
(2) Evidence is insufficient to justify the
(3) Appeal [Rules 40-45]
decision or final order
(3) The decision or final order is contrary to
A. MOTION FOR NEW TRIAL OR law
RECONSIDERATION
A.2. WHEN TO FILE [Riano]
NOTE: The motion for reconsideration under An aggrieved party may file a motion for new
Rule 37 is directed against a judgment or trial or reconsideration within the period for
final order. It does not refer to one for taking an appeal.
interlocutory orders, which often precedes a
petition for certiorari under Rule 65. The period depends on whether the appeal is
by mere notice of appeal or by record on
These motions are prohibited in cases that appeal. A record on appeal shall be required
fall under the Rule on Summary Procedure only in special proceedings and in other cases
and those falling under the Rule of Procedure of multiple or separate appeals.
for Small Claims.
Where an appeal is one by notice of appeal,
A.1. GROUNDS the period for appeal is 15 days. Where a
record on appeal is required, the period is 30
GROUNDS FOR MOTION FOR NEW TRIAL days.
[Sec. 1, Rule 37]
(1) Fraud, accident, mistake, excusable The periods commence upon receipt of notice
negligence (FAME) subject to the of the decision or final order appealed from
following conditions: by the counsel of record, which is considered
(a) Which ordinary prudence could not
notice to the parties. Service upon the parties
have guarded against; and themselves is prohibited and is not
(b) By reason of which such aggrieved considered as official receipt of judgment.
party has probably been impaired in his
rights. A.3. FORM AND CONTENTS
There must be a valid cause of action or
defense. FORM [Sec. 2, Rule 37]
NOTE: Fraud must be extrinsic fraud (1) The motion must comply with the
which is any fraudulent scheme executed provisions of Rule 15 otherwise it will not
outside of the trial by the prevailing party be accepted for filing and/or will not
against the losing party, who because of suspend the running of the reglementary
such fraud is prevented from period.
presenting his side of the case. (2) It shall be made in writing, stating the
(2) Newly discovered evidence subject to ground or grounds therefor
the following requisites: (3) Written notice shall be served by movant
(a) It must have been discovered after the on the adverse party
trial
(b) It could not have been discovered and Non-compliance with the formal
produced at the trial even with the requirements would reduce the motion to a
exercise of reasonable diligence; mere pro forma motion, which shall not toll
(c) It must be material and not merely the period for appeal.
collateral, cumulative, or corroborative;
and
98 OF 425
CONTENTS OF A MOTION FOR NEW TRIAL (3) Amend such judgment or final order
[Sec. 2, Rule 37] accordingly if:
(1) If based on FAME, it shall be supported by (a) The court finds that excessive damages
an affidavit of merits, which: have been awarded or that; or
(a) recites the nature and character of (b) That the judgment or final order is
FAME on which the motion is based contrary to the evidence or law
(b) states the movants good and
substantial cause of action or defense; Resolution: The motion shall be resolved
and within 30 days from submission. [Sec. 4, Rule
(c) states the evidence he intends to 37]
present if granted.
(2) If based on newly found evidence, it shall The 30-day period to resolve the motion is
be supported by: held to be mandatory. [Gonzales v. Bantolo
(a) Affidavits of witnesses by whom such (2006)]
evidence is expected or given; or
(b) Duly authenticated documents which GRANT OF MOTION; EFFECT
are proposed to be introduced in
evidence Grant of m otion for reconsideration
The court may amend the judgment or final
CONTENTS OF A MOTION FOR order accordingly. The amended judgment is
RECONSIDERATION [Sec. 2, Rule 37] in the nature of a new judgment, which
(1) Shall point out specifically the findings or supersedes the original judgment.
conclusions of the judgment or final order
which are not supported by evidence or Grant of m otion for new trial
which are contrary to law; and The original judgment shall be vacated, and
(2) Make express reference to testimonial or the action shall stand for trial de novo. The
documentary evidence or provisions of law recorded evidence upon the former trial shall
alleged to be contrary to such findings or be used at the new trial without retaking
conclusions them, if they are material and competent.
Single-Motion Rule [Sec. 5, Rule 37] Partial grant

A party shall not be allowed to file a 2nd The court may order a new trial or grant
motion for reconsideration. reconsideration as to such issues if severable
without interfering with the judgment or final
While a 2nd motion for reconsideration is not order upon the rest. [Sec. 7, Rule 37]
allowed, a second motion for new trial is
authorized, subject to the following DENIAL OF MOTION
conditions: Effect: The judgment or final order stands as
(1) it must be based on a ground not existing is.
or available when the 1st motion was
made; and Fresh 15-Day Rule: The aggrieved party
(2) it must be made within the period allowed has a fresh period of 15 days within which
but excluding the time during which the to file his appeal.
first motion had been pending.
If the motion is denied, the movant has a
A.4 RESOLUTION AND COURT ACTION fresh period of 15 days from receipt or
notice of the order denying the motion for
Court action [Sec. 3, Rule 37] new trial or motion for reconsideration within
The court may: which to file an appeal. [Neypes v. CA, G.R.
(1) Set aside the judgment or final order and No. 141524 (2005)]
grant a new trial; or upon such terms as
may be just NOTE:
(2) Deny the motion
99 OF 425
(1) This fresh period becomes significant only Motion for

Motion for New Trial
when a party opts to file a motion for new Reconsideration
trial or reconsideration been awarded; or
(2) This rule does not refer to the period (2) that the
within which to appeal from the order judgment or final
denying the motion for reconsideration order is contrary
but to the period within which to appeal to the evidence or
from the judgment itself. law
Available against the
Rem edies if Motion is Denied Available even on
judgments or final
(1) To appeal from the judgment or final
appeal but only on
orders or both the
order itself the ground of newly
trial and appellate
(2) The order denying the motion may itself
discovered evidence
courts
be assailed by a petition for certiorari Both are prohibited motions under Summary
under Rule 65 Procedure
Note: AM No. 07-7-12, effective December 27, B. APPEALS

2007, amended Sec. 1, Rule 41 by deleting
An order denying a motion for new trial or
Nature
reconsideration from the non-appealable
(1) Not a natural right nor a part of due
orders. Nevertheless, Sec. 9, Rule 37 says that
process
an order denying a motion for new trial or
(2) It is merely a statutory right, and may be
reconsideration is not appealable. However,
exercised only in the manner and in
accordance with provisions of the law. It
Motion for
Motion for New Trial must comply with the requirements;
Reconsideration
failing to do so, the right to appeal is lost
Grounds:
(3) Once granted, appeals become part of due
(1) Damages
process and should be liberally applied in
awarded are
Grounds: favor of the right to appeal
excessive
(1) Fraud, accident,
(2) That evidence is
mistake, or
insufficient to B.1. JUDGMENTS AND FINAL
excusable ORDERS SUBJECT TO APPEAL;
justify the
negligence
(2) Newly discovered
decision or final MATTERS NOT APPEALABLE [SEC. 1,
order RULE 41, AS AMENDED BY AM NO.
evidence
(3) That decision or 07-7-12-SC]
final order is (1) Appeal may be taken from a judgment or
contrary to law final order that completely disposes of the
Second motion from case, or of a particular matter therein
the same party is when declared by the Rules to be
prohibited. appealable
May be allowed so
long as based on (2) No appeal may be taken from:
Prohibition applies (a) An order denying a petition for relief or
grounds not existing
only to motions for any similar motion seeking relief from
or available at the
reconsideration of judgment;
time the first motion
final orders or (b) An interlocutory order;
was made
judgments; allowed (c) An order disallowing or dismissing an
for interlocutory appeal;
orders (d) An order denying a motion to set aside
If granted, original The court may a judgment by consent, confession or
judgment or final amend the judgment compromise on the ground of fraud,
order is vacated, and or final order, it finds: mistake or duress, or any other ground
the case stands for (1) that excessive vitiating consent;
trial de novo. damages have (e) An order of execution;
100 OF 425
(f) A judgment or final order for or against B.2. MODES OF APPEAL

one or more of several parties or in (1) Ordinary appeal Rule 40 and 41
separate claims, counterclaims, cross- (a) Notice of appeal
claims and third-party complaints, (b) Record on appeal
while the main case is pending, unless (2) Petition for review Rule 42
the court allows an appeal therefrom; (3) Appeal from the CTA and other QJAs to
and the CA Rule 43
(g) An order dismissing an action without (4) Petition for review on certiorari Rule 45
prejudice (not a judgment on the
merits). B.3. ISSUES TO BE RAISED ON
Note: A.M. No. 07-7-12-SC removed from the
APPEAL
Limited to cognizable judgments/issues
original list an order denying a motion for
new trial or reconsideration. Nevertheless, (errors stated in the assignment of errors).
Rule 37, Sec. 9 still states that no appeal can
be made from an order denying MR or MNT. The appellate court has no jurisdiction to
review a judgment which is immediately final
and executory by express provision of law.
Only final judgments or orders can be
appealed as distinguished from interlocutory [Republic v. Bermudez-Lorino, G.R. No.
160258 (2005)]
judgments or orders which are not
appealable.
Rationale: Appeal is merely a privilege
Final Order Interlocutory Order conferred by law upon the litigants.
Disposes of the Does not dispose of a
matter in its entirety, case completely but A party cannot change the theory on appeal.
leaving nothing more leaves something Only issues pleaded in the lower court and
to be done but to more to be decided properly raised may be resolved by the
enforce execution upon. appellate court. [Medina v. CA (1992)]
Not appealable except
through a petition for However, issues which are inferred from or
Appealable necessarily connected with the issue properly
certiorari under Rule
65 raised and pleaded may be resolved by the
Must clearly and appellate court. [Espina v. CA, G.R. No.
No need to comply
distinctly state the 102128 (1992)]
with such a
law and the facts on
requirement
which it is based
An interlocutory order is one that does not

finally dispose of the case, and does not end
the court's task of adjudicating the parties
contentions and determining their rights and
liabilities as regards each other, but obviously
indicates that other things remain to be done.
[BPI v. Lee, G.R. No. 190144 (2012)]
Rem edy against M atters not

Appealable
In those instances where the judgment or
final order is not appealable, the aggrieved
party may file the appropriate special civil
action under Rule 65. [Sec. 1, Rule 41]
101 OF 425
B.4. COMPARISONS
MODES OF APPEAL
Appeals from QJAs to the Petition for Review by
Ordinary Appeal Petition for Review
CA Certiorari
Rule 41 Rule 42 Rule 43 Rule 45
Awards, judgments, final
orders or resolutions of
any QJA in the exercise of Case decided by the RTC
Case decided by RTC Case decided by RTC in
its quasi-judicial function in exercise of original
in exercise of original exercise of appellate
jurisdiction, CA, CTA, and
jurisdiction jurisdiction
EXCEPT: Judgments or Sandiganbayan
final orders issued under
the Labor Code
Notice of
Petition for review with Petition for review with Petition for review on
appeal/Record on
the CA the CA certiorari with the SC
appeal with the CA
File a verified petition
File a verified petition for File verified petition for
for review with CA.
review with CA. review on certiorari with
File notice of appeal Pay docket and lawful
Pay docket and lawful the SC.
or record of appeal fees and P500 as
fees and PHP 500 for Pay docket and lawful
with court of origin deposit for costs with
costs. fees and P500 for costs.
and give a copy to the CA.
Furnish copy to adverse Submit proof of service of
adverse party Furnish RTC and
party and on the a copy to the lower court
adverse party a copy of
court/agency below and adverse party
such
Within 15 days from notice
Within 15 days from of judgment, award, final
notice of judgment or order or resolution, or
Within 15 days from
final order for notice from the date of last Within 15 days from notice
notice of judgment or
of appeal; 30 days publication (if publication of judgment or final order,
final order, or from
from notice of necessary to make it or of denial of MFR or
denial of a MFR or
judgment or final effective), or from denial MFNT
MFNT
order for records on of a MFR or MFNT
appeal
15 day extension allowed
PERIOD OF APPEAL
Period to Appeal Extensions Effect of MR or MNT
MTC to RTC
Fresh period to
By notice of appeal; within 15 days from No provision on extension under the
appeal from denial
notice of judgment or final order Rules (not allowed)
MR or MNT
By record of appeal;
within 30 days from notice of judgment or
final order
RTC to CA
By notice of appeal; Fresh period to
No provision on extension under the
Within 15 days from notice of judgment or appeal from denial
Rules (not allowed)
final order MR or MNT
By record of appeal;
within 30 days from notice of judgment or
final order
102 OF 425
Period to Appeal Extensions Effect of MR or MNT

MTC to RTC to CA
The CA may grant a 15 day extension.
No further extension shall be granted Fresh period to
15 days from notice of judgment or final
except for the most compelling appeal from denial
order OR from denial of MR or MNT
reasons and in no case longer than 15 MR or MNT
days.
QJA to CA
The CA may grant a 15 day extension.
15 days from notice of award, judgment,
No further extension shall be granted Fresh period to
final order or resolution OR from date of
except for the most compelling appeal from denial
last publication if required by law OR from
reasons and in no case longer than 15 MR or MNT
denial of MR or MNT
days.
RTC to SC; RTC to CA to SC; CA to SC
15 days from notice of judgment or final Fresh period to
The SC may grant a 30 day extension
order OR from denial of petitioners MR or appeal from denial
but only for justifiable reasons.
MNT. MR or MNT
The fresh period rule shall apply to: mandatory and jurisdictional. [Balgami v.
(1) Rule 40 governing appeals from the CA, G.R. No. 131287 (2004)]
Municipal Trial Courts to the Regional
Trial Courts; Effect of Failure to Perfect Appeal
(2) Rule 41 governing appeals from the (1) Defeats a partys right to appeal.
Regional Trial Courts to the Court of (2) Precludes appellate court from acquiring
Appeals jurisdiction.
(3) Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals;
(4) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(5) Rule 45 governing appeals by certiorari
to the Supreme Court.
The new rule aims to regiment or make the

appeal period uniform, to be counted from
receipt of the order denying the motion for
new trial, motion for reconsideration
(whether full or partial) or any final order or
resolution. [Neypes v. CA, G.R. No. 141524
(2005)]
Being procedural in nature, Neypes is

deemed to be applicable to actions pending
and undetermined at the time of its
effectivity and is thus retroactive in that
sense and to that extent. [First Aqua Sugar v.
BPI, G.R. No. 154034 (2007)]
B.5 PERFECTION OF APPEAL

Perfection of an appeal in the manner and
within the period laid down by law is
103 OF 425
B.6. APPEAL FROM MUNICIPAL

TRIAL COURTS [RULE 40] HOW TAKEN [Sec. 3, Rule 40]
OUTLINE OF PROCEDURE [Sec. 7, Rule By Notice of Appeal

(1) File a notice of appeal with the trial court
40]
that rendered the judgment or final
Appeal decision of MTC by filing notice of appeal and order appealed from
pay within 15 days from receipt of judgment (2) The notice of appeal must indicate the
parties, the judgment or final order or
15 days from perfection of appeal, MTC clerk transmits part thereof appealed from; the material
record to RTC date showing timeliness of appeal
(3) A copy served on the adverse party; and
(4) Payment in full of docket fees and other
Notice to parties that an appeal is being taken from the lawful fees
decision of the MTC
By Record on Appeal
Within 15 days from notice of appeal: (1) Record on appeal is required for the
(1) Appellant submits memorandum to the RTC following cases:
(a) Special proceedings
(2) Appellee files his own memorandum 15 days from
(b) In such other cases where multiple
receipt of appellants memorandum
appeals are allowed
(2) Form and contents of the record on
Court acts on the appeal
appeal: [Sec. 6, Rule 41]
(a) Within 15 days from perfection of
If uncontested, Any party may appeal appeal, clerk of court or the branch
judgment is entered in by filing a petition for clerk of the lower court shall transmit
the book of entries review with the CA to the RTC:
(i) Original record or record on
appeal
(ii) Together with transcripts and
exhibits
WHERE TAKEN (b) Clerk shall make a certification that
It is taken to the RTC exercising jurisdiction the documents are complete
over the area to which the MTC pertains. (c) Clerk shall also furnish the parties a
[Sec. 1, Rule 40] copy of his letter of transmittal of the
records to the appellate court
WHEN TAKEN [Sec. 2, Rule 40] (3) Copy is served on the adverse party
(1) If by notice of appeal, within 15 days (4) Payment in full of docket fees and other
after notice to appellant of judgment or lawful fees
final order appealed from
(2) If record of appeal is required, within 30 PERFECTION OF APPEAL
days from notice of judgment or final Since appeals from inferior courts may
order now be either by notice of appeal or
(3) Period of appeal shall be interrupted by record on appeal, the rules on the
a timely motion for new trial or perfection and the effect thereof are the
reconsideration same. [See Sec. 9, Rule 41]
Extension of Period to Appeal
Period to appeal may be extended but such
extension is addressed to the sound
discretion of the court [Socco v. Garcia, G.R.
No. L-18231 (1962)]
104 OF 425
APPEAL FROM ORDER DISMISSING A of fact, of law, or mixed questions of

CASE WITHOUT TRIAL; LACK OF fact and law
JURISDICTION (3) Petition for Review on Certiorari,
or appeal by certiorari to the SC
Two Scenarios: This mode of appeal, provided for by
(1) If the MTC dismissed the case without Rule 45, is brought to the SC from the
trial on the merits, the RTC may: decision of the RTC in the exercise of
(a) Affirm, if the ground of dismissal is its original jurisdiction and only on
lack of jurisdiction over the subject questions of law
matter; If the RTC has jurisdiction, it
shall try the case on the merits as if B.8. APPEAL FROM THE REGIONAL
the case was originally filed therein; TRIAL COURTS TO THE COURT OF
or APPEALS [RULE 41]
(b) Reverse, in which case, it shall
remand the case for further Appeal via Rule 41 presupposes that:
proceedings (1) The RTC rendered the judgment or final
(2) If the case was tried on the merits by the order in the civil action or special
MTC without jurisdiction over the subject proceeding in the exercise of its
matter: original jurisdiction; and
(a) The RTC shall not dismiss the case if (2) That the appeal is taken to the CA on:
it has original jurisdiction but shall (a) Questions of fact or
decide the case and admit amended (b) Mixed questions of fact and law
pleadings or additional evidence in
the interest of justice Notice of Appeal Filed with the court
which rendered the judgment or final order
APPLICABILITY OF RULE 41 - appealed from. A copy is served on the
The other provisions of Rule 41 shall apply adverse party. [Sec. 5, Rule 41]
to appeals provided for herein insofar as
they are not inconsistent with or may serve Contents of the Notice of Appeal:
to supplement the provisions of this Rule. (1) Parties to the appeal
(2) Judgment or final order or part thereof
B. 7. APPEAL FROM THE appealed from
REGIONAL TRIAL COURTS (3) The court to which the appeal is being
taken; and
Modes of Appeal There are three (4) The material dates showing the
modes of appeal from judgments or final timeliness of the appeal
orders of the RTC:
(1) Ordinary Appeal or appeal by writ of Record on Appeal Done in special
error, where judgment was rendered in a proceedings and other cases where multiple
civil or criminal action by the RTC in the or separate appeals are allowed. This is
exercise of its original jurisdiction filed and served in the same manner as
This mode of appeal, governed by notice of appeal.
Rule 41, is taken to the CA on
questions of fact or mixed questions Contents of the Record [Sec. 6, Rule 41]
of fact and law (1) Full names of all the parties to the
(2) Petition for Review , where judgment proceedings shall be stated in the
was rendered by the RTC in the exercise caption of the record on appeal
of its appellate jurisdiction (2) It shall include the judgment or final
This mode of appeal, covered by Rule order from which the appeal is taken,
42, is brought to the CA on question (3) In chronological order, copies of only
such pleadings, petitions, motions, and
105 OF 425
all interlocutory orders as are related to

the appealed judgment or final order Extension of Period to Appeal
(4) For the proper understanding of the Period to appeal may be extended but such
issue involved extension is addressed to the sound
(5) Together with such data as will show discretion of the court [Gregorio v. CA, G.R.
that the appeal was perfected on time No. L-43511 (1976)]
Approval of the Record on Appeal [Sec. 7, The mere filing and pendency of motion for
Rule 41] extension to perfect appeal does not
Upon filing of the record for approval and if suspend the running of the reglementary
no objection is filed by the appellee within 5 period [King v. Corro, G.R. No. L-23617
days from receipt of a copy thereof, the trial (1967)]
court may:
(1) Approve it as presented; or PLEADINGS FILED [See Rule 44,
(2) Direct its amendment by the inclusion of Procedure in the CA]
any omitted matters which are deemed
essential. Appellants Brief
Filed within 45 days from receipt of
Joint Record on Appeal [Sec. 8, Rule 41] notice of clerk that all evidence is
Where both parties are appellants, they attached to record
may file a joint record on appeal. Follow the Efficient Use of Paper Rule,
one original properly marked and 2
PERIOD TO APPEAL [Sec. 2, Rule 41] copies with annexes
(1) 15 days from notice of judgment or final Attach proof of service to adverse party
order appealed from
(2) 30 days from notice of judgment or final Grounds for dismissal with respect to
order where a record on appeal is appellants brief:
required (1) Failure to file brief on time
(3) 48 hours from notice of judgment or (2) Failure to make specific assignment of
final order appealed from in habeas errors in his brief
corpus cases
Contents:
Reckoning point of reglem entary (1) Subject index
period (2) Assignment of Errors
Period for filing the appeal should be (3) Statement of the Case
counted from the date when the partys (4) Statement of Facts
counsel received a copy of the judgment or (5) Statement of Issues
final order (6) Arguments
(7) Relief
When a party is represented by a counsel, (8) Copy of judgment or final order appealed
service of process must be made on counsel, from
not on party [Fajardo v. CA, G.R. No. 140356
(2001)] Appellees Brief
Filed within 45 days from receipt of
Effect of Motions for New Trial and
appellants brief
Reconsideration
Manner of filing is similar to that in
Originally, the period to appeal is
appellants brief
interrupted by a timely motion for new trial
and reconsideration. However, with the
Neypes doctrine, a party has a fresh 15-day
period from a denial of the motion to
perfect an appeal.
106 OF 425
Contents: time and expiration of the time to

(1) Subject index appeal of the other parties
(2) Statement of Facts and Counter- This rule applies individually and to
Statement of Facts each of the parties since the
(3) Arguments timeliness of their recourse for
appellate remedy depends on when
Appellants Reply Brief they respectively received a copy of
(1) Filed within 20 days from receipt of the judgment or final order
Appellees Brief (2) In appeals by record on appeal:
(2) This is not mandatory as it is optional on Court loses jurisdiction only over the
the part of the appellant subject matter thereof upon approval
of the records on appeal filed in due
Extension of Tim e for Filing Briefs: time and the expiration of the time to
appeal of the other parties
GENERAL RULE: Not allowed The effect is limited to the subject
matter only. Jurisdiction over the case
EXCEPTION: For good reasons and only if is still with the trial court.
motion for extension is filed before
expiration of time sought to be extended Residual Powers/Jurisdiction of the
RTC
PERFECTION OF APPEAL After losing jurisdiction but prior to the
transmittal of the original record on appeal,
Payment of Docket Fees [Sec. 4, Rule the RTC may:
41] (1) Issue orders for protection and
Within the period for taking an appeal, the preservation of the rights of the parties
appellant shall pay to the clerk of the court which do not involve matters litigated by
which rendered the judgment or final order the appeal
appealed from, the full amount of the (2) Approve compromises
appellate court docket and other lawful fees. (3) Permit appeals by indigent litigants
Proof of payment of said fees shall be (4) Order execution pending appeal under
transmitted to the appellate court together Sec. 2, Rule 39 (motion for execution was
with the original record or the record on filed before expiration of the period to
appeal. appeal)
(5) Allow withdrawal of the appeal
Payment of docket fees in full is mandatory
and is a condition sine qua non for the The concept of residual jurisdiction of the
perfection of an appeal. trial court is available at a stage in which
the court is normally deemed to have lost
Perfection of Appeal [Sec. 9, Rule 41] jurisdiction over the case or the subject
If appeal is by notice of appeal it is matter involved in the appeal. There is no
deemed perfected as to him upon the residual jurisdiction to speak of where no
filing of the notice of appeal in due time appeal or petition has even been filed
If appeal is by record on appeal it is [Fernandez v. CA, G.R. No. 131094 (2005)].
perfected as to him with respect to the
subject matter thereof, upon approval of Duty of Clerk Upon Perfection of
the record on appeal filed in due time Appeal [Sec. 10, Rule 41]
Within 30 days after perfection of all
Effect of Perfected Appeal appeals, the RTC clerk shall:
(1) In appeals by notice of appeal: (1) Verify completeness of original record or
Court loses jurisdiction over the case record on appeal and make certification
upon perfection of appeal filed in due as to its correctness
107 OF 425
(2) Verify completeness of records that will

be transmitted to appellate court HOW TAKEN; PERIOD TO APPEAL
(3) If found to be incomplete: If a party desires to appeal from a decision
(a) Take such measures as may be of the RTC in its appellate jurisdiction:
required to complete records (1) File a verified petition for review with
(b) If efforts to complete records fail: the CA
(i) Indicate in his letter of (a) Within 15 days from notice of
transmittal the exhibits or judgment or final order, or
transcripts not included (b) Within 15 days from notice of denial
(ii) Reasons for their transmittal of petitioners motion for new trial or
(iii) Steps taken or that could be reconsideration
taken to have them available (2) Pay the corresponding docket fee and
(4) Transmit the records to the appellate other lawful fees and depositing P500
court and furnish the parties with copies for costs
of his letter of transmittal (3) Furnish the RTC and adverse party a
copy of the petition
DISMISSAL OF APPEAL [Sec. 13, Rule
41] Extension of period
When can the RTC dismiss the appeal? The CA may grant an additional 15 days
Prior to transmittal of original record to within which to file the petition for review,
appellate court; or but only for most compelling reasons.
Prior to transmittal of record on appeal
to the appellate court Conditions
(1) There was a motion filed to this effect
How done: By the court, motu proprio, or (2) There was payment in full of docket fees
on motion to dismiss appeal by a party and other lawful fees as well as deposit
for costs
Grounds (3) These two were done within the
(1) Appeal was taken out of time reglementary period
(2) Non-payment of docket and other
lawful fees within the reglementary FORM AND CONTENTS [Sec. 5, Rule
period 42]
NOTE: The dismissal of the appeal in the Form of the petition:

RTC is limited only to these two grounds (1) Original copy is filed intended for the
court, properly marked and 2 copies with
B.9. PETITION FOR REVIEW FROM their annexes (Efficient Use of Paper
Rule)
THE REGIONAL TRIAL COURTS TO (2) Accompanied by clearly legible duplicate
THE COURT OF APPEALS [RULE originals or true copies of judgments or
42] final orders of both lower courts certified
Appeal via Rule 42 is proper when one correct by the RTC clerk
appeals from a decision of the RTC in the (3) Also with pleadings and other material
exercise of its appellate jurisdiction. It portions of record as would support the
may be taken on either questions of fact, allegations of the petition
questions of law, or on mixed questions of
fact and law. Contents:
(1) Full names of the parties without
This mode of appeal is not a m atter of impleading the lower courts or judges
right but is a matter of discretion on the thereof
part of the CA, on whether or not to (2) Specific material dates showing
entertain the appeal. timeliness of appeal
108 OF 425
(3) Concise statement of: (1) Require respondent to file a comment on

(a) Matters involved the petition not a motion to dismiss
(b) Issues raised within 10 days from notice; or
(c) Specification of errors of fact or law, (2) Dismiss the petition if it finds the same
or both to be:
(d) Reasons or arguments relied upon (a) Patently without merit
(4) A certificate of non-forum shopping (b) Prosecuted manifestly for delay; or
must also be attached (c) The questions raised therein are too
unsubstantial to require
Effect of failure to comply [Sec. 3, Rule consideration
42]
Failure to comply with any of the following Under this Rule, appeal is discretionary on
requirements shall be sufficient ground for the CA which may give its due course only
dismissal: when the petition shows prima facie that the
(1) Payment of docket and other lawful fees lower court has committed error.
NOTE: In petitions for review under Rules
42, 43, and 45, the docket fee is paid in Comment by Respondent [Sec. 5, Rule
the appellate courts 42]
(2) Deposit for costs Form
(3) Proof of service of petition (1) An original is filed, properly marked,
(4) Contents of the documents, which together with 2 copies with their annexes
should accompany the petition (Efficient Use of Paper Rule)
(2) Accompanied by certified true copies of
PERFECTION OF APPEAL [Sec. 8, Rule such material portions of the record
42] referred to therein
Appeal is deemed perfected as to petitioner (3) Together with other supporting papers
upon: (4) Copy of the comment served on
(1) Timely filing of the petition petitioner
(2) Payment of docket and lawful fees
Contents The comment shall:
Jurisdiction of the RTC (1) State whether or not he accepts the
(1) RTC loses jurisdiction upon: statement of matters involved in the
(a) Perfection of appeals filed in due petition
time; and (2) Point out such insufficiencies or
(b) Expiration of the time to appeal of inaccuracies as he believes exist in
other parties petitioners statement of matters but
(2) RTC may exercise residual jurisdiction without repetition
before the CA gives due course to the (3) Reasons why the petition should not be
petition given due course
GENERAL RULE: Perfected appeal stays Due Course [Sec. 6, Rule 42]
the challenged judgment or final order If the Court of Appeals finds prima facie that
the lower court has committed an error of
EXCEPTIONS: fact or law that will warrant a reversal or
(1) Civil cases decided under the Rule on modification of the appealed decision, it
Summary Procedure; or may accordingly give due course to the
(2) Unless the CA, law, or Rules provide petition.
otherwise [Sec. 8, Rule 42]
As stated earlier, the Doctrine of Residual
ACTION ON PETITION [Sec. 4, Rule 42] Jurisdiction of the RTC applies as in cases
The CA may: under Rule 41, except that the RTC must
exercise this jurisdiction before the CA gives
109 OF 425
due course to the petition. In contrast, the (11) Department of Agrarian Reform
RTC must exercise residual jurisdiction in under RA 6657
Rule 41 prior to transmittal of the original (12) GSIS
record or the record on appeal. (13) Employees Compensation
Commission
SUBMISSION FOR DECISION [Sec. 9, (14) Agricultural Inventions Board
Rule 42] (15) Insurance Commission
If the petition is given due course (16) Philippine Atomic Energy
(1) Case may be set for oral argument, or Commission
(2) The parties may be required to submit (17) Board of Investment
memoranda within 15 days from notice (18) Construction Industry Arbitration
Commission, and
Case shall be deemed submitted for (19) Voluntary arbitrators authorized by
decision upon filing of last pleading or law
memoranda
W here to Appeal [Sec. 3, Rule 43]
B.10. APPEALS FROM QUSI- Appeal is taken to the CA on questions of
fact, of law, or mixed questions of fact and
JUDICIAL BODIES law.
Scope: Appeals from awards, judgments, Period to Appeal [Sec. 4, Rule 43]
final orders or resolution of or authorized by Period to appeal is 15 days from:
any quasi-judicial agency (QJA) in the (1) Notice of award, judgment, final order,
exercise of its quasi-judicial functions or resolution;
(2) Date of publication, if publication is
A quasi-judicial agency or body is an organ required by law for its effectivity; or
of government other than a court and other (3) Denial of petitioners motion for new trial
than a legislature, which affects the rights or reconsideration.
of private parties though either adjudication
or rule-making Extension of Period
The CA may grant an additional 15 days
NOTE: The CTA is no longer a quasi- within which to file the petition for review
judicial agency under RA 9282, as of April 7,
2004. A party adversely affected by a Conditions:
decision or ruling of the CTA en banc may (1) There was a motion filed to this effect
file with the SC a verified petition for review (2) There was payment in full of docket fees
on certiorari under Rule 45. [Sec. 11, RA and other lawful fees as well as deposit
9282 and AM No. 07-7-12-SC] for costs
(3) These two were done within the
QJAs covered by Rule 43: reglementary period
(1) Civil Service Commission
(2) Securities and Exchange Commission
No further extension may be granted except
(3) Office of the President
for the most compelling reason and in no
(4) Land Registration Authority
case to exceed 15 days.
(5) Social Security Commission
(6) Civil Aeronautics Board
NOTE: Similar to the rule in petition for
(7) Bureau of Patents, Trademarks and
review from the RTC to the CA [Rule 42].
Technology Transfer
(8) National Electrification Administration
How Taken [Sec. 5, Rule 43]
(9) Energy Regulatory Board
(1) A verified petition for review is filed with
(10) National Telecommunications the CA following the Efficient Use of
Commission Paper Rule
110 OF 425
(a) Attach proof of service of a copy to (c) Questions raised are too
the adverse party and to the court or unsubstantial to require
agency a quo consideration
(2) Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs Form of Comment [Sec. 9, Rule 43]
(a) Payment is made to the CA clerk (1) Filed within 10 days from notice
(b) Exemption from payment may be following the Efficient Use of Paper Rule
granted by the CA by filing a verified (2) Accompanied by the following:
motion for exemption; if denied, party (a) Clearly legible certified true copies of
must pay within 15 days from notice such material portions of the record
of denial referred to therein
(b) And such other supporting
Contents of Petition [Sec. 6, Rule 43] documents
(1) Statement of full names of parties to the (3) Copy of Comment is served on petitioner
case without impleading court or with proof of such service filed with the
agencies CA
(2) Concise statement of facts and issues
involved and grounds relied upon for Contents of Comment [Sec. 9, Rule 43]
review The comment shall:
(3) Accompanied by: (1) Point out insufficiencies or inaccuracies
(a) Clearly legible duplicate original or a in petitioners statement of facts and
certified true copy of award, issues
judgment, final order, or resolution (2) State reasons why petition should be
appealed from denied or dismissed
(b) Certified true copies of such material
portions of record referred to in the Due Course [Sec. 10, Rule 43]
petition and other supporting papers CA may give due course if CA finds prima
(4) Certificate of non-forum shopping facie that court or agency has committed
(5) Statement of specific material dates errors of fact or law that would warrant
showing timeliness of appeal reversal or modification
Effect of Failure to Comply [Sec. 7, If not, then the CA may dismiss the same.
Rule 43]
Failure to comply with the following is Transmittal of Records [Sec. 11, Rule
sufficient ground for the CA to dismiss the 43]
appeal: Within 15 days from notice that petition has
(1) Payment of docket and lawful fees been given due course, the CA may:
(2) Deposit for costs (1) Require court or agency concerned to
(3) Proof of service of petition transmit original or legible certified true
(4) Contents of petition copy of entire record of proceeding under
(5) Documents which should accompany the review
petition (2) Require or permit subsequent correction
or addition to record
Action on the Petition [Sec. 8, Rule 43]
The CA may: Effect of Appeal [Sec. 12, Rule 43]
(1) Require respondent to file Comment
within 10 days from notice GENERAL RULE: Appeal shall not stay
(2) Dismiss the petition if CA finds the same the award, judgment, final order or
to be: resolution sought to be reviewed
(a) Patently without merit
(b) Prosecuted manifestly for delay, or
111 OF 425
EXCEPTION: When the CA shall direct B.13. APPEAL FROM THE

otherwise upon such terms as it may deem OMBUDSMAN
just The following decisions are unappealable
[Sec. 7, Rule III, Admin Order No. 7]
Subm ission for Decision [Sec. 13, Rule (1) In administrative cases where
43] respondent is absolved of the charge
If petition is given due course, the CA may (2) In case of conviction, where penalty
set the case for oral argument or require imposed is public censure or reprimand,
parties to submit memoranda within 15 or suspension of not more than one
days from notice. month or a fine equivalent to one month
salary
Upon filing of last pleading or
memorandum required, case is deemed Jurisdiction of the CA
submitted for decision. (1) CA has jurisdiction over orders, directives,
and decisions of the Office of
B.11. APPEAL FROM THE CTA Ombudsman in administrative
A party adversely affected by a decision or disciplinary cases only
ruling of the CTA en banc may file with the (2) It cannot review orders, directives,
Supreme Court a verified petition for review decisions in criminal and non-
on certiorari pursuant to Rule 45. [Sec. 19, administrative cases
RA 1125 as amended by RA 9282)
Jurisdiction of the SC
B.12. APPEAL FROM THE COMELEC (1) In criminal cases, ruling of Ombudsman
Unless otherwise provided by law, or by any shall be elevated to the SC via Rule 65
specific provisions in these Rules, any (2) In cases in which it is alleged that the
decision, order or ruling of the Commission Ombudsman has acted with grave abuse
may be brought to the Supreme Court on of discretion amounting to lack or excess
certiorari by the aggrieved party within of jurisdiction, a special civil action of
thirty (30) days from its promulgation. [Sec. certiorari under Rule 65 may be filed
1, Rule 37, COMELEC Rules of Procedure; with this Court to set aside the
Sec. 3, Rule 64, Rules of Court] Ombudsmans order or resolution. [Nava
v. NBI, G.R. No. 134509 (2005)]
Decisions in appeals from courts of general
or limited jurisdiction in election cases B.14. APPEAL FROM THE NLRC
relating to the elections, returns, and Appeal from quasi-judicial agencies does
qualifications of municipal and barangay not apply to judgments or final orders
officials are not appealable. [Sec. 2, Rule 37, issued under the Labor Code. [Sec. 2, Rule
COMELEC Rules of Procedure] 43]
Decisions in pre-proclamation cases and The remedy of a party aggrieved by the

petitions to deny due course to or cancel decision of the NLRC is to file a motion for
certificates of candidacy, to declare a reconsideration and, if denied, file a special
candidate as nuisance candidate or to civil action for certiorari under Rule 65
disqualify a candidate, and to postpone or within 60 days from notice of the decision.
suspend elections shall become final and In observance of the doctrine of hierarchy of
executory after the lapse of five (5) days courts, this should be filed with the CA. [St.
from their promulgation, unless restrained Martin Funeral Homes v. NLRC, G.R. No.
by the Supreme Court. [Sec. 3, Rule 37, 130866 (1998)]
COMELEC Rules of Procedure]
From the CA, the remedy of the aggrieved
party is a petition for review by certiorari to
112 OF 425
the SC. [Dongon v. Rapid Movers and Petitioner and The parties are the
Forwarders, G.R. No. 163431 (2013)] respondent are aggrieved party
original parties to the against the lower
NLRC judgments and final orders or action in the lower court or quasi-judicial
resolutions are now reviewable, in the first court agency
instance, by the Court of Appeals on A filing of a MR is a
certiorari under Rule 65, but those of the Prior filing of MR not condition precedent,
Employees Compensation Commission required subject to certain
should be brought to the Court of Appeals exceptions
through a petition for review under this Rule. Filed with RTC, CA, or
Filed with SC
[Fabian v. Desierto, G.R. No. 129742 (1998)] SC
B.15. APPEAL BY CERTIORARI TO Outline of Procedure

THE SUPREME COURT [RULE 45]
RTC, Sandiganbayan, CTA en banc, or CA renders
Certiorari as M ode of Appeal and as a decision
Special Civil Action [Herrera]
Appeal by Certiorari Certiorari as SCA
[Rule 45] [Rule 65]
Special civil action Any party files a petition for review on certiorari
Mode of appeal Within 15 days from notice:
(original action)
Continuation of the of final judgment or order of lower court, or notice
appellate process Independent action of denial of motion for reconsideration or new
over the original case trial
Raises questions of
jurisdiction because a
tribunal, board, or
officer exercising Appellant serves copies of petition on adverse
Raises only questions
judicial or quasi- parties
of law
judicial functions has And to the lower court,
acted without or in And pay the corresponding docket fees
excess of jurisdiction,
or with grave abuse of
discretion
May be directed SC may dismiss the petition or require appellee
against an to comment
interlocutory order of
the court prior to
Involves review of
appeal from the
judgment, award or
judgment or where
final order on merits If given due course, parties may submit
there is no appeal or
memoranda
any other plain,
speedy, or adequate
remedy
May be filed not later
SC may affirm, reverse, or modify judgment of
Must be made within than 60 days from
the reglementary notice of judgment, lower court
period of appeal order or resolution
sought to be assailed
Does not stay the
Stays the judgment,
challenged
PROPRIETY AS A MODE OF APPEAL
award, or order Appeals to the SC can be taken from a
proceedings, unless
appealed from judgment or final order or resolution of the
enjoined or restrained
113 OF 425
CA, Sandiganbayan, CTA en banc, RTC or weigh the probative value of the evidence
such other courts as may be authorized by adduced before the lower courts
law [Frondarina v. Malazarte, G.R. No. 148423
(2006)]
Only questions of law are allowed.
Whether an appeal involves only questions APPEAL FROM RTC TO SC UNDER
of law or both questions of law and fact is RULE 45
best left to the determination of an RTC must have rendered judgment in the
appellate court and not by the court which exercise of its original jurisdiction.
rendered the decision appealed from [PNB v.
Romillo, etc., et al., G.R. No. L-70681 (1985)] If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to
QUESTIONS OF LAW QUESTIONS OF FACT the CA via Rule 42 even if only questions of
Doubt as to the law are raised.
truth or falsehood
Doubt as to what
of facts, or as to If the other party had already taken an
the law is on
probative value of appeal to the CA to question the RTC
certain facts
the evidence decision, the proper remedy of petitioner is
presented simply ordinary appeal to the CA as well.
If the appellate [First Phil. International Bank v. CA]
court can The determination
determine the issue involves evaluation Grave abuse of discretion is not an
without reviewing or review of allowable ground under Rule 45. [Martires v.
or evaluating the evidence CA, G.R. No. 78036-37 (1990)].
evidence
APPEAL FROM CA
Query involves the
Appeal under Rule 45 is the proper review
calibration of the of decisions of the CA even in special civil
whole evidence actions.
considering mainly
the credibility of Any alleged errors committed by it in the
Can involve
witnesses, exercise of jurisdiction would be errors of
questions of
existence, and judgment which are reviewable by timely
interpretation of
relevancy of specific appeal and not by special civil action of
law with respect to
surrounding certiorari.
certain set of facts
circumstances and
relation to each Rule 45 is clear that decisions, final orders,
other and the whole or resolutions of the CA in any case,
probabilities of the regardless of the nature of the action or
situation proceedings involved, may be appealed to
the SC by filing a petition for review, which
The SC is not a trier of facts, and is not to would but be a continuation of the
review or calibrate the evidence on record. appellate process over the original case.
Moreover, findings of facts of trial court, as
affirmed on appeal by the CA, are
conclusive on the court [Boston Bank of the
Philippines v. Manalo, G.R. No. 158149
(2006)]
It has to be emphasized that it is not the

duty of the SC to review, evaluate, and
114 OF 425
CONCLUSIVENESS OF FINDINGS OF [Manlapaz v. CA, G.R. No. L-56589

FACT (1987)].
GENERAL RULE: The SC is not a trier of Period of Appeal [Sec. 2, Rule 45]
facts, and is not to review or calibrate the Time for Filing: 15 days from
evidence on record. Moreover, findings of (1) Notice of judgment, final order, or
facts of trial court, as affirmed on appeal by resolution appealed from, or
the CA, are conclusive on the court [Boston (2) Notice of denial of motion for new trial or
Bank of the Philippines v. Manalo, G.R. No. reconsideration filed in due time after
158149 (2006)] notice of judgment
EXCEPTIONS: NOTE: The Neypes doctrine is also

CAs findings of fact may be reviewed by the applicable in Rule 45.
SC on appeal by certiorari when:
(1) Conclusion is a finding grounded entirely Extension of Period: 30 days upon
on speculations, surmises or conjectures (1) Motion duly filed and served;
[Joaquin v. Navarro, G.R. No. L-5426 (2) Payment of docket and lawful fees, and
(1953)]. deposit for costs; and
(2) Inference made is manifestly mistaken, (3) Showing of justifiable reasons.
absurd or impossible [Luna v. Linatok
(1942)]. NOTE: Both (1) and (2) must be within the
(3) There is grave abuse of discretion in the reglementary period.
appreciation of facts [Buyco v. People,
G.R. No. L-6327 (1954)]. Form of Petition
(4) Judgment is based on a The petition must be verified:
misapprehension of facts [De la Cruz v. (1) Following the Efficient Use of Paper
Sosing, G.R. No. L-4875 (1953)]. Rule:
(5) The Court of Appeals findings of fact are (a) One original, properly marked, and 4
conflicting [Casica v. Villaseca, G.R. No. copies
L-9590 (1957)]. (b) If the case is referred to En Banc, 10
(6) The Court of Appeals, in making its additional copies is filed
findings, went beyond the issues of the (2) Payment of docket and other lawful fees
case and the same is contrary to the and deposit of P500 for costs is made
admissions of both appellant and with the SC Clerk at the time of filing
appellee [Nakpil & Sons v. CA, G.R. No. (3) Proof of service of the petition to the
L-47851 (1986)]. lower court and adverse party are
(7) The Court of Appeals manifestly attached
overlooked certain relevant facts not
disputed by the parties and which, if
properly considered, would justify a
different conclusion [Abellana v. Dosdos,
G.R. No. L-19498 (1965)].
(8) The Court of Appeals findings of fact are
contrary to those of the trial court, or are
mere conclusions without citation of
specific evidence, or where the facts set
forth by the petitioner are not disputed
by the respondent, or where the findings
of fact of the Court of Appeals are
premised on absence of evidence but are
contradicted by the evidence of record
115 OF 425
Contents of Petition [Sec. 4, Rule 45] or with the applicable provisions of the
(1) State full names of the parties SC; or
(a) Appealing party = as Petitioner (2) Court a quo has so far departed from
(b) Adverse party = as Respondent accepted and usual course of judicial
(c) Do not implead lower courts or proceedings, or so far sanctioned such
judges departure by a lower court, as to call for
(2) Indicate material dates showing: an exercise of power of supervision
(a) When notice of judgment or final
order or resolution was received Elevation of Records [Sec. 8, Rule 45]
(b) When a motion for new trial or If the petition is given due course, the
reconsideration, if any, was filed and Supreme Court may require the elevation of
when a denial thereof was received the complete record of the case or specified
(3) Concise statement of: parts thereof within fifteen (15) days from
(a) The matters involved notice
(b) Reasons or arguments relied on
(4) Accompanied by a clearly legible B. 16. DISMISSAL OF APPEALS
duplicate original, or a certified true copy
of the judgment or final order or Dism issal by the CA [Rule 50]
resolution certified by the clerk of court An appeal may be dismissed by the CA, on
and court a quo its own motion, or on that of the appelle on
(5) Certificate of non-forum shopping certain grounds
Grounds for Denial of Petition [Sec. 5, Grounds for Dismissal [Secs. 1-2, Rule
Rule 45] 50]
(1) Failure of petitioner to comply with: (1) Failure of record on appeal to show on
(a) Payment of docket or other lawful its face that appeal was taken within the
fees period fixed by Rules
(b) Deposit for costs (2) Failure to file notice of appeal or record
(c) Proof of Service; and on appeal within prescribed period
(d) Contents of and documents which (3) Failure of appellant to pay docket and
would accompany the petition other lawful fees as provided in Sec. 4,
(2) Appeal is without merit Rule 41
(3) Is prosecuted manifestly for delay (4) Unauthorized alterations, omissions, or
(4) That the questions raised are so additions in approved record on appeal
unsubstantial as to require consideration as provided in Sec. 4, Rule 44
(5) Failure of appellant to serve and file
NOTE: SC may dismiss the petition motu required number of copies of his brief or
proprio memorandum within time provided by
Rules
Review is Discretionary [Sec. 6, Rule (6) Absence of specific assignment of errors
45] in the appellants brief, or of page
Appeal to the SC is NOT a matter of right. It references to record as required in Sec.
will be granted only when there are special 13, (a), (c), (d), (f), Rule 44
and important reasons therefor. (7) Failure of appellant to take necessary
steps for correction or completion of
Some indications of the character of record within time limited by the court in
reasons which will be considered: its order
(1) When the court a quo has decided the (8) Failure of appellant to appear at
question of substance, not theretofore preliminary conference under Rule 48 or
determined by the SC, or has decided it comply with orders, circulars, directives
in a way probably not in accord with law of the court without justifiable cause
116 OF 425
(9) Fact that the order or judgment Dism issal by the SC [Rule 56]
appealed from is not appealable The appeal may be dismissed motu
(10) Appeal under Rule 41 from the RTC, proprio or on motion of the respondent on
raising only questions of law; the following grounds:
(11) Appeal by notice of appeal from a (1) Failure to appeal within reglementary
decision rendered by the RTC in its period
appellate jurisdiction; (2) Lack of merit of petition
(12) Appeal erroneously taken to the CA (3) Failure to pay docket and lawful fees and
deposit
Other Grounds (4) Failure to comply with requirements on
(1) By agreement of the parties (i.e. proof of service, contents, and
amicable settlement) documents accompanying petition
(2) Where appealed case has become moot (5) Failure to comply with circular, directive,
or academic or order of SC without justifiable cause
(3) Where appeal is frivolous or dilatory (6) Error in choice of mode of appeal
(7) The case is not appealable to the SC
FLOWCHART: APPEALS
TO THE SUPREME COURT
117 OF 425
COMPARATIVE TABLE ON THE MODES OF APPEAL

RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
WHEN PROPER
ORDINARY APPEAL PETITIONS FOR REVIEW
Matter of Right; Filed with the court of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of origin Filed with the appellate court
Appeal from a judgment or Appeal from a decision of Appeals to the SC from a
final order of a the RTC in the exercise of its judgment or final order or
MTC/MeTC/MCTC original jurisdiction resolution of the CA,
Sandiganbayan, CTA en banc,
Appeals from awards,
RTC (original jurisdiction) or
judgments, final orders
Appeal from a decision of such other courts as may be
or resolution of or
the RTC rendered in the authorized by law
authorized by any quasi-
exercise of its appellate Decisions, final orders, or
Rule 41 provisions shall apply to Rule 40 if not consistent judicial agency in the
jurisdiction resolutions of the CA in any
with Rule 40 provisions exercise of its quasi-
case, regardless of the nature of
judicial functions
the action or proceedings
involved, may be appealed to
the SC by filing a petition for
review
WHERE TO FILE
Filed with the MTC Filed with the RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the CA Appeal to the CA Appeal to the CA Appeal to the SC
Questions of fact,
Questions of fact or mixed Questions of fact, questions
Questions of fact or mixed questions of law, or
questions of fact and law of law, or mixed questions Only questions of law
questions of fact and law mixed questions of fact
of both
and law
TIME FOR FILING
Within 15 days from:
Within 15 days from:
(1) Notice of award,
Within 15 days from notice
judgment, final
(1) Notice of judgment, final
BY NOTICE OF APPEAL
of decision, or order, or resolution
Within 15 days after notice of judgment or final order order, or resolution;
Within 15 days from notice appealed from; or
of denial of petitioners
(2) Date of publication,
BY RECORD ON APPEAL if publication is
(2) Notice of denial of motion
motion for new trial or for new trial or
Within 30 days from notice of judgment or final order by filing required by law for
reconsideration reconsideration filed in due
a notice of appeal and a record on appeal its effectivity; or
time after notice of
(3) Denial of petitioners judgment
MNT or MR
118 OF 425
FLOWCHART:
POST-JUDGMENT REMEDIES
WITHIN THE LOWER COURT
119 OF 425
120 OF 425
C. RELIEF FROM JUDGMENTS. C.2. MOTION FOR NEW TRIAL AND

ORDERS, AND OTHER PETITION FOR RELIEF
PROCEEDINGS Motion for New Trial Petition for Relief
[Rule 37] [Rule 38]
Available before Available after
Remedies after finality of judgment judgment becomes judgment has become
(1) Petition for Relief [Rule 38] final and executory final and executory
(2) Action to Annul Judgment [Rule 47] Applies to judgments,
(3) Collateral Attack of a Judgment that is Applies to judgments
final orders and other
Void on its Face or final orders only
proceedings
Grounds:
C.1. NATURE (1) FAME; or
Ground: FAME
A legal remedy whereby a party seeks to set (2) Newly discovered
aside a judgment rendered against him by a evidence
court whenever he was unjustly deprived of a Filed:
hearing or was prevented from taking an (1) within 60 days
appeal because of fraud, accident, mistake, from knowledge of
Filed within the time
or excusable negligence (FAME). [Quelnan v. judgment; and
to appeal
VHF Phils, G.R. No. 138500 (2005)] (2) within 6 months
from entry of
A petition for relief from judgment is an judgment
equitable remedy allowed only in exceptional If denied, order
If denied, order of
cases when there is no other available or denying a petition for
denial is not
relief is not
adequate remedy. When a party has another appealable; hence,
appealable; remedy is
remedy available, either motion for new trial remedy is appeal from
appropriate civil action
or appeal, and he was not prevented by judgment
under Rule 65
FAME from filing such motion or taking such Legal remedy Equitable remedy
appeal, he cannot avail himself of this Motion need not be Petition must be
petition. [Trust International Paper Corp. v. verified verified
Pelaez, G.R. No. 164871 (2006)]
A party who has filed a timely motion for new
A petition for relief is not regarded with favor trial or motion for reconsideration can no
and judgment will not be disturbed where the longer file a petition for relief from judgment
party complaining has or by his exercising after his motion has been denied. These
proper diligence would have had an adequate remedies are mutually exclusive. It is only in
remedy at law, as where petitioner could have appropriate cases where a party aggrieved by
proceeded by appeal to vacate or modify the the judgment has not been able to file a
default judgment. [Manila Electric v. CA, G.R. motion for new trial or motion for
No. 88396 (1990)] reconsideration that a petition for relief can
be filed. [Francisco v. Puno, G.R. No. L-55694
(1981)]
C.3. WHEN PROPER

The petition can be availed of when the
judgment or final order has been entered or
when any other proceeding is thereafter
taken against the petitioner in any court
through FAME. [Sec. 1, Rule 38]
Thus, it was held that a petition for relief is

also applicable to a proceeding taken after
entry of judgment or final order such as an
order of execution [Cayetano v. Ceguerra, G.R.
121 OF 425
No. L-18831 (1965)] or an order dismissing an C.7. FORM OF THE PETITION

appeal [Medran v. CA, G.R. No. L-1350 (1949)] The petition must be:
(1) Verified;
C.4. WHERE FILED (2) Accompanied by an affidavit showing the
Rule 38 is not an independent action but a FAME relied upon; and
continuation of the old case. Hence, it is filed (3) Accompanied by an affidavit of merit,
with the same court and same branch which showing the facts constituting the
decided the case. petitioners good and substantial cause of
action or defense.
C.5. GROUNDS [SECS. 1-2, RULE 38]
(1) When judgment or final order is entered The absence of an affidavit of merits is a fatal
or any other proceeding is thereafter defect and warrant denial of the petition
taken against petitioner through FAME [Fernandez v. Tan Tiong Tick, G.R. No. 15877
(2) When petitioner has been prevented from (1961)]
taking an appeal by FAME
However, it is not a fatal defect so long as the
NOTE: Extrinsic fraud is that fraud which facts required to be set out also appear in the
the prevailing party caused to prevent the verified petition [Fabar Inc. v. Rodelas, G.R.
losing party from being heard on his action or No. L-46394 (1977)]
defense. Such fraud concerns not the
judgment itself but the manner in which it When Affidavit of Merit is not necessary:
was obtained. [AFP Mutual Benefit (1) When there is lack of jurisdiction over the
Association, Inc. v. RTC-Marikina City, G.R. No. defendant;
183906 (2011)] (2) When there is lack of jurisdiction over the
subject matter;
C.6. PERIOD FOR FILING [SEC. 3, (3) When judgment was taken by default;
(4) When judgment was entered by mistake
RULE 38] or was obtained by fraud; or
(1) Within 60 days after petitioner learns of (5) Other similar cases.
the judgment, final order, or other
proceeding to be set aside; AND
(2) Not more than 6 months after such
C.8. ORDER TO FILE ANSWER [SEC.
judgment or final order was entered, or 4, RULE 38]
such proceeding was taken An order to answer shall issue only if petition
is sufficient in form and substance.
These two periods must concur, are not
extendible and are never interrupted. Strct If petition is sufficient in form and in
compliance with these periods stems from substance, the court shall issue an order
the equitable character and nature of the requiring the adverse party to answer within
petition for relief. Such petition is actually the 15 days from receipt thereof.
last chance given by law to litigants to
question a final judgment or order. Failure to C.9. PROCEEDINGS AFTER ANSWER
avail of such chance, within the grace period IS FILED [SEC. 6, RULE 38]
fixed by the Rules, is fatal. [Quelnan v. VHF After filing of answer or expiration of the
Phils, G.R. No. 138500 (2005)] period therefor, court shall hear the petition.
Reckoning Points If the court finds that the allegations are not
(1) The 60-day period is reckoned from the true Petition is dismissed.
time the party acquired knowledge of the
order, judgment or proceeding. Not from If the court finds that allegations are true:
the date he actually read the same [Perez (1) It shall set aside the judgment, final order,
v. Araneta] or other proceeding complained of upon
(2) 6-months period is computed from the such terms as may be just
date of entry of the order or judgment
122 OF 425
(2) Thereafter, case shall stand as if such had W here Filed

never been rendered, issued, or taken Judgment, Final Judgment, Final Order
(3) The court shall then proceed to hear and Order or Resolution of or Resolution of the
determine the case as if timely motion for the RTC MTC, etc.
new trial or reconsideration has been Filed with the CA Filed with the RTC
granted by it CA has exclusive and
RTC as a court of
original jurisdiction
general jurisdiction
C.10. REMEDY FOR DENIAL OF over said action under
under Sec. 19(6) BP 129
Sec. 9(2) of BP 129
PETITION FOR RELIEF The CA may dismiss The RTC has no such
Appeal from an order denying a petition for the case outright; it discretion, it is
relief is no longer available under the present has the discretion on required to consider it
rules. whether or not to as an ordinary civil
entertain the petition action
The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper. W ho Can File
Petitioner need not be a party to the
D. ANNULMENT OF JUDGMENTS judgment sought to be annulled.
OR FINAL ORDERS AND A person who is not a party to the judgment
RESOLUTIONS may sue for its annulment provided that he
can prove the same was obtained through
D.1. NATURE fraud or collusion, and that he would be
An action for annulment of judgment is a adversely affected thereby. . [Alaban v. CA,
remedy in law independent of the case where G.R. No. 156021 (2005)]
the judgment sought to be annulled was
rendered. The purpose is to have the final and D.2. GROUNDS [SEC. 2, RULE 47]
executory judgment set aside so that there (1) Extrinsic Fraud
will be a renewal of litigation. [Alaban v. CA, A fraudulent act committed by the
G.R. No. 156021 (2005)] prevailing party outside of the trial of
the case, whereby the defeated party
W hen Proper was prevented from exhibiting fully his
The remedy may not be invoked where the side of the case by deception practiced
party has availed himself of the remedy of on him by the prevailing party [Alba v.
new trial, appeal, petition for review, or other CA, G.R. No. 164041 (2005)]
appropriate remedy and lost, or where he has Extraneous evidence is admitted
failed to avail himself of those remedies (2) Lack of Jurisdiction
through his own fault or negligence.
Either lack of jurisdiction over the
[Republic v. G Holdings, Inc., G.R. No. 141241
person of the defending party, or over
(2005)]
the subject matter of the claim
It is a condition sine qua non that one must Petitioner must show absolute lack
have failed to avail of those remedies, of jurisdiction and not mere abuse of
through no fault attributable to him. judicial discretion; a claim of grave
Otherwise, he would benefit from his own abuse of discretion will support a
inaction or negligence. [Republic v. De Castro, petition for certiorari but not an action
G.R. No. 189724 (2011)] for annulment of judgment.
Only evidence found in the record can
justify nullity
(3) Denial of Due Process
Recognized as an additional ground
based on jurisprudence.
123 OF 425
D.3. PERIOD TO FILE ACTION [SEC. 3, orders of MTCs before the RTC. [Sec. 10, Rule
RULE 47] 47]
Lack of
Extrinsic Fraud D.5. EFFECT OF JUDGMENT OF
Jurisdiction
Period
4 years from
Before barred by ANNULMENT [SEC. 7, RULE 47]
for laches or
discovery
Filing estoppel Based on Lack of Jurisdiction
(1) The same shall be set aside, and
There must be a manifest showing with considered null and void
petition that it was filed within the 4-yr period. (2) Aggrieved party may refile the action in
the proper court
The rule does not fix the period to annul This may involve a different court of
judgment based on lack of jurisdiction but competent jurisdiction
recognizes the principle of estoppel as first Where the reason was lack of
laid down by Tijam v. Sibanghanoy [G.R. No. jurisdiction over the defendant, the
L-21450 (1968)]. action may be re-filed in the same
original court, provided it has proper
Form and Contents of Petition [Sec. 3, jurisdiction and venue
Rule 47]
(1) Verified petition, alleging therein: Based on Extrinsic Fraud
(a) With particularity, the facts and the law (1) The same shall be set aside and
relied upon considered null and void
(b) Petitioners good and substantial cause (2) On motion of the prevailing party on
of action or defense justifiable grounds, he may be allowed to
(2) Filed following the Efficient Use of Paper no longer refile the action; instead, the
Rule trial court which rendered the questioned
(3) Certified true copy of the judgment or final judgment shall be ordered to try the case
order or resolution shall be attached to anew
the original copy of the petition
(4) Affidavits of witnesses or documents The prescriptive period for the refiling of the
supporting the cause of action or defense; aforesaid original action shall be deemed
and suspended from the filing of said original
(5) Certificate of non-forum shopping action until the finality of the judgment of
annulment. However, the prescriptive period
D.4. PROCEEDINGS shall not be suspended where the extrinsic
Two stages in the disposition of the petition: fraud is attributable to the plaintiff in the
(1) A preliminary evaluation of the petition for original action. [Sec. 8, Rule 47]
prima facie merit [Sec. 5]
The rule allows the CA to dismiss the E. COLLATERAL ATTACK OF
petition outright as in special civil
actions
JUDGMENTS
If prima facie merit is found, petition is
given due course and summons is E. 1. ATTACKING A JUDGMENT
served on respondent
(2) If prima facie merit is found, petition is Direct Attack v. Collateral Attack
given due course and issuance of Direct attack upon a judgment is an action
summons as in ordinary civil cases is made or proceeding to annul it, this being the
[Sec. 6] main object of the proceeding
Procedure in ordinary civil cases is Collateral attack upon a judgment is one
observed made to obtain relief other than the
setting aside of the judgment, the attack
NOTE: Prima facie determination is not on the judgment itself being incidental
available in annulment of judgments or final
124 OF 425
Collateral attack is proper only when the Attacking a Void Judgment

judgm ent on its face is null and void It may be assailed anytime, collaterally or in a
as where it is patent that the court which direct action or by resisting such judgment or
rendered said judgment has no jurisdiction final order in any action or proceeding
whenever it is invoked, unless barred by
The validity of a judgment or order of the laches. [Spouses Benatiro v. Heirs of Cuyos,
court, which has become final and executory, G.R. No. 161220 (2008)]
may be attacked in three ways:
(1) By a direct action or proceeding to annul Remedies
the same If the reglem entary period for appeal
A direct attack against the order or has not yet lapsed, some remedies are
judgment because it is not incidental to, New Trial and Reconsideration [Rule 37],
but is the main object of, the Appeal [Rules 40-45], Petition for Relief
proceeding [Rule 48], and Other Appropriate Remedies
To annul and enjoin enforcement of the such as Certiorari may also be used.
judgment, where the alleged defect is
not apparent on its face or from the If the appropriate remedies are no longer
recitals contained in the judgment available without the fault of the
See Rule 47 petitioner, the equitable and extraordinary
(2) By direct action, as certiorari, or by remedy of Petition for Annulment of
collateral attack in case of apparent nullity Judgment [Rule 47] may be resorted to.
The collateral attack must be against a
challenged judgment which is void When all else fails, there is jurisprudence to
upon its face or that the nullity of the the effect that a patently void judgment may
judgment is apparent from its own be dealt with by a Main Action for Injunction.
recitals [See Barrameda v. Moir, G.R. No. L-7927
(3) By a Petition for Relief under Rule 38 (1913)]
This third manner of attacking must be
Jurisprudential Basis
taken in the same action or proceeding
Spouses Benatiro v. Heirs of Cuyos [G.R. No.
in which the judgment or order was
161220 (2008)] and Agustin v. Bacalan [G.R.
entered
No. L-46000 (1985)] on the matter of void
judgment particularly refer to Rule 47 as a
E. 2. VOID JUDGMENT remedy against a void judgment. This
A void judgment is no judgment at all. It remedy, however, should be availed of only
cannot be the source of any right nor the when the appropriate remedies are no longer
creator of any obligation. All acts performed available without fault on the part of the
pursuant to it and all claims emanating from petitioner.
it have no legal effect. Hence, it can never
become final and any writ of execution based Although Sec. 2 of Rule 47 of the Rules of
on it is void. [Polystyrene Manufacturing v. Court provides that annulment of a final
Privatization Management, G.R. No. 171336 judgment or order of an RTC may be based
(2007)] "only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence recognizes
A void judgment may be likened to a lawless denial of due process as additional ground
thing which can be treated as an outlaw and therefore. [Spouses Benatiro v. Heirs of Cuyos,
slain at sight, or ignored wherever and G.R. No. 161220 (2008)]
whenever it rears its head. [Banco Espanol-
Filipino v. Palanca, G.R. No. L-11390 (1918)] A void judgment is like an outlaw
which may be slain at sight wherever
A judgment may be void for lack of due or whenever it exhibits its head. The
process of law. [Spouses Benatiro v. Heirs of proper remedy in such case, after the time for
Cuyos, G.R. No. 161220 (2008)] appeal or review has passed, is for the
aggrieved party to bring an action to enjoin
125 OF 425
the judgment. [Montinola v. Judge Gonzales

(1989)]
VI. Execution, Satisfaction
and Effect of Judgments
Assuming the judgment to have been void Execution is the legal remedy for the
the proper remedy was by an original enforcement of a judgment. It is not an action
proceeding and not by motion in the cause. but is included in the phrase Process in an
[Banco Espanol-Filipino v. Palanca, G.R. No. action part of the proceedings considered
L-11390 (1918)] as still pending.
A final judgment may be annulled on the Writ of Execution a judicial writ issued to
ground of lack of jurisdiction, fraud, or that it an officer authorizing and requiring him to
is contrary to law. [Panlilio v. Garcia, G.R. No. execute the judgment of the court.
L-29038 (1982)]
A. FINALITY FOR PURPOSES OF
APPEAL AND FOR PURPOSES OF
EXECUTION
A judgment is final if it disposes of the action
as distinguished from an interlocutory order
which leaves something to be done with
respect to the merits of the case, and it is
executory if the period to appeal has expired
and no appeal is taken. [Herrera]
Finality for purposes of appeal refers to

the distinction between final judgments or
orders and interlocutory orders, which
cannot be appealed. [Sec. 1(b), Rule 41]
The word interlocutory refers to something

intervening between the commencement and
the end of a suit, which decides some point or
matter but is not a final decision of the whole
controversy. [Ramiscal, Jr. v. Sandiganbayan,
G.R. No. 140756-90 (2004)]
A final judgm ent or order is one that

finally disposes of a case, leaving nothing
more to be done by the court in respect
thereto. Examples include:
(1) an adjudication on the merits which, on
the basis of the evidence presented at the
trial, declares categorically what the rights
and obligations of the parties are and
which party is in the right; or
(2) a judgment or order that dismisses an
action on the ground, for instance, of res
judicata or prescription.
Once rendered, the task of the court is ended,

as far as deciding the controversy or
determining the rights and liabilities of the
litigants is concerned. Nothing more remains
to be done by the court except to await the
126 OF 425
parties' next move (such as filing of a motion enforced and of the entry thereof, with notice
for new trial or reconsideration, or the taking to the adverse party.
of an appeal) and ultimately, to cause the
execution of the judgment once it becomes EXCEPTIONS:
'final and executory. Execution may Issue even if judgment not
final in the following cases:
Finality for purposes of execution (1) Support pendente lite
refers to the judgment being final and (2) Judgments of inferior courts in ejectment
executory upon the lapse of the appeal cases
period if no appeal is taken, upon which (3) Execution pending appeal
execution shall issue as a matter of right. [Sec. (4) Injunction, accounting, receivership,
1, Rule 39] support [Sec. 4, Rule 39]
(5) Decision of the RTC in appealed civil cases
A judgment becomes final and executory by under Summary Procedure, including
operation of law. Finality becomes a fact forcible entry and unlawful detainer
upon the lapse of the reglementary period to (6) Decision of the LA reinstating dismissed
appeal if no appeal is perfected. employee, insofar as reinstatement aspect
is concerned
Final AND Executory
Final Judgments
Judgments B.1. EXECUTION AS A MATTER OF
- They finally dispose RIGHT [SEC. 1, RULE 39]
of, adjudicate, or
- Judgments become A judgment becomes final and executory by
determine the rights
final and executory by operation of law, not by judicial declaration.
of the parties,
operation of law. The prevailing party is entitled as a matter of
HOWEVER, they are
not yet final and right to a writ of execution, and the issuance
- After the lapse of the thereof is a ministerial duty and compellable
executory pending
reglementary period by mandamus. [Herrera]
the expiration of the
to appeal, the
reglementary period
prevailing party is Execution as a matter of right is available in
for appeal.
entitled to a writ of two instances:
execution, and (1) No appeal has been perfected or period of
- During that period,
issuance thereof is a
the winning party appeal has expired
ministerial duty of the
cannot demand the (2) Appeal has been perfected and finally
court.
execution of the resolved
judgment yet as a
right. NOTE: Some judgments are not appealable,
e.g. Small Claims judgments, compromise
B. WHEN EXECUTION SHALL judgments, etc
ISSUE How Done
(1) If no appeal is perfected, prevailing party
GENERAL RULE: Execution shall issue as a
applies by motion for a writ of execution
matter of right, on motion, upon a judgment
(2) If an appeal has been perfected and finally
or order that disposes of the action or
resolved
proceeding upon the expiration of the period
(a) prevailing party files a motion in the
to appeal therefrom if no appeal has been
court of origin, submitting:
duly perfected.
(i) certified true copies of the
judgment/s or final order/s
If the appeal has been duly perfected and
sought to be enforced;
finally resolved, the execution may forthwith
(ii) certified true copies of the entry
be applied for in the court of origin, on
thereof; and
motion of the judgment obligee, submitting
therewith certified true copies of the (iii) with notice to the adverse party.
(b) appellate court may also direct the
judgment/s or final order/s sought to be
court of origin to issue the writ of
127 OF 425
execution, upon motion in the same create a substantial change in the rights
case, when the interest of justice so or relations of the parties therein which
requires. render execution of the final judgment
unjust or impossible [Lim v. Jabalde, G.R.
NOTE: Execution may only issue upon No. L36786 (1989)]
motion with notice of hearing.
B.2. DISCRETIONARY EXECUTION
GENERAL RULE: Issuance of the writ of [SEC. 2, RULE 39]
execution is a matter of right on the part of Discretionary Execution as a
the prevailing party when the judgment or Execution Matter of Right
order becomes executory. The court cannot May issue before the Period to appeal has
refuse execution. lapse of period to already lapsed and no
appeal, and even appeal is perfected, or
EXCEPTIONS: during appeal there is no appeal
The issuance of a writ of execution which Discretionary upon the Ministerial duty of the
issues as a matter of right can be countered court court
in any of the following cases: Upon showing of good Provided there are no
(1) When the judgment has already been reason for execution supervening events
executed by the voluntary compliance
thereof by the parties; Under the Rule on Discretionary Execution
(2) When a judgment has been novated by (also called execution pending appeal), the
the parties; court rendering the judgment, if it still has
(3) When a petition for review is filed and jurisdiction, may exercise discretion and order
preliminary injunction is granted; Also, execution pending appeal.
when execution of the judgment has been
enjoined by a higher court; It is the execution of a judgment or final order
(4) When the judgment sought to be executed before it attains finality. The court which
is conditional or incomplete; rendered the decision can grant an execution
(5) When facts and circumstances transpire pending appeal if it still retains jurisdiction
which would render execution inequitable over the case and is in possession of the
or unjust; records at the time of the filing of the motion;
(6) When execution is sought more than five otherwise, the motion shall be acted upon by
(5) years from its entry without it having the appellate court.
been revived;
(7) When execution is sought against property To be valid, there should be a good reason to
exempt from execution; justify execution pending appeal, stated in
(8) When refusal to execute the judgment has the order which granted it.
become imperative in the higher interest
of justice. [Riano] Mere issuance of a bond to answer for
damages is no longer considered a good
Supervening Event Doctrine reason for execution pending appeal [Planters
A supervening event can be invoked for the Products v. CA, G.R. No. 106052 (1999)]
modification or alteration of a final judgment.
This refers to: Good reasons
(1) Facts which transpire after judgment has Compelling circumstances justifying the
become final and executory; immediate execution lest judgment becomes
(2) New circumstances which developed after illusory, or the prevailing party may after the
the judgment has acquired finality; lapse of time become unable to enjoy it
(3) Matters which the parties were not aware [Fareast Bank v. Toh, G.R. No. 144018 (2003)]
of prior to or during the trial as they were
not yet in existence at that time. Examples of Good Reasons:
(4) The supervening facts or circumstances (1) Where the goods subject of the judgment
must either bear a direct effect upon the stand to perish or deteriorate during the
matters already litigated and settled or pendency of the appeal [Yasuda v. CA]
128 OF 425
(2) The award of actual damages is for an (2) it is in possession of either the original
amount fixed and certain [Radio record or the record on appeal.
Communications Inc. v. Lantin]. But not an
award for moral and exemplary damages After the trial court has lost jurisdiction, the
(3) Insolvency of a defeated party [Hacienda motion may be filed in the appellate court.
Navarro v. Labrador] [Bangkok Bank Public Company, Ltd. v. Lee,
(4) The prevailing party is of advanced age G.R. No.159806 (2006)]
and in a precarious state of health and the
obligation in the judgment is non- Stay of Discretionary Execution
transmissible, being for support [De Leon v. Discretionary execution may be stayed upon
Soriano] approval by the proper court of a sufficient
(5) Where defendants were exhausting their supersedeas bond filed by the party against
income and have no other property aside whom it is directed, conditioned upon the
from proceeds of the property subject in performance of the judgment or order
litigation [Lao v. Mencias] allowed to be executed in case it shall be
finally sustained in whole or in part [Sec. 3,
Discretionary Execution is not applicable in Rule 39]
the case of the Court of Appeals:
(1) The Rule on Discretionary Execution Bond may be proceeded against on motion
contemplates a situation where a with notice to surety
judgment or final order rendered in the
exercise of its original jurisdiction and the GENERAL RULE: The filing of a
prevailing party in said decision seeks supersedeas bond is sufficient to stay the
immediate execution during the pendency enforcement of a discretionary execution.
of an appeal.
(2) The CA has no authority to issue EXCEPTION: However, the filing of the
IMMEDIATE EXECUTION PENDING supersedeas bond does not entitle the
APPEAL OF ITS OWN DECISIONS judgment debtor to the suspension of
THEREIN. execution as a matter of right. Where the
(3) Discretionary execution is allowed needs of the prevailing party are urgent, the
pending appeal of judgment or final order Court can order immediate execution despite
of the trial court upon good reasons to be such supersedeas bond. [Regalado]
stated in a special order.
If judgment is reversed totally or
A judgment of the CA cannot be executed partially, or annulled
pending appeal. [Heirs of Justice JBL Reyes v. The trial court may, on motion, issue such
CA, G.R. No. 135180-81 (2000)] orders of restitution or reparation of damages
as equity and justice may warrant under the
Requisites for Discretionary circumstances
Execution:
(1) There must be a motion filed by Remedy against Discretionary
prevailing party with notice to adverse Execution
party The remedy is certiorari by Rule 65. The fact
(2) There must be a hearing of the motion for that the losing party has also appealed from
discretionary execution the judgment does not bar certiorari
(3) There must be good reasons to justify the proceedings as the appeal could not be an
discretionary execution adequate remedy from such premature
(4) These good reasons must be stated in a execution. [Hererra]
special order after due hearing
W hen Filed
The motion for discretionary execution shall
be filed with the trial court while
(1) it has jurisdiction over the case; and
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C. HOW JUDGMENT IS EXECUTED Dispositive Portion as Subject of

Execution
C.1. EXECUTION BY MOTION OR
GENERAL RULE: The dispositive portion of
INDEPENDENT ACTION [SEC. 6, the decision is that part that becomes the
RULE 39] subject of execution
Modes of Enforcement of EXCEPTIONS:

Execution (1) Where there is ambiguity, the body of the
Mode When Enforced opinion may be referred to for purposes of
Within 5 years from date of construing the judgment because the
By Motion
entry of judgment dispositive part of a decision must find
After the lapse of 5 years from support from decisions ratio decidendi
By date of entry and before it is (2) Where extensive and explicit discussion
Independent barred by statute of limitations and settlement of the issue is found in the
Action which is 10 years from date of body of the decision
entry (Art. 1144(3))
Two W hom Issued
NOTE: The revived judgment may be
enforced by motion within 5 years from date GENERAL RULE: Only real parties in
of its entry and thereafter by action before it interest in an action are bound by judgment
is barred by statute of limitations. rendered therein and by the writs of
execution
Once the judgment is revived, the 10-year
prescriptive period commences to run from EXCEPTIONS:
the date of finality of the revived judgment There are certain cases where the writ may be
and not the original judgment. [PNB v. issued against non-parties:
Bondoc, G.R. No. L-20236 (1965)] (1) One who is privy to judgment debtor can
be reached by an order of execution and
C.2. ISSUANCE AND CONTENTS OF writ of demolition [Vda. De Medina v. Cruz,
A WRIT OF EXECUTION [SEC. 8, G.R. No. L-39272 (1988)]
RULE 39] (2) Issued against one who not being
originally a party to the case submits his
Contents of the W rit of Execution interest to the court for consideration in
the same case and invites adjudication
(1) Issued in the name of the Republic from
the court which granted the motion regarding said interest [Jose v. Blue, G.R.
No. L-28646 (1971)]
(2) States the name of the court, case number
(3) Where non-parties voluntarily signed the
and title, dispositive part of judgment or
compromise agreement or voluntarily
order
(3) Requiring the sheriff or other proper
appeared before court [Rodriguez v.
officer to whom it is directed to enforce the Alikpala, G.R. No. L-38314 (1974)]
(4) Where the remedy of a person not a party
writ according to its terms
(4) In all cases, it shall also specifically state
to the case which he did not avail of, was
to intervene in the case in question
the amount of interest, cost, damages,
rents, or profits due as well as the involving rights over the same parcel of
land and said person in another case was
principal obligation
adjudged buyer in bad faith thereof [Lising
v. Plan, G.R. No. 50107 (1984)]
(5) In an ejectment case, where 3rd party
derived his right of possession from
defendant particularly when such right
was acquired only after filing of ejectment
suit [Cordova v. Tornilla, AM No. MTJ-94-
997 (1995)]
130 OF 425
C.3. RETURN OF WRIT OF

Rem edies against a W rit of Execution EXECUTION [SEC. 14, RULE 39]
GENERAL RULE: The execution of final Effectivity
and executory judgments may no longer be The writ shall continue to be in effect during
contested and prevented, and no appeal the period within which judgment may be
should lie therefrom. enforced by motion (5 years from entry of
judgment).
EXCEPTIONS:
Instances where errors may be committed Judgment Satisfied within 30 days
prejudicial to the rights of a party, calling for Writ of execution is returnable to the court
correction by a higher court. Examples of issuing it immediately after the judgment has
these instances are: been satisfied in part or in full.
(1) When the writ varies the judgment;
(2) When there has been a change in the Judgment Not Satisfied within 30
situation of the parties rendering days
execution inequitable; Officer shall report to the court stating the
(3) When execution is sought to be enforced reason for non-satisfaction, and shall
against property exempt from execution; continue to make a report every 30 days until
(4) When it appears that the controversy has judgment is satisfied in full or the writ expires.
never been submitted to the judgment of
the court; Form of Returns and Reports
(5) When the terms of the judgment are not The returns or periodic reports made by the
clear enough and there remains room for sheriff:
interpretation; (1) shall set forth the whole of the
(6) When it appears that the judgment has proceedings taken;
already been satisfied; (2) shall be filed with the court; and
(7) When it appears the writ has been (3) shall have copies thereof furnished to the
improvidently issued; parties.
(8) When it appears that the writ is defective
in substance;
(9) When the writ is issued against the wrong
C.4. ENTRY OF SATISFACTION OF
party; JUDGMENT [SEC. 45, RULE 39]
(10) When the writ was issued without Satisfaction of Judgment is entered by the
authority. clerk of court in the court docket and in the
execution book upon:
If motion to quash is denied, appeal from said (1) Return of the writ of execution showing
denial full satisfaction of the judgment;
(2) Filing of an admission to the satisfaction,
An order granting the issuance of the writ is executed and acknowledged in the same
not appealable, except where: manner as a conveyance of real property
(1) The order varies the terms of the judgment, by the judgment creditor or his lawyer; or
or (3) Upon indorsement of such admission by
(2) Where, being vague, the court renders the judgment creditor or his attorney on
what is believed to be a wrong the face of the record of the judgment.
interpretation
C.5. EXECUTION OF JUDGMENTS
FOR MONEY
If the award is for payment of money,
execution is enforced by:
(1) Immediate payment on demand
(2) Satisfaction by levy
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(3) Garnishment of debts and credits [Sec. 9, purposes of the prospective execution sale
Rule 39] [Llenares v. Vandevella (1966)].
IMMEDIATE PAYMENT ON DEMAND If susceptible of appropriation, the officer

rem oves and takes the property for
Procedure safekeeping; otherwise the same is placed
(1) The officer shall demand from judgment under sheriffs guards. Without valid levy
obligor the immediate payment of the full having been made, any sale of the
amount stated in the writ and all lawful property thereafter is void.
fees
(2) The judgment obligor shall pay the W hat may be levied?
amount of the judgment debt All property of the judgment obligor not
(a) Payable in Cash, Certified bank check exempt from execution.
payable to judgment obligee, or any
other form of payment acceptable to Conditions before resort to
judgment obligee Satisfaction by Levy
(i) In no case shall sheriff demand (1) If the judgment obligor cannot pay all or
that any payment by check be part of the obligation then the officer shall
made payable to him levy upon the properties of the judgment
(ii) Amount of judgment under obligor
proper receipt directly to the (2) Characteristics of properties to be levied
judgment obligee or his (a) Properties of every kind and nature
authorized representative if whatsoever
present at time of payment (b) Which may be disposed of for value
(b) If judgment obligee or his (c) Not otherwise exempt from execution
representative is present to receive
payment: Procedure
(i) Judgment obligor shall delver (1) The judgment obligor have the option to
payment to executing sheriff immediately choose which property or
(ii) Sheriff shall turn over the part thereof may be levied upon, sufficient
amounts within the same day to to satisfy judgment
the clerk which issued the writ or (2) If judgment obligor does not exercise the
deposit the amounts to a option:
fiduciary account in the nearest (a) The officer shall first levy on personal
government depository bank of properties, if any
the RTC of the locality (b) If personal properties are insufficient,
(3) The judgment obligor shall pay the lawful then on the real properties
fees handed over to the sheriff. Sheriff (3) Sheriff shall sell only sufficient portion of
shall turn over the said amount within the personal or real property of the judgment
same day to the clerk that issued the writ obligor levied upon
(4) If there is any excess it shall be delivered (4) If there is more property than is sufficient
to the judgment obligor. Lawful fees shall to satisfy judgment and lawful fees, then
be retained by the clerk sell only so much as is sufficient
SATISFACTION BY LEVY GARNISHMENT OF DEBTS AND

Levy is the act whereby a sheriff sets apart or CREDITS
appropriates for the purpose of satisfying the Garnishment is considered as a species of
command of the writ, a part or the whole of attachment for reaching credits belonging to
the judgment debtors property. the judgment debtor and owing to him from a
stranger to the litigation
Levy means the act or acts by which an officer
sets apart or appropriates a part or the whole The Officer may levy on:
of the property of the judgment debtor for (1) Debts due the judgment obligor and other
credits,
132 OF 425
(2) Including bank deposits, financial shall be required to deliver. Otherwise, the
interests, royalties, commissions, choice shall be made by judgment obligee
(3) And other personal property not capable (4) The garnishee shall make a written report
of manual delivery in possession and to the court within 5 days from service of
control of third parties notice of garnishment. The report shall
state whether:
The process of levying shall be called (a) Judgment obligor has sufficient funds
garnishment if the property involved is money, or credits to satisfy judgment, OR
stocks, or other incorporeal property in the (b) Judgment obligor has insufficient funds
hands of third persons. Garnishment or credits to satisfy judgment
merely sets apart such funds but does not (5) Garnish the amount which may be in cash,
constitute the creditor as owner of the or certified bank check issued in the name
garnished property. of judgment obligee
(6) Garnished amount shall be delivered
The Rules of Court themselves do not require directly to judgment obligee within 10
that the garnishee be served with summons working days from service of notice on said
or impleaded in the case in order to make him garnishee requiring such delivery
liable. All that is necessary for the trial court (7) Follow procedure under Immediate
lawfully to bind the person of the garnishee Payment on Demand with respect to
or any person who has in his possession delivery
credits belonging to the judgment debtor is (8) Lawful fees shall be paid directly to court
service upon him of the writ of garnishment.
[Perla v. Ramolete, G.R. No. L-60887 (1991)] C.6. EXECUTION OF JUDGMENTS
FOR SPECIFIC ACTS [SEC. 10, RULE
Garnishment is not a violation of RA 1405 on
the secrecy of bank deposits. [Chinabank v.
39]
Ortega, G.R. No. L-34964 (1973)]
For Conveyance of Real of Land or
Personal Property
NOTES: Upon service of the writ of
Judgment directs a party to:
garnishment, the garnishee becomes a
(a) Execute a conveyance of land or personal
virtual party or forced intervenor to the
property;
case and the trial court thereby acquires
(b) Deliver deeds or other documents; or
jurisdiction to bind the garnishee to comply
(c) Perform any other specific act in
with its orders and processes. [BPI v. Lee, G.R.
connection therewith
No. 190144 (2012)]
If the party fails to comply within the time
UPs funds, being government funds, are not
specified:
subject to garnishment. Moreover, The
(1) Court may direct the act to be done at the
execution of the monetary judgment against
cost of the disobedient party by some
the UP was within the primary jurisdiction of
other person appointed by the court; or
the COA. [UP v. Dizon, G.R. No. 171182 (2012)]
(2) If the real or personal property directed to
be conveyed is situated in the
Procedure
Philippines, court may by order divest
(1) Levy shall be made by serving notice upon:
the title of any party and vest it in others,
(a) The person owing such debts, or
which shall have the force and effect of
(b) Having in his possession or control
conveyance executed in due form.
such credits to which judgment obligor
is entitled
For Sale of real or personal property
(2) Garnishment to cover only such amount as
An order for execution shall be issued
will satisfy judgment and lawful fees
describing the property to be sold, and
(3) If there are 2 or more garnishees, holding
directing the sheriff or other proper officer to
deposits or credits sufficient to satisfy
sell it, and apply the proceeds in conformity
judgment, judgment obligor shall have
with the judgment. [Secs. 8(b), 10, Rule 39]
the right to indicate the garnishee/s who
133 OF 425
For Delivery or Restitution of Real Procedure

Property (1) A writ of execution shall be issued, with a
The officer shall demand of the person certified true copy of the judgment
against whom the judgment is rendered and attached.
all persons claiming rights under him to (2) Writ shall be served by the officer upon:
peaceably vacate the property within (a) The party against whom the judgment
three (3) working days, and restore is rendered; or
possession to the judgment obligee. (b) Any other person required by the
judgment or by the law to obey the
Otherwise, the officer shall oust all such same.
persons therefrom with the assistance, if (3) Failure of such party to obey is punishable
necessary, of appropriate peace officers, and by contempt.
employing such means as may be reasonably
necessary to retake possession, and place the Examples:
judgment obligee in possession of such (1) A judgment in mandamus to reinstate
property. petitioner as chief clinic of the hospital.
[Vital-Gozon v. CA (1992)]
Any costs, damages, rents or profits awarded (2) A judgment directing defendant to remove
by the judgment shall be satisfied in the a fence from a certain place is a special
same manner as a judgment for money. judgment. [Marquez v. Marquez, 73 Phil.
74]
Rem oval of improvements on property
subject of execution C.8. EFFECT OF LEVY ON THIRD
When the property subject of the execution PERSONS
contains improvements constructed or The levy on execution shall create a lien in
planted by the judgment obligor or his agent, favor of the judgment obligee over the right,
the officer shall not destroy, demolish or title and interest of the judgment obligor in
remove said improvements except: such property at the time of the levy, subject
(1) upon special order of the court, issued to liens and encumbrances then existing. [Sec.
upon motion of the judgment obligee after 12, Rule 39]
due hearing; and
(2) after the judgment obligor has failed to NOTE: The power of the court in execution
remove these within a reasonable time extends only over properties
fixed by the court. unquestionably belonging to the judgment
debtor.
Delivery of personal property
The officer shall take possession of the same
and forthwith deliver it to the party entitled to D. PROPERTIES EXEMPT FROM
it, and satisfy any judgment for money as EXECUTION
therein provided.
GENERAL RULE: Except as otherwise
C.7. EXECUTION OF SPECIAL expressly provided by law, the following
JUDGMENTS property, and no other, shall be exempt from
execution [Sec. 13, Rule 39]
W hen Proper [Sec. 11, Rule 39]
(1) The judgment obligor's family home as
A judgment requires performance of any
provided by law, or the homestead in
other act than payment of money or sale or
which he resides, and land necessarily
delivery of property.
used in connection therewith;
(2) Ordinary tools and implements personally
Such judgment is one which can only be
used by him in his trade, employment, or
complied with by the judgment obligor
livelihood;
because of his personal qualifications or
(3) Three horses, or three cows, or three
circumstances.
carabaos, or other beasts of burden, such
134 OF 425
as the judgment obligor may select (e) benefit payments from SSS [RA 1161, as
necessarily used by him in his ordinary amended; Sec. 16]
occupation;
(4) His necessary clothing and articles for EXCEPTION:
ordinary personal use, excluding jewelry; However, no article or species of property
(5) Household furniture and utensils mentioned in this section shall be exempt
necessary for housekeeping, and used for from:
that purpose by the judgment obligor and (1) Execution issued upon a judgment
his family, such as the judgment obligor recovered for its price, or
may select, of a value not exceeding P (2) Upon a judgment of foreclosure of a
100,000.00; mortgage thereon.
(6) Provisions for individual or family use
sufficient for four (4) months; The exemptions must be claim ed,
(7) The professional libraries and equipment otherwise they are deemed waived. It is not
of judges, lawyers, physicians, the duty of the sheriff to set off the exceptions
pharmacists, dentists, engineers, on his own initiative. [Herrera v. Mcmicking,
surveyors, clergymen, teachers, and other G.R. No. L-5329 (1909)]
professionals, not exceeding
P300,000.00 in value; E. PROCEEDINGS WHERE
(8) One fishing boat and accessories not
exceeding the total value of one hundred
PROPERTY CLAIMED BY THIRD
thousand pesos owned by a fisherman and PERSONS
by the lawful use of which he earns his Sec. 16, Rule 39 and other provisions
livelihood; providing a mode for recovering property
alleged to have been wrongfully taken by
(9) So much of the salaries, wages, or sheriff pursuant to a writ of execution or other
earnings of the judgment obligor for his process, refer to a stranger to an action.
personal services within the four (4) [Tillson v. CA, G.R. No. 89870 (1991)]
months preceding the levy as are
necessary for the support of his family; Remedies of Third-Party Claimant
(10) Lettered gravestones; (1) Summary hearing before the court which
(11) Monies, benefits, privileges, or authorized the execution
annuities accruing or in any manner (2) Terceria or third-party claim filed with
growing out of any life insurance; the sheriff [Sec. 16, Rule 39]
(12) The right to receive legal support, or (3) Action for damages on the bond posted by
money or property obtained as such the judgment creditor
support, or any pension or gratuity from (4) Independent reivindicatory action
the Government;
(13) Properties specially exempted by law, The aforementioned are cumulative remedies
such as: and may be resorted to by a third-party
(a) property mortgaged to the DBP [Sec. claimant independently of or separately from
26, CA 458]; and without need of availing of the others. [Sy
(b) savings of national prisoners deposited v. Discaya, G.R. No. 86301 (1990)]
with the postal savings bank [Act.
2489]; For a Third-Party Claim to be
(c) benefits from private retirement Sufficient:
systems of companies and (1) Must be filed by a person other than the
establishments with limitations [RA defendant or his agent, at any time before
4917]; sale
(d) laborers wages except for debts (2) Must be under oath or supported by
incurred for food, shelter, clothing and affidavit stating the claimants title to, or
medical attendance [Art. 1708, Civil right of possession of, the property, and
Code]; grounds therefor
135 OF 425
(3) Must be served upon the officer making acted rightly or wrongly in performance of his
levy and a copy thereof upon the judgment duties. The court does not and cannot pass
creditor upon the question of title.
The timing of the filing of the claim is E. 2. TERCERIA

important because it determines the Independent of the foregoing, a third-party
remedies available to the claimant: claimant may also avail of the remedy of
(1) If the claim is filed under Sec. 16, Rule 39: Terceria. Terceria is provided in Sec. 16, Rule
Claimant may vindicate his claim in a 39.
separate action
Intervention is no longer allowed since This is an action for damages by claimant
judgment has already been rendered against officer within 120 days from date of
(2) If the claim is filed under Sec. 14, Rule 57 filing of bond for taking or keeping the
(Attachment) or under Sec. 7, Rule 60 property subject of the terceria
(Replevin)
Claimant may vindicate his claim by Procedure
intervention as he has a legal interest (1) Claimant serves on the officer making levy
in the matter of litigation an affidavit of his title and a copy thereof
Intervention is allowed as these actions to judgment creditor
are still pending in court (2) Officer shall not be bound to keep
property
W hen to file Unless judgment creditor, or his agent,
Anytime, as long as the sheriff has the on demand of officer, posts indemnity
possession of the property levied upon, or bond not lesser nor greater than value
before the property shall have been sold of property
under execution. (3) Where a third-party claim has been filed in
due form:
Effect of Third-Party Claim Prevailing party can compel the sheriff
When a third-party claim is filed, sheriff is not to proceed by filing of a bond to answer
bound to proceed with the levy of the for damages as a consequence of the
property unless judgment creditor or latters execution
agent posts an indemnity bond against the If sheriff proceeds with the sale without
claim. such bond, he will be personally liable
for such damages as may be sustained
E. 1. SUMMARY HEARING BEFORE by and awarded to the claimant
COURT AUTHORIZING EXECUTION (4) Action against Indemnity
A third-person whose property was seized by Action against indemnity bond must be
a sheriff to answer for an obligation of a filed within 120 days from date of filing
judgment debtor may invoke the supervisory of the bond
power of the court which authorized such After lapse of 120 days, no claim for
execution damages for taking or keeping of
property may be enforced against the
Procedure bond
(1) Claimant files application
(2) Court conducts summary hearing The right of a third-party claimant to file a
(a) The court may command that the terceria is founded on his title or right of
property be released from the mistaken possession. Corollary thereto, before the
levy and restored to rightful owner or court can exercise its supervisory power to
possessor direct the release of the property mistakenly
(b) If claimants proofs do not persuade, levied and the restoration thereof to its
the claim will be denied by the court rightful owner, the claimant must first
unmistakably establish his ownership or right
The court determination is limited only to a of possession thereon. [Villasi v. Garcia, G.R.
determination of whether the sheriff has No. 190106 (2014)]
136 OF 425
(b) If he redeems upon a mortgage or

E.3. REINVINDICATORY ACTION other lien, a memorandum of the
The aforesaid remedies are nevertheless record thereof, certified by the Register
without prejudice to any proper action that of Deeds; or
third-party claimant may file to vindicate his (c) An original or certified copy of any
claim over the property. This action is assignment necessary to establish his
separate and independent. claim; and
(2) An affidavit executed by him or his agent
Procedure showing the amount then actually due on
(1) He must institute an action, distinct and the lien [Sec. 30]
separate from that which the judgment is
being enforced, with the court of If the lien of the creditor is prior to the
competent jurisdiction judgment under which the property was sold:
(2) No need to file a claim in the court which (1) He is not a redemptioner
issued a writ. The latter is not a condition (2) He cannot redeem since his interests in his
sine qua non for the former. lien are fully protected. Any purchaser at a
(3) In such proper action, validity and public auction takes the same subject to
sufficiency of title of claimant will be such prior lien which he has to satisfy
resolved.
(4) A writ of preliminary injunction against W hen Redemption Can be Made [Sec.
sheriff may be issued 28, Rule 39]
WHO WHEN
F. RULES ON REDEMPTION Within 1 year from date of
By the JUDGMENT
registration of certificate
DEBTOR
of sale
W hen Available
Within 1 year from date of
(1) For personal property there is NO right By FIRST
registration of certificate
of redemption as the sale is absolute REDEMPTIONER
of sale
(2) For real property right of redemption is Within 60 days from last
available BY ALL redemption
SUBSEQUENT PROVIDED that judgment
W ho May Redeem [Sec. 27, Rule 39] REDEMPTIONERS debtor has not exercised
(1) Judgment obligor, or his successor in his right of redemption
interest;
Successors-in-interest include, among In all cases, judgment debtor shall have the
others, one to whom the debtor has entire 1 year period from date of registration
conveyed his interest in the property for of sale to redeem the property. If judgment
purposes of redemption debtor redeems, no further redemption is
(2) A creditor having a lien by virtue of an allowed [Sec. 29].
attachment, judgment or mortgage on the
property sold, subsequent to the lien NOTE: There is no extension or interruption
under which the property was sold. of redemption period.
Redeeming creditors are called
redem ptioner. REDEMPTION PRICE
(1) By the Judgment Debtor or First
Unlike a judgment obligor, such Redemptioner:
redemptioner must prove his right to redeem (a) Purchase PRICE
by producing the ff. documents: (b) 1% INTEREST thereon up to time of
(1) The documents necessary to establish his redemption
right to redeem: (c) Any amount of ASSESSMENTS OR
(a) A copy of the judgment or final order TAXES which purchaser may have paid
under which he claims the right to after purchase as well as interest on
redeem, certified by the clerk of the such last named amount at the same
court wherein judgment or final order rate
was entered;
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(d) If purchaser is also a creditor having a Right of Judgment Creditor Pending

PRIOR LIEN to that of redemptioner, Redemption
other than the judgment under which (1) Apply for injunction to restrain the
such purchase was made, the commission of waste on the property
AMOUNT of such OTHER LIEN, also
with interest Rights of the Judgm ent Debtor
(2) By all Subsequent Redemptioners Pending Redemption
(a) AMOUNT paid on last redemption (1) Remain in possession of the property
(b) 2% INTEREST thereon (2) Cannot be ejected
(c) Any amount of ASSESSMENTS OR (3) Use the property in the same manner it
TAXES which purchaser may have paid was previously used
after purchase as well as interest on (4) Make necessary repairs to buildings
such last named amount at the same thereon while he occupies the property
rate (5) Use it in the ordinary course of husbandry
(d) Amount of any LIENS held by said last [Sec. 31]; and
redemptioner prior to his own, also (6) Collect rents, earning and income derived
with interest from property until the expiration of
period of redemption
If redemption is made by the Judgment
Obligor EXPIRATION OF REDEMPTION PERIOD [Sec.
(1) No further redemption is allowed 33, Rule 39]
(2) He is restored to his estate [Sec. 29, Rule Judgment obligor shall have the entire period
39] of one year from date of registration of sale to
redeem the property.
When a judgment debtor redeems the
property, what is effected is the elimination of ENTITLEMENT TO CONVEYANCE AND
the lien created by the levy on attachment or POSSESSION
judgment on the registration of mortgage (1) Of Purchaser at Auction Sale
thereon. Note that he never lost ownership so If there is no redemption made within 1
there is no recovery of ownership. year from date of registration of the
certificate of sale
Payment of redemption price may be made to (2) Of Last Redemptioner
the: If there was redemption, and 60 days
(1) Purchaser or redemptioner, or have elapsed and no other redemption
(2) For him to the officer who made the sale has been made
Notice must have been given, and the
The person to whom redemption payment is
redemption period has elapsed
made must execute and deliver to him a
CERTIFICATE OF REDEMPTION
Two Documents which the Sheriff
(1) Acknowledged by a notary public or other
Executes in case of Real Property
officer authorized to take
(1) CERTIFICATE OF SALE
acknowledgements of conveyances of real
property After auction sale, he will execute in
(2) Filed and recorded in the registry of deeds favor of the purchaser the certificate of
of the place which the property is situated sale under Sec. 25
(3) Registrar must note the record on the From registration of said certificate, the
margin of the record of the certificate of one year redemption period starts
sale Certificate of sale after execution sale is
merely a memorial of the fact of sale
RIGHTS PENDING REDEMPTION [Secs. 31-32, and does not operate as conveyance
Rule 39] (2) DEED OF CONVEYANCE
Issued if after expiration of redemption
period there is no redemption
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Operates to transfer to purchaser subpoena, to answer as a witness, or to

whatever rights the judgment debtor subscribe his deposition may be punished for
had in the property contempt. [Sec. 38, Rule 39]
The effect of a final deed of sale
transfers the right as of the time of the Lim itations
levy (1) No judgment obligor shall be required to
appear before a court or commissioner
RECOVERY OF PURCHASE PRICE IF SALE outside the province or city in which such
NOT EFFECTIVE [Sec. 34, Rule 39] obligor resides or is found. [Sec. 36, Rule
Purchaser may recover the purchase price 39]
when: (2) A judgment obligor may no longer be
(1) Purchaser or his successor-in-interest fails examined after the lapse of the five years
to recover possession the property; or within which a judgment may be enforced
(2) Evicted due to: by motion. [Umali v. Coquia, G.R. No. L-
(a) Irregularities in the proceedings 46303 (1988)]
concerning the sale;
(b) Judgment has been reversed or set Order for payment in Fixed Monthly
aside; Installments [Sec. 40, Rule 39]
(c) The property sold was exempt form Upon finding that the earning of the
execution; or judgment debtor for his personal services are
(d) A third person has vindicated his claim more than necessary for the support of his
to the property family, the court may order payment in fixed
monthly installments.
REMEDIES OF THE PURCHASER
(1) File a motion in the same action or file a The court may also, upon failure of the
separate action to recover from judgment judgment obligor without good excuse to pay
creditor the price paid any installm ent when due, punish him for
(2) File a motion for revival of judgment in his indirect contempt.
name against judgment debtor; or
(3) Bring an action to recover possession of G.2 EXAMINATION OF OBLIGOR OF
property JUDGMENT OBLIGOR
G. REMEDIES OF JUDGMENT W hen Available
CREDITOR IF JUDGMENT NOT (1) At any time after return is made, when it
SATISFIED [SECS. 36-43, RULE 39] shows that judgment remains unsatisfied
in whole or in part; and
(2) Upon proof to the satisfaction of the court
G. 1. EXAMINATION OF JUDGMENT which issued the writ, that a natural
OBLIGOR person or juridical entity has property of
the judgment obligor or is indebted to him
W hen Available
At any time after return is made, when it Procedure
shows that judgment remains unsatisfied in Court may, by an order, require such natural
whole or in part person, or any officer or member of such
juridical entity, to appear and be examined
Procedure before the court or a commissioner
Judgment Obligee entitled to an order from concerning such property or debt.
the court which rendered the judgment to
appear and be examined concerning his Attendance may be compelled by order or
property and income before the court or a subpoena. Failure to obey such order or
commissioner assigned by the court. subpoena, to answer as a witness, or to
subscribe his deposition may be punished for
Attendance may be compelled by order or contempt. [Sec. 38, Rule 39]
subpoena. Failure to obey such order or
139 OF 425
Effect receiver may be ordered to sell and convey

Service of order shall bind all credits due to such interest in the same manner as in a sale
judgment debtor and all money and property of real estate upon execution. [Sec. 42, Rule
in the possession or control of such person, 39]
from the time of service.
H. EFFECT OF JUDGMENT OR
Note: This is not applicable if there is no
issue concerning the indebtedness of the
FINAL ORDERS
bank and there is no denial by the depositor
of the existence of the deposit with the bank IMMUTABILITY OF JUDGMENTS
which is considered a credit in favor of the A judgment that has acquired finality
depositor against the bank [PCIB v. CA, G.R. becomes immutable and unalterable, and
No. 84526 (1991)] may no longer be modified in any respect,
even if the modification is meant to correct
W hen Alleged Obligor Denies Debt or erroneous conclusions of fact and law, and
Claims Property whether it be made by the court that
When such person claims an interest in the rendered it or by the Highest Court of the
property adverse to the judgment obligor or land. [PNB v. Spouses Maranon, G.R. No.
denies the debt, the court may issue an order 189316 (2013)]
(1) authorizing the judgment creditor to
institute an action against such person for Rationale:
the recovery of such interest or debt, and (1) to avoid delay in the administration of
(2) forbidding transfer or disposition of such justice, and procedurally to make orderly
interest or debt for 120 days. the discharge of judicial business
(2) to put an end to judicial controversies at
the risk of occasional errors
G.3 OTHER REMEDIES
ORDER FOR APPLICATION OF PROPERTY H.1 DUAL ASPECT OF RES JUDICATA
OR INCOME (1) Bar by Form er Judgm ent the
Court may order any property of judgment judgment or final order is a bar to the
debtor, or any money due him, nor exempt prosecution of ta subsequent action based
from execution, in the hands of either himself on the same claim or cause of action
or another person, to be applied to the o Described by Sec. 47, pars. (a) and (b),
satisfaction of judgment. [Sec. 40, Rule 39] Rule 39
o Also known as Estoppel by Verdict
After a writ of execution against property has (2) Conclusiveness of Judgment the
been issued, a person indebted to judgment judgment or final order precludes the
obligor may pay to the sheriff holding the writ relitigation of particular issues or facts on
the amount of his debt, or so much thereof as a different demand or cause of action
may be necessary to satisfy the judgment. o Described by Sec. 47, par. (c), Rule 39
Sheriffs receipt shall be sufficient discharge o Also known as the Rule of Auter
for the amount so paid. [Sec. 39, Rule 39] Action Pendant
APPOINTMENT OF RECEIVER BAR BY FORMER CONCLUSIVENESS OF

JUDGMENT JUDGMENT
The court may appoint a receiver for the
There is only identity of
property of judgment debtor not exempt from Requires identity of parties and subject
execution, and may also forbid disposition or parties, subject matter, matter
interference with the property. [Sec. 41, Rule and causes of action Cause of action are
39] different
Absolute Bar to: Conclusive as to
If court finds that the judgment obligor has (a) all matters directly matters directly
an interest in real estate in the place where adjudged; and adjudged and actually
proceedings are had, and such interest may (b) those that might litigated
be ascertained without controversy, the have been adjudged
Claim Preclusion Issue Preclusion
140 OF 425
BAR BY FORMER JUDGMENT

The judgment or decree of a court of Res Judicata in Judgments in
competent jurisdiction on the merits Personam
concludes the parties and their privies to the In other cases, the judgment or final order is,
litigation and constitutes a bar to a new with respect to the matter directly adjudged
action or suit involving the same cause of or as to any other matter that could have
action either before the same or any other been missed in relation thereto, conclusive:
tribunal. [Machoca v. Cariaga, G.R. No. (1) Between the parties and
75109-10 (1989)] (2) Their successors in interest, by title
subsequent to the commencement of the
Requisites: action or special proceeding, litigating for
(1) A FINAL judgment or order the same thing and under the same title
(2) JURISDICTION over the subject matter and in the same capacity.
and the parties by the court rendering it
(3) Judgment UPON MERITS CONCLUSIVENESS OF JUDGMENT
(4) Between the TWO CASES, there is: Any right, fact or matter in issue directly
(a) IDENTITY OF PARTIES adjudicated or necessarily involved in the
(b) IDENTITY OF SUBJECT MATTER determination of an action before a
(c) IDENTITY OF CAUSE OF ACTION competent court in which a judgment or
decree is rendered on the merits is
GENERAL RULE: For res judicata to apply, conclusively settled by the judgment therein
trial must be made on the merits of the case. and cannot again be litigated between the
parties and their privies whether or not the
EXCEPTION: Sec. 3, Rule 17 of ROC: If claim or demand, purpose or subject matter
plaintiff fails to appear at the time of the trial, of the two suits is the same. [Machoca v.
or to prosecute his action for an unreasonable Cariaga, G.R. No. 75109-10 (1989)]
length of time, or to comply with these rules
or any order of the court, the action may be Requisites:
dismissed upon motion of the defendant or (1) A FINAL judgment or order
upon the court's own motion. This dismissal (2) JURISDICTION over the subject matter
shall have the effect of an adjudication upon and the parties by the court rendering it
the merits, unless otherwise provided by (3) Judgment UPON MERITS
court. [Development Bank v. CA, G.R. No. (4) Between the TWO CASES, there is:
110203 (2001)] (a) IDENTITY OF PARTIES
(b) IDENTITY OF ISSUES
Res Judicata in Judgm ents in Rem
Judgments or final H.2 RES JUDICATA, LAW OF THE
Conclusive as to
order
Against a specific
CASE AND STARE DECISIS
Title of the thing
thing
The will or Stare Decisis - When the SC has laid down
administration. a principle of law applicable to a certain state
Probate of a will or However, the probate of of facts, it will adhere to that principle and
administration of a will or granting of apply to it all future cases where the facts are
the estate of a letters of administration substantially the same
deceased person shall only be prima facie
evidence of the death of Law of the Case - Whatever is once
the testator or intestate; irrevocably established as the controlling
in respect to the legal rule or decision between the same
personal, political, parties in the case continues to be the law of
or legal condition or Condition, status or the case whether correct on general
status of a relationship of the principles or not, so long as the facts on
particular person or person, which such decision was predicated continue
his relationship to to be the facts of the case before the court.
another
141 OF 425
As discussed in Ayala Corp. v. Rosa-Diana

Realty, G.R. 134284 (2000): This policy of preclusion rests on principles of
Res Law of the comity, utility and convenience of nations.
Stare Decisis
Judicata Case
The ruling Operates only As a generally accepted principle of international
law, it is part of the law of the Philippines by virtue
in one in the
of the Incorporation Clause [Sec. 2, Art. II, 1987
case is particular and
Constitution] [Regalado]
carried single case
over to where the Two Ways of Giving Effect to Foreign Judgment:
another ruling arises (1) An ordinary action to enforce the foreign
case and is not judgment may be filed in court; or
between carried into (2) It may be pleaded in an Answer or a Motion to
the same other cases as Dismiss.
parties a precedent
Once a point of EFFECT OF FOREIGN JUDGMENTS [Sec. 48,
law has been Rule 39]
The ruling established by NATURE EFFECT
adhered to in the court, that In judgments
the particular point of law will, against a Judgment is CONCLUSIVE upon
case need not generally, be specific thing (in the title to the thing
be followed as followed by the rem)
a precedent in same court and Judgment is PRESUMPTIVE
In judgments
subsequent by all courts of evidence of a right as between
against a person
parties and their successors-in-
litigation lower rank in (in personam)
interest by a subsequent title
between other subsequent
parties cases where the
In both cases, judgment may be repelled by
same legal issue evidence of:
is raised (1) Want of jurisdiction
(2) Want of notice
I. ENFORCEMENT AND EFFECT OF (3) Collusion
FOREIGN JUDGMENT OR FINAL (4) Fraud
(5) Clear mistake of law or fact
ORDERS
A foreign judgment is presumed to be valid and
PUBLIC POLICY PRINCIPLE binding in the country from which it comes, until a
A judgment by a foreign court is enforceable only contrary showing, on the basis of a presumption
within its territorial jurisdiction. of regularity of proceedings and the giving of due
notice in the foreign forum.
A valid judgment rendered by a foreign tribunal
may be recognized insofar as the immediate Before our courts can give the effect of res
parties the underlying cause of action are judicata to a foreign judgment, it must be shown
concerned so long as it is convincingly shown that: that the parties opposed to the judgment had
(1) There has been an opportunity for a fair been given ample opportunity to do so on grounds
hearing before a court of competent under Section 48 of Rule 39 of the Rules of Court.
jurisdiction [Roehr v. Rodriguez, G.R. No. 142480 (2003)]
(2) Trial upon registered proceedings has been
conducted
(3) There is nothing to indicate either a prejudice
in court and in the system of laws under which
it is sitting or fraud in procuring the judgment
[Philippine Aluminum v. Fasgi Enterprises, G.R.
No. 137378 (2000)]
Such limitation on the review of foreign judgment

is adopted in all legal systems to avoid repetitive
litigation on claims and issues, prevent
harassment of the parties and avoid undue
imposition on the courts.
142 OF 425
VII. Provisional Remedies jurisdiction and order the appropriate reliefs

during the pendency of an action
Nature of Provisional Remedies
Jurisdiction over Provisional
Provisional remedies are writs and processes
Remedies
available during the pendency of the action
The court which grants or issues a provisional
which may be resorted to by a litigant for the
remedy is the court which has jurisdiction
preservation or protection of their rights and
over the main action.
interests therein pending rendition, and for
purposes of the ultimate effects, of a final
Inferior courts may also grant all appropriate
judgment in the case; also known as ancillary
provisional remedies in an action pending
or auxiliary remedies.
with it and is within its jurisdiction [Sec. 33 (1),
BP 129]
They are temporary, auxiliary, and ancillary
remedies available to a litigant for the
protection and preservation of his rights while A. PRELIMINARY ATTACHMENT
the main action is pending. They are writs The provisional remedy in virtue of which a
and processes which are not main actions plaintiff or other party may, at the
and are dependent for their application the commencement of the action or at any time
existence of a principal action. thereafter, have the property of the adverse
party taken into the custody of the court as
They are applied to a pending litigation, for security for the satisfaction of any judgment
the purpose of securing the judgment or that may be recovered. [Davao Light v CA,
preserving the status quo, and in some cases G.R. No. 93262 (1991)]
after judgment, for the purpose of preserving
or disposing of the subject matter. [Calo v. Purposes
Roldan, G.R. No. L-252 (1946)] (1) To seize the property of the debtor in
advance of final judgment and to hold it
Orders granting or denying provisional for purposes of satisfying the said
remedies are merely interlocutory and cannot judgment.
be the subject of an appeal. They may (2) To enable the court to acquire jurisdiction
however be challenged before a superior over the action by the actual or
court through a petition for certiorari under constructive seizure of the property in
Rule 65. those instances where personal service of
summons on the creditor cannot be
Purpose of Provisional Remedies effected. [PCIB v. Alejandro, G.R. No.
(1) To preserve or protect litigants rights or 175587 (2007)]
interests during the pendency of the
principal action; Kinds of Attachment
(2) To secure the judgment; (1) Preliminary attachment - one issued
(3) To preserve the status quo of the the at the commencement of the action or at
things subject to the action or the relation any time before entry of the judgment as
between the parties; and security for the satisfaction of any
(4) To preserve the subject matter of the judgment that may be recovered in the
action. cases provided for by the rules;
(2) Garnishment - a kind of attachment in
Kinds of Provisional Remedies which the plaintiff seeks to subject either
(1) Preliminary Attachment [Rule 57] the property of the defendant in the hands
(2) Preliminary Injunction [Rule 58] of a third person called garnishee, to his
(3) Receivership [Rule 59] claim or the money which said third
(4) Replevin [Rule 60] person owes the defendant;
(5) Support Pendente Lite [Rule 61] (3) Levy on execution - writ issued by the
court after judgment by which the
NOTE: The enumeration above is not property of the judgment obligor is taken
exclusive. The court may invoke its equity into custody of the court before the sale of
143 OF 425
the property on execution before the (a) Does not reside and is not found in the
satisfaction of a final judgment. Philippines; or
(b) On whom summons may be served by
A.1. GROUNDS FOR ISSUANCE [SEC. publication.
1, RULE 57] NOTE: The persons on whom summons
There are only specific situations where may be served by publication are:
preliminary attachment may issue. The (a) Residents defendants whose identity or
grounds are EXCLUSIVE: whose whereabouts are unknown [Sec.
(1) Action for recovery of a specified amount 14, Rule 14]
of money or damages, except moral and (b) Resident defendants who are
exemplary, temporarily out of the country [Sec. 16,
(a) On a cause of action arising from law, Rule 14]
contract, quasi-contract, delict, or
quasi-delict A.2 REQUISITES FOR ISSUANCE
(b) Against a party who is: (1) The case must be any of those where
(i) about to depart from the preliminary attachment is proper [Sec. 1,
Philippines Rule 57]
(ii) with intent to defraud his (2) Applicant must file a motion, whether ex
creditors; parte or with notice and hearing
(2) Action for money or property, embezzled (3) Applicant must file an affidavit showing
or fraudulently misapplied or converted to the required facts
his own use by either: (4) Applicant must post a bond executed to
(a) A public officer; adverse party
(b) An officer of a corporation;
(c) An attorney, factor, broker, agent, or A writ of preliminary attachment is too harsh
clerk, in the course of his employment a provisional remedy to be issued based on
as such; or mere abstractions of fraud. Rather, the rules
(d) Any other person in a fiduciary capacity, require that for the writ to issue, there must
or for a willful violation of duty; be a recitation of clear and concrete factual
(3) Action to recover the possession of circumstances manifesting that the debtor
property unjustly or fraudulently taken, practiced fraud upon the creditor at the time
detained or converted, of the execution of their agreement in that
(a) When the property, or any part thereof, said debtor had a preconceived plan or
has been concealed, removed, or intention not to pay the creditor. [Equitable v.
disposed of to prevent its being found Special Steel, G.R. No. 175350 (2012)]
or taken by the applicant or an
authorized person; A.3 ISSUANCE AND CONTENTS OF
NOTE: The rule makes no distinction ORDER OF ATTACHMENT
between real and personal property
[Riano] W hen Applied For
(4) Action against a party who has been guilty A preliminary attachment may be applied for
of a fraud in contracting the debt or (1) At the commencement of the action; or
incurring the obligation upon which the (2) At any time before the entry of judgment.
action is brought, OR in the performance
thereof; W ho may apply
NOTE: The delivery of counterfeit money It may be applied for by the plaintiff or any
or knowingly issuing a bounced check are proper party (including a defendant who filed
considered as grounds under this rule a counterclaim, cross-claim, or a third party
[Riano] complaint).
(5) Action against a party who:
(a) has removed or disposed of his
property, or is about to do so,
(b) with intent to defraud his creditors
(6) Action against a party who:
144 OF 425
Methods to Procure Preliminary A.3. AFFIDAVIT AND BOND [SECS.

Attachment 3-4, RULE 57]
(1) Writ may be prayed for in the complaint For the writ to issue, the applicant must
itself providing the allegations warranting submit an affidavit and post bond. The
its issuance affidavit and bond required must be duly filed
(2) May be issued pursuant to a separate with the clerk before order issues.
motion for attachment whenever the writ
is not prayed for in the original complaint Construction of rules for issuance of
writ:
Three Stages in the Grant These are strictly construed against the
(1) Court issues the order granting the applicant, such that if the requisites for its
application grant are not shown to be all present, the
(2) Writ of attachment issues pursuant to the court shall refrain from issuing it, otherwise,
order granting the writ the court which issues it acts in excess of its
(3) The writ is implemented jurisdiction. [Wee v. Tankiansee, G.R. No.
171124 (2008)]
NOTE: For the initial two stages, it is not
necessary that jurisdiction over person of A general averment in the affidavit is
defendant be first obtained. However, once insufficient to support the issuance of the writ.
implementation of writ commences, court In averring fraud under Sec. 1, Rule 57, the
must have acquired jurisdiction over the affidavit must contain:
defendant for without such jurisdiction, the (1) such particulars as to how the fraud was
court has no power or authority to act committed
[Cuartero v. CA, G.R. No. 102448 (1992)] (2) statements of factual circumstances to
show that respondent, at the time of
Issuance of the Order contracting the obligation, had a
(1) The order may be issued either:
preconceived plan or intention not to pay.
(a) Ex parte (service of summons to
[Wee v. Tankiansee, G.R. No. 171124
defendant required) (2008)]
(b) Or upon motion with notice and
hearing Contents of the Affidavit
(2) The order is issued by the court in which
The affidavit must establish that:
the action is pending or the CA, or the SC (1) A sufficient cause of action exists;
(2) The case is one of those mentioned in Sec.
Contents of the Order 1 (Grounds for Issuance);
(1) It must require the sheriff to attach so
(3) There is no other sufficient security for the
much of the property of the party against claim sought to be enforced by action;
whom it is issued as may be sufficient to and
satisfy applicants demand
(4) The amount due to applicant or
(a) Property must be within the Philippines
possession of which he is entitled to
(b) And must not be exempt from
recover is as much as the sum for which
execution the order is granted above all legal
(2) It shall contain an amount for the
counterclaims
attachment bond:
(a) The amount sufficient to satisfy the
Applicants Bond
applicants demand, or
The party applying for the order must give a
(b) The value of the property to be
bond executed to the adverse party
attached as stated by applicant
(1) Amount is fixed by the court in its order
granting the issuance of the writ
(2) Conditioned that, if the court shall finally
adjudge that applicant was not entitled to
the writ, the bond will pay:
(a) All costs which may be adjudged to
adverse party and
145 OF 425
(b) All damages which he may sustain by (b) The registrar of deeds must index
reason of attachment attachments in the names of the
applicant, adverse party, or person by
The bond shall only be applied to all whom the property is held or in whose
damages sustained due to the attachment. It name it stands in the records
cannot answer for those that do not arise by (c) If attachment is not claimed on the
reason of the attachment [Riano]. entire area of land, description
sufficiently accurate for identification of
A.4 RULE ON PRIOR OR such shall be included in the
CONTEMPORANEOUS SERVICE OF registration
(2) Personal property capable of manual
SUMMONS delivery
(a) Sheriff Issues a corresponding receipt
GENERAL RULE: A writ of attachment may
therefor
be issued ex parte even before the summons
(b) Sheriff takes it and safely keeps it in his
is served upon the defendant but a writ may
custody
not be implemented until jurisdiction over the
(3) Stocks or Shares, or an Interest therein, of
person is acquired by service of summons.
any corporation or company
Otherwise, the implementation is null and
(a) Leave a copy of the writ and a notice
void. [Riano]
stating that these properties are
attached in pursuance of such writ
Exceptions to Contemporaneous
(b) Leave these documents with the
Service of Sum m ons: [Sec. 5, Rule 57]
president, or managing agent thereof
(1) Summons could not be served personally
(4) Debts, credits, bank deposits, financial
or by substituted service despite diligent
interest, royalties, commissions and other
efforts, or
personal property not capable of manual
(2) Defendant is a resident of the Philippines
delivery
temporarily absent therefrom, or
(a) Leave a copy of the writ and a notice
(3) Defendant is a non-resident, or
that the debts owing, credits, and other
(4) The action is in rem or quasi in rem.
personal property are attached in
pursuance of such writ
A.5. MANNER OF ATTACHING (b) Leave these documents with:
PROPERTY [SEC. 5, RULE 57] (i) The person owing such debts, or
The sheriff enforcing the writ shall attach (ii) Having in his possession or under
only so much of the property in the his control, such credits or other
Philippines of the adverse party not exempt personal property, or
from execution as may be sufficient to satisfy (iii) With his agent
the applicants demand, unless (5) The interest of the party against whom
(1) Party against whom writ is issued makes a attachment is issued in property
deposit with the court from which the writ belonging to the estate of decedent,
is issued, or whether as heir, legatee, or devisee
(2) He gives a counter-bond executed to the (a) By service of a copy of the writ, and
applicant notice that said interest is attached
(b) Service is made to:
Attachment of specific kinds of (i) The executor, or administrator,
property [Sec. 7, Rule 57] or
(1) Real property, or growing crops thereon, (ii) Other personal representative of
or any interest therein the decedent
(a) File with the Registry of Deeds: (c) Copy of the writ and notice:
(i) A copy of the order together with (i) Shall be filed with the clerk in
a description of the property; and which said estate is being settled,
(ii) A notice that the property is and
attached (ii) Served upon the heir, legatee, or
devisee concerned
146 OF 425
Grounds for Discharge

Attachment of property in custodia (1) Debtor has posted a counterbond or has
legis made the requisite cash deposit [Sec. 12]
These may be attached by: (2) Attachment was improperly or irregularly
(1) Filing a copy of the writ of attachment issued [Sec. 13]
with the proper court or quasi-judicial (a) As where there was no ground for
agency attachment, or
(2) Serving a notice of attachment upon the (b) The affidavit and/or bond filed are
custodian of the property [Sec. 7, Rule 57] defective or insufficient [Sec. 3]
(3) Judgment is rendered against attaching
A previously attached property may also be creditor [Sec. 19]
subsequently attached. But the first (4) Attachment is excessive, but the discharge
attachment shall have priority over shall be limited to the excess [Sec. 13]
subsequent attachments. [Riano] (5) Property attached is exempt from
execution
A.6 PROCEEDINGS WHERE
ATTACHED PROPERTY IS CLAIMED NOTE: There is a difference between the
bond for issuance of writ and bond for lifting
BY THIRD PERSON the writ
A third person who has a claim to the
(1) Bond for issuance of writ [Sec. 4] This is
property attached may avail of the following
for damages by reason of the issuance of
remedies:
the writ
(1) File terceria or third-party claim [Sec. 14,
(2) Bond for lifting of writ [Sec. 5 and 12]
Rule 57]
This is to secure the payment of the
o A third-party claim may be filed with
judgment to be recovered
the sheriff while he has possession of
the properties levied upon, this being
Only the defendant or party whose property is
the only time fixed for the purpose
attached may move for its lifting. If the
o The claimant makes an affidavit of his
attachment is proper, the discharge should
title or right to possession, stating the
be by counterbond under Sec. 12 [KO Glass v.
grounds of such right or title. The
Valenzuela, G.R. No. L-48756 (1982)]
affidavit must be served upon the
sheriff
Effect of Dissolution on Plaintiffs
o Substantially identical procedure as in
Attachment Bond
terceria in Sec. 16, Rule 39
(1) Dissolution of preliminary attachment
(2) File independent action to recover
upon security given, or a showing if its
property; or
irregular issuance, does not operate to
(3) File motion for intervention
discharge the sureties on the attachment
o Available only before judgment is
bond
rendered
(2) That bond is executed to adverse party
conditioned that the applicant will pay all
A.7. DISCHARGE OF ATTACHMENT the costs which may be adjudged to
AND COUNTER-BOND adverse party and all damages which he
After a writ of attachment has been enforced, may sustain by reason of the attachment,
the party whose property has been attached, if the court shall finally adjudge that
or the person appearing on his behalf, may applicant was not entitled thereto [Sec.
move for the discharge of the attachment 4]
wholly or in part on the security given. (3) Until that determination is made, as to
applicants entitlement to attachment,
W ays of Discharging Attachment his bond must stand and cannot be
(1) Counterbond [Sec. 12] withdrawn
(2) Motion for Discharge [Sec. 13]
147 OF 425
A.8. SATISFACTION OF JUDGMENT establish the pre-existing relationship

OUT OF PROPERTY ATTACHED [SEC. between them.
15, RULE 57] May a preliminary injunction issue
against acts already consum m ated?
Procedure
(1) Pay to judgment obligee the proceeds of
GENERAL RULE: Injunction could not lie
sale of perishable property
when the acts sought to be enjoined have
(2) If there is any balance that remains due,
already become a fait accompli or an
sell property as may be necessary to
accomplished or consummated act. [Aznar
satisfy the balance if enough remains in
Bros. v. CA, G.R. No. 128102 (2000)]
the sheriff or those of the clerk
(3) Collection of property of garnishee and
EXCEPTION: If the acts complained of are
proceeds paid to judgment oblige without
continuing in nature and were derogation of
need of prior permission to file action but
plaintiffs rights at the outset.
may be enforced in the same action
(4) Return must be made within 10 days from
receipt of writ
TEMPORARY RESTRAINING ORDER
A TRO is issued in order to preserve the
status quo until the hearing of the application
B. PRELIMINARY INJUNCTION for preliminary injunction. [Bacolod City Water
v. Labayen, G.R. No. 157494 (2004)]
B.1 DEFINITIONS AND
DIFFERENCES An application for a TRO shall be acted upon
Injunction is a judicial writ, process, or only after all parties are heard in a summary
proceeding whereby a party is ordered to do hearing, which shall be conducted within 24
or refrain from doing a particular act hours after the sheriff's return of service
and/or the records are received by the branch
Preliminary Injunction is an ancillary or selected by raffle. [Sec. 4, Rule 58]
preventive remedy where a court requires a
person, a party or even a court or tribunal STATUS QUO ORDER
either to refrain from (prohibitory), or to A status quo order is in the nature of a cease
perform (mandatory), particular acts during and desist order. It is resorted to when the
the pendency of an action. It is only a projected proceedings in the case made the
temporary remedy. conservation of the status quo desirable or
essential, but the affected party neither
Injunction as Main sought such relief nor did the allegations in
Preliminary Injunction
Action his pleading sufficiently make out a case for a
Ancillary; exists only as temporary restraining order.
Independent part or incident of an
Action independent action or It does NOT direct the doing or undoing of
proceeding acts but is an order to maintain the last,
Seeks a judgment Seeks to preserve the actual, peaceable and uncontested state of
embodying a final status quo until the things which preceded the controversy.
injunction merits can be heard
Assailed by timely Assailed by petition for
B.2 REQUISITES
appeal certiorari
(1) There must be a verified application
(2) The applicant must establish:
Purpose: To prevent future injury and
(a) The existence of a clear and
maintain the status quo (i.e. the last actual,
unmistakable right that must be
peaceable, uncontested status which
protected; that is, right in esse;
preceded the pending controversy) for
(b) A material and substantial invasion of
[Knecht v. CA, G.R. No. 56122 (1993)]
such right; and
(c) An urgent and paramount necessity for
The injunction should not establish new
the writ to prevent serious damage
relations between the parties but merely re-
148 OF 425
(3) The applicant must post a bond, unless (c) There is an urgent and paramount
otherwise exempted by the court necessity
(4) As to a writ of preliminary injunction, there PRELIMINARY PRELIMINARY
must be notice and hearing PROHIBITORY MANDATORY
INJUNCTION INJUNCTION
RIGHT IN ESSE Purpose is to prevent
Purpose is to require a
The applicant's right must be clear or a person from the
person to perform a
unmistakable, that is, that the right is actual, performance of a
particular act
clear and positive especially calling for particular act
judicial protection. An injunction will not The act has already
issue to protect a right not in esse and which The act had not yet been performed and
been performed this act has violated
may never arise or to restrain an act which
the rights of another
does not give rise to a cause of action.
Status Quo is
[Marquez v. Sanchez, G.R. No. 141849 (2007)] Status Quo is restored
preserved
IRREPARABLE INJURY W hen preventive injunction does not
Does not have reference to the amount of
lie; exam ples:
damages that may be caused but rather to (1) To restrain collection of taxes [Valley
the difficulty of measuring the damages Trading v. CA (1989)], except where there
inflicted. This includes: are special circumstances that bear the
(1) that degree of wrong of a repeated and existence of irreparable injury. [Churchill &
continuing kind which produce hurt, Tait v. Rafferty (1915)]
inconvenience, or damage that can be (2) To restrain the sale of conjugal properties
estimated only by conjecture, and not by where the claim can be annotated on the
any accurate standard of measurement. title as a lien, such as the husbands
(2) damage where there is no standard by
obligation to give support. [Saavedra v.
which their amount can be measured with Estrada (1931)]
reasonable accuracy (3) To restrain a mayor proclaimed as duly
(3) a serious charge of, or is destructive to, the elected from assuming his office. [Cereno v.
property it affects, either physically or in Dictado (1988)]
the character in which it has been held (4) To restrain registered owners of the
and enjoined, or when the property has property from selling, disposing and
some peculiar quality or use, so that its
encumbering their property just because
pecuniary value will not fairly recompense the respondents had executed Deeds of
the owner of the loss thereof Assignment in favor of petitioner. [Tayag v.
If full compensation can be obtained, by way Lacson (2004)]
of damages, equity will not apply the remedy (5) Against consummated acts. [PNB v. Adi
of injunction. [Social Security Commission v. (1982); Rivera v. Florendo (1986); Ramos,
Bayona, G.R. No. L-13555 (1962)] Sr. v. CA (1989)]
B.3. KINDS OF INJUNCTION W hen mandatory injunction does not
(1) Preliminary Preventive Injunction lie; exam ples
Prohibits the performance of a particular (1) To compel cohabitation [Arroyo v. Vasquez
act or acts (1921)]
(2) Preliminary Mandatory Injunction (2) Cancellation of attachment [Levy
Requires the performance of a particular Hermanos v. Lacson (1940)]
act or acts. This is an extreme remedy (3) Release imported goods pending hearing
which will be granted only on showing before the Commissioner of Customs.
that: [Commissioner of Customs v. Cloribel
(a) The invasion of the right is material (1967)]
and substantial (4) To take property out of the possession or
(b) Right of complainant is clear and control of one party and place it into that
unmistakable of another whose title has not clearly been
established [Pio v. Marcos (1974)]
149 OF 425
B.4 ISSUANCE OF WRIT the issuance or continuance thereof,

W hen: It may be issued at any stage prior would cause irreparable damage to party
to the judgment or final order enjoined while applicant can be fully
compensated for such damages as he may
By W hom : It may be granted by the court suffer. In this case, the party enjoined shall
where the action or proceeding is pending. If file a bond
the action or proceeding is pending in the o Amount: Fixed by Court
Court of Appeals or in the Supreme Court, it o Undertaking That he will pay all
may be issued by said court or any member damages which the applicant may
thereof. [Sec. 2, Rule 58] suffer by denial or dissolution of the
injunction or TRO
B.5. GROUNDS FOR ISSUANCE OF
If it appears that the extent of the preliminary
PRELIMINARY INJUNCTION [SEC. 3, injunction or restraining order granted is too
RULE 58] great, it may be modified.
Preliminary injunction may be granted when
it is established: B.7 TEMPORARY RESTRAINING
(1) That applicant is entitled to the relief
demanded, which consists in whole or in ORDER
part in restraining commission or
continuance of an act, or in requiring the GENERAL RULE: Before preliminary
performance of an act, either for a limited injunction may be granted, there must be
time or perpetually; prior notice to person sought to be enjoined
(2) That commission, continuance, or non- and there must be a hearing
performance of the act complained of
during the litigation would probably work Procedure
injustice to applicant; or When an application for a writ of preliminary
(3) That a party, court, agency or a person is injunction or TRO is included in a complaint
doing, threatening, or is attempting to do, or initiatory pleading, the case, if filed in a
or is procuring or suffering to be done, multiple-sala, shall proceed as follows:
some act or acts probably in violation of (1) Verified complaint and bond is filed
the rights of the applicant respecting the (2) Determine if there is great or irreparable
subject of the action or proceeding, and injury or extreme urgency, which warrants
tending to render the judgment ineffectual the issuance of a TRO
o If yes, go to Procedure for Issuance of
TRO
B.6. GROUNDS FOR OBJECTION, OR (3) In both cases, Notice shall then be served
MOTION FOR DISSOLUTION [SEC. 6, to the party sought to be enjoined. There
RULE 58] must be prior and contemporaneous
The application for injunction or restraining service of summons (exceptions also
order may be denied: apply)
(1) Upon a showing of its insufficiency.
o Application is not verified Procedure for Issuance of TRO
o Application is not supported by the (1) If it appears that great or irreparable injury
grounds in Sec. 3 would result to the applicant before the
o Application does not show facts matter can be heard on notice:
entitling the applicant to the relief (a) Summary hearing on the application of
demanded the TRO within 24 hours after sheriffs
o Application is not supported by the return of service and/or records are
required bond received by the branch selected by
(2) On other grounds upon affidavits of the raffle
party enjoined, which may be opposed by (b) The court may issue a TRO effective for
the applicant also by affidavits 20 days from service on the party
(3) If it appears after hearing that, although sought to be enjoined
applicant is entitled to injunction or TRO, Within the 20 day period:
150 OF 425
o The applicant must show cause why

injunction should not be granted TRO ISSUED BY
o The court will determine WON the EXECUTIVE JUDGE
TRO ISSUED BY
preliminary injunction shall be granted. (MULTI-SALA) OR
ORDINARY JUDGE
If granted, the court will issue the ORDINARY JUDGE
corresponding order (SINGLE-SALA)
(2) If the matter is of extreme urgency and the Matter is of extreme
applicant will suffer grave injustice and urgency and that
If it appears that
irreparable injury grave injustice and
great or irreparable
(a) A TRO may be issued ex parte (after irreparable injury will
injury would result
raffling of case) ordered by the arise unless
Executive judge of a multiple sala court immediately issued
A summary hearing
or the presiding judge of a single-sala May be issued ex
must be done before
court parte
issuance
(b) Effective for 72 hours from issuance
Good for 20 days
(i) The applicant must then
Good for 72 hours including first 72
immediately comply with Sec. 4 hours
as to service of summons and Issued before raffling Issued after raffling
documents Issued after summary
(ii) The Executive Judge shall then Issued ex parte
hearing
summon the parties to a
conference and raffle the case in Upon the expiration of the non-extendible
their presence period, the TRO is automatically terminated.
Within the 72-hr period No judicial declaration necessary.
o The Presiding Judge before whom the
case is pending shall conduct a
summary hearing to determine
B.8 IN RELATION TO RA 8975
No court, except the Supreme Court, shall
whether the TRO shall be extended
issue any TRO, preliminary injunction or
until application for preliminary
preliminary mandatory injunction against the
injunction can be heard
government, or any of its subdivisions,
o In no case shall the total period of
effectivity of the TRO exceed 20 days, officials or any person or entity, whether
public or private acting under the
including the original 72 hours
government direction, to restrain, prohibit or
compel the following acts:
Effectivity of TRO
(1) Acquisition, clearance and development of
o Effectivity is not extendible. No court shall
the right-of-way and/or site or location of
have authority to extend or renew the
any national government project
same on the ground for which it was
(2) Bidding or awarding of contract/ project of
issued
the national government as defined under
o If issued by the CA effective for 60 days
Section 2 hereof;
from service
(3) Commencement prosecution, execution,
o If issued by SC effective until further
implementation, operation of any such
orders
contract or project;
(4) Termination or rescission of any such
contract/project; and
(5) The undertaking or authorization of any
other lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases,

disputes or controversies instituted by a
private party, including but not limited to
cases filed by bidders or those claiming to
151 OF 425
have rights through such bidders involving the provisions of Sec. 4, Rule 38, Sec. 4 as to
such contract/project. service of summons and the documents to be
served therewith. [Rule 38, Sec. 5]
This prohibition shall not apply when the
matter is of extreme urgency involving a B.10 GRANT OF FINAL INJUNCTION
constitutional issue, such that unless a If after the trial of the action it appears that
temporary restraining order is issued, grave the applicant is entitled to have the act or
injustice and irreparable injury will arise. The acts complained of permanently enjoined, the
applicant shall file a bond, in an amount to court shall grant a final injunction perpetually
be fixed by the court, which bond shall accrue restraining the party or person enjoined from
in favor of the government if the court should the commission or continuance of the act or
finally decide that the applicant was not acts or confirming the preliminary mandatory
entitled to the relief sought. [Sec. 3, RA 8975] injunction. [Sec. 9, Rule 58]
Any TRO, preliminary injunction, or C. RECEIVERSHIP

preliminary mandatory injunction issued in
Receiver A person appointed by the court
violation of Sec. 3 is void and of no force and
in behalf of all the parties to the action for the
effect. [Sec 4]
purpose of preserving and conserving the
property in litigation and prevent its possible
B.19 RULE ON PRIOR OR destruction or dissipation if it were left in the
CONTEMPORANEOUS SERVICE OF possession of any of the parties.
SUMMONS
When an application for a writ of preliminary Purpose: The purpose of a receivership as a
injunction or a temporary restraining order is provisional remedy is to protect and preserve
included in a complaint or any initiatory the rights of the parties during the pendency
pleading, the case, if filed in a multiple-sala of the main action, during the pendency of an
court, shall be raffled only after notice to and appeal or as an aid in the execution of a
in the presence of the adverse party or the judgment when the writ of execution has
person to be enjoined. In any event, such been returned unsatisfied.
notice shall be preceded, or
contemporaneously accompanied, by service The receivership under Rule 59 is directed to
of summons, together with a copy of the the property which is the subject of the action
complaint or initiatory pleading and the and does not refer to the receivership
applicant's affidavit and bond, upon the authorized under banking laws and other
adverse party in the Philippines. rules or laws. Rule 59 presupposes that there
is an action and that the property subject of
Exceptions: the action requires its preservation.
The requirement of prior or contemporaneous Receivership under Rule 59 is ancillary to the
service of summons shall not apply: [Sec. 4, main action. [Riano]
Rule 58]
(1) The summons could not be served The guiding principle is the prevention of
personally or by substituted service imminent danger to the property. If an action
despite diligent efforts, or by its nature, does not require such protection
(2) The adverse party is a resident of the or preservation, said remedy cannot be
Philippines temporarily absent therefrom applied for and granted. [Commodities
or is a nonresident thereof Storage v. CA, G.R. No. 125008 (1997)]
The executive judge of a multiple-sala court C.1. CASES WHEN RECEIVER MAY
or the presiding judge of a single sala court BE APPOINTED [SEC. 1, RULE 59]
may issue ex parte a TRO effective for only 72 (1) When it appears from the verified
hours from issuance if the matter is of application and other proof that the
extreme urgency and the applicant will suffer applicant has an interest in the property or
grave injustice and irreparable injury. fund which is the subject of the action or
However, he shall immediately comply with proceeding, and that such property or
152 OF 425
fund is in danger of being lost, removed, C.2 REQUISITES; REQUIREMENTS

or materially injured unless a receiver be BEFORE ISSUANCE
appointed to administer and preserve it;
(2) When it appears in an action by the Procedure
mortgagee for the foreclosure of a (1) Verified application filed by the party
mortgage that the property is in danger of requesting for the appointment of the
being wasted or dissipated or materially receiver;
injured, and that its value is probably (2) Applicant must have an interest in the
insufficient to discharge the mortgage property or funds subject of the action;
debt, or that the parties have so stipulated (3) Applicant must show that the property or
in the contract of mortgage; funds is in danger of being lost, wasted, or
(3) After judgment, to preserve the property dissipated;
during the pendency of an appeal, or to (4) Application must be with notice and must
dispose of it according to the judgment, or be set for hearing;
to aid execution when the execution has (5) Before appointing a receiver, the court
been returned unsatisfied or the judgment shall require applicant to post a bond in
obligor refuses to apply his property in favor of the adverse party.
satisfaction of the judgment, or otherwise (6) Before entering upon his duties, the
to carry the judgment into effect; receiver must be sworn to perform his
(4) Whenever in other cases it appears that duties faithfully and shall file a bond.
the appointment of a receiver is the most
convenient and feasible means of W ho Appoints Receiver
preserving, administering, or disposing of (1) Court where the action is pending
the property in litigation. (2) CA
(3) SC
Specific Cases (4) During the pendency of an appeal, the
(1) If a spouse without just cause abandons appellate court may allow an application
the other or fails to comply with his/her for the appointment of a receiver to be
obligations to the family, the aggrieved filed in and decided by the court of origin.
spouse may petition the court for [Sec. 1, Rule 59]
receivership. [Art. 101, Family Code]
(2) The court may appoint a receiver of the Receivership may be denied or lifted
property of the judgment obligor; and it (1) If the appointment was sought or granted
may also forbid a transfer or other without sufficient cause [Sec. 3]
disposition of, or any interference with, the (2) Adverse party files a sufficient bond to
property of the judgment obligor not answer for damages [Sec. 3]
exempt from execution. [Sec. 41, Rule 39] (3) Bond posted by applicant for grant of
(3) After the perfection of an appeal, the trial receivership is insufficient [Sec. 5]
court retains jurisdiction to appoint a (4) Bond of the receiver is insufficient [Sec. 5]
receiver of the property under litigation
since this matter does not touch upon the Appointment is not proper where the rights of
subject of the appeal. [Sec. 9, Rule 41; the parties, one of whom is in possession of
Acua v. Caluag (1957)] the property, are still to be determined by the
(4) After final judgment, a receiver may be trial court. [Vivares v. Reyes, G.R. No. 155408
appointed as an aid to the execution of (2008)]
judgment. [Philippine Trust Company v.
Santamaria (1929)]
(5) Appointment of a receiver over the
C.3 THE RECEIVER
property in custodia legis may be allowed
W hat is a Receiver?
when it is justified by special
A person appointed by the court in behalf of
circumstances, as when it is reasonably
all the parties to an action for the purpose of
necessary to secure and protect the rights
preserving the property involved in the suit
of the real owner. [Dolar v. Sundiam (1971)]
and to protect the rights of all the parties
under the direction of the court.
153 OF 425
proceeding, and ask for consequent

W ho May Be Appointed judgment on the acts complained of; or
The general rule is that neither party to the (b) Ask for leave of court to bring him an
litigation should be appointed as a receiver action directly
without the consent of the other because a
receiver is supposed to be an impartial and C.4 TWO KINDS OF BOND
disinterested person. [Alcantara v. Abbas, G.R.
No. L-14890 (1963)) APPLICANTS BOND
Applicant must file a bond executed to the
A clerk of court should not be appointed as a party against whom the application is
receiver as he is already burdened with his presented
official duties. [Abrigo v. Kayanan, G.R. No. L- o Amount: to be fixed by the court
28601 (1983)] o Undertaking: applicant will pay such party
all damages he may sustain by reason of
Powers of a Receiver the appointment, in case the applicant
(1) Bring and defend in such capacity actions shall have procured such without
in his own name with leave of court sufficient cause
(2) Take and keep possession of the property
in controversy The court may require additional bond after
(3) Receive rents appointment in the exercise of its discretion
(4) Collect debts due to himself as receiver or as further security for such damages [Sec. 2,
to the fund, property, estate, person, or Rule 59]
corporation of which he is the receiver
(5) Compound for and compromise the same RECEIVERS BOND
(6) Make transfers As a precondition before entering into his
(7) Pay outstanding debts duties, receiver must file a bond.
(8) Divide the money and other property that o Executed to the person against whom the
shall remain among the persons legally application is presented
entitled to receive the same o Amount: in such sum as the court may
(9) Generally, to do such acts respecting the direct.
property as the court may authorize o Undertaking: To the effect that he will
(10) Invest funds in his hands, only by faithfully discharge his duties and obey
order of the court upon the written the orders of the court [Sec. 4, Rule 59]
consent of all the parties. [Sec. 6, Rule 59]
DAMAGES DAMAGES ARISING
Liability for refusal or neglect to RESULTING FROM AFTER
deliver property to receiver APPOINTMENT APPOINTMENT
(1) May be punished for contempt; and Damages which arise
(2) Shall be liable to the receiver for the Damages resulting due to receivers
money or the value of the property and from appointment negligence or
other things so refused or neglected to be mismanagement
surrendered together with all damages The right rests on
that may have been sustained by the party The right is statutory general principles of
or parties entitled thereto as a law
consequence of such refusal or neglect. The damages may be
[Sec. 7, Rule 59] caused before the Liability rests on the
receiver qualifies or mismanagement or
Rem edies Against the Receiver takes possession of the negligence of receiver
(1) No action against receiver can be property
maintained without leave of court The applicants bond is The receivers bond is
(2) An aggrieved party may: responsible responsible
(a) Take the matter into the court which
appointed the receiver and ask either
for an accounting or take some other
154 OF 425
C.5 TERMINATION REPLEVIN

PRELIMINARY
ATTACHMENT
Ground: The necessity for a receiver no May be sought only
Available even if recovery
longer exists when the principal
of property is only
action is for the
incidental to the relief
Procedure recovery of
sought
personal property
(1) The court shall determine that the
necessity for a receiver no longer exists Can be sought only
when defendant is May be resorted to even
o Motu proprio, or on motion of either
in actual or if property is in
party
constructive possession of a third
(2) Due notice shall be given to all interested
possession of the person
parties property
(3) A hearing shall be conducted Cannot be availed Can be availed of even if
(4) The court shall then settle the accounts of of when property is property is in custodia
the receiver in custodia legis legis
(5) The court directs delivery of the funds and Available from
other property in his possession to the Available before
commencement but
person adjudged to be entitled to receive defendant answers
before entry of judgment
them Bond is double the
(6) The court will then order the discharge of value of the Bond is fixed by the court
the receiver property
Extends only to
Extends to all kinds of
Effect personal property
property whether real,
(1) Settle accounts of receiver capable of manual
personal, or incorporeal
(2) Delivery of funds to person entitled delivery
(3) Discharge of receiver Attachment to recover
(4) Receiver entitled to reasonable Available to recover possession of personal
compensation to be taxed as costs against personal property property unjustly
defeated party even if the same is detained presupposes
not being that the same is being
concealed, concealed, removed, or
D. REPLEVIN removed, or disposed of to prevent its
Replevin is the provisional remedy seeking for disposed of being found or taken by
the possession of the property prior to the the applicant
determination of the main action for replevin.
Replevin may also be a main action with the NOTE: There can be no replevin and
ultimate goal of recovering personal property preliminary attachment in the same case
capable of manual delivery wrongfully because the purposes are different.
detained by a person. In this sense, it is a suit (1) In Rule 57, it is for security
in itself (2) In Rule 60, it is for recovery of possession
PRELIMINARY
REPLEVIN
ATTACHMENT
The purpose is to have
D.1. WHEN WRIT MAY BE ISSUED
the property put in the The provisional remedy of replevin is
The purpose is to available where the principal purpose of
custody of the court to
recover personal the action is to recover the possession of
secure the satisfaction of
property capable of personal property.
the judgment that may
manual delivery W hen Applied For
be rendered in favor of
from the defendant A writ of replevin must be applied for:
the plaintiff at some
future time (1) At the commencement of the action, or
The property either (2) At any time before defendant files his
belongs to the answer
The property does not
plaintiff or one over NOTE: There can be no replevin before the
belong to the plaintiff
which the plaintiff appellate courts
but to the defendant
has a right of
possession
155 OF 425
W ho May Avail (b) Requiring the sheriff to take such

(1) Plaintiff where the complaint prays for property into his custody
recovery of possession of personal NOTE: The writ of replevin may be served
property anywhere in the Philippines.
(2) Defendant where a counterclaim was set
out in the answer for recovery of personal D.3. AFFIDAVIT AND BOND;
property REDELIVERY BOND
It is available to any other party asserting Contents of the Affidavit
affirmative allegations praying for the The affidavit shall:
recovery of personal property unjustly (1) Particularly describe the property
detained. (2) State that the applicant is:
(a) the owner of the property claimed; or
Does the applicant have to be the (b) entitled to possession
holder of the legal title to the (3) State that the property is wrongfully
property? detained by adverse party, allege the
GENERAL RULE: No. It is in the nature of a cause of detention according to his best
possessory action. It is sufficient that at the knowledge, information, belief
time he applied for a writ of replevin he is (4) State either
found to be entitled to a possession thereof. (a) That the property has not been:
Primarily, the action of replevin is possessory (i) Distrained,
in character and determines nothing more (ii) Taken for a tax assessment,
than the right of possession. However, when (iii) Taken as a fine pursuant to law,
the title to the property is distinctly put in (iv) Seized under a writ of execution
issue by the defendant's plea, the question of or preliminary attachment, or
ownership may be resolved in the same (v) otherwise under custodia legis
proceeding because a replevin action is (b) That, if the property is so taken, it is
sufficiently flexible to authorize a settlement exempt from such seizure or custody.
of all equities between the parties, arising (5) State the actual value of the property
from or growing out of the main controversy. subject of replevin and not just its
[Chiao Liong v. CA, G.R. No. 106251 (1993)] probable value.
D.2. REQUISITES Applicants Bond

(1) Applicant is owner of the property (1) Executed to the adverse party
claimed or is entitled to possession (2) Amount is DOUBLE the value of the
(2) Property is wrongfully detained by the property stated in the affidavit
adverse party (3) Conditions of the Bond:
(3) Property is not distrained or taken for tax (a) The return to of property to adverse
assessment or fine pursuant to law, or party, if such return be adjudged, and
seized (if seized, that the property is (b) The payment to adverse party of such
exempt) sum as he may recover from the
(4) Principal purpose of the action is to applicant in the action
recover possession of personal property
Return of Property[Sec. 5]
Procedure [Secs. 2-3, Rule 60] If the adverse party does not object to the
(1) An application is filed at the sufficiency of the bond, he may require the
commencement of the action or at any return of the property
time before answer of defendant W hen: At any time before delivery to
(2) Application must contain an affidavit applicant
(3) Applicant must file a bond How: By filing a redelivery bond
(4) Approval of the bond by the court
(5) Court shall then issue an order and the Redelivery Bond
writ of replevin: This is executed to the applicant and filed
(a) It must describe the personal property where the action is pending
alleged to be wrongfully detained
156 OF 425
o Amount: double the value of the The adverse party is entitled to the return of
property as stated in the affidavit of the the property taken under writ of replevin, if:
applicant (1) He seasonably posts a redelivery bond
o Undertaking: (2) The applicants bond is found to be
(a) The delivery thereof to the applicant, if insufficient or defective and is not
such delivery be adjudged, and replaced with a proper bond
(b) The payment of such sum to him as (3) The property is not delivered to the
may be recovered against the adverse plaintiff for any reason
party
D.5. WHEN PROPERTY CLAIMED BY
D.4. SHERIFFS DUTY IN THIRD PARTY
IMPLEMENTATION Procedure
Duties of the Sheriff [Sec. 4, Rule 60] Third party claiming the property must:
(1) Serve a copy of the order, together with (1) Make an affidavit of his title to the
the copies of the application, the affidavit, property, stating his grounds;
and bond to the adverse party (2) Serve such affidavit upon the sheriff while
(2) Take the property: the latter has possession of the property;
(a) If it be in the possession of the adverse and
party or his agent Take the property (3) Serve a copy upon the applicant.
into custody
(b) If property is concealed in a building or Effect
enclosure: The sheriff shall not be bound to keep
(i) Demand delivery of the property property under replevin or deliver property to
(ii) If not delivered, cause the the applicant, unless the applicant files a
building or enclosure to be bond approved by the court to indemnify the
broken open and then take the third person, in an amount not less than the
property into possession value stated in the affidavit of the applicant.
(3) After taking possession: No claim for damages for the taking or
(a) Keep the property in a secure place keeping of the property may be enforced
(b) He shall be responsible for delivery to against the bond unless the action is filed
party entitled within 120 days from filing of the bond.
Unlike a preliminary attachment and NOTE: The procedure in Sec. 7, Rule 60 is
preliminary injunction, the rule on prior or similar to that in third-party claims in
contemporaneous jurisdiction is not provided execution [Sec. 16, Rule 39] and in
for in replevin. attachment (Sec. 14, Rule 57].
However, the rule requires that upon such
order, the sheriff must serve a copy on the Difference in Service of Affidavits:
adverse party together with the required o Sec. 14, Rule 57 affidavit is served
documents. upon the sheriff while he has possession of
A sheriffs prerogative does not give him the the attached property
liberty to determine who among the parties is o Sec. 7, Rule 60 affidavit is served
entitled to possession. within 5 days in which sheriff has
When a writ is placed in the hands of a sheriff, possession (in connection with Sec. 6)
it is his duty to proceed with reasonable
celerity and promptness to execute it D.6. JUDGMENT [Sec. 9, Rule 60]
according to its mandate. After trial of the issues, the court shall
determine who has the right of possession to
Disposition of Property by Sheriff and the value of the property and shall render
The sheriff shall retain the property for 5 days. judgment in the alternative for the delivery
Within such period, the adverse party: thereof to the party entitled to the same, or
(1) May object to the sufficiency of the for its value in case delivery cannot be made,
applicants bond or surety; or and also for such damages as either party
(2) May file a redelivery bond, if he does not may prove, with costs.
object to the sufficiency of the bond
157 OF 425
A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

Preliminary Preliminary Receivership Replevin
Attachment Injunction
PURPOSE To have the To require a party or To place the To recover
property of adverse a court, agency, or a property subject possession of
party attached as person to reframe of an auction or personal property
security for from doing a proceeding under
satisfaction of particular act/s the control of a
judgment that may third party for its
be recovered in preservation and
cases falling under administration
Sec. 1, Rule 57 pendente lite or
To enable the court Or to require the as an aid to
to acquire performance of execution
jurisdiction over the particular act/s
action by the actual
or constructive
seizure of the
property in those
instances where
personal service of
summons on
creditor cannot be
effected
SUBJECT Personal or real Particular act/s Personal or real Personal property
MATTER property property capable of
manual delivery
W HEN At the At any stage prior to At any time prior At the
APPLIED/ commencement of final judgment or to satisfaction of commencement
GRANTED action final order judgment of the action
OR `At any time It may be availed BUT before the
prior to entry of of even after filing of answer
judgment judgment
becomes final
under Sec. 41,
Rule 39
HOW APPLIED File affidavits and File verified File verified File affidavits and
FOR applicants bond application and application and applicants bond
applicants bond applicants bond
If application is Application may
included in initiatory also be included
pleading, adverse in initiatory
party should be pleading in
served with actions for
summons together foreclosure of
with a copy of mortgage
initiatory pleading
and applicants bond
REQUIREMENT Not required Required Required Not Required
OF A HEARING May be issued ex EXCEPT: May be issued ex
parte Great or irreparable parte
injury would result or
158 OF 425
Preliminary Preliminary Receivership Replevin

Attachment Injunction
Extreme urgency and
applicant will suffer
grave injustice and
irreparable injury
(Sec. 5, Rule 58
W HO MAY Courts where the Only the court where Court where Only the court
GRANT action is pending, the action is pending action is pending were action is
the CA or the SC Lower court, CA or The CA or SC even pending
even if action is SC provided action is if action is
pending in lower pending in the same pending in the
court court which issues lower court
the injunction Appellate court
Also with the may allow
Sandiganbayan and application for
CTA receivership to be
decided by the
court of origin
REQUISITES 1. Sufficient cause 1. Applicant is 1. Applicant has 1. Applicant is
FOR of action entitled to relief interest in owner of the
GRANTING 2. Case is covered demanded property or property
APPLICATION by Sec. 1, Rule 2. Act/s complained fund, subject claimed or is
57 of would work matter of entitled to
3. No other injustice to action possession
sufficient applicant if not 2. Property or 2. Property is
security for the enjoined fund is in wrongfully
claim exists 3. Acts sought to be danger of detained by
4. Amount due to enjoined probably being lost, or the adverse
applicant or violates removed, or party
value of applicants rights material 3. Property is not
property he is respecting the injured distrained or
entitled to subject of the 3. Appointment taken for tax
recover is equal action or is the most assessment or
to the sum proceeding convenient fine pursuant
which the order 4. Threatened injury and feasible to law, or
of attachment incapable of means of seized (if
is granted pecuniary preserving, seized, that
estimation administering, the property is
disposing of exempt)
property in
litigation
159 OF 425
VIII. Special Civil Actions The Special Civil Actions (SCA) under
the Rules of Court
(1) SCAs initiated by complaints:
A. IN GENERAL (a) Interpleader
(b) Foreclosure of Real Estate Mortgage
A.1 NATURE (c) Forcible Entry and Unlawful Detainer
Special civil actions are civil actions primarily (d) Partition
governed by special rules, and secondarily by
(e) Expropriation
rules for ordinary civil actions. [SeeSec. 3,
Rule 1] (2) SCAs initiated by petitions:
Since a civil action in general is one by which (a) Declaratory Relief
a party sues another for the enforcement of a (b) Review or Adjudication of
right, or the prevention or redress of a wrong, COMELEC/COA Decisions
a special civil action is generally brought or (c) Certiorari
filed for the same purpose. [Riano]
(d) Prohibition
(e) Mandamus
A.2 ORDINARY CIVIL ACTIONS V.
(f) Quo Warranto
SPECIAL CIVIL ACTIONS
(g) Contempt
A special civil action is governed by the rules
of ordinary civil actions but there are certain
rules that are applicable only to special civil A.3 JURISDICTION AND VENUE
actions. Jurisdiction over special civil actions is
determined by the Constitution [Sec. 5, Art.
ORDINARY CIVIL VIII, for the Supreme Court] and statutes [e.g.
SPECIAL CIVIL ACTION
ACTION BPBlg 129).
Also governed by Venue is a procedural matter and generally
ordinary rules but set by the Rules of Court. Hence, the venue of
Governed by ordinary
subject to specific rules civil actions is determined by the general
rules
prescribed [Sec. 3, Rule rules on venue, unless otherwise subject to
1]
special rules for special civil actions (e.g. quo
Must be based on a
The concept of cause of warranto, seeSec. 7, Rule 66).
cause of action which
action in an ordinary
means that the
action does not always Jurisdiction of inferior courts
defendant has
fit in a special civil action Special civil actions that can be filed in or are
violated plaintiffs
(e.g. interpleader) within the jurisdiction of the inferior courts
rights
Venue is determined (i.e. MTC, MeTC, MCTC):
by either the (1) Interpleader - Provided that amount
residences of the Venue is generally involved is within its jurisdiction
parties when action is governed by the general
personal or by the rules on venue, except as (2) Ejectment suits Original and exclusive
location of the otherwise indicated by (3) Contempt
property when the special rules. [Regalado]
action is real. [Secs. 1- Application of hierarchy of courts
2, Rule 4] In the absence of special reasons, the SC will
Some initiated by decline to exercise original jurisdiction in
Initiated by complaint complaint, some by
certiorari, prohibition, and mandamus since it
petition.
Some special civil
is not a trier of facts and, that is a function
actions can only be filed which can be better done by the trial courts.
in the MTC (e.g. forcible The same rule applies for quo warranto
It may be filed initially wherein the SC has concurrent jurisdiction
entry and unlawful
either in the MTC or
detainer) while there are with the RTC. [Regalado, citing Fisher v.
the RTC
some which could not be Yangco Steamship Co. (1915) and Veraguth v.
commenced in the MTC Isabela Sugar Co. (1932)]
(e.g. certiorari)
160 OF 425
B. INTERPLEADER B.2 REQUISITES FOR

INTERPLEADER
B.1 NATURE (1) The plaintiff clams no interest in the
A remedy whereby a person who has property subject matter or his claim thereto is not
in his possession or has an obligation to disputed
render wholly or partially, without claiming (2) The parties to be interpleaded must make
any right in both, comes to court and asks effective claims
that the defendants who have made (3) There must be at least two conflicting
conflicting claims upon the same property or claimants with adverse or conflicting
who consider themselves entitled to demand interests to a property in custody or
compliance with the obligation be required to possession of the plaintiff; and
litigate among themselves in order to (4) The subject matter must be one and the
determine who is entitled to the property or same. [see Lim v. Continental Devt Corp.,
payment or the obligation. [Beltran v. PHHC, G.R. No. L-41818(1976)]
G.R. No. L-25138(1969)] NOTE: Interpleader applies regardless of
The peculiar characteristic of an interpleader nature of subject matter. [Wack Wack Golf &
is that there is NO CAUSE OF ACTION on the Country Club v. Lee Won, G.R. No. L-
part of the plaintiff but only a threat of cause 23851(1976), interpreting Rules of Court
of action. (1964), Sec.1, Rule 63, which was virtually
unchanged by the now Sec. 1, Rule 62]
Purposes NOTE: Interpleader cannot be availed of to
(1) To compel conflicting claimants to resolve the issue of breach of undertakings
interplead and litigate their several claims made by defendants, which should be
among themselves. [Sec. 1, Rule 62] resolved in an ordinary action for specific
(2) To protect a person against double performance or other relief [Beltran v. PHHC,
vexation in respect of one liability [Beltran G.R. No. L-25138(1969)].
v. PHHC, G.R. No. L-25138(1969); RCBC v.
Metro Container Corp, G.R. No. B.3 WHEN TO FILE
127913(2001)] W hen to File:
GENERAL RULE: Within a reasonable time.
INTERPLEADER v. INTERVENTION An action for interpleader should be filed
INTERPLEADER INTERVENTION within a reasonable time after a dispute has
Ancillary action, i.e. arisen without waiting to be sued by either of
Original action there is a pending the contending parties. Otherwise, it may be
action barred by laches. [Wack Wack Golf & Country
Intervenor claims an Club v. Lee Won, G.R. No. L-23851(1976)]
Plaintiff either has interest that is adverse Exception: Where the stakeholder acts with
(a) no interest or (b) to at least one of the reasonable diligence in view of environmental
an interest in the existing parties, or will circumstances, the remedy is not barred.
subject matter be adversely affected [Wack Wack Golf & Country Club v. Lee Won,
undisputed by the by judgment in favor of G.R. No. L-23851(1976)]
other parties either of the existing W ho Files: A complaint for interpleader is
parties
filed by the person against whom the
Defendants to a conflicting claims are made.
Defendants are sued complaint-in-
Jurisdiction and Venue: General rules on
to be impleaded intervention are parties
jurisdiction and venue apply as in ordinary
to a pending suit
civil actions. Hence, first-level courts have
jurisdiction where the amount is within the
limit. [see Makati Devt Corp. v. Tanjuatco, G.R.
No. L-26443(1969)]
161 OF 425
PROCEDURE C. DECLARATORY RELIEFS AND

(1) A complaint is filed.
SIMILAR REMEDIES
(2) Upon filing of complaint, the court issues
an Order [Sec. 2] requiring conflicting
claimants to interplead with one another. C.1. Nature
(3) Summons shall then be served upon the Subject m atter
conflicting claimants with a copy of the Deed, will, contract, or other written
complaint and the order to interplead [Sec. instrument, statute, executive order, or
3]. regulation, or ordinance
(4) Each claimant has a 15-day period to file The enumeration of the subject matter is
any of the following [Sec. 5]: exclusive. Hence, an action not based on any
(a) Answer, which must also be served of the enumerated subject matters cannot be
upon the other conflicting claimants. the proper subject of declaratory relief
(b) Motion to dismiss [Sec. 4]. If filed, [Mangahas v. Paredes, G.R. No. 157866
period to answer is (2007)]
o Grounds:
(1) Same as in Rule 16, plus Issue
(2) Impropriety of interpleader The validity or construction of the subject
action matter. This is the only question that may be
o If motion is denied, movant may file raised in declaratory relief. [Atlas
his answer within the remaining Consolidated Mining & Devt Corp. v. CA, G.R.
period but it shall not be less than 5 No. L-54305 (1990)]
days in any event from notice of
denial. Relief
(5) From service of Answer, the claimants Declaration of the petitioners rights and
may file their Reply serving copies to all duties
parties. Parties may file counterclaims,
cross-claims, third-party complaints, Purpose:
responsive pleadings (1) To secure an authoritative statement of
the rights and obligations of the parties
Effect of Failure to Answer: Default.
under a statute, deed, contract, etc. for
(a) The claimant may be declared, on
their guidance in its enforcement or
motion, in default
compliance and not to settle issues arising
(b) Unlike ordinary default, default in
from its alleged breach. [Tambunting v.
interpleader allows the court to render
Sumabat and Baello, G.R. No. 144101
judgment barring him from any claim
(2005)]
in respect to the subject matter
(2) To relieve the litigants of the common law
(6) Pre-trial is conducted.
rule that no declaration of rights may be
(7) After all pleadings have been fled, the
judicially adjudged unless a right has been
court shall then determine the respective
violated and for the violation of which
rights and adjudicate their several claims
relief may be granted.
[Sec. 6]
NOTE: The parties in an interpleader action
Characteristics
may file counterclaims, cross claims, third
The concept of a cause of action does not
party complaints and responsive pleadings
strictly apply to declaratory relief since this
[Arreza v. Diaz, G.R. 133113(2001)]
SCA presupposes that there has been no
breach or violation of the instruments
involved. However, a breach or violation must
be impending, imminent, or at least
threatened. [Velarde v. Social Justice Society,
G.R. No. 159357(2004)]
Hence, unlike other judgments, judgment in
an action for declaratory relief does not
essentially entail any execution process.
[Regalado]
162 OF 425
(4) Doubtful as to the terms and validity of

C.2.WHO MAY FILE THE ACTION the document and require judicial
[Sec. 1, Rule 63] construction
(1) Any person interested under a deed, will, (5) Issue is ripe for judicial determination, as
contract or other written instrument, where all administrative remedies have
before abreach thereof. been exhausted
(2) Any person whose rights are affected by a (6) Adequate relief is not available through
statute, executive order or regulation, or other means or other forms of action or
ordinance, or any other governmental proceeding [Regalado]
regulation, before a violation thereof. A justiciable controversy refers to an existing
case or controversy that is appropriate or
ripe for judicial determination, not one that
PARTIES
is conjectural or merely anticipatory. [Velarde
(1) All persons who have or claim any interest
v. Social Justice Society, G.R. No.
which would be affected by the
159357(2004)]
declaration [Sec. 2, Rule 63]
(2) If action involves the validity of a
statute/executive order/regulation/other C.4. WHEN COURT MAY REFUSE TO
governmental regulation, the Solicitor MAKE JUDICIAL DECLARATION
General shall be notified. [Sec. 3, Rule 63] Court has discretion to refuse,motu proprio or
(3) If action involves the validity of a local on motion, to grant Declaratory Relief when:
government ordinance, the (1) The decision will not terminate the
prosecutor/attorney of the LGU involved controversy or uncertainty giving rise to
shall be notified. [Sec. 4, Rule 63] the action; or
Non-joinder of interested persons is not a (2) The declaration or constitution is not
jurisdictional defect; but persons not joined necessary and proper under the
shall not be prejudiced in their interests circumstances. [Sec. 5, Rule 63]
unless otherwise provided by the Rules.
[Baguio Citizens Action v. City Council of C.5. CONVERSION TO ORDINARY
Baguio, G.R. No. L-27247 (1983)] ACTION [Sec. 6, Rule 63]
W hen proper
WHERE TO FILE If before the final termination of the case, a
Jurisdiction: Exclusive and original breach or violation of the instrument or status
jurisdiction is with the RTC (BP Blg. 129, sec. occurs. Then, petition is converted into an
19, i.e. incapable of pecuniary estimation). SC ordinary action.
has no original jurisdiction over declaratory
relief petitions, but has appellate jurisdiction Effect of Conversion
over them. [Liga ng mga Barangay National v. Parties shall be allowed to file such pleadings
City Mayor of Manila, G.R. No. 154599(2004)] as may be necessary or proper.
NOTE: If there has been breach or violation
Venue: General rule on venue applies. BEFORE filing of the petition, declaratory
relief cannot be availed of.
C.3 Requisites Of Action For
Declaratory Relief C.6. PROCEEDINGS CONSIDERED
(1) Subject matter of controversy must be a AS SIMILAR REMEDIES
deed, will, contract, or other written Actions similar to Declaratory Relief and may
instrument, statute, executive order or be brought under Rule 63: (may be filed with
regulation, or ordinance. The enumeration the MTC)
is exclusive. [Vda. de Aviles v. CA, G.R. No. (1) Action for reformation [See Art. 1359-1369,
95748(1996)] Civil Code]
(2) Actual justiciable controversy or ripening (2) Action to quiet title or remove cloud [See
seeds of one between person whose Art. 476-481, Civil Code]
interests are adverse (3) Action to consolidate ownership [See Art.
(3) No breach of documents in question 1607, Civil Code]
163 OF 425
These remedies are considered similar to resolution sought to be reviewed. This

declaratory relief because they also result in follows the express provision of the
the adjudication of the legal rights of the Constitution, and is different from Rule 65
litigants often without the need of execution which provides for 60 days.
to carry the judgment into effect. [Malana v.
Tappa, G.R. No. 181303(2009)] Interruption of the 30-day period
However, distinction must be made between: Filing of MFR or MNT, if allowed under the
(1) Cases similar to declaratory relief, where procedural rules of the Commission, shall
the court is BOUND to render judgment; interrupt the 30-day period. If denied,
and aggrieved party may file petition within the
(2) Actions for declaratory relief, where the remaining period but it shall not be less than
court MAY REFUSE to exercise the power 5 days in any event from notice of denial. [Sec.
to declare rights and to construe 3, Rule 64]
instruments. [Sec. 5, Rule 63] NOTE: The Fresh Period Rule is NOT
applicable. Its application to Rule 65 cannot
D. REVIEW OF JUDGMENTS AND be automatically extended because Rule 64,
Sec. 3 is a special rule. In the case of
FINAL ORDERS OR RESOLUTION COMELEC decisions, the Court has chosen
OF THE COMELEC AND COA not to extend it in view of the Constitutional
policy of prompt resolution of election cases.
SCOPE [Sec. 1, Rule 64] [Pates v. COMELEC, G.R. No. 184915(2009)]
Applicable only to judgments and final orders Failure to file a motion for reconsideration
of the COMELEC and COA[Sec. 1, Rule 64] before the issuing forum results in the
This new rule is based on the provisions of dismissal of the petition, except:
CONST. art. IX-A, sec. 7, which states that (1) To prevent a miscarriage of justice
[u]nless otherwise provided by this (2) When the issue involves the principle of
Constitution or by law, any decision, order, or social justice or the protection of labor
ruling of each Commission may be brought to (3) The decision or resolution is a nullity
the Supreme Court on certiorari within thirty (4) Need for relief is extremely urgent and
days from receipt of a copy thereof. certiorari is the only adequate remedy
Hence, judgments/orders of the Civil Service [ABS-CBN v. COMELEC, G.R. No.
Commission are now reviewable by the CA 133486(2000)]
under Rule 43, eliminating recourse to the SC.
[RA 7902; SC Revised Administrative Circular PROCEDURE
No. 1-95] (1) A verified petition is filed [Sec. 5] with
payment of docket and lawful fees [Sec. 4]
D.1 APPLICATION OF RULE 65 (2) Service of petition to the Commission and
UNDER RULE 64 parties concerned [Sec. 5]
The aggrieved party may bring a judgment or (3) SC shall act on the petition:
final order or resolution of the COMELEC and (a) It may dismiss the petition:
COA to the SC on certiorari under Rule 65 (i) Due to failure to comply with the
and not on appeal by certiorari under Rule 45. form and content requirements in
[Sec. 2, Rule 64] Sec. 5;
NOTE: The petition should be filed (ii) If SC finds the petition insufficient in
EXCLUSIVELY with the SC. form and substance [Sec. 6];
o Certiorari is the mode of review. Rule (iii)If it was filed manifestly for delay
65 is followed unless it conflicts with [Sec. 6]; or
particular rules under Rule 64. (iv) Questions raised are too
unsubstantial to warrant
SPECIAL RULES UNDER RULE 64 proceedings [Sec. 6].
(b) If sufficient in form and substance, the
Reglementary Period SC will require the respondents to file
The petition should be filed within 30 days their Comments [Sec. 6] within 10 days
from notice of judgment or final order or from notice
164 OF 425
(4) SC may also require oral argument or as a duty resulting from an office, trust, or
submission of memoranda [Sec. 9] station. [Sec. 3, Rule 65]
(5) The case is then submitted for decision
[Sec. 9] CERTIORAR PROHIBITIO MANDAMU
I N S
D.2 DISTINCTION IN THE Directed
Directed
APPLICATION OF RULE 65 TO against an
against an
Directed
JUDGMENTS OF THE COMELEC AND entity or
entity or against an
person
COA AND THE APPLICATION OF person
exercising
entity or
RULE 65 TO OTHER TRIBUNALS, exercising person
judicial,
PERSONS, AND OFFICERS judicial or exercising
quasi-
quasi- ministerial
judicial, or
judicial functions
RULE 64 RULE 65 ministerial
functions
Directed to any functions
Directed only to the
tribunal, board, or Entity or
judgments, final
officer exercising person is
orders or resolutions
judicial or quasi- alleged to
of COMELEC and COA Entity or person is alleged to
judicial functions have:
Filed within 30 days Filed within 60 days have acted:
(1)
from notice of the from notice of the (1) Without jurisdiction
Neglected a
judgment judgment (2) In excess of jurisdiction;
ministerial
Fresh period rule does or
duty; or
not apply. Rule 64, Fresh period rule (3) With grave abuse of
(2) Excluded
sec. 3 (supra) is applies discretion amounting to lack
another
applicable. or excess of jurisdiction
from a right
or office
E. CERTIORARI, PROHIBITION,
MANDAMUS PURPOSE:
PURPOSE:
For
PURPOSE To have
E.1 DEFINITIONS AND DISTINCTIONS respondent
To annul or respondent
Certiorari is a writ emanating from a to: (1) do the
nullify a desist from
superior court directed against an inferior act required,
proceeding further
court, tribunal, or officer exercising judicial or and (2) pay
proceeding
quasi-judicial functions, the purpose of which damages
is to correct errors of jurisdictioni.e. without Covers
or in excess of jurisdiction, or with grave Covers discretionary Covers
abuse of discretion amounting to the same. discretionary and ministerial
[Sec. 1, Rule 65] acts ministerial acts
acts
Prohibition is a writ issued by a superior Negative and
Corrective
court and directed against an inferior court, preventive
remedy: May be
board, officer or other person whether remedy
To correct affirmative,
exercising judicial, quasi-judicial, or To restrain or
usurpation positive, or
ministerial functions for the purpose of prevent the
of negative
preventing or restraining the latter from said
jurisdiction
usurping jurisdiction with which it is not usurpation
legally vested. [Sec. 2, Rule 65]
Mandamus is a writ issued in the name of

the State, to an inferior tribunal, corporation,
board, or person, commanding the
performance of an act which the law enjoins
165 OF 425
E.1.1 CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A CERTIORARI AS A

AND AS A SPECIAL CIVIL ACTION MODE OF APPEAL SPECIAL CIVIL
CERTIORARI AS A CERTIORARI AS A (Rule 45) ACTION (Rule 65)
MODE OF APPEAL SPECIAL CIVIL Parties are the
(Rule 45) ACTION (Rule 65) original parties
A continuation of with the appealing The tribunal, board, or
the appellate An original action and party as the officer, exercising
process over the not a mode of appeal petitioner and the judicial or quasi-
original case adverse party as judicial functions is
May be directed the respondent, impleaded as
against an without impleading respondent
interlocutory order of the lower court or
Seeks to review its judge
the court or where no
final judgment or May be filed with the
appeal or plain or
final orders Filed only with the SC, CA,
speedy remedy is
available in the SC Sandiganbayan, or
ordinary course of law RTC
Raises questions of If the order is
jurisdiction, i.e. sufficient in form and
whether a tribunal, substance:
board or officer The RTC shall (1)
exercising judicial or order
quasi-judicial respondents to
Raises only Review by the SC is
functions has acted comment, and
questions of law discretionary and
without jurisdiction or then (2)(a) hear
will be granted
in excess of the case or (2)(b)
only when there
jurisdiction or with require the
are special or
grave abuse of parties to file
important reasons.
discretion amounting memoranda.
[Rule 45, sec. 6]
to lack of jurisdiction But the SC/CA
Filed not later than 60 may require a
Filed within 15 days days from notice of comment before
from notice of judgment, order, or giving the
judgment or final resolution sought to petition due
order appealed be assailed. In case a course.
from, or of the motion for
denial of reconsideration or E.1.2 PROHIBITION AND MANDAMUS,
petitioners motion new trial is timely DISTINGUISHED FROM INJUNCTION
for reconsideration filed, the 60-day INJUNCTION PROHIBITION
or new trial. period is counted from Ordinary civil action Special civil action
notice of said denial. Directed to the court
Extension of 30 Extension granted Directed only to the
itself, commanding it to
days may be only under party litigants,
cease from the exercise
granted for exceptional cases without in any
of a jurisdiction to
manner interfering
justifiable reasons. (infra). which it has no legal
with the court
Motion for claim
Does not require a
reconsideration is a It is based on the
prior motion for ground that the court
condition precedent, Does not involve
reconsideration against whom the writ
subject to exceptions the jurisdiction of
Does not stay the is sought had acted
the court
judgment or order without or in excess of
Stays the judgment jurisdiction
subject of the petition,
appealed from Main action or
unless enjoined or Main action
restrained provisional remedy
166 OF 425
o However, mandamus will lie to

INJUNCTION MANDAMUS compel the discharge of the
Ordinary civil action Special civil action discretionary duty itself but not to
Directed against a control the discretion to be exercised.
Directed against a tribunal, In other words, mandamus can issue to
litigant corporation, board, require action only but not specific
or officer action. [Assoc. of Small Landowners in
Purpose is to either Purpose is for the the Phils., Inc. v. Sec. of Agrarian Reform,
refrain the defendant tribunal, G.R. No. 78742(1989)]
from performing an act corporation, board, (3) The duty to be performed must be existing.
or to perform not or officer, to perform o A correlative right will be denied if not
necessarily a legal and a ministerial and performed by the respondents.
ministerial duty legal duty (4) There is no other plain, speedy, and
adequate remedy in the ordinary course of
E.2 REQUISITES law.
CERTIORARI
(1) Respondent is exercising judicial or quasi- DISCRETIONARY ACT MINISTERIAL ACT
judicial function One which an officer
(2) Respondent acted without or in excess of or tribunal performs
its jurisdiction or acted with grave abuse of in a given state of
One where public
discretion amounting to lack of facts, in a prescribed
functionaries, by
jurisdiction; and manner, in obedience
virtue of a power or
(3) There must be no appeal or other plain, to the mandate of a
right conferred upon
speedy, and adequate remedy [Barbers v. legal authority,
them by law, can act
without regard to or
COMELEC, G.R. No. 165691(2005)] officially under certain
the exercise of his
circumstances,
own judgment upon
PROHIBITION uncontrolled by the
the propriety or
(1) Respondent is exercising judicial, quasi- judgment or
impropriety of the act
judicial, or ministerial functions conscience of others
done [Roble Arrastre,
(2) Respondent acted without or in excess of Inc. v. Villaflor
its jurisdiction or acted with grave abuse of (2006)]
discretion amounting to lack of
jurisdiction; and
(3) There must be no appeal or other plain, E.3 WHEN PETITION FOR
speedy, and adequate remedy [Barbers v. CERTIORARI, PROHIBITION, AND
COMELEC, G.R. No. 165691(2005)] MANDAMUS IS PROPER
NOTE:The common requisite among
MANDAMUS certiorari, prohibition, and mandamus is that
(1) There must be a well-defined, clear legal there is no other plain, speedy, or
right or duty. [Valmonte v. Belmonte, G.R. adequate rem edy in the ordinary
No.74930 (1989)] course of law.
o The duty must be enjoined by law;
hence, a contractual duty cannot be WHEN PETITION FOR CERTIORARI IS
enforced by mandamus. [Province of PROPER
Pangasinan v. Reparations Commission, Only to correct errors of jurisdiction, not
G.R. No. L-27448(1977)] errors of judgment.
(2) Respondent must be exercising a Questions of fact cannot be raised in an
ministerial duty. [Roble Arrastre, Inc. v. original action for certiorari. Only established
Villaflor, G.R. No. 128509(2006)] or admitted facts may be considered. [Suarez
o A duty which is absolute and v. NLRC, G.R. No. 124723(1998)]
imperative and involves merely its
execution
167 OF 425
GENERAL RULE: Where appeal is or to alter or review the action taken in the
available, certiorari will not lie. [Jose v. proper exercise of the discretion of judgment,
Zulueta, G.R. No. L-16598(1961)] for the writ cannot be used as a writ of error
EXCEPTIONS: or other mode of direct review.
(1) Where the appeal does not constitute a However, in extreme situations generally in
speedy and adequate remedy criminal cases, mandamus lies to compel the
(2) Where orders were also issued either in performance of the fiscal of discretionary
excess or without jurisdiction functions where his actuations are
(3) For certain special considerations, as tantamount to a wilful refusal to perform a
public welfare or public policy required duty. [REGALADO]
(4) Where, in criminal actions, the court
rejects the rebuttal evidence for the Grounds for M andam us:
prosecution as, in case of acquittal, there (1) When any tribunal, corporation, board,
could be no remedy officer or person, UNLAWFULLY
(5) Where the order is a patent nullity NEGLECTS the performance of an act
(6) Where the decision in the certiorari case which the law specifically enjoins as a duty
will avoid future litigations [Villarica resulting from an office, trust, or station.
Pawnshop v. Gernale, G.R. No. (2) When any tribunal, corporation, board,
163344(2009) officer, or person, UNLAWFULLY
EXCLUDES another from the due and
WHEN PETITION FOR PROHIBITION IS enjoyment of a right or office to which the
PROPER other is entitled. [Sec. 3, Rule 65]
Prohibition is a preventive remedy. However, Mandamus is the proper remedy when the
to prevent the respondent from performing respondent unlawfully excludes the petitioner
the act sought to be prevented during the from an office to which the latter is entitled
pendency of the proceedings for the writ, the without usurping, intruding into or unlawfully
petitioner should obtain a restraining order holding the office.
and/or writ of preliminary injuction. On the other hand, if the respondent claims
[REGALADO] any right to the office and usurps, intrudes
The office of prohibition is not to correct into or unlawfully holds it against the
errors of judgment but to prevent or restrain petitioner, quo warranto is the proper remedy
usurpation by inferior tribunals and to [FERIA]
compel them to observe the limitation of their
jurisdictions. [HERRERA] E.4 INJUNCTIVE RELIEF
GENERAL RULE:Prohibition does NOT INDEPENDENT ACTION

ordinarily lie to restrain an act which is An original action for Certiorari, Prohibition,
already fait accompli. or Mandamus is an independent action, and
EXCEPTION: Writ of prohibition will lie to as such:
prevent the unlawful creation of a new (1) Does not interrupt the course of the
province by those in the corridors of power principal action;
who could avoid judicial intervention and (2) Does not affect the running of the
review by merely speedily and stealthily reglementary periods involved in the
completing the commission of such illegality proceedings;
[Tan v. COMELEC, G.R. No. 73155(1986)] (3) Does not stay the execution of judgment
unless a TRO or writ of preliminary
WHEN PETITION FOR MANDAMUS injunction has been issued. [Sec. 7, Rule
PROPER 65]
The purpose of mandamus is to compel the
performance, when refused, of a ministerial INJUNCTIVE RELIEF
duty, this being its main objective. GENERAL RULE:The mere elevation of an
A writ of mandamus will not issue to control interlocutory matter through a petition for
the exercise of official discretion or judgment, certiorari does not by itself merit a suspension
168 OF 425
of the proceedings before a public (5) Where petitioner was deprived of due
respondent, applying Sec. 7, Rule 65. process and there is extreme urgency for
The public respondent shall proceed with the relief
principal case WITHIN 10 DAYS from filing of (6) Where, in a criminal case, relief from an
the petition for certiorari with the higher court, order of arrest is urgent and granting such
absent a TRO or preliminary injunction, or relief by trial court is improbable
upon its expiration. Failure may be a ground (7) Where the proceedings in the lower court
for an administrative charge [AM No. 07-7-12- are a nullity for lack of due process
SC] (8) Where the proceeding was ex parte or in
EXCEPTIONS: which the petitioner had no opportunity to
(1) W hen a writ of preliminary object
injunction or TRO is issued: The (9) Where the issue raised is one purely of law
burden is on petitioner to show that there or where public interest is involved
are meritorious grounds, i.e. there is an (10) Where the subject matter of the
urgent necessity in order to prevent action is perishable [Ombudsman v. Laja,
serious damage; or G.R. No. 169241(2006)]
(2) Judicial courtesy:Even if there is no
injunction issued, lower court should defer E.6 RELIEFS PETITIONER IS
to higher court where there is a strong ENTITLED TO
probability that the issues before the RELIEFS, IN GENERAL
higher court would be rendered moot and Petitioner may be entitled to:
moribund as a result of the continuation of (1) Injunctive relief Court may may issue
the proceedings in the court of origin. orders expediting the proceedings, and it
[Republic v. Sandiganbayan, G.R. No. may also grant a temporary restraining
166859(2006)] order or a writ of preliminary injunction for
the preservation of the rights of the parties
E.5 EXCEPTIONS TO FILING MOTION [Sec. 7, Rule 65]
FOR RECONSIDERATION BEFORE (2) Incidental reliefs as law and justice may
FILING PETITION require [Secs. 1-2, Rule 65]
GENERAL RULE: An MR is an essential (3) Other reliefs prayed for or to which the
precondition for the filing of a petition for petitioner is entitled [Sec. 8, Rule 65]
certiorari, prohibition, or mandamus. It is a
plain, speedy, and adequate remedy. This is PRAYERS
to enable the lower court, in the first instance, (1) In certiorari
to pass upon and correct its mistakes without (a) That the judgment be rendered
the intervention of the higher court annulling or modifying the proceedings
EXCEPTIONS: of such tribunal, board or officer; and
MR may be dispensed with in some cases: (b) Granting such incidental reliefs as law
(1) Where the order is a patent nullity and justice may require [Rule 65, Sec. 1]
(2) Where questions raised in the certiorari (2) In prohibition
proceeding have been duly raised and (a) That the judgment be rendered
passed upon by the lower court, or are the commanding the respondent to desist
same as those raised and passed upon in from further proceedings in the action
the lower court or matter specified; or
(3) Where there is urgent necessity for the (b) Otherwise granting such incidental
resolution of the question and any further reliefs as law and justice may require
delay would prejudice the interests of the [Rule 65, Sec. 2]
Government (3) In mandamus
(4) Where under the circumstances, an MR (a) That the judgment be rendered
would be useless, as where the court had commanding the respondent,
already indicated that it would deny any immediately or at some other time to
motion for reconsideration of its be specified by the court, to do the act
questioned order
169 OF 425
required to be done to protect the W hen filed:

rights of the petitioner; and (a) Not later than 60 days from notice of
(b) To pay the damages sustained by the judgment/order/resolution
petitioner by reason of the wrongful (b) If a motion for reconsideration/new trial is
acts of the respondent [Sec. 3, Rule 65] filed, the 60-day period shall be counted
from notice of denial of motion.
E.7 ACTS/OMISSIONS OF MTC/RTC
IN ELECTION CASES Rule on Extension of Tim e for Filing
In election cases involving an act or an GENERAL RULE: The sixty (60)-day period
omission of a municipal or regional trial court, within which to file a petition for
the petition [for certiorari, prohibition, or certiorari under Rule 65 is non-extendible.
mandamus] shall be filed EXCLUSIVELY with Exceptions:Under the following exceptional
the Commission on Elections, in aid of its circumstances, the Court may extend the
appellate jurisdiction [Sec. 4, par. 3, Rule 65 period according to its sound discretion:
as amended by AMNo. 07-7-12-SC (2007)] (1) Most persuasive and weighty reasons;
(2) To relieve a litigant from an injustice not
commensurate with his failure to comply
E.8 WHEN AND WHERE TO FILE with the prescribed procedure;
PETITION (3) Good faith of the defaulting party by
PETITION AND CONTENTS immediately paying within a reasonable
(1) A verified petition is filed in the proper time from the time of the default;
court accompanied by: (4) The existence of special or compelling
(a) Certified true copy of the judgment, circumstances;
order, resolution subject thereof (5) The merits of the case;
(b) Copies of all pleadings and relevant (6) A cause not entirely attributable to the
and pertinent documents fault or negligence of the party favored by
(c) Sworn certification of non-forum the suspension of the rules;
shopping (7) A lack of any showing that the review
(2) Contents of the petition sought is merely frivolous and dilatory;
(a) Allegation of facts with certainty (8) The other party will not be unjustly
(3) Prayer prejudiced thereby;
(9) Fraud, accident, mistake or excusable
ACQUISITION OF JURISDICTION negligence without appellant's fault;
In original actions for Certiorari, Prohibition, (10) Peculiar legal and equitable
Mandamus, when does the court acquire circumstances
jurisdiction over the person of the
respondent? F. QUO WARRANTO
(1) If action is filed with the RTC:Follow
rules on ordinary civil actions. Jurisdiction
is acquired by: F.1. NATURE
(a) Service of summons to respondent or Literally means by what authority; a
(b) By his voluntary appearance in court prerogative writ by which the court can call
(2) If the action is filed with the upon any person to show by what warrant he
SC/CA: Court acquires jurisdiction over holds a public office or exercises a PUBLIC
respondents by: franchise.
(a) Service on them of its orders indicating When the inquiry is focused on the legal
its initial action on the petition or existence of a body politic, the action is
(b) By their voluntary submission to such reserved to the State in a proceeding for quo
jurisdiction warranto or any other direct proceeding.
PROCEDURE Subject Matter: The subject matter of a
A petition for certiorari/ mandamus/ quo warranto may be a public office,
prohibition is filed franchise, or position.
170 OF 425
F.2. AGAINST WHOM MAY THE F.3. DISTINGUISHED FROM QUO

ACTION BE BROUGHT WARRANTO IN THE OMNIBUS
(1) A PERSON who usurps, intrudes into, or ELECTION CODE
unlawfully holds or exercises a public ROC RULE 66 OEC SEC. 253
office, position, or franchise; Filed by whom
(2) A PUBLIC OFFICER who does or suffers an (1)Solicitor General or
act, which, by provision of law, constitutes Public Prosecutor, (a)
a ground for forfeiture of office; or in behalf of the
(3) An ASSOCIATION which acts as a Republic [Rule 66,
corporation within the Philippines without sec. 2] or (b) upon the
being legally incorporated or without request or relation of
lawful authority to act. [Sec. 1, Rule 66] another person [sec.
W hen Not Proper: 3]; or Any voter
(1) Against persons who usurp an office in a (2) Individual claiming
private corporation [Calleja v. Panday, G.R. to be entitled to a
No. 168696 (2006)] public office or
(2) Dispute as to the counting of votes or position usurped or
matters connected with the conduct of the unlawfully held or
election (the proper remedy is an election exercised by another
protest) [Cesar v. Garrido, G.R. No. L- [sec. 5]
30705 (1929)] Where filed
JURISDICTION [Jurisdiction]
(1) Original jurisdiction to issue the writ of (1) If against
quo warranto is vested in the SC, CA, and [Venue] election of a
RTC. [CONST. art. VIII, sec. 5(1); Secs. 9 and (1) Commenced by Member of
21, BPBlg. 129] Sol. Gen.: (a) RTC Congress,
(2) Actions for quo warranto against Manila, (b) CA or Regional,
corporations (as opposed to associations (c) SC; Provincial or City
without authority) with regard to (2) Otherwise: (a) Officer:
franchises and rights granted to them, as RTC with COMELEC
well as the dissolution of corporations now jurisdiction over (2) If against a
fall under the jurisdiction of the RTC [PD territorial area municipal or
No. 902-A, in relation to Sec. 5.2, RA No. where respondent barangay officer:
8799.SEC. REG. CODE, sec. 5.2.; Unilongo v. resides, (b) CA or appropriate RTC
CA, G.R. No. 123910 (1999)] (c) SC or MTC,
(3) Usurpation of an office in a private respectively.
corporation falls under the jurisdiction of
the SEC under PD No. 902-A, in relation to Period for filing
Sec. 5.2, RA No. 8799. Within 1 year from
ouster or from the Within 10 days after
time the right to the proclamation of
position arose. [sec. results
11]
Grounds (against occupants of public offices)
(1) A person, who
usurps, intrudes
into or unlawfully
(1) Ineligibility; or
holds or exercises
(2) Disloyalty to the
a public office,
Republic
position or
franchise;
(2) A public officer,
171 OF 425
ROC RULE 66 OEC SEC. 253

who does or F.5. WHEN INDIVIDUAL MAY
suffers an act COMMENCE AN ACTION
which, by An individual may commence the action if he
provision of law, claims to be entitled to the office or position
constitutes a usurped or unlawfully held or exercised by
ground for another.
forfeiture of office. (1) He may institute the action in his own
[sec. 1] name. [Sec. 5]
Effect (a) He does not have to secure the
The occupant intervention of the Solicitor General or
who was public prosecutor.
declared (b) No leave of court necessary.
ineligible or (2) He must aver and be able to show that he
disloyal will be is entitled to the office in dispute,
unseated but the otherwise the action may be dismissed at
petitioner may be any stage. [General v. Urro, G.R. No.
The Court will oust
declared the 191560 (2011)]
the person illegally
rightful occupant (3) A public utility may bring a quo warranto
appointed and will
of the office if the action against another public utility which
order the seating of
respondent is has usurped the rights of the former
the person who was
disqualified and granted under a franchise [Cui v. Cui, G.R.
legally appointed and
the petitioner No. 39773 (1934)]
entitled to the office.
received the
second number F.6. PERIOD FOR PLEADINGS AND
of votes
[Maquiling v.
PROCEEDINGS MAY BE REDUCED
Period to File
COMELEC, G.R.
No. 195649 The action must be commenced within 1 year
from the date after the cause of such ouster
(2013)]
or the right of the petitioner to hold such
office or position arose. [Sec. 11]
In sum, Rule 66 applies to quo warranto IN
Laches does not attach and failure to file quo
GENERAL while election law governs quo
warranto proceedings does not operate
warranto against SPECIFIED elective officials.
adversely against a dismissed government
employee where it was the act of responsible
F.4. WHEN GOVERNMENT MAY government official which contributed in the
COMMENCE AN ACTION AGAINST delay of filing of complaint for reinstatement
INDIVIDUALS [Cristobal v. Melchor, G.R. No. L-43203
The Government, through the Solicitor (1980)]
General or public prosecutor commences the
action for quo warranto. Reduction of Period
(1) Mandatory: When to commence: The court may reduce the period for filing and
(a) When directed by the President; OR for all other proceedings in the action to
(b) When upon complaint or otherwise he secure most expeditious determination of the
has good reason to believe that any matters involved therein, consistent with the
case in Sec. 1 [supra] can be rights of the parties. [Sec. 8]
established by proof. [Sec. 2]
(2) Discretionary: When to commence: F.7. JUDGMENT IN QUO
(a) Upon permission of the court; AND WARRANTO ACTION
(b) At the request and upon the relation of When respondent is found guilty of usurping,
another person [ex relatione], provided intruding, or unlawfully holding or exercising
officer bringing it may require an a public office, judgment shall be rendered:
indemnity bond.
172 OF 425
(1) That such respondent is ousted and (d) Taking must be for public use
altogether excluded therefrom; and (e) There must be genuine necessity to take
(2) That petitioner or relator, as the case may the property [Manapat v. CA, G.R. No.
be, recover his costs; and 110478 (2007)]
(3) Court may further determine the There is taking when the expropriator enters
respective rights in and to the public office, private property not only for a momentary
position, or franchise of all parties. [Sec. 9] period but for a more permanent duration for
the purpose of devoting the property to a
F.8. RIGHTS OF A PERSON public use in such a manner as to oust the
ADJUDGED ENTITLED TO PUBLIC owner and deprive him of all the beneficial
enjoyment thereof. [RP v. Sarabia, G.R. No.
OFFICE 157847 (2005)]
Rights of persons adjudged entitled to office
Public use means public usefulness, utility,
[Sec. 10]:
or advantage, or what is productive of the
(1) Execution of the office
general benefit, so that any appropriation of
After taking oath of office and executing
private property by the State under its right of
any official bond required by the law
eminent domain, for purposes of great
(2) Demand from respondent all the books
advantage to the community, is a taking for
and papers appertaining to the office to
public use. [Reyes v. National Housing
which judgment relates.
Authority, G.R. No.147511 (2003)]
Respondents neglect or refusal to comply
with the demand is punishable by
contempt G.3. MATTERS TO ALLEGE IN
(3) Bring an action for damages against COMPLAINT FOR EXPROPRIATION
respondent for damages sustained by him Contents of the Complaint
by reason of the usurpation. The complaint shall:
Must be commenced within 1 year after entry (1) State with certainty the right and purpose
of judgment establishing petitioners right of expropriation
to the office in question [Sec. 11] because it NOTE: Where the right of the plaintiff to
is not proper that the title to public office expropriate is conferred by law, complaint
should be subjected to continued does not have to state with certainty the
uncertainty, and the peoples interest right of expropriation [Manila Railroad Co.
requires that such right should be v. Mitchel (1923)]
determined as speedily as practicale [Cuyo (2) Describe the real or personal property
v. City Mayor, G.R. No. L-9912(1957)] sought to be expropriated
(3) Join defendants
G. EXPROPRIATION All persons owning or claiming to own, or
occupying, any part thereof or interest
therein, showing separate interest of each
G.1. NATURE defendant, as far as practicable
Eminent Domain is the right and authority (4) Make the following averments, if needed:
of the State, as sovereign, to take private (a) If title appears to be in the Republic,
property for public use upon observance of although occupied by private
due process and payment of just individuals
compensation. (b) If title is otherwise obscure or doubtful
so that plaintiff cannot with accuracy or
It is in the nature of a compulsory sale to the certainty specify who the real owners
State. are [Sec. 1, Rule 67]
G.2. REQUISITES FOR THE VALID W here to File

EXERCISE OF THE RIGHT RTC where property is located. MTC has no
(a) The property must be private jurisdiction since an action for expropriation
(b) There must be due process of law is incapable of pecuniary estimation.
(c) Payment of just compensation
173 OF 425
[Barangay San Roque v. Heirs of Pastor, G.R. Preliminary deposit [Sec. 2, Rule 67]:
No. 138816 (2000)] Provide damages if court finds
There is no reason for the institution of that the plaintiff has no right to
expropriation proceedings when the owner is expropriate
willing to part with his property. The Purposes Advance payment for just
commencement of the complaint for compensation, if property is
expropriation is necessary only when the finally expropriated [Visayan
owner does not agree to sell his property, or if Refining Co. v. Camus (1919)]
he is willing to sell but does not agree with If Real Property: Equivalent to
the price offered. [RIANO] the assessed value of the property
for purposes of taxation.
Value
G.4. TWO STAGES IN EVERY ACTION If Personal Property: Value
shall be provisionally ascertained
FOR EXPROPRIATION and fixed by the court.
(First Stage) Propriety of With the authorized government
Expropriation: Where to depositary. (Amount is to be held
Determination of the authority of the plaintiff deposit by such bank subject to the orders
to exercise the power of eminent domain and of the court.)
the propriety of its exercise in the context of General Rule: Money.
the facts involved. This ends with either: Exception: In lieu of money, court
(1) An order of dismissal, or authorizes deposit of a certificate of
(2) An order of expropriation Form of
deposit of a government bank of
Deposit
(Second Stage) Just Com pensation: the Republic, payable on demand
Determination of the just compensation for to the authorized government
the property sought to be taken. [HERRERA] depositary.
NOTE: Multiple appeals are allowed in
expropriation. Aggrieved party may appeal in The deposit shall be in money unless in
each stage separately. lieu thereof the court authorizes the
deposit of a certificate of deposit of a
G.5. WHEN PLAINTIFF CAN government bank of the RP payable on
IMMEDIATELY ENTER INTO demand to the authorized depositary
POSSESSION OF THE REAL [HERRERA]
PROPERTY, IN RELATION TO R.A. After the deposit, court shall order sheriff
NO. 8974 or proper officer to place plaintiff in
Plaintiff shall have the right to take or enter possession of the property. Such officer
upon possession of the real property upon: shall promptly submit a report to the
(1) Filing of complaint or at any time court with service of copies to parties.
thereafter, and after due notice to NOTE: Preliminary deposit is only
defendant necessary if the plaintiff desires entry on
(2) Making preliminary deposit [Sec. 2, Rule the land upon its institution of the action.
67]
Otherwise, he could always wait until the
order of expropriation is issued before it
enters upon the land.
Once the preliminary deposit has been
made, the expropriator is entitled to a
writ of possession as a matter of right,
and the issuance of said writ becomes
ministerial on the part of the trial court.
[Biglang-Awa v. Bacalla, G.R. No.
139927(2000)]
174 OF 425
Republic Act No. 8974 (2000): upon the filing of the filing of the complaint,
An Act to Facilitate the Acquisition of and after due notice to the defendant, the
Right-of-Way, Site or Location for implementing agency shall immediately pay
National Government Infrastructure the owner of the property the amount
equivalent to the sum of:
Projects and for Other Purposes
(1) 100 percent of the value of the property
Sec. 2, Rule
RA 8974 based on the current relevant zonal
67
Only when valuation of the BIR; and
national (2) The value of the improvements and/or
Expropriation government structures as determined under Sec. 7 of
in general, expropriates R.A. 8974, supra [Sec. 4, RA 8974]
Scope for both real real property for
and personal national G.7. DEFENSES AND OBJECTIONS
properties government [Sec. 3, Rule 67]
infrastructure No Objection to or
projects With Objection to or
Defense against
Government is Defense against Taking
Taking
required to What to file and serve
Government
make
For writ of is required to Notice of appearance Answer to the
immediate
possession make and manifestation complaint
payment to
to issue preliminary
owner upon Period to file
deposit
filing of Time stated in the summons
complaint Contents
Equal to the (1) Specifically
market value of designating/identi
the property as (1) Manifestation to fying the property
stated in the tax the effect that he in which he claims
declaration or has no objection to have an interest
Equal to
current relevant or defense; in;
assessed
Amount of zonal value of (2) Specifically (2) Nature and extent
value of real
payment or BIR, whichever designating/ident of the interest;
property for
deposit is higher, and ifying the and
purposes of
value of property in which (3) ALL his objections
taxation
improvements he claims to be and defenses to
and/or interested the complaint or
structures using any allegation
replacement therein
cost method
Prohibited
Counterclaim, cross-
Applicable Special Laws: claim, third party
(1) R.A. No. 8974 specifically governs complaint in any
expropriation for national government pleading
infrastructure projects
(2) Sec. 19, Local Govt Code governs the Amended answers
exercise of the power of eminent domain A defendant waives all defenses and
by LGUs through an enabling ordinance objections not so alleged, but the court, in the
interest of justice, may permit amendments
G.6. NEW SYSTEM OF IMMEDIATE to the answer not to be made later than ten
PAYMENT OF INITIAL JUST (10) days from filing thereof.
COMPENSATION
For the acquisition of right-of-way, site or Just compensation may be proven with or
location for any national government without objections/defense, and whether or
infrastructure project through expropriation, not defendant appeared/answered: In any
175 OF 425
case, in the determination of just such terms as the court deems just and
compensation, defendant may present equitable; and
evidence as to the amount of compensation (2) Order forecloses any further objections to
to be paid. the right to expropriate, including the
public purpose of the same. [Robern
Effect of failure to file answer Development Corporation v. Quitain, G.R.
Failure to file answer does not produce all No. 135042 (1999)]
consequences of default as in ordinary civil Multiple appeals are permitted in
actions: expropriation. An appeal may be taken from
(1) There is default as to the first stage of the order authorizing expropriation and,
expropriation, supra; but thereafter, another appeal on the judgment
(2) Said judgment is without prejudice to the on the just compensation to be paid. Thus,
second stage, i.e. defendant still has the the reglementary period to appeal shall be 30
right to present evidence on the just days and a record on appeal shall be required
compensation and to share in the for each of the permissible appeals
distribution of the award. [Robern [REGALADO]
Development Corporation v. Quitain, G.R.
No. 135042 (1999)] G.9. ASCERTAINMENT OF JUST
COMPENSATION [Sec. 5, Rule 67]
G.8. ORDER OF EXPROPRIATON Upon rendition of the Order of Expropriation,
[Sec. 4, Rule 67] the court issues an Order of Appointment.
ORDER OF EXPROPRIATION
It is the order declaring that the plaintiff has ORDER OF APPOINTMENT
lawful right to take the property. (1) Court appoints not more than 3
commissioners to ascertain and report to
W hen Issued the court the just compensation for the
It is issued when: property
(1) Objections or defenses against the right of (2) Contents: Order shall
plaintiff to expropriate are overruled; or (a) Designate the time and place of the
(2) No party appears to defend the case first session of hearing to be held by
commissioner
Contents of the Order (b) Specify the time within which their
(1) That the plaintiff has a lawful right to take report shall be submitted to court
the property sought to be expropriated: (3) Procedures:
(2) For the public use or purpose described in (a) Copies of the Order shall be served on
the complaint; and the parties
(3) Upon payment of just compensation (4) Objections to appointment:
(a) To be determined as of the date of (a) Filed with the court within 10 days from
taking, or service
(b) The filing of the complaint, whichever (b) Objections shall be served to all
came first. commissioners
(c) Resolved within 30 days after all
REMEDY OF DEFENDANT commissioners shall have received
Order of condemnation is final, not copies
interlocutory. Hence, it is appealable.
JUST COMPENSATION
NOTE: Appeal shall not prevent court a quo The full and fair equivalent of the property
from determining just compensation. taken from its owner by the expropriator. Just
compensation means not only (1) the correct
EFFECTS OF THE ORDER determination of the amount to be paid but
(1) Plaintiff not permitted to dismiss or also the (2) payment of the land within a
discontinue the proceeding, except on reasonable time from its taking. [Land Bank
of the Phils. v. Obias, G.R. No. 184406 (2012)]
176 OF 425
(a) Consequential benefits are those

MARKET VALUE proximately resulting from the
Sum of money which a person desirous but improvements consequent to the
not compelled to buy, and an owner willing expropriation and accruing to the
but not compelled to sell, would agree on as remaining portion of the land.
a price to be given and received therefore. [REGALADO]
[BPI v. CA, G.R. No. 160890 (2004)] (b) In no case shall the consequential
benefits assessed exceed the
Time when market value should be consequential damages. [Sec. 6]
fixed: (c) In no case shall the owner be deprived
(1) When plaintiff takes possession before of the actual value of his property taken.
institution of proceedings: value fixed as of [Sec. 6]
TIME OF TAKING; or
(2) When the taking coincides with or REPORT BY COMMISSIONERS [Sec. 7,
subsequent to the commencement of Rule 67]
proceedings: value fixed as of DATE OF (1) Commissioners shall make a full and
FILING of the complaint accurate report to the court of all their
proceedings.
G.10. APPOINTMENT (2) Such proceeding shall not be effectual
OFCOMMISSIONERS; until court has accepted their report and
COMMISSIONERS REPORT; COURT rendered judgment in accordance with
their recommendations.
ACTION UPON REPORT (3) Report shall be filed within 60 days from
QUALIFICATIONS date commissioners were notified of their
(1) Competent; and appointment. Time may be extended by
(2) Disinterested court discretion,
(4) Upon filing, clerk shall serve copies of the
PROCEEDINGS BY COMMISSIONERS Commissioners Report to all interested
[Sec. 6, Rule 67] parties. Clerk includes a notice that parties
(1) Oath: Commissioners shall first take and are allowed to file objections to the report
subscribe an oath that they will faithfully within 10 days from notice.
perform their duties. Oath shall be filed in
court together with other proceedings. ACTION UPON COMMISSIONERS
(2) Introduction of evidence: Evidence REPORT [Sec. 8, Rule 67]
may be introduced by either party before (1) When court renders judgment: Upon
the commissioners who are authorized to (a) Filing of objections to the report or of
administer oaths on hearings before them the agreement thereon of all interested
parties; OR
DUTIES OF COMMISSIONERS (b) Expiration of 10-day period to object
(1) View and examine the property sought to from the report
be expropriated and its surroundings, and (2) Court may:
may measure the same. (a) After hearing, accept the report and
(a) Parties may agree not to have the render judgment in accordance
property inspected. therewith;
(b) Due notice to parties to attend must (b) Recommit to commissioners for further
first be given. report of facts, for cause shown;
(c) After this, each party may argue the (c) Set aside the report and appoint new
case. commissioners; OR
(2) Assess the consequential damages to the (d) Accept the report in part and reject in
property not taken and deduct from such part; AND
the consequential benefits to be derived (e) Make such order or render such
by owner. judgment as shall secure the plaintiff
(as to its right to expropriate) and the
177 OF 425
defendant (as to his right to just have the right to recover possession of their
compensation) property. [Yujuico v. Atienza, G.R. No.
164282(2005)]
The appointment of commissioners to
ascertain just compensation for the property G.12. EFFECT OF RECORDING OF
sought to be taken is a mandatory JUDGMENT
requirement in expropriation cases. [RIANO] Contents of the Judgment
(1) Statement of the particular property or
The trial with the aid of the commissioners is interest therein expropriated, with
a substantial right that may not be done adequate description; and
away with capriciously or for no reason at all. (2) Nature of the public use or purpose for
The absence of such trial or hearing which it is expropriated. [Sec. 13]
constitutes a violation of the right to due
process [NPC v de la Cruz, G.R. No. W hen title to property vests:
156093(2007)] (1) If personal property, upon payment of just
compensation [Sec. 10]
G.11. RIGHTS OF PLAINTIFF UPON (2) If real property, upon (i) payment of just
JUDGMENT AND PAYMENT [Sec. 10, compensation and (ii) registration of
Rule 67] property (by recording of the judgment in
RIGHTS the registry of deeds where the property is
Either: situated.) [Sec. 13]
(1) Right to retain: Applies when plaintiff
immediately entered upon the property H. FORECLOSURE OF REAL
after making the required deposit (and ESTATE MORTGAGE
therefore already has possession of the
property), supra. H.1. NATURE
(2) Right to enter and appropriate:
Foreclosure of Mortgage is a proceeding
Applies when plaintiff does not take
by which the mortgagee or his successors or
immediate possession of the property.
one who has by law succeeded to the rights
Appropriation must be for the public use
and liabilities of the mortgagee undertakes to
or purpose defined in the judgment.
dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the
Conditions for exercise:
mortgagors or those who have succeeded to
(1) Upon payment by plaintiff to defendant of
the rights and liabilities of the mortgagor.
compensation fixed by judgment, with
legal interest from taking; or
The cause of action in a foreclosure suit is
(2) After tender to defendant of the said
generally the non-payment of the mortgage
amount and payment of the costs.
loan, but it may be on other grounds which
N.B. If defendant or counsel absent
under the contract warrant the foreclosure,
themselves from the court or decline the
such as the violation of the other conditions
amount tendered, the amount shall be
therein.
deposited in court and shall have the
effect of actual payment.
Foreclosure may be made:
(1) Judicially: governed by Rule 68
EFFECT OF NON-PAYMENT OF JUST (2) Extrajudicially: proper only when so
COMPENSATION provided in contracts in accordance with
Non-payment of just compensation does not Act No. 3135; governed by AM No. 99-10-
entitle the private landowner to recover 05.
possession of the expropriated lots. However,
in cases where the government failed to pay
just compensation within 5 years from the
finality of judgment in the expropriation
proceedings, the owners concerned shall
178 OF 425
H.2. COMPLAINT IN AN ACTION FOR substantive right of the mortgagor. It cannot

FORECLOSURE [Sec. 1, Rule 68] be omitted in judicial foreclosure nor can the
Venue parties by agreement change the procedure
A foreclosure action must be brought in the outlined. [REGALADO]
RTC of the province where the land or any
part thereof is situated. Contents of judgment
If upon trial, the facts set forth in the
Contents of the Complaint: complaint are true, the court shall:
(1) The following dates: (1) Ascertain the amount due to the plaintiff
(a) Date and due execution of the real upon the mortgage debt or obligation
mortgage; including interests, other charges
(b) Date of the note or other documentary approved, and costs;
evidence of the obligation secured by (2) Render judgment for the sum found due;
the mortgage; (3) Order that the amount be paid to the court
(2) Its assignments, if any; or to judgment obligee within a period of
(3) The following names and residences: not less than 90 days but not more than
(a) Of the mortgagor and mortgagee 120 days from entry of judgment
(b) Of all persons having or claiming an In default of such payment, property shall
interest in the property subordinate in be sold at public auction to satisfy
the right to that of the holder of the judgment.
mortgage
(4) Description of the mortgaged property Multiple appeals
(5) Amount claimed to be unpaid Multiple appeals are allowed under Rule 68.
(1) Judgment of foreclosure is appealable.
Defendants in a judicial foreclosure: (2) Order confirming foreclosure sale is a final
(1) Persons obliged to pay the mortgage debt disposition with respect to the issue of
(2) Persons who own, occupy, or control the validity and regularity of the sale.
mortgaged premises or any part thereof (3) Deficiency judgment is a disposition on the
(3) Transferee or grantee of the property merits of the correctness of such award.
(4) Second mortgagee or junior [REGALADO]
encumbrancers or any person claiming a
right or interest in the property H.4. SALE OF MORTGAGED
subordinate to the mortgage sought to be PROPERTY; EFFECT [Sec. 3, Rule 68]
foreclosed to foreclose their equity of W hen proper
redemption When Defendant fails to pay the amount of
But if the action is by the junior judgment within the period specified, the
encumbrancer, first mortgagee MAY also court shall order the property to be sold.
be joined as defendant
(5) Mortgagor even if not owner of the How
mortgaged property should be included By motion and under the provisions of Rule
(to satisfy the deficiency). 39.
It is the ministerial duty of the court to order
H.3. JUDGMENT ON FORECLOSURE the foreclosure of the property when the debt
FOR PAYMENT OR SALE [Sec. 2, is not paid within the period specified.
A motion for such order of sale is non-
Rule 68] litigable and may be made ex parte. [Govt of
Judgment on Foreclosure is the
the Phil. Islands v. De las Cajigas, G.R. No. L-
judgment of the court ordering the debtor to
33913 (1931)]
pay within 90-120 days from entry of
judgment after ascertaining the amount due
Lim itation: Such sale shall not affect the
to plaintiff.
rights of persons holding prior encumbrances
The period of payment by the mortgagor is a
upon the property or a part thereof.
mandatory directive and constitutes a
179 OF 425
If the order of foreclosure sale does not push authorized agent, or any other person
through, there is a need for re-publication entitled to it. [Sec. 4, Rule 68]
and reposting of the notice thereof
[Metrobank v. Nikko Resources Intl Corp., G.R. H.6. DEFICIENCY JUDGMENT;
No. 178479 (2009)] INSTANCES WHEN COURT CANNOT
RENDER DEFICIENCY JUDGMENT
ORDER OF CONFIRMATION
When confirmed by an order of the court, also [Sec. 6, Rule 68]
upon motion, it shall operate to divest the Deficiency Judgm ent is judgment
rights in the property of all the parties to the rendered by the court holding defendant
action and to vest their rights in the liable for any unpaid balance due to the
purchaser, subject to such rights of mortgagee if the proceeds from the
redemption as may be allowed by law. [Sec. foreclosure sale do not satisfy the entire debt.
3] [Sec. 6]
Confirmation of the sale of mortgaged real A motion for deficiency judgment may be
property vests title in the purchaser including made only after the sale and after it becomes
the equity of redemption. It retroacts to the known that a deficiency exists. [Governor of
date of the sale. It cuts off all the rights or the Philippine Islands v. Torralba Vda. de
interests of the mortgagor and of the Santos, G.R. No. 41573(1935)]
mortgagee. [Lonzame v. Amores, G.R. No. L- NOTE: If the debtor dies, the deficiency may
53620 (1985)]. be filed as a claim against his estate. [Sec. 7,
The motion for the confirmation of the sale Rule 86]
requires a hearing to grant an opportunity to A deficiency judgment is an action in
the mortgagor to show cause why the sale personam while a judgment of foreclosure is
should not be confirmed [Tiglao v. Botones, an action quasi in rem.
G.R. No. L-3619(1951)] (e.g. by proof of
irregularities therein, gross inadequacy of the How Done:
price, lack of notice vitiates the confirmation (1) Judgment creditor files motion for
of the sale). [REGALADO] deficiency judgment.
(2) Court shall then render judgment against
defendant for any such balance for which
WRIT OF POSSESSION
he may personally be liable to plaintiff.
Upon the finality of the order of confirmation
(3) Execution may then issue immediately if
or upon the expiration of the period of
balance is all due at the time of rendition
redemption when allowed by law, the
of judgment.
purchaser at the auction sale or last
If not, plaintiff shall be entitled to
redemptioner, if any, shall be entitled to the
execution at such time as the balance
possession of the property.
remaining becomes due. [Sec. 6]
EXCEPTION: Third party is actually holding
the same adversely to the judgment obligor.
W hen deficiency judgment cannot be
rendered:
H.5. DISPOSITION OF PROCEEDS OF (1) Under the Recto Law [Art. 1484, par. 3,
SALE Civil Code].
(1) Amount realized from the foreclosure sale, (2) When mortgagor is a non-resident and is
less costs of the sale, shall be paid to the not found in the Philippines. (Rationale:
person foreclosing. The proceeding would be procedurally
(2) When there is a balance or residue after infeasible as a deficiency judgment is in
paying the mortgage debt, the same shall personam, and under this situation,
be paid to junior encumbrancers in the jurisdiction over the obligor cannot be had.
order of priority as ascertained by the [RIANO])
court. (3) When mortgagor dies, mortgagee may file
(3) If there are no junior encumbrancers, the his claim with the probate court. [Sec. 7,
residue goes to the mortgagor or his Rule 86]
180 OF 425
(4) If mortgagor is a third party mortgagor exercise right of foreclosure, juridical

but not solidarily liable with debtor. [Phil. redemption within persons shall have the
Trust Co. v. Tan Suisa (1929)] one year after the right to redeem until,
(a) No deficiency judgment may be sale, when the loan but not after, the
rendered against owner who is not a or credit registration of the
mortgagor and has not assumed accommodation is certificate of
personal liability for the debt. granted by a bank. foreclosure sale with
(b) Remedy is ordinary action against [Sec. 47, General the Register of Deeds
debtor. Banking Law which in no case shall
(5) In case of a mortgage debt due from the (2000)] be more than 3
months after
estate of a deceased mortgagor and the
foreclosure, whichever
mortgage creditor availed of the third
is earlier. [Sec. 47,
remedy which is to rely upon his mortgage General Banking Law
alone and foreclosing the same within the (2000)]
statute of limitations. [Sec. 7, Rule 86]
(6) When the deficiency arises under an
extrajudicial foreclosure. The mortgagee H.8. EQUITY OF REDEMPTION VS.
can recover by action (not by motion) any RIGHT OF REDEMPTION
deficiency in the mortgage account which Equity of Redem ption is the right of the
was not realized in the foreclosure sale. defendant mortgagor to extinguish the
[PNB v. CA (1999)] mortgage and retain ownership of the
property by paying the secured debt within
W hen there is a surplus instead of a the 90 to 120 day period after entry of
deficiency judgment or even after the foreclosure sale
It is the duty of the mortgagee to return to the but prior to its confirmation.
mortgagor any surplus in the selling price
during the foreclosure sale [Sulit v. CA, G.R. Equity Of Redemption Right Of Redemption
No. 119247 (1997)] Right of the
defendant mortgagor
H.7. JUDICIAL FORECLOSURE VS. to extinguish the
Right of the debtor,
mortgage and retain
EXTRAJUDICIAL FORECLOSURE ownership of the
his successor in
Extrajudicial interest, or any judicial
Judicial Foreclosure property by paying the
Foreclosure creditor of said debtor
secured debt within
Requires court No court intervention or any person having a
the 90 to 120 day
intervention necessary lien on the property
period after entry of
There is only an Right of redemption subsequent to the
judgment or even
equity of redemption exists mortgage.
after the foreclosure
Governed by Rule sale but prior to its
Governed by Act 3135
68 confirmation
No Deficiency Period is 90-120 days
There could be a
Judgment because after entry of
Deficiency Period is 1 year from
there is no judicial judgment or even
Judgment. date of registration of
proceeding. after foreclosure sale
Recovery of certificate of sale
Recovery of deficiency but prior to
deficiency can be confirmation
is through an
done by mere Governed by Sec. 29-
independent action. Governed by Rule 68
motion. 31, Rule 39
Mortgagor has a right
No right of to redeem the property NOTE: What Rule 68, secs. 2-3 provide for is
redemption, only within one year from
the mortgagors EQUITY of redemption.This
equity of redemption registration of the
may be exercised by him even beyond the
deed of sale
period to pay the judgment obligation (i.e.
Exception: Exception:
Mortgagor may In case of extrajudicial
90-120 days) and even after the foreclosure
181 OF 425
sale itself, provided it be before the order of (3) When partition is prohibited by law (e.g.
the confirmation of sale. [Rosales v. Alfonso ACP, party wall); [Art. 494, Civil Code]
(1999)] (4) When the property is not subject to a
physical division and to do so would
I. PARTITION render it unserviceable for the use for
which is it intended; [Art. 495, Civil Code]
or
I.1. NATURE (5) When the condition imposed upon
Partition is the process of dividing and
voluntary heirs before they can demand
assigning the property owned in common
partition has not yet been fulfilled. [Art.
among the various co-owners thereof in
1084, Civil Code]
proportion to their respective interests in said
property.
I.4. WHO MAY FILE COMPLAINT;
Partition may be: WHO SHOULD BE MADE
(1) Judicial Procedure is Rule 69 DEFENDANTS [Sec. 1, Rule 69]
(2) Extrajudicial No court intervention W ho May File
require A person having the right to compel partition
The partition of property may be made of real estate, or of personal property, or both
voluntarily (by agreement) or compulsorily real and personal property [Sec. 1, Sec. 13]
under the Rules. Even if the parties had
resorted to judicial partition, they may still Venue and Jurisdiction
make an amicable partition of the property. An action for partition should be filed in the
[Sec. 12] RTC of the province where the property or
An action for partition and accounting under part thereof is situated.
Rule 69 is in the nature of an action quasi in An action for partition is not a conveyance of
rem. Such an action is essentially for the property. [Heirs of Urieta, Sr. v. Heirs of Urieta
purpose of affecting the defendants interest (2011)] Because the controversy in partition is
in a specific property and not to render a whether or not the plaintiff has a right to
judgment against him. partition, the issue is incapable of pecuniary
estimation. [RIANO]
I.2. WHEN CAN PARTITION BE
MADE Parties
GENERAL RULE: It can be made anytime. (1) The plaintiff is the person who is supposed
The right to demand partition is to be a co-owner of the property. [RIANO]
imprescriptible. (2) Defendants are (i) all the co-owners, who
are indispensable parties, and (ii) all other
Rationale: Prescription does not run persons having an interest in the property
against a co-owner. No co-owner shall be [Id., citingMORAN]
obliged to remain in the co-ownership.
EXCEPTION: If a co-owner asserts adverse I.5. MATTERS TO ALLEGE IN THE
title to the property, in which case, period of COMPLAINT FOR PARTITION
prescription runs from such time of assertion Contents of the Complaint:
of adverse title. [De Castro v. Echarri, G.R. No. (1) Nature and extent of his title
5609 (1911)] (2) Adequate description of the real estate
sought to be partitioned
I.3. WHEN PARTITION CANNOT BE (3) Joining of Defendants All other persons
MADE: interested in the property [Sec. 1]
(1) When there is a stipulation against it, not (4) Demand for accounting of the rents,
exceeding 10 years; [Art. 494, Civil Code] profits, and other income from the
(2) When partition is prohibited by the donor property to which he may be entitled to as
or testator for a period not exceeding 20 his share. [Sec. 8] Since these cannot be
years; [Arts. 494, 1083, Civil Code] demanded in another action (because they
182 OF 425
are part of the cause of action for The parties may make the partition
partition), they are barred if not set up. proper them selves, by agreem ent:
[RIANO] (1) After the issuance of the order of partition,
the parties will be asked if they agree to
I.6. TWO STAGES IN EVERY ACTION make partition of the property among
FOR PARTITION themselves.
(2) If they agree, proper instruments of
FIRST STAGE: DETERMINATION OF THE
conveyance will be executed to effect the
PROPRIETY OF PARTITION partition.
This involves a determination of whether the
(3) After the execution of instruments of
subject property is owned in common and
conveyance, the court shall confirm the
whether all the co-owners are made parties
partition through a final order.
in the case. [See Lacbayan v. Samoy, G.R. No.
(4) The final order of partition and the
165427(2011)]
instruments of conveyance shall be
The order may also require an accounting of
registered with the Registry of Deeds
rents and profits recovered by the defendant.
where the property is situated. [Sec. 2,
This order of partition is appealable. [Miranda
Rule 69]
v. Court of Appeals, G.R. No. L-33007(1976)]
If not appealed, then the parties may
partition the common property in the way I.8. PARTITION BY
they want. If they cannot agree, then the case COMMISSIONERS; APPOINTMENT
goes into the second stage. However, the OF COMMISSIONERS;
order of accounting may in the meantime be COMMISSIONERS REPORT; COURT
executed. [De Mesa v. CA, G.R. ACTION UPON COMMISSIONERS
No.109387(1994)]
REPORT
W hen proper
SECOND STAGE: ACTUAL If parties fail to agree on the manner of
PARTITIONING OF THE SUBJECT partition, commissioners are appointed to
PROPERTY make partition.
This is also a complete proceeding and the
order or decision is appealable. How Done
The court appoints not more than 3
When there was a prior partition, the fact that competent and disinterested commissioners
the share of each co-heir has not been to make the partition. [Sec. 3]
technically described and the title over the
whole lot remains uncancelled does not OATH OF THE COMMISSIONERS
negate such partition. Before entering into their duties,
There can be no partition again because commissioners must first make an oath that
there is no more common property. [Noceda v. they will faithfully perform their duties as
CA, G.R. No. 119730 (1999)] commissioners. Such oath is to be filed in
The action for partition is subject to multiple court. [Sec. 4]
appeals and would require a record on
appeal [Roman Catholic Archbishop of Manila
DUTIES OF THE COMMISSIONERS
v. CA, G.R. No. 77425 (1991)]
(1) They shall view and examine real estate,
after due notice to parties to attend at
I.7. ORDER OF PARTITION AND such view and examination;
PARTITION BY AGREEMENT (2) They shall hear the parties as to their
ORDER OF PARTITION preference in the portion to be set apart to
The court issues an order of partition AFTER them;
the trial and the court finds that the plaintiff (3) They shall also determine the comparative
has a right to partition. The court orders the value thereof; and
partition of the property. (4) They shall set apart the same to the
parties in lots or parcels as will be most
183 OF 425
advantageous and equitable considering (a) Upon expiration of the 10 day period for
the improvements, situation, and quality filing objections; or
of the parts thereof. (b) Even before expiration but after the
The provision authorizes the commissioners interested parties have filed their
merely to make or effect the partition. It does objections or their statement of
not grant them the authority to adjudicate on agreement therewith
questions of title or ownership. [RIANO] (2) The court may:
(a) Accept the report and render judgment
ASSIGNMENT OF REAL ESTATE TO ONE in accordance therewith; or
PARTY (b) Recommit the same to commissioners
GENERAL RULE: If the commissioners for further report of facts, for cause
should determine that the real estate cannot shown; or
be divided without prejudice to the interests (c) Set aside the report and appoint new
of the parties, the court may order that the commissioners; or
property be assigned to one of the parties (d) Accept the report in part and reject in
willing to take the same provided he pays to part; and
the other parties such amounts as the (e) Make such order and render such
commissioners deem equitable. judgment as shall effectuate a fair and
EXCEPTION: If one of the parties asks that just partition of the real estate, or of its
the property be sold instead of being so value, if assigned or sold
assigned, then the court shall order the
commissioners to sell the real estate at public I.9. JUDGMENT AND ITS EFFECTS
sale under such conditions and within such [Sec. 11, Rule 69]
time as the court may determine [Sec. 5]
Contents of Judgment Effects of Judgment
Requisites of Assignm ent: If actual partition is properly made
(1) Assignment is in favor of one of the parties, Judgment shall state
not to 3rd persons definitely, by metes
Judgment shall vest
(2) Payment to the other parties in each party to the
and bounds and
(3) Amount to be paid is based on the action in severalty the
adequate description,
amounts which the commissioners deem portion of the real
the particular portion
equitable estate assigned to
of the real estate
(4) Other interested parties do not ask the him.
assigned to each party.
court that the property be sold instead. If the whole property Is assigned to one of the
parties after payment
COMMISSIONERS REPORT Judgment shall vest
Judgment shall state
Commissioners shall make a full accurate in the party making
the fact of such
report to the court on: the payment the
payment and of the
(1) All proceedings as to the partition, or whole of the real
assignment of the real
(2) The assignment of real estate to one of estate free from any
estate to the party
the parties, or interest on the part of
making the payment.
(3) The sale of the same. the other parties.
If property is sold and sale is confirmed by the
Upon filing of Com m issioners Report: court
(1) Clerk shall serve copies on all interested
parties with notice that they are allowed to Judgment shall state
file objections Judgment shall vest
the name of the
(2) Parties may file objections within 10 days the real estate in the
purchaser or
upon receipt of notice purchaser(s), making
purchasers and a
the payment(s) free
definite description of
from the claims of
HEARING ON THE REPORT [Sec. 7] the parcels of real
any parties to the
(1) When Conducted: estate sold to each
action.
purchaser
184 OF 425
J.2. DEFINITIONS AND

A certified copy of the judgment shall in DISTINCTIONS [RIANO]
either case be recorded in the registry of Forcibly Entry Unlaful Detainer
deeds of the place in which the real estate is (Detentacion) (Desahucio)
situated. [Sec. 11, Rule 69] Possession is
Possession of land by inceptively lawful
I.10. PARTITION OF PERSONAL defendant is but it becomes illegal
PROPERTY unlawful from the by reason of the
The provisions of Rule 69 shall apply to beginning as he termination of his
partitions of estates composed of personal acquires possession right to possession of
property, or of both real and personal by force, intimidation, the property under his
property, in so far as the same may be strategy, threat, or contract (express or
stealth (FISTS). implied) with the
applicable. [Sec. 13]
plaintiff.
No previous demand
I.11. PRESCRIPTION OF ACTION for defendant to Demand is
vacate the premises jurisdictional.
The right of action to demand partition does is necessary.
not prescribe De Castro v. Echarri, G.R. No. Plaintiff must prove
5609 (1911)], except where one of the that he was in prior
interested parties openly and adversely Plaintiff need not
physical possession
occupies the property without recognizing the have been in prior
of the premises until
physical possession.
co-ownership [Cordova v. Cordova (1958)] in he was deprived
which case, acquisitive prescription may set thereof by defendant.
in. The 1-year period is
Period is counted
If a co-owner repudiates the co-ownership generally counted
from the date of last
and makes known such repudiation to the from date of actual
letter of demand.
other co-owners, then partition is no longer a entry on land.
proper remedy of the aggrieved co-owner. He The issue centers on
The issue centers on
should file an accion reivindicatoria, which is whether the
who was in prior
prescriptible. [Roque v. IAC, G.R. No. defendants right to
possession de facto.
75886(1988)] possess has expired
or not.
J. FORCIBLE ENTRY AND In ejectment cases, possession means
UNLAWFUL DETAINER nothing more than actual physical possession,
not legal possession in the sense
J.1. NATURE contemplated in civil law [Antazo v. Doblada,
Ejectment cases are summary proceedings G.R. No. 178908 (2010)]
intended to provide an expeditious means of In order to constitute force, the act of going to
protecting actual possession of property. the property and excluding the lawful
[Tubiano v. Razo, G.R. No. 132598(2000)] possessor necessary implies the exertion of
force over the property which is all that is
Rationale: The owners of property have no necessary and sufficient to show that the
authority to use force and violence to eject action is based on Sec. 1, Rule 70. [Bunyi v.
alleged usurpers who were in prior physical Factor, G.R. No. 172547 (2009)]
possession of it. They must file the
appropriate action in court and should not
take the law in their own hands.
185 OF 425
J.3. DISTINGUISHED FROM ACCION PUBLICIANA, ACCION REINVINDICATORIA,

AND ACCION INTERDICTAL
The Three Kinds of Action for Recovery of Possession

Accion Accion Accion
Interdictal Publiciana Reinvindicatoria
Summary action for recovery A plenary action for recovery of
of physical possession where real right of possession when An action for recovery of possession based
the dispossession has not dispossession has lasted for on ownership
lasted for more than 1 year more than one year
Issue involves determination
Issue involves ownership (and
Issues is possession de facto of who has better right to
consequently, possession)
possession
Real action Real action Real action
In personam In personam Quasi in rem
All cases of forcible entry and
RTC has jurisdiction if value of the property exceeds P20,000 outside Metro
unlawful detainer, irrespective
Manila or P50,000 within Metro Manila.
of the amount of damages or
unpaid rentals sought to be
MTC has jurisdiction if value of property does not exceed the above amounts.
recovered should be brought
[B.P. Blg. 129, as amended]
to the MTC.
J.4. TO DETERMINE JURISDICTION J.5. WHO MAY INSTITUTE THE

IN ACCION PULICIANA, ACCION ACTION AND WHEN; AGAINST
REINVINDICATORIA, AND ACCION WHOM THE ACTION MAY BE
INTERDICTAL MAINTAINED
IN ACCION INTERDICTAL WHO MAY INSTITUTE PROCEEDINGS
Exclusive original jurisdiction over forcible (1) In Forcible Entry:
entry and unlawful detainer suits is with the A person deprived of possession of any
MTC. [Sec. 33(2), BP 129] land or building by force, intimidation,
Amount of rents and damages claimed does strategy, threat, or stealth.
not affect the jurisdiction of the MTC because (2) In Unlawful Detainer:
they are only incidental or accessory to the (a) Lessor, vendor, vendee or other person
main action. against whom any land or building is
However, municipal courts have no unlawfully withheld; or
jurisdiction over a forcible entry/unlawful (b) His legal representatives or assigns.
detainer case involving agricultural tenants. [Sec. 1, Rule 70]
Jurisdiction is with the HLURB.
PERIOD OF FILING
IN ACCION PUBLICIANA AND ACCION Within ONE (1) year after such unlawful
REINVINDICATORIA deprivation or withholding of possession.
(1) RTC has jurisdiction where the assessed [Sec. 1]
value of the property exceeds P20,000 or,
in Metro Manila, P50,000; Reckoning points:
(2) MTC has jurisdiction if the assessed value (1) For forcible entry, it is counted from date
does not exceed said amounts. [Secs. 19, of entry or taking of possession;
33,BP 129, as amended] EXCEPTION: In case of stealth or
Where the basic issue is not possession but strategy, from the time plaintiff learned of
interpretation, enforcement and/or rescission entry. [Vda. de Prieto v. Reyes, G.R. No. L-
of the contract, the same is no longer an 21740(1965)]
ejectment suit. [Villena v. Chavez, G.R. No. (2) For unlawful detainer, it is counted from:
148126 (2003)]
186 OF 425
(a) Date of last demand to vacate in case W hat must be alleged in the
of non-payment of rent or noncom plaints:
compliance with conditions of the Forcible Entry Unlawful Detainer
lease; or (1) That plaintiff was (1) That defendant is
(b) Date of notice to quit, in case of tacit in prior physical unlawfully
renewal of lease; or possession of the withholding
(c) Date of revocation of the permit in case property in possession from
of occupancy on mere tolerance or litigation until he plaintiff because
under temporary permit. was deprived his right to possess
thereof by had expired
Against whom may the action be defendant (2) That landlord has
maintained: Person or persons unlawfully (2) That the made a demand
dispossession upon tenant to
withholding or depriving of possession, or any
was through comply with the
person/s claiming under them [Sec. 1].
FISTS. [NOTE: terms of the
Action may be maintained only against one in
First two contract and to
possession at the commencement of the requirements are return the
action. jurisdictional possession of the
Tenant with right of [de facto] possession [Abad v. Farrales, property, and that
may bring action against another tenant. G.R. No. 178635 the tenant failed to
Vendor may bring action for ejectment (2011)] satisfy the demand
against vendee upon failure to pay (3) That the within 15 or 5 days,
installments. complaint was in case of buildings
Action may lie against the very owner of the filed within 1 year (3) That the complaint
property. from is filed within 1 year
Action may be maintained against dispossession. from last demand.
government officials or agents acting in [Romullo v.
behalf of the government, even if government Samahang
is not made a party to the action. [REGALADO] Magkakapitbahay,
G.R. No. 180687
J.6. PLEADINGS ALLOWED (2010)]
ONLY allowed pleadings:
(1) Complaint Mere failure to pay rent does not ipso facto
(2) Compulsory Counterclaim pleaded in the make unlawful the tenants possession. It is
answer the demand to vacate and refusal to vacate
(3) Cross-claim pleaded in the answer which makes unlawful the withholding of
(4) Respective answers. [Sec. 4, Rule 70] possession [Canaynay v. Sarmiento, G.R. No.
L-1246(1947)]
NOTE: Pleadings must be VERIFIED. [Sec. 4,
Rule 70] J.7. ACTION ON COMPLAINT
MOTU PROPRIO DISMISSAL
From the examination of allegations in the
complaint, the court may dismiss the case
outright on any grounds mentioned in Rule 16.
[Sec. 5]
ISSUANCE OF SUMMONS
If there is no ground for dismissal, court
issues summons. [Sec. 5]
ANSWER BY DEFENDANT
Defendant shall file his answer within 10 days
from service of summons. [Sec. 6]
187 OF 425
Effect of failure to answer

Court shall render judgment, motu proprio or Period to comply w ith dem and: Lessor
upon motion. [Sec. 7] may file unlawful detainer suit if lessee fails
(1) Judgment is limited to what is prayed for to comply with the demand:
in the complaint. (1) After 15 days in the case of lands; or
(2) Court may reduce the amount of damages (2) After 5 days in case of buildings. [Sec. 2]
and attorneys fees claimed
(a) For being excessive or otherwise W hen demand not required:
unconscionable (1) When parties stipulate that demand shall
(b) In the exercise of its discretion not be necessary [Sec. 2]; or
(c) No prejudice to applicability of Sec. 3(c), (2) When the action is predicated on the
Rule 9 if there are 2 or more expiration of the lease. [Labastida v. CA,
defendants G.R. No. 110174 (1998)] (Since it is not
based on failure to pay or comply with the
PRELIMINARY CONFERENCE conditions [see Sec. 2].)
Preliminary conference shall be held not later It is only where defendant fails to comply with
than 30 days after filing of last answer. [Sec. the demand within the periods provided by
8] Sec. 2 will his possession become unlawful.
A demand to pay or vacate does not give rise
SUBMISSION OF AFFIDAVITS AND to a cause of action for unlawful detainer.
POSITION PAPERS [Peas v. CA, G.R. No. 112734 (1994)]
Affidavits and position papers are to be A person who occupies the land of another at
submitted within 10 days from receipt of the the latter's tolerance or permission, without
Order stating the matters taken in the any contract between them is necessarily
preliminary conference. [Sec. 10] bound by an implied promise that he will
vacate upon demand, failing which, an action
RENDITION OF JUDGMENT for unlawful detainer may be instituted
Court shall render judgment within 30 days against him. [Dakudao v. Consolacion, G.R.
after receipt of affidavits and position papers. No. L-54753 (1983)]
[Sec. 11] Demand is not required in forcible entry suits.
J.8. WHEN DEMAND NECESSARY J.9. PRELIMINARY INJUNCTION

GENERAL RULE:In unlawful detainer AND PRELIMINARY MANDATORY
cases, a prior written demand against the INJUNCTION
lessee is required before the lessor can Court may grant preliminary injunction in
proceed against him. [Sec. 2] accordance with Rule 58 to prevent
defendant from committing further acts of
Contents of demand: dispossession against plaintiff. [Sec. 15, Rule
The demand must be two-fold: 70]
(1) To (a) pay or (b) comply with the
conditions of the lease; and There is no distinction as to the type of
(2) To vacate. ejectment case involved.
A preventive injunction is governed by Rule
Form of Demand: 58. A mandatory injunction is governed by
Demand may be: the rules in Rule 70.
(1) By service of written notice of such
demand upon the person found on the PRELIMINARY MANDATORY
premises; [Sec. 2] INJUNCTION
(2) By posting of the written notice on the Possessor may present a motion for issuance
premises if no person is found there; [Sec. of preliminary mandatory injunction in the
2] or action for forcible entry or unlawful detainer
(3) Oral. [Jakihaca v. Aquino, G.R. No. within 5 days from filing of complaint to
83982(1990)] restore him in his possession. Court shall
188 OF 425
decide the motion within 30 days from filing. (a) Hence, if prior possession may be
[Sec. 30] ascertained in some other way, the
Preliminary mandatory injunction shall be inferior court cannot intrude into the
available: issue of ownership.
(1) At the start of the action; [Sec. 15] (5) Where the question of who has prior
(2) On appeal to the RTC upon motion of possession hinges on the issue of who is
plaintiff within 10 days from perfection of the real owner:
appeal. [Sec. 20] (a) The inferior court may resolve issue of
NOTE: The injunction on appeal is to restore ownership, but such pronouncement is
to plaintiff in possession: merely provisional.
(1) If the court is satisfied that the (b) It does not bar or prejudice an action
defendants appeal is frivolous or dilatory; between the same parties involving
or title. [Refugia v. CA, G.R. No.
(2) That the appeal of plaintiff is prima facie 118284(1996)]
meritorious. [Sec. 20] Judgment for ejectment cannot be enforced
MTC can also issue a preliminary mandatory against a co-owner who was not made a
injuction in an unlawful detainer case. [Day v. party to the action. [Cruzcosa v. Concepcion,
RTC of Zamboanga, G.R. No. 71119 (1990)] G.R. No. L-11146 (1957)]
PRELIMINARY PREVENTIVE J.11. HOW TO STAY IMMEDIATE

INJUNCTION EXECUTION OF JUDGMENT [Sec. 19,
Preliminary preventive injunction is available Rule 70]
in either case. Note that Sec. 15 makes the
JUDGMENT OF THE MTC
provisions of Rule 58 applicable to Rule 70.
GENERAL RULE: Judgment of the MTC
against defendant in ejectment cases is
J.10. RESOLVING DEFENSE OF immediately executory.
OWNERSHIP EXCEPTION:
Under Sec. 33(2), BP Blg 129, when in an When the following concur:
ejectment suit, the defendant raises the (1) The defendant perfects his appeal;
question of ownership in his pleadings, and (2) He files a sufficient supersedeas bond to
the issue of ownership, the MTC nevertheless pay the rents, damages, and costs
has undoubted competence to resolve the accruing down to the time judgment
issue of ownership only to determine the appealed from; and
issue of possession. Hence: (3) He deposits with the appellate court:
(1) Primary rule is that the principal issue (a) The amount of rent due from time to
must be that of possession. time under the contract, or
(a) Ownership is merely ancillary. (b) In the absence of contract, the
(b) Issue of ownership may be resolved but reasonable value of the use and
only for the purpose of determining the occupation of premises for the
issue of possession. preceding month or period determined
(2) It must sufficiently appear from by judgment on or before the 10th day
allegations of the complaint that what of each succeeding month or period
plaintiff really and primarily seeks is [Chua v. CA, G.R. No. 113886 (1998)]
restoration of possession. All of these requisites must concur. The
(3) Inferior court cannot adjudicate on the deposit is a mandatory requirement; hence, if
nature of ownership where relationship of it is not complied with, execution will issue as
lease has been sufficiently established a matter of right. [Antonio v. Geronimo, G.R.
(a) Unless it be proven that there has been No. 124779(2005)]
a subsequent change in or termination
of that relationship between parties. JUDGMENT OF THE RTC
(4) In forcible entry, a party who can prove The judgment of the Regional Trial Court
prior possession can recover such against the defendant shall be immediately
possession even against the owner himself. executory, without prejudice to a further
189 OF 425
appeal that may be taken therefrom. [Sec. 21, administration of justice. [Siy v. NLRC, G.R.
Rule 70] No. 158971(2012)]
The power to declare a person in contempt of
J.12. SUMMARY PROCEDURE, court and in dealing with him accordingly is
PROHIBITED PLEADINGS an inherent power of the court. It is used as a
GENERAL RULE: All actions for forcible means to protect and preserve the dignity of
entry and unlawful detainer shall be the court, the solemnity of the proceedings,
governed by the summary procedure of Rule and administration of justice. [Montenegro v.
70, irrespective of the amount of damages or Montenegro, G.R. No. 156829 (2004)]
unpaid rentals sought to be recovered. [Sec. Contempt proceedings have a dual function:
3] (a) vindication of public interest by
EXCEPTIONS: punishment of contemptuous conduct; and
(1) In cases covered by the agricultural (b) coercion to compel the contemnor to do
tenancy laws; or what the law requires him to uphold the
(2) When the law otherwise expressly power of the Court, and also to secure the
provides. [Sec. 3] rights of the parties to a suit awarded by the
Court. [Regalado v. Go, G.R. No. 167988
PROHIBITED PLEADINGS [Sec. 13] (2007)]
(1) Petition for relief from judgment;
(2) Petition for certiorari, mandamus, or
K.2. KINDS OF CONTEMPT;
prohibition against any interlocutory PURPOSE AND NATURE OF EACH
order issued by the court; According to Nature
(1) Criminal contempt: Conduct directed
(3) Reply;
against the authority and dignity of the
(4) Third-party complaints; court or a judge acting judicially.
(2) Civil contempt: Failure to do something
PROHIBITED MOTIONS {Sec. 13} ordered to be done by a court or by a judge
(1) Motion to dismiss; only to exceptions: for the benefit of the opposing party.
(a) Lack of jurisdiction over subject matter; [Lorenzo Shipping v. Distribution
or Management, G.R. No. 155849 (2011)]
(b) Failure to comply with conciliation,
when such is required; Criminal Contempt Civil Contempt
(2) Motion for bill of particulars; Punitive in nature Remedial in nature
(3) Motion for new trial, reconsideration of a Purpose is to provide a
judgment, or reopening of trial; remedy for an injured
Purpose is to preserve
(4) Motion for extension of time to file suitor and to coerce
the courts authority
pleadings, affidavits, or other paper; compliance with an
and to punish for
(5) Memoranda; order; for the
disobedience of its
(6) Motion to declare defendant in default; preservation of the
orders
rights of private
(7) Dilatory motions for postponement;
persons
(8) Interventions. Intent is necessary Intent is not necessary
Instituted by the
K. CONTEMPT aggrieved party, or his
State is the real successor, or someone
K.1. NATURE prosecutor who has a pecuniary
interest in the right to
Contempt of court is disobedience to the
be protected
court by acting in opposition to its authority, Proof required is more
justice, and dignity. It signifies not only a Proof required is proof
than mere
willful disregard or disobedience to the beyond reasonable
preponderance of
courts orders but also conduct tending to doubt
evidence
bring the authority of the court and If accused is If judgment is for
administration of law into disrepute, or, in acquitted, there can respondent, there can
some manner, to impede the due be no appeal be an appeal
190 OF 425
K.3. DIRECT CONTEMPT

According to Manner of Commission For a person to be adjudged guilty of direct
(1) Direct contempt: Act committed in the contempt, he must commit a misbehavior in
presence of or so near the court or judge the presence of or so near a judge as to
as to obstruct or interrupt the interrupt the administration of justice. [SBMA
proceedings before the same. v. Rodriguez, G.R. No. 160270(2010)]
(2) Indirect contempt: One not GROUNDS
committed in the presence of the court. It (1) Disrespect toward the court;
is an act done at a distance which tends (2) Offensive personalities toward others;
to belittle, degrade, obstruct, or (3) Refusal to be sworn or answer as witness
embarrass the court and justice. [Lorenzo or subscribe an affidavit when lawfully
Shipping v. Distribution Management, G.R. required to do so;
No. 155849 (2011)] (4) Misbehavior in the presence of or so near a
court as to obstruct or interrupt the
Direct Contempt Indirect Contempt proceedings; or [Sec. 1, Rule 71]
Committed in the Not committed within (5) When the counsel willfully and
presence of or so near the presence of the deliberately engages in forum shopping.
a court court [Sec. 5, Rule 7]
There is charge and
Summary in nature
hearing Other examples of direct contempt:
Punishment: Punishment: (1) Willful and deliberate forum shopping
If committed against If committed against [Sec. 5, Rule 7]
the RTC: Fine of not RTC: Fine not
(2) Submission of pleadings containing
exceeding P2,000 exceeding P30,000
derogatory, offensive, and malicious
and/or imprisonment and/or imprisonment
statements submitted to the court [Re:
not exceeding 10 days not exceeding 6
or both months or both Letter of Atty. Noel Sorreda, AM No. 05-3-
If committed against If committed against 4-SC(2005)]
the MTC: Fine not MTC: Fine not
exceeding P200 and exceeding P5,000 PROCEDURE
or imprisonment not and/or imprisonment Summarily adjudged in contempt by such
exceeding 1 day or not exceeding 1 court.
both month or both
Remedy is certiorari By whom initiated:
Remedy is appeal (1) Generally, civil contempt proceedings
or prohibition
Otherwise known as Otherwise known as should be instituted by an aggrieved party,
Contempt in Facie Constructive or his successor, or someone who has
Curiae Contempt pecuniary interest in the right to be
protected;
Contempt, whether direct or indirect, may be (2) In criminal contempt proceedings, it is
civil or criminal depending on the nature and generally held that the State is the real
effect of contemptuous act. prosecutor.
The real character of the proceedings in
contempt cases is to be determined by the Penalties [Sec. 1, Rule 71]
relief sought or by the dominant Offense Penalty
purpose. The proceedings are to be regarded Fine not exceeding
as criminal when the purpose is primarily If RTC or a court of P2,000 and/or
punishment, and civil when the purpose is equivalent or higher Imprisonment not
primarily compensatory or remedial. rank exceeding 10 days or
[Montenegro v. Montenegro, G.R. No. G.R. No. both
156829 (2004)] Fine not exceeding
P200 and/or
If lower court: Imprisonment not
exceeding 1 day or
both
191 OF 425
TWO MODES OF COMMENCING A

REMEDY OF A PERSON ADJUDGED IN PROCEEDING
DIRECT CONTEMPT [Sec. 2, Rule 71] (1) Motu proprio by the court against which
(1) He cannot appeal, but he may file contempt was committed: By order or any
certiorari or prohibition. other formal charge requiring respondent
(2) Execution of judgment shall be suspended to show why he should not be punished for
pending resolution of such petition, contempt; or
provided: (2) Independent action via verified petition in
(a) He files a bond fixed by the court which all other cases: By a charge commenced
rendered judgment; and by a verified petition with supporting
(b) Conditioned that he will abide by and particulars. [Sec. 4, Rule 70]
perform the judgment should the
petition be decided against him. WHERE TO FILE CHARGE
GENERAL RULE: Proceeding for Indirect
K.4. INDIRECT CONTEMPT Contempt shall be filed and tried by the court
SPECIFIC ACTS CONSTITUTING against which the contumacious conduct was
INDIRECT CONTEMPT committed.
(1) Misbehavior of an officer of a court in the EXCEPTIONS:
performance of his official duties or in his (1) If committed against a lower court, it may
official transactions. be tried by the RTC, regardless of the
(2) Abuse of or any unlawful interference with imposable penalty; or
processes or proceedings of a court not (2) If committed against the SC, it may cause
constituting direct contempt. it to be investigated by the prosecutor
(3) Disobedience or resistance to lawful writ, and filed with the RTC, or for hearing and
process, order, or judgment of a court, or recommendation where the charge
any unlawful intrusion to any real property involves questions of fact [Sec. 5, Rule
after being ejected. 70]
(4) Failure to obey subpoena duly served.
(5) Assuming to be an attorney or officer of a PENALTIES [Sec. 7, Rule 71]
court, and acting as such without Offense Penalty
authority. Fine not exceeding
If against RTC, or
(6) Improper conduct tending to impede, P30,000 and/or
court of
obstruct, or degrade administration of Imprisonment not
equivalent or
justice. exceeding 6 month, or
higher rank
(7) Rescue, or attempted rescue, of a person both
or property in custody of an officer. [Sec. 3, Fine not exceeding P500,
If committed
Rule 71] and/or
against lower
Imprisonment not
(8) Failure of counsel to inform the court of court
exceeding 1 month, or both
the death of his client. [RIANO, since it
Offender may also be
constitutes improper conduct tending to
ordered to make complete
impede the administration of justice.] restitution to the party
injured by such violation of
PROCEDURAL REQUISITES FOR the property involved or
PROCEEDINGS If contempt
such amount as may be
consists in
(1) A charge in writing or an order of the court alleged and proved.
violation of a writ
to appear and explain; and
of injunction,
(2) An opportunity for respondent to If there is nothing more to
TRO, or status
comment on the charge and to appear return, offender is
quo order
and explain his conduct. personally liable for the
(3) To be heard by himself or counsel restitution of the money
[Regalado v. Go, G.R. No. 167988 (2007)] equivalent to the lost thing
[Rosario Textile Mills v. CA,
G.R. No. 137326 (2003)]
192 OF 425
Offense Penalty exercising quasi-judicial functions or have

Penalty shall depend upon suppletory effect to such rules as they may
If committed
the provisions of the law have adopted.
against a person
which authorizes penalty RTC of the place where the contempt was
or entity
for contempt against such committed shall have jurisdiction.
exercising quasi-
persons or entities [Sec. 12, It is not within the jurisdiction and
judicial functions
Rule 71] competence of quasi-judicial bodies to decide
indirect contempt cases. The requirement for
REMEDY OF A PERSON ADJUDGED IN a verified petition must also be complied with
INDIRECT CONTEMPT (e.g. DARAB has no power to decide the
May be appealed to the proper court as in contempt charge filed before it). [Land Bank v.
criminal cases, but execution shall not be Listana, G.R. No. 152611(2003)]
suspended until bond is filed. [Sec. 11, Rule 71] Sec. 12, Rule 71 confers contempt powers on
Generally, a non-party may not be liable for all Quasi-Judicial entities or supplements
contempt unless he is guilty of conspiracy their rules, unless the applicable law provides
with any of the parties in violating the courts otherwise.
orders. [Desa Ent. Inc. v. SEC, G.R. No. L- Acts or violations against quasi-judicial
45430(1982)] bodies punishable as contempt: Where a
A contempt proceeding, whether civil or person, without lawful excuse, fails to appear,
criminal, is still a criminal proceeding, hence, make oath, give testimony or produce
acquittal is a bar to a second prosecution. documents when required to do so by the
The distinction is for the purpose only of official or body exercising such powers. Other
determining the character of the acts or violations cannot be punished as
punishment to be administered. [Santiago v. contempt unless specifically defined in the
Anunciacion, G.R. No. 89318(1990)] governing law as contempt of court or if it
authorizes the quasi-judicial body to punish
K.5. WHEN IMPRISONMENT SHALL for contempt, and providing the
BE IMPOSED corresponding penalty. [People v. Mendoza
(1) When the contempt consists in the refusal (1953);ADMIN. CODE, Bk. VII, Ch. 3, sec. 13]
or omission to do an act which is yet in the
power of the respondent to perform, he
may be imprisoned by order of the court
concerned until he performs it. [Rule 71,
Sec. 8]
(2) When the respondent carried the keys to
his prison in his own pocket. [Galvez v.
Republic Surety & Insurance Co., Inc., G.R.
No. L-12581(1959)]
Only the judge who ordered the confinement
of the person for contempt of court can issue
the Order of Release. [Inoturan v Limsiaco, Jr.,
AM No. MTJ-01-1362(2005)]
Sec. 8, Rule 71 does not apply to tenants who
refused or failed to pay their rentals to the
special administratrix of the property. The
non-payment of rentals, which is a civil debt,
is covered by the constitutional guarantee
against imprisonment. [REGALADO]
K.6. CONTEMPT AGAINST QUASI-

JUDICIAL BODIES [Sec. 12, Rule 71]
Rule 71 shall apply to contempt committed
against persons, entities, bodies, or agencies
193 OF 425
THE SPECIAL CIVIL ACTIONS

JURISDICTION VENUE
Personal Property:
1. MTC: If value not more than
P300,000 outside Metro
Manila, or not more than
P400,000 in Metro Manila (B.P.
Apply Rule 4:
Blg. 129, sec. 33)
2. RTC: If value exceeds P300,000
Real action: If the action affects title to or
outside Metro Manila, or
possession of real property, venue is where
P400,000 in Metro Manila, or if
the real property involved or a portion thereof
incapable of pecuniary
is situated.
estimation (B.P. Blg. 129, sec.
19)
INTERPLEADER Personal action: All other actionsAt the
election of the plaintiff
Real Property:
1. Where plaintiff or any of the principal
1. MTC: assessed value not more
plaintiffs reside; or
than P20,000 outside Metro
2. Where defendant or any of the
Manila or not more than
principal defendants resides; or
P50,000 in Metro Manila (Sec.
3. In case of an non-resident, where he
33, BP 129)
may be found
2. RTC: value exceeds P20,000 if
outside Metro Manila, or
P50,000 if in Metro Manila, or
incapable of pecuniary
estimation (Sec. 19, BP129)
General rule: In the appropriate RTC,
since the subject in declaratory relief is
incapable of pecuniary estimation.
DECLARATORY Apply Rule 4, i.e. personal action, where the
Exception: Where the action is a
RELIEF petitioner or the respondent resides
proceeding similar to declaratory relief
(e.g. quieting of title to real property),
jurisdiction will depend on the assessed
value of the property, supra.
REVIEW OF
JUDGMENTS
AND FINAL SC SC
ORDERS OF
COMELEC/COA
RTC, CA, SC;
Sandiganbayan, in aid of its
RTC where the respondent is situated, where
CERTIORARI appellate jurisdiction;
petition relates to an act or omission of a
PROHIBITION COMELEC, in election cases corporation, board, an officer, or person. [Rule
MANDAMUS involving an act or omission by 65, Sec. 4]
MTC or RTC, in aid of its
appellate jurisdiction.
RTC, CA, SC Generally, action can be brought in
Sandiganbayan, which has the SC, CA, or RTC exercising
exclusive original jurisdiction over jurisdiction over the territorial area
QUO WARRANTO quo warranto cases filed by the where respondent resides or any of
PCGG the respondent resides
COMELEC, exclusive jurisdiction If commenced by the SolGen, it may
over cases falling under the be filed with the RTC Manila, CA, or
194
JURISDICTION VENUE
Omnibus Election Code SC
Special Commercial Courts, for The Sandiganbayan has exclusive
quo warranto against duly original jurisdiction on quo warranto
licensed associations. (CORP. arising or that may arise in cases filed
CODE rules apply, not the RULES under EO 1,2,14, 14-A but this must be
OF COURT.) in aid of its appellate jurisdiction and
not exclusive of the SC.
Apply Rule 4, i.e. where the real property
involved, or a portion thereof, is situated
EXPROPRIATION RTC
In cases of personal property, where the
plaintiff or defendant resides
JUDICIAL Apply Rule 4, i.e. where the real property
RTC
FORECLOSURE involved, or a portion thereof, is situated
PARTITION RTC Apply Rule 4
FORCIBLE ENTRY
Apply Rule 4, i.e. where the real property
AND UNALWFUL MTC
involved, or a portion thereof, is situated
DETAINER
If committed against RTC or a court
of equivalent or higher rank, or
against an officer appointed by it: File
with such court
If committed against a first-level
court: File with the RTC of the place
CONTEMPT MTC, RTC, CA, SC
in which lower court is sitting
If act was committed against persons
or entities exercising quasi-judicial
functions: File with the RTC of the
place wherein contempt was
committed
195
IX. Special Rules (2) To a criminal case where offense

charged is necessarily related to another
criminal case subject to ordinary
A. REVISED RULES ON procedure
SUMMARY PROCEDURE
A.2. EFFECT OF FAILURE TO
A.1. CASES COVERED BY THE RULE ANSWER [Sec. 6]
[Sec. 1] If defendant fail to answer the complaint
Rule shall govern the summary procedure within the period provided, court (motu
in the MTC, MTC in Cities, MCTC in the proprio or on motion of plaintiff) shall
following cases falling within their render judgment
jurisdiction: The judgment:
(1) As may be warranted by the facts
CIVIL CASES alleged in the complaint and
(1) Cases of forcible entry and unlawful (2) Limited to what is prayed for
detainer The court may in its discretion reduce the
(a) Irrespective of the amount of amount of damages and attorneys fees
damages or unpaid rentals sought to claimed for being excessive or
be recovered unconscionable without prejudice to the
(b) Where attorneys fees are awarded, applicability of Sec. 4, Rule 18 ROC, if there
it shall not exceed P20,000 are 2 or more defendants
(2) All other civil cases where total amount
of plaintiffs claim does not exceed A.3. PRELIMINARY CONFERENCE
P100,000 or P200,000 in Metropolitan AND APPEARANCES OF PARTIES
Manila, exclusive of interest and costs [Sec. 7]
(a) EXCEPT: probate proceedings A preliminary conference shall be held not
later than 30 days after the last answer is
CRIMINAL CASES filed.
(1) Traffic laws, rules, and regulations Rules on pre-trial in ordinary cases shall be
violation applicable unless inconsistent with the
(2) Rental law violations provisions of this Rule
(3) Municipal or city ordinance violations
(4) All other criminal cases where penalty Failure of plaintiff to appear in
prescribed by law for offense charged is preliminary conference
imprisonment not exceeding 6 months (1) Cause for dismissal of complaint
and/or a fine not exceeding P1,000 (2) Defendant who appears in the absence
(a) Irrespective of other imposable of plaintiff shall be entitled to judgment
penalties, accessory or otherwise, or on his counterclaim in accordance with
of civil liability arising therefrom Sec. 6
(b) In offenses involving damage to (3) All cross-claims shall be dismissed
property through criminal negligence,
this rule shall govern where If sole defendant shall fail to appear
imposable fine does not exceed (1) Plaintiff entitled to judgment in
P10,000 accordance with Sec. 6
(2) Rule shall not apply where one of 2 or
RULE SHALL NOT APPLY more defendants sued under a common
(1) To a civil case where plaintiffs cause of cause of action who had pleaded a
action is pleaded in the same complaint common defense shall appear at
with another cause of action subject to preliminary conference
ordinary procedure
196 OF 425
FLOWCHART:
SUMMARY PROCEDURE
197 OF 425
198 OF 425
(6) Disputes involving parties who actually

B. KATARUNGANG reside in barangays of different cities or
municipalities, except where such
PAMBARANGAY LAW (PD 1508; barangay units adjoin each other and the
RA 7160, AS AMENDED) parties thereto agree to submit their
differences to amicable settlement by an
B.1. SCOPE AND APPLICABILITY OF appropriate lupon;
THE RULE (7) Such other classes of disputes which the
Secs. 399-422 and 515,RA 7610 is President may determine in the interest
applicable. The LGC is now the governing of Justice or upon the recommendation
law on Katarungang Pambarangay. PD of the Secretary of Justice.
1508 was expressly repealed. The court in which non-criminal cases not
falling within the authority of the lupon
B.2. CASES COVERED under this Code are filed may, at any time
All disputes, civil and criminal in nature, before trial motu propio refer the case to
where parties actually reside in the SAME the lupon concerned for amicable
CITY/MUNICIPALITY are subjected settlement.
barangay conciliation.
B.5. VENUE [Sec. 409, RA 7610]
B.3. SUBJECT MATTER FOR Parties Lupon
Between actual
AMICABLE SETTLEMENT [Sec. 408, residents of the same
Lupon of said
RA 7160] barangay
barangay
The lupon of each barangay shall have Lupon of the
authority to bring together the parties Between actual barangay where the
actually residing in the same city or residents of different respondent or any of
municipality for amicable settlement of all barangays but within the respondents
disputes. same actually resides at
city/municipality the option of
B.4. WHEN PARTIES MAY GO complainant
Lupon of barangay
DIRECTLY TO COURT Involving real were the real
In these cases, referral to barangay property or any property or the larger
conciliation is not a condition precedent for interest therein portion thereof is
filing a case to court: located
(1) Where one party is the government, or Between parties
any subdivision or instrumentality Lupon of the
arising at the
thereof; barangay were the
workplace or at
(2) Where one party is a public officer or workplace or
institutions of
employee, and the dispute relates to the institution is located
learning
performance of his official functions;
(3) Offenses punishable by imprisonment B.6. EXECUTION
exceeding one (1) year or a fine The amicable settlement or arbitration
exceeding Five thousand pesos award may be enforced by execution by the
(P5,000.00); lupon within six (6) months from the date of
(4) Offenses where there is no private the settlement. After the lapse of such time,
offended party; the settlement may be enforced by action in
(5) Where the dispute involves real the appropriate city or municipal court. [Sec.
properties located in different cities or 417, RA 7160]
municipalities unless the parties thereto
agree to submit their differences to
amicable settlement by an appropriate
lupon;
199 OF 425
B.7. REPUDIATION repudiation shall be sufficient basis for the

Any party to the dispute may, within ten (10) issuance of the certification for filing a
days from the date of the settlement, complaint as hereinabove provided. [Sec.
repudiate the same by filing with the lupon 418, RA 7160]
chairman a statement to that effect sworn
to before him, where the consent is vitiated B.8. FLOWCHART
by fraud, violence, or intimidation. Such
200 OF 425
C. RULES OF PROCEDURE FOR are subject to the regular rules on venue.

[Sec. 7]
SMALL CLAIMS CASES [AM No.
08-8-7-SC, effective February If a plaintiff who is engaged in the
2016] aforementioned businesses but
misrepresents that he/she/it is not engaged
C.1. SCOPE AND APPLICABILITY OF in them, then the Statement of Claim/s
shall be dismissed with prejudice; the
THE RULE plaintiff shall be meted the appropriate
This Rule shall govern the procedure in
sanctions, such as direct contempt. [Sec. 11]
actions before the MeTC, MTC in Cities,
MTC and MCTC for payment of money
Attachments to the Statement of
where the value of the claim does not
Claim : [Sec. 6]
exceed P200,000 exclusive of interest and
(1) Certification of Non-forum Shopping,
costs. [Sec. 2]
Splitting a Single Cause of Action, and
This Rule is applicable in all actions which
Multiplicity of Suits
are purely civil in nature where the claim or
(2) Two (2) duly certified photocopies of the
relief prayed for by the plaintiff is solely for
actionable document/s subject of the
payment or reimbursement of sum of
claim
money. [Sec. 4]
(3) Affidavits of witnesses and other
These claims or demands may be;
evidence to support the claim
(1) For money owned under any of the
NOTE: No evidence shall be allowed
following;
during the hearing which was not attached
(a) Contract of Lease;
to or submitted together with the Claim.
(b) Contract of Loan;
UNLESS good cause is shown for
(c) Contract of Services;
admission of additional evidence. [Sec. 6]
(d) Contract of Sale; or
No formal pleading, other than the
(e) Contract of Mortgage;
Statement of Claim, is necessary to initiate
(2) For liquidated damages arising from
a small claims action. [Sec. 6]
contracts;
(3) The enforcement of a barangay amicable
settlement or an arbitration award
PAYMENT OF FILING FEES[Sec. 10]
GENERAL RULE: The prescribed legal
involving a money claim covered by this
fees prescribed under Rule 141 of the Rules
Rule pursuant to Sec. 417, LGC.
of Court must be paid by the plaintiff
EXCEPTION: allowed to litigate as an
C.2. COMMENCEMENT OF SMALL indigent.
CLAIMS ACTION; RESPONSE Any exemption from the payment of filing
How com m enced fees shall be granted only by the SC.
By filing with the court an accomplished
and verified STATEMENT OF CLAIM in If a claim is filed with a motion to
duplicate [Sec. 6] sue as an indigent
NOTE: The plaintiff must state in the It shall be referred to the Executive Judge
Statement of Claim if he/she/it is engaged for immediate action. If the motion is
in the business of lending, banking and granted, the case shall be raffled off or
similar activities, and the number of small assigned to the court designated to hear
claims cases filed within the calendar year small claims cases. If the motion is denied,
regardless of judicial station. [Sec. 6] the plaintiff shall be given 5 days within
Plaintiffs engaged in the aforementioned which to pay the docket fees otherwise the
businesses who have a branch within the case shall be dismissed without prejudice.
municipality/city where the defendant In no case shall any party even one
resides must file the Statement of Claim/s declared an indigent be exempt from the
in such municipality/city. Other plaintiffs
201 OF 425
payment of the 1,000 fee for service of RESPONSE

summons and processes. If no ground of dismissal is found, the court
shall issue Summons directing defendant to
If more than 5 claims are filed by submit a verified response. [Sec. 12]
one party within the calendar year, The defendant shall file with the court and
additional filing fees shall be paid serve on the plaintiff a duly accomplished
(1) P500 for every claim filed after the 5th and verified Response within a non -
claim; and, extendible period of ten (10) days from
(2) An additional P100 (or a total of P600) receipt of summons. [Sec. 13]
for every claim filed after the 10th claim;
and, Attachments (to Response):
(3) Another additional P100 (or a total of (1) Certified photocopies of documents
P700) for every claim filed after the 15th (2) Affidavits of witnesses
claim, progressively and cumulatively. (3) Evidence in support [Sec. 13]
DISMISSAL [Sec. 11] NOTE: No evidence shall be allowed

After examination of allegations of the during hearing which was not attached or
Claim, and such evidence attached thereto submitted together with the Response. [Sec.
the court may dismiss outright the case 13]
for any of the grounds apparent for the Should the defendant fail to file his
dismissal of a civil action. response within the required period, and
During the hearing, the court may, by itself, likewise fail to appear on the date set for
dismiss the case if it is able to determine hearing the court by itself shall render
that there exists a ground for dismissal of judgment as may be warranted by the facts
the Statement of Claim/s even if such alleged in the Statement of claim limited to
ground is not pleaded in the defendants what is prayed for. [Sec. 14]
Response. Should the defendant fail to file his
If the case does not fall under the Rules on response within the required period, but
Small Claims, but instead falls under appears on the date set for hearing the
Summary or Regular procedure, the case court shall ascertain what defense
shall not be dismissed instead it shall be he/she/it has to offer which shall constitute
re-docketed under the appropriate his/her/its Response, and proceed to hear
procedure, and returned to the court where or adjudicate the case on the same day as if
it was assigned (subject to the payment of a Response has been filed. [Sec. 14]
any deficiency in filing fees). NOTE: The following is not expressly
On the other hand, if a case is filed under provided in the section: The court may, in
Summary or Regular procedure but actually its discretion, reduce the amount of
falls under the Rules on Small Claims the damages for being excessive or
case shall be referred to the Executive unconscionable.
Judge for appropriate assignment.
C.3. PROHIBITED PLEADINGS AND
MOTIONS [Sec. 16]
The following pleadings, motions, and
petitions shall not be allowed in the cases
covered by this Rule:
(1) Motion to dismiss the compliant except
on the ground of lack of jurisdiction;
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
202 OF 425
(4) Petition for relief from judgment; At the hearing, the judge shall first exert
(5) Motion for extension of time to file efforts to bring the parties to an amicable
pleadings, affidavits, or any other paper; settlement of their dispute. [Sec. 23]
(6) Memoranda; If the attem pt at an am icable
(7) Petition for certiorari, mandamus, or settlement fails, the hearing shall so
prohibition against any interlocutory proceed in an informal and expeditious
order issued by the court; manner and shall be terminated within the
(8) Motion to declare the defendant in same day. [Sec. 23]
default; Any settlement or resolution of the dispute
(9) Dilatory motions for postponement; shall be:
(10) Reply and Rejoinder; (1) Reduced into writing;
(11) Third-party complaints; and (2) Signed by the parties; and,
(12) Interventions. (3) Submitted to the court for approval.
C.4. APPEARANCES C.6. FINALITY OF JUDGMENT

The parties shall appear at the designated After the hearing, the court shall render its
date of hearing personally or through a decision within 24 hours from termination
representative authorized under a Special of the hearing, based on the facts
Power of Attorney to: established by the evidence.
(1) Enter into an amicable settlement; and, The decision shall immediately be entered
(2) Enter into stipulations or admissions of by the Clerk of Court in the court docket for
facts and of documentary exhibits [Sec. civil cases and a copy thereof forthwith
16] served on the parties.
NOTE: There must be a valid cause to The decision shall be final, executory, and
bring about the necessity of sending a unappealable. [Sec. 24]
representative.
No attorney shall appear in behalf of or
represent a party at the hearing, unless the
attorney is the plaintiff or defendant. [Sec.
19]
FAILURE TO APPEAR
(1) If plaintiff fails to appear it shall be
a cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.
(2) If defendant fails to appear same
effect as failure to file Response.
(3) If both plaintiff and defendant fail to
appear dismissal with prejudice of
both the Statement of Claim and the
Counterclaim. [Sec. 20]
C.5. HEARING; DUTY OF THE

JUDGE
At the beginning of the court session,
the judge shall read aloud a short
statement explaining the nature, purpose
and the rule of procedure of small claims
cases. [Sec. 22]
203 OF 425
FLOWCHART:
SMALL CLAIMS CASES
204 OF 425
D. EFFICIENT USE OF PAPER All members of the Court shall share the
extra copies of annexes in the interest of
RULE [AM No. 11-9-4-SC] economy of paper.
D.1. FORMAT AND STYLE In the Court of Appeals and the

All pleadings, motions and similar papers Sandiganbayan,
intended for the court and quasi-judicial (1) One original (properly marked) and
bodys consideration and action (court- (2) Two copies with their annexes;
bound papers) shall:
(1) Be written in single space with one-and- In the Court of Tax Appeals,
a half space between paragraphs, (1) One original (properly marked) and
(2) Use an easily readable font style of the (2) 2 copies with annexes
partys choice, of 14-size font, and on a 13
inch by 8.5- inch white bond paper On appeal to the Court of Tax Appeals
All decisions, resolutions and orders issued En Banc,
by courts and quasi-judicial bodies under (1) One Original (properly marked)
the administrative supervision of the (2) 8 copies with annexes; and
Supreme Court shall comply with these
requirements. Similarly covered are the In other courts,
reports submitted to the courts and (1) One original (properly marked)
transcripts of stenographic notes. (2) With the stated annexes attached to it.
D.2. MARGINS AND PRINTS D.4. ANNEXES SERVED ON

The parties shall maintain the following ADVERSE PARTY
margins on all court-bound papers: A party required by the rules to serve a copy
(1) Left hand margin of 1.5 inches from the of his court-bound on the adverse party
edge; need not enclose copies of those annexes
(2) Upper margin of 1.2 inches from the that based on the record of the court such
edge; party already has in his possession.
(3) Right hand margin of 1.0 inch from the In the event a party requests a set of the
edge; annexes actually filed with the court, the
(4) Lower margin of 1.0 inch from the edge. part who filed the paper shall comply with
Every page must be consecutively the request within five days from receipt.
numbered.
D.5. APPLICABILITY
D.3. COPIES TO BE FILED This Rule applies to all courts and quasi-
Unless otherwise directed by the court, the judicial bodies under the administrative
number of court- bound papers that a party supervision of the Supreme Court.
is required or desires to file shall be as
follows:
In the Suprem e Court,
(1) One original (properly marked) and 4
copies
(2) Two sets of annexes, one attached to the
original and an extra copy
If the case is referred to the Suprem e
Court En Banc,
(1) Parties shall file 10 additional copies.
(2) For the En Banc, the parties need to
submit only 2 sets of annexes, one
attached to the original and an extra
copy.
205 OF 425
UP LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW
REMEDIAL LAW
SPECIAL
PROCEEDINGS
206 OF 425
I. Special Proceedings List under Rule 72 is not exclusive

[Festin at 1]
Rule 1 Sec 3(c). A special proceeding is a APPLICABLE RULES

remedy by which a party seeks to establish a If special rules are provided, they shall apply.
status, a right, or a particular fact. But in the absence of special provisions, the
rules provided for in ordinary actions shall be,
A. SUBJECT MATTER AND as far as practicable, applicable in special
proceedings. [Sec. 2, Rule 72]
APPLICABILITY OF GENERAL RULES
There are special proceedings which are not
Rule 72 Sec 1. Subject matter of special part of the ROC but are provided for under
proceedings. Rules of special proceedings are special laws and Supreme Court circulars (e.g.
provided for in the following cases: Writs of amparo and habeas data)
(1) Settlement of estate of deceased
persons The distinction between final and
(2) Escheat interlocutory orders in civil actions for
(3) Guardianship and custody of children purposes of determining the issue of
(4) Trustees applicability is not strictly applicable to
(5) Adoption orders in special proceedings. Rule 109
(6) Rescission and revocation of specifies the orders from which appeals may
adoption be taken [Regalado]
(7) Hospitalization of insane persons
(8) Habeas corpus Rule 33 regarding judgment on demurrer to
(9) Change of name evidence is applicable to special proceedings
(10) Voluntary dissolution of [Matute v. CA, G.R. No. 26751 (1969)].
corporations
(11) Judicial approval of voluntary DISTINCTION BETWEEN ORDINARY CIVIL
recognition of minor natural children
ACTION AND SPECIAL PROCEEDINGS
(12) Constitution of family home
(13) Declaration of absence and death Ordinary Civil Action Special Proceeding
(14) Cancellation of correction of entries
To protect or enforce To establish a right,
in the civil registry.
a right or prevent or status, or particular
redress a wrong fact
NOTES
Rule 99 on Adoption and Rule 100 on Generally adversarial Non-adversarial, may
Rescission and Revocation of Adoption had in nature, involves two involve only one party
been expressly repealed by the new Rules or more parties
on Adoption (effective August 22, 2002). Governed by ordinary Governed by special
[Festin at 136] rules supplemented rules, supplemented
Rule 104 is likewise deemed repealed by by special rules by ordinary rules
Sec. 119 of the Corporation Code. A Petition Courts of general Courts of lim ited
for Voluntary Dissolution of Corporations is jurisdiction jurisdiction
now to be filed with the Securities and
Exchange Commission and not with the Initiated by pleading, Initiated by petition,
courts. [Bautista] and parties respond parties respond
through an answer through an opposition
Rules 105 and Rule 106 are deemed
obsolete because under the Family Code, Laws on pleadings Laws on pleadings
there are no more natural children and a applicable: filing of an generally not
family home is deemed automatically answer, counterclaim, applicable.
constituted. cross-claim, third-
party complaint
207 OF 425
An action is a formal demand of ones right II. Settlement of Estate

in a court of justice in the manner prescribed
by the court or by the law. It is a method of of Deceased Persons
applying legal remedies according to definite
established rules. [Natcher v. CA, G.R. No. A. MODES OF SETTLEMENT OF
133000 (2001)]
ESTATE
A special proceeding is an application or
proceeding to establish the status or right of (1) Extrajudicial
a party or a particular fact. Usually, in special (a) If only one heir: Affidavit of Self-
proceedings, no formal pleadings are adjudication
required unless the statute expressly so (b) If two or more heirs: Deed of
provides. In special proceedings the remedy is Extrajudicial Settlement or Partition
granted generally upon an application or [Sec. 1, Rule 74]
motion. It is in the nature of a distinct and (2) Judicial
independent proceeding for particular relief, (a) Partition [Rule 69]
such as may be instituted independently of a (b) Summary Settlement of Estate of
pending action, by petition or motion upon Small Value [Sec. 2, Rule 74]
notice. [Natcher v. CA, G.R. No. 133000 (c) Petition for Letters of Administration
(2001)] [Rule 79]
(d) Probate of a Will [Rules 75-79]
(i) Petition for Letters Testamentary;
or
(ii) Petition for Letters of
Administration with the will
annexed (if no named executor)
B. JURISDICTION
Exclusive original jurisdiction over all

matters of probate, both testate and
intestate, shall lie with:
MTC if gross value of the
Outside Metro estate does not exceed
Manila P300,000; If it exceeds such
value then RTC
MTC if gross value of the
In Metro
estate does not exceed
Manila
P400,000; Otherwise RTC
Court first taking cognizance shall exercise

jurisdiction to the exclusion of all other courts
and cannot be divested by subsequent act of
interested parties.
Testate proceedings take precedence over

intestate proceedings of the same estate.
[Sandoval v. Santiago, G.R. No. L-1723 (1949)]
Thus, if in the course of intestate proceedings

pending before a court of first instance, it is
found that the decedent had left a last will
and testament, proceedings for the probate
PAGE 208 OF 425
of the latter should replace the intestate (1) Liquidation of estate;

proceedings even if at that stage an (2) Administration of the estate; and
administrator had already been appointed, (3) Distribution of the estate [Herrera]
the latter being required to render final (4) Testamentary capacity of testator
account and turn over the estate in his (5) If will was executed in accordance with
possession to the executor subsequently formalities prescribed by law [Camaya v.
appointed. This, however, is understood to be Patulandong, G.R. 144915 (2004)]
without prejudice that should the alleged will
be rejected or is disapproved, the proceeding General rule: Questions as to title to
shall continue as an intestacy. [Uriarte v. CFI, property cannot be passed upon on testate or
G.R. No. L-21938 (1970] intestate proceedings.
Exceptions:
C. VENUE (1) In a provisional manner to determine
whether said property should be included
Inhabitant of the Court of the province or excluded in the inventory, without
Philippines at the where decedent prejudice to final determination of title in
time of death (citizen resided at time of a separate action [Cuizon v. Ramolete,
or alien) death G.R. No. L-51291 (1984)]
(2) With consent of all the parties,
Inhabitant of foreign Court of any province
country at the time of where decedent had without prejudice to the rights of third
persons [Trinidad v. CA, G.R. No. 75579
death estate
(1991)]
[Sec. 1, Rule 73]
(3) If the question is one of collation or
advancem ent [Coca v. Borromeo, G.R.
Residence
No. L-27082 (1978)]
In the application of venue statutes and rules,
(4) When the estate consists of only one
residence rather than domicile is the
property [Portugal v. Portugal-Beltran,
significant factor. The word resides means
G.R. No. 155555 (2005)]
personal, actual, or physical habitation of a
person, or his actual residence or place of
Not the court where petition is first
abode. It does not mean legal residence or
filed but court which first takes
domicile. [Fule v. CA, G.R. No. L-40502
cognizance
(1976)]
The court first taking cognizance of the
settlement of estate of a decedent, shall
Even where the statute uses the word
exercise jurisdiction to the exclusion of all
domicile, it must be construed as meaning
other courts. [Sec. 1, Rule 73]
residence. [Festin at 16]
Under the rule of venue, the court with whom
NOTE: Jurisdiction as used in Rule 73
a petition is first filed must also first take
means venue.
cognizance of the petition in order to
exclude other courts. [Bautista]
If venue is improperly laid:
General Rule: Ordinary appeal
Exceptions: Certiorari may be resorted to if E. POWERS AND DUTIES OF A
impropriety of venue (due to residence or PROBATE COURT
location of estate) appears on the record.
[Sec. 1, Rule 73] It is the duty of courts of probate jurisdiction
to guard jealously the estates of the deceased
D. EXTENT OF JURISDICTION OF person by intervening in the administration
thereof in order to remedy or repair any injury
PROBATE COURT that may be done thereto [Dariano vs.
Fernandez Fidalgo, G.R. No. L-4918 (1909)]
A probate court is of limited jurisdiction. It
may only determine and rule upon issues There seems, however, to be a general
relating to the settlement of estates namely: tendency, in the absence of express and
PAGE 209 OF 425
specific restrictions to the contrary, to uphold

the exercise by the probate court of such III. Summary
incidental powers as are, within the purview
of their grant of authority, reasonably Settlement of Estates
necessary to enable them to accomplish the
objects for which they were invested with General rule: The settlement of the estate
jurisdiction and to perfect the same. [In Re: of the decedent should be judicially
Baldomero Cosme, G.R. No. 43351 (1937)] administered through an administrator or
executor.
Ancillary powers of a probate court Exceptions:
(1) Issue warrants and processes to compel Law allows heirs to resort to:
attendance of a witness and to carry into (1) Extrajudicial settlement of estate
effect their orders and judgments; (decedent died intestate and left no
(2) Issue warrant for apprehension and debts);
imprisonment of a person who refuses to (2) Summary settlement of estate (for estates
perform an order or judgment; of small value, when gross estate does not
(3) All other powers granted to them by law exceed P10,000)
[Sec. 3, Rule 73]
Ratio: Where partition is possible,
either in or out of court, the estate should not
be burdened with an administration
proceeding without good and compelling
reasons. [Pereira v. CA, G.R. No. L-81147
(1989)]
No preclusion from instituting

adm inistrative proceedings
While Section 1 allows the heirs to divide the
estate among themselves as they may see fit,
or to resort to an ordinary action for partition,
the said provision does not compel them to
do so (not precluded from instituting
administration proceedings) if they have
good reasons to take a different course of
action. Good reasons depend on
circumstances of each case. [Ibid]
A. EXTRAJUDICIAL SETTLEMENT OF
ESTATES
Requisites [Sec. 1, Rule 74]

(1) Decedent died intestate
(2) Left no debts or heirs have already paid
such at the time of partition
(3) Heirs are all of age, minors represented by
their legal or judicial representatives
Modes: [Sec. 1, Rule 74]

(1) If sole heir: Affidavit of Self-
adjudication (of the whole estate)
(2) If more than one heir: Deed of
Extrajudicial Settlement or
partition
PAGE 210 OF 425

the court to enter into such agreement. [Borja

Deed of Extrajudicial Settlement is resorted v. Vda. De Borja, G.R. No. L-28040 (1972)]
to if there is no disagreem ent among the
heirs. TWO-YEAR PERIOD
If there is a disagreement, then they may Disputable presumption of no debt: If

resort to an action for partition (judicial) within two years after the death of the
decedent no creditor files a petition for letters
Procedure: of administration, then it shall be presumed
Division of estate in a public instrument or affidavit that decedent left no debts.
of adjudication.
Two-year prescriptive period: Heirs or
persons deprived of lawful participation in
Pubic instrument/affidavit filed with proper the estate may compel settlement of estate
Registry of Deeds and posting of a bond if estate within 2 years from settlem ent and
has personal property (bond equivalent to amount distribution.
of personal property).
A lien shall be constituted on the real
Publication of notice of the fact of extrajudicial property of the estate and together with the
settlement once a week for 3 consecutive weeks bond, it shall be liable to creditors, heirs or
in a newspaper of general circulation in the
other persons for a full period of 2 years
province, and after such other notice to
after such distribution.
interested persons as the court may direct.
Such lien will not be cancelled before the
lapse of two years even if a distributee offers
Extrajudicial settlem ent not binding to post bond to answer for contingent claims
on those who did not participate or [Rebong v. Ibanez, G.R. No. L-1578 (1947)]
had no notice
The procedure outlined in Section 1 of Rule 74 B. SUMMARY SETTLEMENT OF
is an ex parte proceeding. The rule plainly ESTATES OF SMALL VALUE
states, however, that persons who do not
participate or had no notice of an
extrajudicial settlement will not be bound W hen allowed: Whenever the gross value
thereby. of estate of the decedent does not exceed
P10, 000.
The requirement of publication is geared for
the protection of creditors and was never Procedural Requirements:
intended to deprive heirs of their lawful (1) Petition by an interested person alleging
participation in the decedent's estate. fact that estate does exceed
[Benatiro v. Heirs of Cuyos, G.R. No. 161220 P10,000Notice
(2008), citing Cua v. Vargas, G.R. No. 156536 (a) Which shall be published once a week
(2006)] for 3 consecutive weeks
(b) n a newspaper of general circulation in
Oral partition is valid the province
Because there is no law that requires (c) It is not required that publication be for
partition among heirs to be in writing to be a complete 21 days. What is required is
valid. [Pada-Kilario v. CA, G.R. No. 134329 that it be published for once a week for
(2000)] 3 consecutive weeks.
(2) Other notice to interested persons as the
Validity of com prom ise agreement court may direct [Sec. 2, Rule 74]
Such is VALID, binding upon the parties as (3) Hearing which shall be
individuals, upon the perfection of the (a) Held not less than 1 month nor more
contract, even without previous authority of than 3 months
(b) Counted from the date of the last
publication of a notice
PAGE 211 OF 425
(4) Bond in an amount to be fixed by court if COMPARISON

personal property is to be distributed [Sec. Extrajudicial
3, Rule 74] Summary Settlement
Settlement
Court intervention not Summary judicial
Upon fulfillment of the requisites, the court
required adjudication needed
may proceed summarily without the
appointment of an executor/administrator Decedent left no will Decedent may or may
and without delay, (allowed only in not have left a will
(1) to grant, if proper, allowance of the will, if intestate succession) (died
there be any intestate/testate)
(2) to determine who are persons legally Decedent left no Decedent may have
entitled to participate in the estate debts left debts
(3) to apportion and divide among them after
the payment of such debts of the estate Heirs are all of age or No such requirement
(4) persons in own right if of lawful age, or minors are
their guardians, will be entitled to receive represented
and enter into possession of the portions Instituted only at the May be instituted by
of the estate so awarded to them instance and by any interested party
respectively. [Sec. 2, Rule 74] agreement of all heirs even by a creditor
without consent of the
PROCEDURE heirs
Value of the estate is Gross value of the
Death of the decedent immaterial estate must not
exceed P10, 000
Petition for summary settlement with
allegation that the gross value of the estate Bond filed with the Bond filed with and
does not exceed P10K Register of Deeds amount to be
in an amount equal determ ined by the

to the value of the court
Publication of notice of the fact of summary
personal property
settlement once a week for 3 consecutive
of the estate
weeks in a newspaper of general circulation
in the province, and after such other notice to
interested persons as the court may direct C. REMEDIES OF AGGRIEVED
PARTIES AFTER EXTRAJUDICIAL
Hearing held not less than 1 month nor more SETTLEMENT OF ESTATE
than 3 months from the date of the last
publication of notice
WITHIN REGLAMENTARY PERIOD OF TWO
Court to proceed summarily, without YEARS:
appointing an executor/administrator (1) Claim on the bond
(executor/administrator), and to make orders (2) Claim on lien on real property
as may be necessary such as: notwithstanding any transfers of real
(1) Grant allowance of will, if any; property that may have been made.
(2) Determine persons entitled to estate; (3) Reopening by intervention before
(3) Pay debts of estate which are due; rendition of judgment
(4) Action to Annul Settlement
Filing of bond fixed by the court
W hen applicable: there is an heir or other

person who
Partition of estate (1) has been unduly deprived of his lawful
participation in the estate:
(a) He shall have a right to compel the
settlement of the estate in the courts
PAGE 212 OF 425

for the purpose of satisfying such

lawful participation OTHERS:
(b) If annulment on the ground of fraud (1) Action for reconveyance of real
an action for reconveyance based on an property based on an implied trust,
implied or constructive trust must be reckoned 10 years from issuance of title
filed within 10 years from accrual of the [Marquez v. CA, G.R. No. 125715 (1998)]
cause of action [Amerol v. Bagumbaran, (2) Rescission in case of preterition of
G.R. No. L-33261 (1987)] compulsory heir in partition tainted with
(2) has been unduly deprived of his lawful bad faith [Art 1104, NCC]
participation payable in m oney: The (3) Petition for Relief on ground of
court having jurisdiction of the estate may, fraud, accident, mistake, excusable
by order for that purpose, after hearing, negligence; within 60 days after
(a) settle the amount of such debts or petitioner learns of judgment or final
lawful participation, and order, or other proceedings to be set
(b) may issue execution against the bond aside, and not more than 6 months after
or against the real estate belonging to such judgment or order is entered or
the deceased, or both. [Sec. 4, Rule 74] taken [Rule 38]
W hen not applicable:

(1) To persons who have participated or taken
part or had notice of the extrajudicial
partition
(2) When the provisions of Sec. 1 of Rule 74
have been strictly complied with (all
persons or heirs of the decedent have
taken part in the extrajudicial settlement
or are represented by themselves or
through guardians)
Additional Period for Claim of Minor

or Incapacitated Person
If on the date of the expiration of the period
of 2 years, the person authorized to file a
claim is:
(1) a minor or mentally incapacitated,
(2) is in prison or
(3) outside the Philippines,
He may present his claim within 1 year after
such disability is removed. [Sec. 5, Rule 74]
Within the reglementary period, the judge of

a probate court has the power to reopen
estate proceedings even after the issuance of
an order approving a project of partition and
closing the proceedings. Rather than
requiring an allegedly preterited party to air
his grievances in a separate and independent
proceeding, he may, within the reglementary
period, claim his relief sought in the same
case by reopening the same even after a
project of partition and final accounting had
been approved. This is proper to avoid
needless delay in the resolution of cases.
[Jerez v. Nietes, G.R. No. L-26876 (1969)]
PAGE 213 OF 425

IV. Production and Person retaining

com m itted to prison if:
will may be
(1) He has custody of the will

Probate of Will (2) There is a court order directing him to
deliver the will; and
(3) He neglects without reasonable cause to
A. NATURE OF PROBATE deliver the same [Sec. 5, Rule 75]
PROCEEDINGS
(1) In rem proceedings V. Allowance or Disallowance of Will
(2) Mandatory no will shall pass either real
or personal property unless it is proved Probate or allowance of wills is the act
and allowed in the proper court [Sec. 1, of proving in court a document purporting to
Rule 75] be the last will and testament of the
(3) Right to ask for probate does not deceased for the purpose of its official
prescribe [Guevara v. Guevara, G.R. No. L- recognition, registration and carrying out its
5405 (1956)] provision in so far as they are in accordance
(4) Doctrine of estoppel does not apply with law. [Festin at 40]
[Fernandez v. Dimagiba, G.R. No. L-
23638 (1967)] General Rule: A probate proceeding only
looks at extrinsic validity.
Before any will can have force or validity, it
must be probated. Until admitted to probate, Exception:
a will has no effect whatsoever and no right Principle of Practical Consideration
can be claimed thereunder. [Sps Pascual v. The probate court may pass upon the intrinsic
CA, G.R. No. 115925 (2003)] validity of the will because there is apparent
defect on its face this is also known as the
The presentation of the will for probate is principle of practical consideration
mandatory and is a matter of public policy. [Nepomuceno v. CA, G.R. No. L-62952 (1985)].
Unless the will is probated, the right of a (e.g. When on the face of the will the
person to dispose of his property may be petitioner appears to be preterited)
rendered nugatory. [Maninang v. CA, G.R. No.
L-57848 (1982)] But the remedy of certiorari is available,
where the grounds for dismissal are
Duty of custodian, executor indubitable (e.g. grave abuse of discretion of
Within 20 days after he knows for the the judge when there is clearly preterition
testators death, the person who has custody and the said judge still continues the probate
of the will shall deliver the will to the court proceedings)
having jurisdiction, or to the executor named
in the will. [Sec. 2, Rule 75] Extrinsic validity: due execution of the will
The person named executor shall present Due execution of the will m eans:
the will to the court having jurisdiction, (1) That the will was executed strictly in
unless the will has reached it in any manner, accordance with the formalities required
and signify acceptance/refusal of the by law;
trust within 20 days after he knows of the (2) That the testator was of sound and
death of the testator, or within 20 days after disposing mind when the will was
he knows that he is named executor. [Sec. 3, executed;
Rule 75] (3) That there was no vitiation of consent
through duress, fear or threats;
Penalty for neglect without excuse (4) That it was not procured by undue and
satisfactory to the court: Fine not improper pressure or influence on part of
exceeding P2,000 [Sec. 4, Rule 75] beneficiary or other person for his benefit;
(5) That the testators signature is genuine
(not procured through fraud, and that the
PAGE 214 OF 425

testator intended that what he executed (3) Probable value and character of the
was his last will and testament) [Festin] property of the estate
(4) Name of the person for whom letters are
A. WHO MAY PETITION FOR prayed
(5) If the will has not been delivered to the
PROBATE; PERSONS ENTITLED TO court, the name of the person having
NOTICE custody of it. [Sec. 2, Rule 76]
TIMING AND WHO MAY PETITION EFFECTS OF DEFECT IN PETITION

A will may be probated: No defect in petition shall render void
(1) Before the testators death - By the allowance of will, or the issuance of
testator himself (ante-mortem probate) letters testamentary or of administration with
Rationale: Easier for courts to the will annexed. [Sec. 2, Rule 76]
determine mental condition of testator.
Fraud intimidation and undue influence JURISDICTION, HOW ACQUIRED
are minimized. And if will does not (1) Attaching a mere copy of will to the
comply with requirements prescribed by petition or
law, they can be easily corrected. (2) Delivery of will, even if no petition is filed
(2) After the testators death By or
executor, devisee, or legatee named in (3) Filing of the original petition and
the will or any person interested in the compliance with Sec. 3-4 Rule 76.
estate (a) Publication for 3 weeks of the order
(b) Notice to all interested persons (If by
MEANING OF INTEREST IN ESTATE mail, 20 days before hearing; if through
An interested party is one who would be personal service, 10 days before
benefited by the estate such as an heir or one hearing)
who has claim against the estate like a
creditor. [Sumilang v. Ramagosa, G.R. No. L- If testator files for probate of his will, no
23135 (1967)] publication is required and notice is only to
the compulsory heirs. [Sec. 3, Rule 76]
Persons entitled to notice
(1) Known heirs, legatees and devisees; EVIDENCE REQUIRED IN SUPPORT OF A
(2) Named executor or his co-executor if they WILL
are not the petitioner [Sec. 4, Rule 76]
(3) Compulsory heirs, if the testator himself Uncontested will
asks for probate of his own will.
(1) Notarial W ill Testimony of at least
Periods to give notice one subscribing witness that the will
(1) Personal service: At least 10 days before was executed as required by law. [Sec. 5,
hearing Rule 76]
(2) By mail: at least 20 days before hearing (a) If all subscribing witnesses reside
outside of the province their
B. CONTENTS OF PETITION FOR testimony can be taken through a
deposition by presenting a photocopy
ALLOWANCE OF WILL of the will and propounding questions
(1) Jurisdictional facts thereat. [Sec. 7, Rule 76]
(a) Death of the decedent (b) Other witnesses who are not
(b) Residence at the time of death in the subscribing witnesses may be
province where the probate court is presented if all subscribing witnesses
sitting, or if he is an inhabitant of a are dead, insane or do not reside
foreign country, his leaving his estate in in the Philippines. [Sec. 8, Rule 76]
such province;
(2) Names, ages, and residences of the heirs, (2) Holographic wills At least one
legatees, and devisees of the testator or witness who knows the handwriting
decedent
PAGE 215 OF 425
and signature of the testator who will attested in the manner required by law. [Sec.
explicitly declare that the will and 11, Rule 76]
signature are in the handwriting of the
testator. (2) Holographic W ill at least 3
(a) Expert Testimony may be witnesses who know the
resorted to in the absence of such handwriting of the testator explicitly
competent witness, and if the court declare that the will and the signature are
deems it necessary. in the handwriting of the testator.
(a) Expert testimony may be
If the testator himself petitions for resorted to in the absence of such
probate of holographic will and it is witnesses.
not contested: The fact that he affirms
that the holographic will and the signature If the testator himself petitions for
are in his own handwriting shall be sufficient probate of holographic will and it is
evidence of genuineness and due execution contested: Contestant has the burden of
thereof. [Sec. 12, Rule 76] disproving genuineness. Testator may
present additional proof to rebut contestants
It is not mandatory that witnesses be evidence. [Sec. 12, Rule 76]
presented first before expert testimony may
be resorted to unlike in notarial wills wherein Lost will
attesting witnesses must first be presented.
[Azaola v. Singson, G.R. No. L-14003 (1960)] (1) Notarial W ills even if lost may be
proved
Contested will Facts to be proved in order that
Anyone appearing to contest the will must lost or destroyed will m ay be
state in writing his grounds for opposing the allowed:
allowance and serve a copy to petitioner and (i) Due execution and validity of the
other interested parties. [Sec. 10, Rule 76] will; and
(ii) Existence at the time of testators
(1) Notarial W ill All subscribing death or that it has been
witness and the notary if present in the fraudulently or accidentally
Philippines and not insane must be destroyed during testators lifetime
presented. [Sec. 11, Rule 76] without his knowledge; and
(a) If dead, insane or absent said (iii) Provisions of the will (clearly and
fact must be satisfactorily shown in distinctly proved by at least two
court. credible witnesses)
(b) If present in the Philippines but
outside the province deposition If lost will is proved, its provisions must be
may be taken. distinctly stated and certified by the judge,
under seal of court, and the certificate must
Can testimony of the subscribing be filed and recorded as other wills are filed
witnesses be dispensed with in a and recorded. [Sec. 6, Rule 76]
contested will?
YES. If all or som e of the subscribing (2) Holographic W ills
witness General Rule: If a holographic will has
i) testify against the due execution of the will; been lost or destroyed and no other copy
or ii) do not remember having attested to it; is available, the will cannot be probated
or because the best and only evidence is the
iii) are otherwise of doubtful credibility handwriting of the testator in said will.
Exception: A photostatic copy or xerox of
Court may allow the will if it is satisfied from the holographic will may be allowed
testimony of other witnesses and evidence because comparison can be made with the
presented that the will was executed and standard writings of the testator. [Rodelas
v. Aranza, G.R. No. L-58509 (1982)]
PAGE 216 OF 425
(3) the will has been admitted to probate in

C. GROUNDS FOR DISALLOWING A such country;
(4) the fact that the foreign tribunal is a
WILL probate court, and
(5) the laws of a foreign country on procedure
The will shall be disallowed in any of the and allowance of wills [Vda. De Perez v. Tolete,
following cases: G.R. No. 76714 (1994)]
(1) If not executed and attested as required
by law; Effect
(2) If the testator was insane, or otherwise (1) The will shall have the same effect as if
mentally incapable to make a will, at the originally proved and allowed in such
time of its execution; court;
(3) If executed under duress, or the influence (2) The grant of letters testamentary or
of fear, or threats; administration shall extend to all estates
(4) If procured by undue and improper of the testator in the Philippines;
pressure and influence, on the part of the (3) After payment of just debts and expenses
beneficiary, or of some other person for of administration the estate shall be
his benefit; disposed of according to the will
(5) If the signature of the testator was (4) Residue disposed of in accordance with
procured by fraud or trick, and he did not law [Sec. 4, Rule 77]
intend that the instrument should be his
will at the time of fixing his signature
F. EFFECTS OF PROBATE
thereto [Sec. 9, Rule 76]
The list is exclusive. [Sps Ajero v. CA, G.R. Effect of Probate of W ill
No. 106720 (1994)] Decree of probate is conclusive as to its due
execution, subject to the right of appeal.
(Thus, no suit for forgery of a will which has
D. REPROBATE been duly probated with the order becoming
final).
Wills proved and allowed in a foreign country,
according to the laws of such country, may be If a decision admitting a will to probate
allowed, filed, and recorded by the proper becomes final, there can no longer be any
Court of First Instance in the Philippines (now challenge to its due execution and
RTC). [Sec. 1, Rule 77] authenticity. Thus, a criminal action will not
lie against an alleged forger of a will which
Requisites for Allowance had been duly admitted to probate by a court
(1) Duly authenticated Copy of the will; of competent jurisdiction. [Mercado v. Santos,
(2) Duly authenticated Order or decree of the G.R. No. 45629 (1938)]
allowance in foreign country;
Order allowing or disallowing a will may be
A petition for allowance in the Philippines the subject of an appeal. [Sec. 1, Rule 109]
may be filed by executor or other person
interested. The Court having jurisdiction shall
fix a time and place for the hearing and cause
notice thereof to be given as in case of an
original will presented for allowance. [Sec. 2,
Rule 77]
Evidence necessary for reprobate

(1) the due execution of the will in accordance
with the foreign laws;
(2) the testator has his domicile in the foreign
country and not in the Philippines;
PAGE 217 OF 425

VI. Letters Executor Administrator

renounced.
Testamentary and of
If theres no provision
Administration for compensation,
Sec. 7 of Rule 85 shall
apply.
A. WHEN AND TO WHOM LETTERS
OF ADMINISTRATION ARE Any competent person may serve as
GRANTED an executor or adm inistrator.
Who may administer the estate of a deceased Married woman may serve as executor or
person? administrator and a marriage of a single
(1) Executor woman shall not affect her authority so to
(2) Administrator serve under a previous appointment. [Sec. 3,
Rule 78]
Executor Administrator WHO ARE INCOMPETENT TO SERVE AS
Appointed when: EXECUTOR OR ADMINISTRATOR
1. Testator did not (1) Minor;
Person named appoint an executor (2) Non-resident
expressly by deceased 2. The appointment (3) One who, in the opinion of the court, is
person in his will to was refused unfit to exercise the duties of the trust by
administer, settle, 3. The executor is reason of
and liquidate estate, incompetent to serve (a) Drunkenness
and subsequently 4. The will was (b) Improvidence
appointed by court disallowed (c) Want of understanding
5. No will (intestate (d) Want of integrity; or
succession) (e) Conviction of an offense involving
moral turpitude. [Sec. 1, Rule 78]
Has duty to present
(4) Executor of an executor cannot, as such,
the will to court within
administer estate of the first testator [Sec.
20 days after (1) he
2, Rule 78]
learns of the death of
testator or (2) after he
The list above is not exclusive.
knew he was
appointed as executor No such duty
In this jurisdiction, one is considered to be
(if he obtained such
unsuitable for appointment as administrator
knowledge after
when he has adverse interest of some kind
death of testator),
or hostility to those immediately interested in
unless will has
the estate. [Lim v. Diaz-Millarez, G.R. No. L-
reached the court in
17633 (1966)] The administrator should be
any manner
indifferent between the estate and claimants
The testator may of the property, except to preserve it for due
provide that he may administration, and should be removed when
serve without a bond Required to file bond his interests conflicts with such right and duty.
but the court shall unless exempted by [Medina v. CA, G.R. No. L-34760 (1973)]
direct him to post a law
bond conditioned only The regular adm inistrator is charged with
to pay debts. the task of accomplishing and terminating
Compensation the administration of the estate with the
First part of Rule 85 utmost reasonable dispatch, with a view to an
provided in the will
Sec 7 applies early distribution of the net estate among the
controls, unless
PAGE 218 OF 425
heirs and persons entitled thereto. [Medina v. and most influential motive to administer the
CA, G.R. No. L-34760 (1973)] estate correctly. [Gonzalez v. Aguinaldo, et al.,
G.R. No. 74769 (1990)]
WHEN ARE LETTERS TESTAMENTARY OR
OF ADMINISTRATION GRANTED Mere failure to apply for letters of
administration does not remove preference. [1
Letters testam entary it is an authority ALR 1247]
issued to an executor named in the will to
administer the estate. It is issued once the General Rule: The court cannot set aside
will has been proved and allowed and if the order of preference
executor named is competent, accepts the
trust and gives bond. [Sec. 4, Rule 78] Exception:
If the person enjoying such preferential rights
Letters adm inistration authority issued is
by court to a competent person to administer (1) Unsuitable
the estate if: (2) Incompetent
(1) No executor is named in will (3) Unwilling
(2) Executor or executors named are (4) Neglect to apply for letters 30 days after
incompetent, refuse the trust, or fail to the death of the decedent
give bond or
(3) Person dies intestate. [Sec. 6, Rule 78] Court may reject order of preference when
circumstances warrant.
B. ORDER OF PREFERENCE
The order of preference is not absolute for it
Order of preference in the grant of depends on the attendant facts and
adm inistration circumstances of each case. The selection of
(1) Surviving spouse or next of kin, or both, or an administrator lies in the sound discretion
to such person as the surviving spouse, or of the trial court. [In Re Suntay, G.R. No.
next of kin requests to have appointed, if 183053 (2010)]
competent and willing to serve.
(2) If those enumerated above be 30-DAY PERIOD MAY BE WAIVED
incompetent or unwilling, or if the Just as the order of preference is not absolute
husband or widow, or next of kin, neglects and may be disregarded for valid cause, so
for 30 days after the death of the person may the 30-day period be likewise waived
to apply for administration or to request under the permissive tone in paragraph (b) of
that administration be granted to some said rule which merely provides that said
other person, it may be granted to one or letters as an alternative, may be granted to
more of the principal creditors, if one or more of the principal creditors.
competent and willing to serve. [Herrera]
(3) If there is no (2), it may be granted to such
other person as the court may select. [Sec. Co-administrators may be appointed. [Matute
6, Rule 78] v. Court of Appeals, G.R. No. 26751 (1969)]
Next of kin are those entitled by law to C. OPPOSITION TO ISSUANCE OF

receive the decedents properties. [Ventura v. LETTERS TESTAMENTARY;
Ventura, G.R. No. L-26306 (1988)]
SIMULTANEOUS FILING OF
Reason for order of preference PETITION FOR ADMINISTRATION
Those who would reap the benefit of a wise, W ho may oppose

speedy and economical administration of the Any person interested in a will. [Sec. 1, Rule
estate, or, on the other hand, suffer the 79]
consequences of waste, improvidence or
mismanagement, have the highest interest
PAGE 219 OF 425
Meaning of interested person Lack of interest in the proceedings is equal to

One who would be benefited by the estate, lack of legal capacity to institute proceedings.
such as an heir, or one who has a claim NOT lack of jurisdiction on part of court.
against the estate, such as a creditor; thus [Herrera]
interest must be material and direct, not
merely indirect or contingent. [Saguinsin v. Order appointing regular administrator is
Lindayag, G.R. No. L-17759 (1962)] appealable. [Rule 109]
Grounds W hen Letters of Administration is

(1) Incompetency of the person/s for whom issued:
letters are prayed, or If proven at a hearing that:
(2) Contestants own right to the (1) Notice has been given as required; and
administration (ex. preferential right (2) That decedent left no will or there is no
under Rule 78 Sec 6) [Sec. 4, Rule 79] competent and willing executor [Sec. 5,
Rule 79]
Form required
Grounds for opposition must be stated in One who is named as executor in the will or
writing; court shall then hear and pass upon one who enjoys preference under the rules is
sufficiency of such grounds. [Sec 1, Rule 79] not autom atically entitled to the
issuance of letters testamentary/of
Contents of a Petition for Letters of administration. A hearing has to be held in
Administration order to ascertain her fitness to act as
(1) Jurisdictional facts; executor/administrator. [Baluyut v. Cruz Pao,
(a) Death of testator; G.R. No. L-42088 (1976)]
(b) Residence at time of death in the
province where probate court is sitting; Letters of administration may be granted to
or any qualified applicant, though it appears
(c) If he is an inhabitant of foreign country, that there are other competent persons
his having left his estate in such having better right if such persons fail to
province [Diez v. Serra, G.R. No. L- appear when notified and claim the issuance
27650 (1927)] of letters to themselves. [Sec. 6, Rule 79]
(2) Name, age and residence of heirs and the
name and age of creditors; D. POWERS AND DUTIES OF
(3) Probable value and character of the estate;
(4) Name of person for whom letter is prayed
EXECUTORS AND
[Sec. 2, Rule 79] ADMINISTRATORS; RESTRICTIONS
ON THE POWERS
Defect in petition would not render void
issuance of letters of administration.
Posting of bond
Before an executor or administrator enters
Publication and Notice upon the execution of his trust, and letters
Publication of notice for 3 weeks successively
testamentary or of administration issue, he
and notice to heirs, creditors and interested shall give a bond in such sum as the court
persons, if place of residence is known, are
directs.
jurisdictional. [Sec. 3, Rule 79 and Secs. 3-4,
Rule 76]
Purpose
The bond posted by the administrators and
Sim ultaneous filing of Opposition and
executors is intended as an indemnity to the
Petition: A petition may, at the same time,
creditors, the heirs and the estate.
be filed for letters of administration to
himself, or to any competent person or
How is liability on the bond enforced?
persons named in the opposition. [Sec. 4, By motion or in a separate action. [Festin at
Rule 79]
56]
PAGE 220 OF 425

Conditions on the bond (b) Examine and make invoices of the

(1) Make a return to the court, within 3 property belonging to such partnership
months, a true and complete inventory of (c) Request the surviving partner or partners
all goods, chattel, rights, credits, and to exhibit to him all such books, papers,
estate of the deceased which shall come and property in their hands or control.
to his possession or knowledge or to the [Sec. 1, Rule 84]
possession of any other person for him;
(2) To administer according to these rules, Failure to freely permit the exercise of these
and if an executor, according to the will of may subject any partner for contempt.
the testator, all goods, chattel, rights,
credits, and estate of the deceased which KEEP BUILDINGS IN TENANTABLE REPAIR
shall come to his possession or to the (a) Houses and other structures and fences
possession of any other person for him belonging to the estate, and
and from the proceeds to pay and (b) Deliver the same in such repair to the heirs
discharge all debts, legacies, charges on or devisees when directed so to do by the
the same, and dividends as shall be court. [Sec. 2, Rule 84]
decreed by court.
(3) Render a true and just account within 1 RIGHT TO POSSESSION AND
year and when required by court; and MANAGEMENT OF THE REAL AND
(4) Perform all orders of the court [Sec. 1, Rule PERSONAL PROPERTIES
81] (a) So long as it is necessary for the payment
of the debts and the expenses of
If the testator provides in his will that administration [Sec. 3, Rule 84]
executor shall serve without a bond, the court (b) Administrator cannot exercise the right of
may still require him to file a bond legal redemption over a portion of the
conditioned only to pay debts of testator. [Sec. property owned in common sold by one of
2, Rule 81] the other co-owners since this is not
within the powers of administrator. [Caro
Joint bond v. CA, G.R. No. L-46001 (1982)]
Joint executors or administrators may be
required by court to file either a separate When the estate of a deceased is already the
bond from each or joint bond from all. [Sec. 3, subject of a testate or intestate proceeding,
Rule 81] the administrator cannot enter into any
transaction involving it without any prior
Special Adm inistrator approval of the probate court. [Estate of Olave
Condition on the bond v. Reyes, G.R. No. L-29407 (1983)]
(1) Make and return true inventory;
(2) Render accounting when required by D.2. RESTRICTIONS ON POWERS OF
court;
(3) Deliver the estate of the deceased to the
EXECUTORS AND
person appointed as regular executor or ADMINISTRATORS
administrator, or other authorized person.
[Sec. 4, Rule 81] EXECUTOR OR ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND
D.1. GENERAL POWERS AND INCOME
DUTIES OF EXECUTORS AND Chargeable in his account with the whole of
the estate which has come into his possession,
ADMINISTRATORS
at the value of the appraisement contained in
the inventory, with:
HAVE ACCESS TO PARTNERSHIP BOOKS (a) Interest,
AND PROPERTY AT ALL TIMES (b) Profit
(a) Have access to, and may examine and (c) Income of such estate; and
take copies of, books and papers relating
to the partnership business,
PAGE 221 OF 425
(d) Proceeds of as much of the estate as is ONLY NECESSARY EXPENSES SHALL BE

sold by him, at the price at which it was ALLOWED
sold. [Sec. 1, Rule 85] (a) The amount paid by an
executor/administrator for costs awarded
PROHIBITED FROM PROFITING BY against him shall be allowed in his
INCREASE OR LOSING BY DECREASE IN administration account [Sec. 6, Rule 85]
VALUE Unless it appears that the action or
(a) No executor/administrator shall profit by proceeding in which the costs are taxed
the increase, or suffer loss by the was prosecuted or resisted without just
decrease or destruction, without his fault, cause, and not in good faith.
of any part of the estate (b) When the executor is an attorney, cannot
(b) Account for the excess (when sold for charge against estate any professional
more) fees for legal services rendered. [Sec. 7,
(c) If sold for less than appraisement, not Rule 85]
responsible for loss, if justly made
(d) If settled claim for less than nominal Necessary expenses of adm inistration
value, he is entitled to charge in his Such expenses as are entailed for the
account only the amount he actually paid preservation and productivity of the estate
on the settlement [Sec. 2, Rule 85] and for its management for purpose of
(e) Not accountable for debts due the liquidation, payment of debts, and
deceased which remain uncollected distribution of the residue among persons
without his fault [Sec. 3, Rule 85] entitled thereto. [Hermanos v. Abada, G.R. No.
13910 (1919)]
ACCOUNTABLE FOR INCOME FROM
REALTY USED BY HIM Not considered as necessary expenses
If the executor/administrator uses or (1) Expenses on death anniversary of
occupies any part of the real estate himself, deceased because no connection with care,
he shall account for it: management and settlement of estate;
(a) as may be agreed upon between him and (2) Expenses for stenographic notes and
the parties interested, or unexplained representation expenses;
(b) adjusted by the court with the parties (3) Expenses incurred by heir as occupant of
assent family home without paying rent (ex.
(c) if the parties do not agree upon the sum to Salary of house helper, light, water bills,
be allowed, the same may be ascertained gas etc. [De Guzman v. De Guzman-Carillo,
by the court, whose determination in this G.R. No. L-29276 (1978)]
respect shall be final. [Sec. 4, Rule 85] (4) Expenses incurred by an executor or
administrator to produce a bond. [Sison v.
ACCOUNTABLE IF HE NEGLECTS OR Teodoro, G.R. No. L-9271 (1957)].
DELAYS TO RAISE OR PAY MONEY
Damages sustained are considered waste, Attorneys fees
and may be charged and allowed against him When an attorney assists the administrator or
in his account, and s/he is liable on his/her executor personally in the execution of his
bond if s/he: trust, the liability for the payment of
(a) Neglects or unreasonably delays to raise attorneys fees rests on the executor or
money, by collecting the debts or selling administrator. However, if the fees paid are
the real or personal estate of the beneficial to the estate and reasonable, he is
deceased, or entitled to reimbursement from the estate
(b) Neglects to pay over the money he has in [Uy Tioco v. Imperial, G.R. No. L-29414 (1928)]
his hands, and the value of the estate is
thereby lessened or unnecessary cost or EXECUTOR OR ADMINISTRATOR TO MAKE
interest accrues, or the persons interested INVENTORY AND RENDER ACCOUNT
suffer loss. [Sec. 5, Rule 85]
PAGE 222 OF 425

Inventory relating to an administration account. [Sec. 9,

Rendered within 3 months of appointment Rule 85]
and includes an appraisal of all real and
personal estate of the deceased which has E. APPOINTMENT OF SPECIAL
come into his possession or knowledge [Sec. 1,
Rule 83]
ADMINISTRATOR
Not included: W hen appointed

(1) Wearing apparel of surviving husband or (1) When there is delay in granting letters
wife and minor children testamentary or administration, or
(2) The marriage bed and bedding (2) By any cause, including an appeal from
(3) Such provisions and other articles as will allowance or disallowance of a will [Sec. 1,
necessarily be consumed in the Rule 80]
subsistence of the family of the deceased (3) When the executor or regular
[Sec. 2, Rule 83] administrator has a claim against the
estate, with respect to the settlement or
Allowance to surviving spouse and adjustment of that claim [Sec. 8, Rule 86]
children
The widow and minor or incapacitated Procedure for Appointment
children shall, during the settlement of the There must first be notice and publication.
estate, receive such allowance under the Notice through publication of the petition is a
direction of the court [Sec. 3, Rule 83] jurisdictional requirement even in the
appointment of a special administrator. [De
ACCOUNTING MANDATORY Guzman v. Angeles, G.R. No. 78590 (1988)]
Within 1 year from the time of receiving letters
testamentary or of administration unless the Appointment of special administrator lies
court otherwise directs [Sec. 8, Rule 85] entirely in the sound discretion of the court.
[De Gala v. Gonzales, G.R. No. L-30289 (1929)]
He shall render such further accounts as the
court may require until the estate is wholly The preference laid down under Sec 6, Rule
settled [Sec. 8, Rule 85] 78 refers to the appointment of a regular
administrator, not to that of a special
The fact that the heirs of the estate have administrator [Pijuan v. De Gurrea, G.R. No. L-
entered into an extrajudicial settlement and 21917 (1966)].
partition in order to put an end to their
differences cannot in any way be interpreted Regular Administrator Special Administrator
as a waiver of the objections of the heirs to
Appointed by the court
the accounts submitted by the administrator. Appointed by the court
when:
[Joson v. Joson, G.R. No. L-9686 (1961)] in the following
1. there is delay in
instances:
granting letters
EXAMINATION ON OATH BY COURT 1. Testator did not
testamentary or
appoint an executor
As to the correctness of his account before administration
2. The appointment was
the same is allowed refused
2. the executor is a
Except: claimant of the estate
3. The will was
(1) when no objection is made to the 3. by any cause,
disallowed
allowance of the account and including an appeal
4. No will (intestate
from allowance or
(2) its correctness is satisfactorily established succession)
disallowance of a will
by competent proof
Cannot pay debts of the
Should pay the debts of
The heirs, legatees, distributees, and estate unless ordered
the estate
creditors of the estate shall have the same by the court
privilege as the executor/administrator of Order of Appointment is
Order of Appointment is
being examined on oath on any matter interlocutory and is not
final and appealable
appealable
PAGE 223 OF 425

Removal of executor or administrator

POWERS AND DUTIES OF SPECIAL Grounds
ADMINISTRATOR (1) Neglects to:
(1) Take possession and charge of the goods, (a) Render his account
chattels, rights, credits, and estate of the (b) Settle the estate according to law
deceased, and (c) Perform an order or judgment of the
(2) Preserve the same for the court, or a duty expressly provided by
executor/administrator afterwards these rules
appointed, and (2) Absconds
(3) For the purpose of (1) and (2), may (3) Becomes insane or
commence and maintain suits as (4) Becomes incapable or unsuitable to
administrator discharge the trust. [Sec. 2, Rule 82]
(4) May sell only such perishable and other
property as the court orders sold List enumerated is not exclusive. Court is
(5) Not liable - to pay any debts of the vested with ample discretion in removal of
deceased unless so ordered by the court. administrator for as long as there is evidence
[Sec. 2, Rule 80] of act or omission on the part of the
administrator not conformable to or in
WHEN SPECIAL ADMINISTRATOR CEASES disregard of rules or orders of the court which
DUTIES it deems as sufficient or substantial to
When letters testamentary/administration warrant removal of administrator. [Festin]
are granted on the estate of the deceased:
(1) He shall deliver to the Examples of valid rem oval of an
executor/administrator the goods, adm inistrator by probate court
chattels, money, and estate of the (1) Administrator who disbursed funds of
deceased in his hands. estate without judicial approval. [Cotia v.
(2) The executor/administrator may Jimenez, G.R. No. L-12132 (1958)]
prosecute to final judgment suits (2) False representation by administrator in
commenced by such SA [Sec. 3, Rule 80] securing his appointment. [Cobarrubias v.
Dizon, G.R. No. L-225 (1946)]
Appointment of Special Administrator is (3) Administrator who holds interest adverse
interlocutory and is not appealable. to that of the estate or his conduct shows
[Garcia v. Flores, G.R. No. L-10392 (1957)] unfitness to discharge the trust [Garcia v.
Vasquez, G.R. No. L-26615 (1970)]
F. REVOCATION, DEATH, (4) Administrator who has physical and
mental inability and consequent
RESIGNATION AND REMOVAL OF unsuitability to manage the estate. [De
EXECUTORS AND Borja v. Tan, G.R. No. L-6476 (1955)]
ADMINISTRATORS
Temporary absence in the state does not
Revocation of adm inistrator disqualify one to be an administrator of the
estate [Gonzales v. Aguinaldo, G.R. No. 74769
When the decedents will is allowed and
proved after a letters of administration has (1990)]
been issued as if he had died intestate, the
administration is deemed revoked. [Sec. 1, Removal of Special Adm inistrators
The probate court may appoint or remove
Rule 82]
special administrators based on grounds
other than those enum erated in the
Duty of adm inistrator upon revocation
Rules at its discretion, such that the need to
of Letters
first pass upon and resolve the issues of
(1) Surrender the letters to court;
fitness or unfitness and the application of the
(2) Render his account within such time as
order of preference under Section 6 of Rule
the court may direct [Sec. 1, Rule 82]
78, as would be proper in the case of a
regular administrator, do not obtain. As long
PAGE 224 OF 425

as the discretion is exercised without grave

abuse, and is based on reason, equity, justice, VII. Claims against the
and legal principles, interference by higher
courts is unwarranted. [Ocampo v Ocampo, Estate
G.R. No. 187879 (2010)]
ESTATE BURDENED WITH LIEN OF
EFFECT OF REMOVAL, DEATH, OR CREDITORS
RESIGNATION Upon the death of the person, all his property
(1) The remaining executor/administrator is burdened with all his debts, his debts
may administer the trust alone, unless creating an equitable lien thereon for the
the court grants letters to someone to act benefit of the creditors.
with him.
(2) If there is no remaining And such lien continues until the debts are
executor/administrator, administration extinguished either by the payment,
may be to any suitable person. [Sec. 2, prescription, or satisfaction in one of the
Rule 82] modes recognized by law. [Suiliong & Co. v.
Chio-Taysan, G.R. No. L-4777 (1908)]
Validity of acts
Acts of the executor/administrator before PURPOSE OF PRESENTATION OF CLAIMS
removal/resignation are valid. [Sec. 3, Rule AGAINST ESTATE
82] (1) To protect the estate of the deceased
(2) Executor/administrator will be able to
Powers of new executor or examine each claim, determine whether it
adm inistrator is a proper one which should be allowed
(1) Collect and settle the estate not (3) To appraise the administrator and the
administered; probate court of the existence of the
(2) Prosecute and defend actions claim so that a proper and timely
commenced by or against the former arrangement may be made for its
executor or administrator; and payment in full or by pro-rata portion in
(3) Have execution on judgments recovered the due course of the administration.
in the name of the former executor or [Estate of Olave v. Reyes, G.R. No. L-
administrator. 29407 (1983)]
(4) Authority to sell granted by court to
former executor or administrator may be A. TIME WITHIN WHICH CLAIMS
renewed without further notice or hearing.
[Sec. 4, Rule 82] SHALL BE FILED; EXCEPTIONS
General Rule: Claims must be filed within

the time specified by the court in its notice
which shall not be less than 6 m onths
nor m ore than 12 m onths from the
date of the first publication of the
notice. [Sec. 2, Rule 86 Sec 2]
Exception
Belated claim s
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the
period previously fixed provided they are filed
within 1 month from the expiration of such
period but in no case beyond the date of entry
of the order of distribution. [Danan v.
PAGE 225 OF 425

Buencaminao, G.R. No. L-57205 (1981); Sec. 2, The period, once fixed by the courts, is
Rule 86] mandatory. [In Re the Administration of the
Estate of Pascual de Villanueva, G.R. No. L-
Notice to creditors to be published; 18403 (1961)]
Affidavit of publication
Executor/administrator shall cause Statute of non-claims supersedes statute of
publication of notice for 3 weeks successively limitations when it comes to debts of
in a newspaper of general circulation in the deceased persons. [Sikat v. Vda. De Villanueva,
province, and its posting in 4 public places in G.R. No. L-35925 (1932)]
the province, and in 2 public places in the
municipality, where the decedent last resided. Exceptions:
[Sec. 3, Rule 86] (1) When set forth as counterclaims in any
action that the executor/administrator
Printed copy of the published notice shall be may bring against the claimants [Sec. 5,
filed in court within 10 days after its Rule 86]
publication accompanied with affidavit (2) Belated claims [Sec. 2, Rule 86]
setting forth the dates of first and last
publication and name of newspaper where it Quasi-contracts and contingent claims are
was printed. [Sec. 4, Rule 86] included in claims that should be filed under
Rule 86 Sec. 5. [Metropolitan Bank & Trust Co.,
Significance of Notice v. Absolute Management Corp., G.R. No.
Publication of notice is constructive notice to 170498 (2013)]
creditors and, thus, a creditor would not be
permitted to file a claim beyond the period Contingent Claim
fixed in the notice on the bare ground that he One which by its nature, is necessarily
had no knowledge of the administration dependent upon an uncertain event for
proceedings. [Villanueva v. PNB, G.R. No. L- existence or validity, which may or may not
18403 (1963)] develop into an enforceable claim. [Buan v.
Laya, G.R. No. L-7593 (1957)].
Statute of non-claim s
General Rule: Claim must be filed within W hen Allowed
the time fixed by the notice otherwise they (1) When it becomes absolute;
are barred forever. [Sec. 5, Rule 86] (2) Presented to the court or
executor/administrator within 2 years
Purpose: to settle the estate with dispatch, from the time limited for other creditors to
so that the residue may be delivered to the present their claims; and
persons entitled thereto without their being (3) Not disputed by executor/administrator
afterwards called upon to respond in actions If disputed:
for claims. [Rio y Compania v. Maslog, G.R. It may be proved and allowed or
No. L-12302 (1959), citing Tan Se Guan v. Ga disallowed by the court as the facts may
Siu San, 47 Phil. 96] warrant [Sec. 5, Rule 88]
Claims Covered (Exclusive) Mutual claims may be set off against each
(1) Claims for money against the decedent other in such action. [Sec. 5, Rule 88]
arising from contract
- Express or implied Effect if a debtor obtains a favorable
- Due or not judgm ent against the estate: the
- Contingent or not amount shall be considered the true balance
(2) Claims for funeral expenses against the estate, as though the claim had
(3) Expenses for the last sickness been presented directly before the court in
(4) Judgment for money against the decedent. the administration proceedings [Sec. 5, Rule
[Sec. 5, Rule 86] 88]
PAGE 226 OF 425

The presentation of a money claim may be judge, the original shall be exhibited,
waived. [Ignacio v. Pampanga Bus Co., Inc., unless it be lost or destroyed, in which
G.R. No. L-18936 (1967)] case the claimant must accompany his
claim with affidavit or affidavits containing
If obligation solidary - file claim against a copy or particular description of the
decedent as if he is the only debtor instrument and stating its loss or
If obligation joint - claim confined to the destruction.
portion belonging to the decedent [Sec. 6, (2) When the claim is due - it must be
Rule 86] supported by affidavit stating the amount
justly due, that no payments have been
ALTERNATIVE REMEDIES OF A MORTGAGE made thereon which are not credited, and
CREDITOR UPON DEATH OF DEBTOR that there are no offsets to the same, to
(1) Waive the security and claim the entire debt the knowledge of the affiant.
from the estate as an ordinary claim (3) If the claim is not due, or is
creditor is deemed to have abandoned the contingent, when filed it must also be
mortgage and he cannot thereafter file a supported by affidavits stating the
foreclosure suit if he fails to recover his particulars thereof.
money claim against the estate (4) When the affidavit is m ade by a
(2) Foreclose mortgage judicially and prove any person other than the claimant, he
deficiency as an ordinary claim suit must set forth therein the reason why it is
should be against the executor or not made by the claimant.
administrator as party defendant; creditor
may obtain deficiency judgment if he fails Answer by executor/administrator
to fully recover his claim Shall be filed within 15 days after copy of
(3) Rely solely on the mortgage and foreclose it claim has been served upon him. Executor or
before it is barred by prescription without administrator may interpose any
right to claim for deficiency includes counterclaim . Said counterclaim is
extrajudicial foreclosure of sale and its regarded as com pulsory, as the failure to
exercise precludes one from recovery of file the same shall bar the claim forever. [Sec.
any balance of debt against the estate and 10, Rule 86]
frees the estate from further liability [Sec.
7, Rule 86] Judgment of court approving or disapproving
a claim shall be appealable as in ordinary
Case law provides that these remedies are cases. [Sec. 13, Rule 86; Rule 109]
distinct, independent, and m utually
exclusive remedies that can be B. CLAIM OF EXECUTOR OR
alternatively pursued by the mortgage
creditor for satisfaction of his credit in case
ADMINISTRATOR AGAINST AN
the mortgagor dies. [Festin at 79] ESTATE
How to file for a claim : Procedure to follow if the executor or

(1) Deliver the claim with the necessary
adm inistrator has a claim against the
vouchers to the clerk of court; and estate he represents
(2) Serve a copy thereof on the executor or
(1) Executor/Administrator shall give notice
administrator. [Sec. 9, Rule 86] thereof, in writing, to the court;
(2) The court shall appoint a special
Additional requirements: administrator who shall have the same
(1) If the claim be founded on a bond,
powers and liabilities as the general
bill, note, or any other instrum ent -
executor/administrator in the adjustment
the original need not be filed, but a copy of such claim.
thereof with all indorsements shall be
(3) The court may order the executor or
attached to the claim. administrator to pay to the special
On demand, however, of the executor or
administrator necessary funds to defend
administrator, or by order of the court or such claim. [Sec. 8, Rule 86]
PAGE 227 OF 425
otherwise encumbered for that purpose by

C. PAYMENT OF DEBTS the executor/administrator,
(2) Court approval must first be obtained, and
Debts Paid in Full if Estate Sufficient (3) Any deficiency shall be met by
(1) After all money claims heard and contributions in accordance with the
ascertained; and provisions of Sec. 6 of Rule 88
(2) It appears that there are sufficient assets (contributive shares of devisees, legatees
to pay the debts and heirs in possession). [Sec. 3, Rule 88]
Executor/administrator shall pay the same Estate to Be Retained to M eet

within the time limited for that purpose. [Sec. Contingent Claims
1, Rule 88] If court is satisfied that a contingent claim is
valid:
The probate court may hold in abeyance (1) It may order the executor/administrator to
intestate proceedings pending determination retain in his hands sufficient estate for the
of a separate civil action against the purpose of paying the contingent claim
administrator. [Dinglasan v. Chia, G.R. No. L- when such becomes absolute.
3342 (1951)] (2) If estate insolvent - Retain a portion
equal to the dividend of the other creditors.
The heirs of the estate may not demand the [Sec. 4, Rule 88]
closing of an intestate proceeding at any time
where there is a pending case against the PAYMENT OF CONTINGENT CLAIM
administrator of the estate. The court can (1) If claim becomes absolute within 2
rightfully hold in abeyance until the civil case years limited for creditors and
is settled. [Dinglasan v. Chia, G.R. No. L-3342 allowed by the court - Creditor shall
(1951)] receive payment to the same extent as the
other creditors if the estate retained by the
Part of Estate from W hich Debt Paid executor/administrator is sufficient.
(in order of preference) (2) Claim not presented after
(1) Portion of property designated in the will becoming absolute within 2 year
- If testator designates in his will a period and allowed by the court
portion of his estate for the payment of The assets retained in the hands of the
debt, expenses of administration, or executor/administrator, not exhausted in
family expenses, they shall be paid the payment of claims, shall be distributed
according to such provisions. by the order of the court to the persons
- If not sufficient part of the estate not entitled; but:
disposed of by will shall be - The assets so distributed may still be
appropriated [Sec. 2, Rule 88] applied to the payment of the claim
(2) Personal property when established, and the creditor
(3) Real property may maintain an action against the
distributees to recover the debt, and
General Rule: Personal estate not such distributees and their estates
disposed of by will shall be first chargeable shall be liable for the debt in
proportion to the estate they have
Exceptions: respectively received. [Sec. 5, Rule 88]
(1) Not sufficient for the purpose; or
(2) The sale will redound to the detriment of Court to Fix Contributive Shares
the participants for the estate W here Devisees, Legates, or Heirs
Have Been in Possession
In which case
(1) The whole of the real estate not disposed POSSESSION BY HEIRS, DEVISEES OR
of by will, or so much thereof as is LEGATEES BEFORE DEBTS AND EXPENSES
necessary, may be sold, mortgaged, or ARE PAID
PAGE 228 OF 425

Court shall: (1) Receive a certified list of such claims,

(1) Hear and settle the amount of their when perfected in such country,
several liabilities (2) Add the same to the list of claims proved
(2) Order how much and in what manner each against the deceased person in the
shall contribute Philippines
(3) May issue execution as circumstances (3) Make a just distribution of the whole
require. [Sec. 6, Rule 88] estate equally among all its creditors
according to their respective claims. [Sec.
LIABILITY OF HEIRS AND DISTRIBUTEES 10, Rule 88]
Heirs are not required to respond with their
own property for the debts of their deceased Principle of Reciprocity
ancestors. But after partition of an estate, the The benefit of this and preceding sections
heirs and distributees are liable individually shall not be extended to creditors in another
for the payment of all lawful outstanding country if the property of the deceased there
claims against the estate in proportion to the found is not equally apportioned to the
amount or value of the property they have creditors residing in the Philippines and the
respectively received from the estate. [Govt of other creditors, according to their respective
P.I. v. Pamintuan G.R. No. L-33139 (1930)] claims. [Sec. 10, Rule 88]
Order of Payment if Estate Is Order for Payment of Debts

Insolvent Before the expiration of the time limited for
Executor/administrator pays the debts the payment of the debts the court shall
against the estate, observing the provisions order:
of Articles 1059 and 2239 to 2251 of the Civil (1) payment, and
Code. (Preference of credits) [Sec. 7, Rule 88] (2) distribution of the assets received by
the executor/administrator for that
Dividends to Be Paid in Proportion to purpose among the creditors
Claims As the circumstances of the estate require
If no assets sufficient to pay credits of any one and in accordance with the provisions of this
class of creditors after paying preferred rule [Sec. 11, Rule 88]
credits, each creditor within such class shall
be paid dividend in proportion to his claim. If Appeal Taken From a Decision of
No creditor of any one class shall receive any the Court Concerning the Claim
payment until those of the preceding class The court may:
are paid. [Sec. 8, Rule 88] (1) Suspend the order for payment or order
the distribution among creditors whose
Insolvent Non-Resident claims are definitely allowed
His estate found in the Philippines shall be so (2) Leave in the hands of
disposed of that his creditors here and executor/administrator sufficient assets to
elsewhere may receive each an equal share, pay the claim disputed and appealed.
in proportion to their respective credits. [Sec.
9, Rule 88] When a disputed claim is finally settled, the
court shall order the claim to be paid out of
Insolvent Resident with Foreign the assets retained to the same extent and in
Creditors and Foreign claims proven the same proportion with the claims of other
in another country creditors. [Sec. 12, Rule 88]
If:
(1) Executor/administrator in the Philippines
had knowledge of the presentation of such
claims in such country; and
(2) Executor/administrator had opportunity to
contest such allowance
The court shall:
PAGE 229 OF 425

Instances when court may make persons and is not inconsistent with the
further orders for distribution of provisions of the will [Sec. 4, Rule 89]
assets
(1) If whole of the debts not paid on first Real property may, upon order, be sold,
distribution; and mortgaged, encumbered to pay debts
(2) If the whole assets not distributed, or when:
(3) Other assets afterwards come to the (1) Personal estate is insufficient to pay the
hands of executor/administrator. [Sec. 13, debts
Rule 88] (2) Sale of personal estate may injure the
business of persons interested in the
Creditors to be Paid in Accordance estate
W ith Terms of Order (3) Property appropriated by testator in his
When an order is made for the distribution of will is insufficient to pay debts [Sec. 2,
assets among creditors, the executor or Rule 89]
administrator shall, as soon as the time of
payment arrives, pay the creditors the W rit of Execution
amounts of their claims, or the dividend General Rule: The probate court does not
thereon, in accordance with the terms of such have the power to issue writs of execution. A
order. [Sec. 14, Rule 88] writ of execution is not the proper procedure
for the payment of debts and expenses of
Time for paying debts and legacies administration. The proper procedure is for
the court to order the sale of personal estate
General Rule: Not exceeding 1 year in the or the sale of mortgaged of real property of
first instance the deceased and all debts or expenses of
administration should be paid out of the
Exception: Court may extend the period, proceeds of the sale or mortgage. [Aldamiz v.
after hearing and notice, on the following Judge of CFI-Mindoro, G.R. No. L-2360
conditions: (1949)]
(1) Extension must not exceed 6 months for a
single extension; and Exceptions:
(2) The whole period allowed shall not exceed (1) To satisfy the distributive shares of
2 years. devisees, legatees, and heirs in possession
[Sec. 15, Rule 88] of the decedents assets.
(2) To enforce payment of expenses of the
Grounds for Extension partition.
(1) Original executor/administrator dies (3) To satisfy the costs when a person is cited
(2) New administrator appointed for examination in probate proceedings
[Festin]
REQUISITES
(1) Executor/administrator must apply. Proper procedure for payment of
(2) Notice of the time and place of hearing. debts
(3) Court must hear the application. (1) Motion of administrator for sale;
(4) Extension not to exceed 6 months beyond (2) Written notice to all heirs, legatees,
the time which the court might have devisees residing in the Philippines;
allowed to such original executor or (3) Court orders sale of personal property or
administrator sale or mortgage of real property;
(4) Proceeds of such sale shall be used to
Personal property may, upon order, be pay debts and expenses.
sold:
(1) To pay debts, expenses, legacies [Sec. 1,
Rule 89]
(2) If it appears necessary for the preservation
of the property [Sec. 1, Rule 89]
(3) If sale will be beneficial to the heirs,
devisees, legatees and other interested
PAGE 230 OF 425
VIII. Actions by and Exceptions:

(1) If executor or administrator is unwilling to
bring a suit;
against Executors and (2) When the executor or administrator is
made a party defendant where he is
Administrators alleged to have participated in the act
complained of;
A. ACTIONS BY AND AGAINST (3) Where there is no appointed administrator
[Festin]
EXECUTORS
B. RECOVERY OF PROPERTY
Actions that may be commenced
directly against executor or
CONCELEAD, EMBEZZLED OR
adm inistrator FRADULENTLY CONVEYED
(1) Recovery of real or personal property, or
interest therein, from the estate Proceedings when property concealed,
(2) Action to enforce a lien thereon and embezzled or fraudulently conveyed
(3) Actions to recover damages for an injury to The court may cite any person suspected
a person or property [Aguas v. Llenos, G.R. of:
No. L-18107 (1962); Sec. 1, Rule 87] (1) having concealed, embezzled, or conveyed
The aforementioned instances are deemed away any of the money, goods, or chattels
actions that survive the death of the of the deceased,
decedent: [Aguas v. Llenos, G.R. No. L-18107 (2) having in his possession or having
(1962); Festin] knowledge of any deed, conveyance, bond,
contract, or other writing which contains
Actions which may NOT brought evidence of or tends or discloses the right,
against Adm inistrators title, interest, or claim of the deceased
Claim for the recovery of money or debt or (3) having in his possession or having
interest cannot be brought against executors knowledge of the last will and testament
or administrators. [Aguas v. Llenos, G.R. No. of the deceased
L-18107 (1962); Sec. 1, Rule 87] to:
(1) appear before it, and
Executor or Adm inistrator M ay Bring (2) be examined on oath
or Defend Actions W hich Survive upon com plaint by executor or
Death administrator, heir, legatee, creditor or other
For the recovery or protection of the property individual interested in the estate of the
or rights of the deceased [Sec. 2, Rule 87] deceased to the court having jurisdiction
of the estate.
Covers injury to property i.e. not only
lim ited to injuries to specific property, but If the person so cited refuses to appear, or to
extends to other wrongs by which personal answer on such examination or such
estate is injured or diminished. [Aguas v. interrogatories as are put to him, the court
Llenos, G.R. No. L-18107 (1962)] may punish him for contempt, and may
commit him to prison until he submits to the
A mortgage belonging to the estate may be order of the court. [Sec. 6, Rule 87]
foreclosed by the executor or administrator.
[Sec. 5, Rule 87] Purpose
To elicit information, secure evidence or to
General Rule: Heirs may not sue for the investigate and take testimony for use in an
recovery of property of the estate against the independent action. The court in such
executor or administrator during the proceedings lacks power to adjudicate titles
pendency of the administration proceedings. or determine controverted rights.
[Sec. 3, Rule 87]
PAGE 231 OF 425

Double Value Rule (1) If executor/administrator failed to

A person who, before the granting of the commence such action, action must be:
letters testam entary or adm inistration (a) With court permission
of the estate, embezzles or alienates any (b) In the name of the
money, goods, chattels or effects of the executor/administrator
deceased, shall be liable to an action in favor (c) Creditor files a bond, conditioned to
of executor or administrator for double the indemnify the executor/administrator
value of the property sold, em bezzled against the cost and expenses incurred
or alienated. [Sec. 8, Rule 87] by such action
(2) If conveyance or attempt is made in favor
When executor or administrator may bring of executor/administrator
action for recovery of property fraudulently (a) No need for court permission
conveyed by deceased (b) No need for bond
(1) There is deficiency of assets for payment (c) Action shall be brought in the
of debts and expenses of administration name of all the creditors
and the deceased, in his lifetime, had
conveyed real or personal property, right Effect
or interest therein, or debt or credit with Such creditor shall have a lien upon any
intent to defraud his creditors or avoid judgment recovered by him in the action for
any right, debt or duty; or such costs and other expenses incurred
(2) Deceased had so conveyed such property, therein as the court deems equitable. [Sec. 10,
right, interest, debt or credit that by law Rule 87]
the conveyance would be void as against
the creditors and the subject of the C. SALES, MORTGAGES, AND
attempted conveyance would be liable to
attachment by any of them in his lifetime.
OTHER ENCUMBRANCES
[Sec. 9, Rule 87]
Order of Sale of Personalty
Process of recovery by the executor or The court upon the application of the
adm inistrator of property fraudulently executor or administrator, and on written
conveyed notice to the heirs and other persons
(1) Creditor makes an application for the interested, may order the whole or a part of
commencement of the action the personal estate to be sold, if it appears
(2) Creditors making the application pay necessary for the purpose of paying:
such part of the costs and expenses, or (1) debts, expenses of administration, or
give security therefor to the executor or legacies, or
administrator, as the court deems (2) expenses for the preservation of the
equitable property. [Sec. 1, Rule 89]
(3) Executor or administrator commence and
prosecute to final judgment an action for W hen court may authorize sale,
the recovery of such property, right, mortgage or encumbrance of realty
interest, debt or credit for benefit of the Situation Restriction
creditors [Sec. 9, Rule 87 Sec 9] - Personalty not
exhausted; sale of real
property may be done
WHEN RECOVERY BY CREDITOR OF When personal in lieu of personal
PROPERTY FRAUDULENTLY estate is not property of estate if it
CONVEYED MAY BE DONE sufficient to pay clearly appears that
debts, expenses of such sale etc., would be
administration beneficial to persons
Any creditor may commence and prosecute to and legacies [Sec. interested
final judgment a like action for the recovery of 2, Rule 89] - No authority to sell,
the subject of the conveyance or attempted mortgage, or otherwise
conveyance if the following requisites are encumber real or
satisfied: personal estate shall be
PAGE 232 OF 425
Situation Restriction
granted if any person W ho may claim on the bond: Such bond
interested in the estate shall be for the security of the creditors, as
gives a bond, in a sum well as of the executor or administrator, and
to be fixed by the court may be prosecuted for the benefit of either.
[Sec. 3, Rule 89] [Sec. 3, Rule 89]
- Personalty not
exhausted; sale of real Regulations for granting authority to
If sale of personal
property may be done sell, mortgage or otherwise encumber
estate may injure
in lieu of personal estate
the business or
property of estate if it (1) The executor/administrator shall file a
such other
clearly appears that written petition setting forth the
interests of those
such sale etc., would be following:
interested in the
beneficial to persons
estate and where (a) Debts due from the deceased, the
interested
testator has not expenses for administration, the
- No authority to sell,
otherwise made legacies;
mortgage, or otherwise
sufficient (b) Value of the personal estate;
encumber real or
provision for (c) Situation of the estate to be sold,
personal estate shall be
payment of debts, mortgaged, encumbered; and
granted if any person
expenses and (d) Such other facts showing sale etc., is
interested in the estate
legacies [Sec. 2, necessary or beneficial;
gives a bond, in a sum
Rule 89] (2) The court will fix a time and place for
to be fixed by the court
[Sec. 3, Rule 89] hearing such petition and cause notice
If sale is beneficial to be given personally or by mail to
Authorized if not
to interested persons interested, and publication if
inconsistent with
persons, although deem proper;
provisions of the will and
not necessary to (3) The court may require
proceeds of the sale shall
pay debts, executor/administrator to give additional
be assigned to persons
expenses, or bond conditioned on accounting for
entitled to the estate in
legacies [Sec. 4, proceeds of sale etc.;
the proper proportions
Rule 89] (4) The court may authorize sale to be public
To pay for debts, or private;
expenses or (5) If estate is to be sold at auction, the mode
legacies of estate
of giving notice shall be governed by
of deceased in
provisions concerning notice of execution
foreign country
[Sec. 5, Rule 89]
sale;
Conveyance would not be (6) Certified copy of the order of the court,
If deceased was in plus deed of the executor or administrator
authorized if assets in the
his lifetime under for real estate sold, mortgaged, or
hands of the executor or
contract, binding encumbered shall be registered in registry
administrator will be
in law, to deed of deeds where property is located [Sec. 7,
reduced as to prevent
real property or Rule 89]
creditor from receiving
interest therein
debt or diminish his
[Sec. 8, Rule 89]
dividend Deed for sale, m ortgaged or
Where deceased encumbrance
held real property The deed executed by the executor or
in trust for administrator shall be valid as of executed by
another person deceased in his lifetime [Sec. 7-8, Rule 89]
[Sec. 9, Rule 89]
Conditions of the bond : to pay the debts,

expenses of administration, and legacies
within such time as the court directs [Sec. 3,
Rule 89]
PAGE 233 OF 425
FLOWCHART: SETTLEMENT OF ESTATE OF DECEASED PERSONS
PAGE 234 OF 425

PAGE 235 OF 425

IX. Distribution and B. PROJECT OF PARTITION
Partition A project of partition is merely a proposal for

the distribution of the hereditary estate which
the court may accept or reject. [Reyes v.
BEFORE THERE COULD BE A DISTRIBUTION Barretto-Datu G.R. No. L-17818 (1967)]
OF ESTATE, THE FOLLOWING STAGES
MUST BE FOLLOWED: The executor/administrator has no duty to
(1) Liquidation of the estate i.e. payment prepare and present the same under the
of obligations of the deceased. Rules. The court may, however, require him
(2) Collation and Declaration of heirs - to present such project to better inform itself
to determine to whom the residue of the of the condition of the estate. [3 Moran 541,
estate should be distributed. 1980 Ed.]
- Determination the right of a natural
child It is the court that makes that distribution of
- Determination of proportionate shares the estate and determines the persons
of distributees entitled thereto:
Afterwards, the residue may be distributed (1) On application of executor/administrator
and delivered to the heirs. [Herrera] or person interested in the estate
(2) Notice
Powers of the court in distribution (3) Hearing
and partition of estate:
(1) Collate; Court shall assign the residue of the
(2) Determine the heirs; and estate to the persons entitled to the same,
(3) Determine the share of each heirs. naming them and the proportions, or parts,
to which each is entitled.
Court may determine questions as to
advancem ent m ade by decedent Such persons may demand and recover their
Advancements made or alleged to have been respective shares from the
made to heirs by decedent may be executor/administrator, or any other person
determined by court having jurisdiction of having the same in his possession.
estate; and the final order of the court shall
be binding on the person raising the If there is a controversy as to who are heirs or
questions and on the heir. [Sec. 2, Rule shares such shall be heard and decided as in
90] ordinary cases. [Sec. 1, Rule 90]
A. LIQUIDATION Effect of Final Decree of Distribution

(1) In rem; binding against the whole world.
General Rule: Before an order of (2) Settlement of a decedents estate is a
distribution or assignment, it must be shown proceeding in rem which is binding on the
that the debts, funeral expenses and whole world. All persons having interest in
expenses of administration, allowances, the subject matter involved, whether they
taxes, etc., chargeable to the estate have are notified or not, are equally bound.
been paid. Consequently, a liquidation of similar
import or other equivalent general
Exception: If the distributees give a bond liquidation must also necessarily be a
conditioned on the payment of above proceeding in rem so that all interested
obligations [Sec. 1, Rule 90] persons whether known to the parties or
not may be bound by such proceeding.
The part distributed must not be subject to [Philippine Savings Bank v. Lantin G.R. L-
any controversy or appeal. [Sec. 2, Rule 109] 33929 (1983)]
(3) The court acquires jurisdiction over all
persons interested, through the
publication of the notice prescribed and
PAGE 236 OF 425
any order that may be entered therein is

binding against all of them. [Ramon v. X. Escheat
Ortuzar G.R. No. L-3299 (1951)]
Escheat is a proceeding where the real and
The only instance where a party interested in personal property of a person deceased in the
a probate proceeding may have a final Philippines, who dies without leaving any will
liquidation set aside is when he is left out by and without any legal heirs, becomes the
reason of circumstances beyond his control or property of the State. [Municipal Council of
through mistake or inadvertence not San Pedro v. Colegio de San Jose, G.R. No. L-
imputable to negligence. [Vda. De Alberto v. 45460 (1938)]
CA G.R. No. L-29759 (1989)]
It is an incident or attribute of sovereignty
C. REMEDY OF AN HEIR ENTITLED TO and rests on the principle of ultimate
RESIDUE BUT NOT GIVEN HIS SHARE ownership by the state of all property within
its jurisdiction.
The better practice for the heir who has not
received his share is to: A. WHEN TO FILE
(1) Demand his share through a proper
motion in the same probate or Three instances of Escheats:
adm inistrative proceedings, or (1) When a person dies intestate leaving
(2) Motion for reopening of the property in the Philippines but leaving no
probate or administrative heir [Sec. 1, Rule 91]
proceedings if it had already been (2) Reversion proceedings in alienations in
closed, and not through an independent violation of Constitution or other statute
action. [Guilas v. Judge of the CFI of [Sec. 5, Rule 91]
Pampanga, G.R. No. L-26695 (1972)] (3) Unclaimed Balances Act (Act No. 3936, as
amended by PD 679) dormant accounts
D. INSTANCES WHEN PROBATE COURT for 10 years shall be escheated.
MAY ISSUE WRIT OF EXECUTION
W here to file:
(1) If Resident RTC of the province where
General Rule: Writ of Execution is not
the deceased last resided;
allowed in probate proceedings [Vda de (2) If Non-resident RTC of the place where
Valera v. Ofilada, G.R. No. L-27526 (1974)]
his estate is located. [Sec. 1, Rule 91]
Exceptions:
(1) To satisfy the contributive shares of B. REQUISITES FOR FILING OF
devisees, legatees and heirs in possession PETITION
of the decedents assets [Sec. 6, Rule 88] (1) A person died intestate
(2) To enforce payment of expenses of (2) He left no heirs or persons by law entitled
partition; [Sec. 3, Rule 90] to the same
(3) To satisfy the costs when a person is cited (3) Deceased left properties [City of Manila v.
for examination in probate proceedings Archbishop of Manila, G.R. No. L-10033
[Sec. 13, Rule 142] (1917); Sec. 1, Rule 91]
W hen does a probate court lose Escheat proceedings must be initiated by the
jurisdiction of an estate under Government through the Solicitor General.
adm inistration? [Sec. 1, Rule 91]
The probate court loses jurisdiction of an
estate under administration only after The Court must fix a date and place for
payment of all debts, and the remaining hearing, which shall not be more than 6
estate delivered to the heirs entitled to months after the entry of the order
receive the same. [Guilas v. Judge of the CFI of
Pampanga, G.R. No. L-26695 (1972)] Procedure
PAGE 237 OF 425
Solicitor General or his representative in C. REMEDY OF RESPONDENT

behalf of the Republic of the Philippines will
file the petition:
AGAINST PETITION; PERIOD FOR
If deceased is a residentin the RTC of FILING A CLAIM.
the province where he last resided
If non-residentin the RTC of the Period to file a claim to the estate
province in which he had an estate A claim must be made within 5 years from
Actions for reversion or escheat of date of judgment; otherwise, barred forever
properties alienated in violation of the [Sec. 4, Rule 91]
Constitution or of any statutein the
province where the land lies in whole or By whom : Devisee, legatee, heir, surviving
in part spouse, or other person entitled to such
estate. [Sec. 4, Rule 91]
If the petition is sufficient in form and
substance, the court shall make an order Effect of claim
fixing the date and place for the hearing Possession and title to the estate shall be
(which shall not be more than 6 months after given. If estate has already been sold, then
entry of order) the city/municipality shall be accountable for
the proceeds, less reasonable charges for
The court shall direct a copy of the order to be care of the estate. [Sec. 4, Rule 91]
published before the hearing at least once a
week for 6 consecutive weeks in some
newspaper of general circulation published in
the province, as the court shall deem best

The court shall hear the case and judge
whether or not the estate shall be escheated

To whom property escheated will be
assigned:
If personal property to the municipality
or city where the deceased last resided,
If real property to the municipalities or
cities, respectively, in which the same is
situated.
If the deceased never resided in the
Philippines the whole estate may be
assigned to the respective municipalities
or cities where the same is located.
Such estate shall be for the benefit of public

schools, and public charitable institutions
and centers in said municipalities or cities.
Court may order, upon motion or motu

propio, that a permanent trust be established
so that only the income from the property
shall be used.
The right of escheat may be waived, either

expressly or impliedly. [Roman Catholic
Archbishop of Manila v. Monte de Piedad, et al.
G.R. No. L-45496 (1939)]
PAGE 238 OF 425

XI. Trustees Trustee Executor/Administrator

Order of sale has no Order of sale has no
NOTE: This rule only applies to express trusts time limit time limit
and not implied trusts which arise by Appointed to carry
operation of law. [Regalado] Appointed by court to
into effect the
settle estate of a
provisions of a will or
decedent
A. DISTINGUISHED FROM written instrument
EXECUTOR/ADMINISTRATOR May be exempted Not exempted from
from filing of bond if filing of bond even if
(1) provided in the such exemption is
Trustee Executor/Administrator
will, or provided in the will;
Accounts are not (2) beneficiaries However bond is only
under oath and shall requested conditioned upon
be filed only at exemption payment of debts.
Accounts must be
such times as may Services of
under oath and Trusteeship is
be required by court, executor/administrator
annually filed terminated upon
except for initial and is terminated upon
final subm ission of turning over the
payment of debts of
accounts property to the
the estate and the
beneficiary after
Court which has distribution of property
expiration of trust.
jurisdiction: to the heirs
(1) RTC or MTC if No obligation to pay
appointed to carry Must pay the debts of
debts of the
into effect the the estate.
beneficiary or trustor
provisions of a will
Court which has
(2) If trustee
jurisdiction may be the A trustee, like an executor/administrator,
dies, resigns, or
RTC or MTC holds an office of trust, particularly when the
removed in a
contractual trust, trustee acts as such under judicial authority.
RTC has [Trusteeship of the Minors Benigno, Angela
jurisdiction to and Antonio Perez y Tuazon, G.R. Nos. L-
appoint new 16185-86 (1962)]
trustee
The duties of executor/administrator are
May sell, encumber, or however, fixed and/or limited by law whereas
mortgage property if it those of the trustee of an express trust are,
is necessary for the usually governed by the intention of the
purpose of: trustor or the parties, if established by
(1) paying debts, contract. Besides, the duties of trustees may
expenses of cover a wider range than those of
May sell or encumber administration or executor/administrator of the estate of
property of the legacies, or deceased persons. [Araneta v. Perez, G.R. No.
estate held in trust if (2) for the L-16962, (1962)]
necessary or preservation of
expedient upon order property or
of the court (3) if sale will be B. CONDITIONS OF THE BOND
beneficial to heirs,
legatees, or General Rule: Before entering the duties of
devisees his trust a trustee shall file with the clerk of
upon application to court having jurisdiction of the trust a bond in
court with written the amount fixed by court
notice to heirs
PAGE 239 OF 425

Exception: The trustee may be exempted

from giving a bond when requested by: W ho may file a petition: Parties
(1) Testator; beneficially interested [Sec. 8, Rule 98]
(2) All persons beneficially interested in the
trust. [Sec. 5, Rule 98] D. GROUNDS FOR REMOVAL AND
Effect of neglect to file bond
RESIGNATION OF A TRUSTEE
A trustee who neglects to file a bond shall be
considered to have declined or resigned the Grounds for removal
trust. [Sec. 5, Rule 98] (1) Removal appears essential in the interest
of petitioner;
Conditions (2) Trustee is insane;
(1) Inventory (3) Otherwise incapable of discharging his
That the trustee will make and return to the trust; or
court, at such time as it may order, a true (4) Evidently unsuitable. [Sec. 8, Rule 98]
inventory of all the real and personal estate
belonging to him as trustee, which at the Resignation
time of the making of such inventory shall He may resign but the court will determine if
have come to his possession or knowledge. resignation is proper. [Sec. 8, Rule 98]
(2) Faithful management E. EXTENT OF AUTHORITY OF

That he will manage and dispose of all such TRUSTEE
estate, and faithfully discharge his trust in
relation thereto, according to law and the will Nature of Possession
of the testator or the provisions of the The possession of the property by the trustee
instrument or order under which he is
is not an adverse possession, but only a
appointed possession in the name and in behalf of the
owner of the same.
(3) Accounting
That he will render upon oath at least once a
A trustee may acquire the trust estate by
year until his trust is fulfilled, unless he is prescription provided there is a repudiation of
excused in any year by the court, a true
the trust, such repudiation being open, clear
account of the property in his hands and the
and unequivocal, known to the cestui que
management and disposition thereof, and trust. In that case, prescription will
will render such other accounts as the court
commence to run from and after said
may order repudiation and the knowledge thereof by the
cestui. [Salinas v. Tuazon G.R. No. L-33626
(4) Settlem ent of account and delivery (1931)]
of estate.
That at the expiration of his trust he will Territoriality of authority of trustee
settle his account in court and pay over and The powers of a trustee appointed by a
deliver all the estate remaining in his hands,
Philippine court cannot extend beyond the
or due from him on such settlement, to the confines of the territory of the Republic.
person or persons entitled to thereto. [Sec. 6,
Rule 98] This is based on the principle that his
authority cannot extend beyond the
C. PROCEDURAL REQUISITES FOR jurisdiction of the Republic, under whose
THE REMOVAL AND RESIGNATION courts he was appointed. [Herrera]
OF A TRUSTEE
(1) Petition by parties beneficially interested;

(2) Due notice to the trustee;
(3) Hearing.
PAGE 240 OF 425

XII. Guardianship Kinds of Guardians

(1) Legal Guardian deemed as guardian
by provision of law, without need of court
NOTE: Rules 92-97 are now only appointment [Art. 225, FC]
applicable to guardianship over (2) Guardian ad Litem appointed by the
incom petent persons who are not court to prosecute or defend a minor,
minors. insane or person declared to be
incompetent, in a court action
Guardianship over minors is governed by A.M. (3) Judicial Guardian appointed by the
No. 03-02-05 SC or Rule on Guardianship of court in pursuance to law, as guardians for
Minors. insane persons, prodigals, minor heirs of
deceased war veterans and other
W ho are incompetent persons incompetent persons.
(1) Those suffering from the penalty of civil a. Guardian over the person
interdiction b. Guardian of the property
(2) Hospitalized lepers c. General guardian (both person and
(3) Prodigals property) [Regalado]
(4) Deaf and dumb people who are unable to
read and write A. GUARDIANSHIP OF
(5) Those of unsound mind even though they INCOMPETENT PERSONS NOT
have lucid intervals
(6) Persons by reason of age, disease, weak MINORS
mind and other similar causes cannot
without outside aid take care of Procedure
themselves and manage their property, Filing of Petition
thereby becoming an easy prey for deceit
and exploitation [Sec. 2, Rule 92]
Court issues order setting time for hearing
Guardianship
The power of protective authority given by Notice to the incompetent and persons
law and imposed on an individual who is free mentioned in the petition
and in the enjoyment of his rights, over one Publication only if incompetent is a non-
whose weakness on account of his age or resident
other infirmity renders him unable to protect
himself. [Herrera] Hearing (alleged incompetent must be
present if able to attend)
Guardian
A person lawfully invested with power and If granted, service of judgment to the Local
charged with the duty of taking care of a Civil Registrar and payment of bond of the
person who for some peculiarity or status or guardian.
defect of age, understanding or self-control is
considered incapable of administering his
GENERAL POWERS AND DUTIES OF
own affairs. [Herrera]
GUARDIANS
(1) Care and custody of the person of his ward
Basis: Parens Patriae
and management of his property; or
It is the States duty to protect the rights of
(2) Management of his property only;
persons/individuals who because of
age/incapacity are in an unfavorable position (3) Management of property within the
vis--vis other parties. Unable as they are to Philippines (in case of non-resident ward).
take due care of what concerns them, they [Sec. 1, Rule 96]
have the political community to look after
their welfare. [Nery v. Lorenzo G.R. No. L- Specific duties
23096 (1972)] (1) To pay the just debts of the ward out
of:
PAGE 241 OF 425

(a) Personal property and the income of (9) To render to the court for its approval an
the real property of the ward accounting of the property:
(b) If (a) is not sufficient, real property of (a) One year from his appointment
the ward upon obtaining an order for (b) Every year thereafter, and
its sale or encumbrance. [Sec. 2, Rule (c) As often as may be required. [Secs. 7-8,
96] Rule 96]
(2) To settle all accounts of his ward [Sec.
3, Rule 96] Reimbursement of Reasonable
(3) To demand, sue for, receive all debts Expenses
due him, or, with the approval of the court, The court may authorize reimbursement to
compound for the same and give the guardian, other than a parent, of
discharges to the debtor on receiving a fair reasonable expenses incurred in the
and just dividend of the property and execution of his trust, and compensation for
effects [Sec. 3, Rule 96] services. [Sec. 8, Rule 96]
(4) To appear for and represent the ward
in all actions and special proceedings, Payment of Compensation
unless another person is appointed for Court may order payment of reasonable
that purpose [Sec. 3, Rule 96] compensation not exceeding 15% of the net
(5) To manage the property of the ward income of the ward. [Sec. 8, Rule 96]
frugally and without waste, and apply the
income and profits thereon, insofar as may Embezzlem ent, Concealm ent, or
be necessary, to the comfortable and Conveyance of W ards Properties
suitable maintenance of the ward. If such
income and profits be insufficient for that Upon complaint by the:
purpose, to sell or encumber the real or (1) The guardian or ward, or
personal property, upon being authorized (2) Any person having actual or prospective
by the court to do so [Sec. 4, Rule 96] interest in the property of the ward;
(6) To consent to a partition of real or The court may cite the suspected person
personal property owned by the ward to appear for exam ination and make
jointly or in common with others, upon such orders for the security of the estate. [Sec.
authority granted by the court, 6, Rule 96]
(a) After hearing
(b) Notice to relatives of the ward, and General Rule: Purpose of the proceeding is
(c) A careful investigation as to the to secure evidence from persons suspected of
necessity and propriety of the proposed embezzling, concealing or conveying any
action. [Sec. 5, Rule 96] property of the ward so as to enable the
(7) To submit to the court a verified guardian to institute the appropriate action
inventory of the property of the ward: to obtain the possession of and secure title to
(a) Within three months: said property. The court can neither
(i) after his appointment determine ownership of the property claimed
(ii) after the discovery, succession or to belong to the ward nor order its delivery.
acquisition of property of the ward [Cui v. Piccio, G.R. L-5131 (1952)]
not included in the inventory
(b) Annually, and Exception: Court may direct delivery of
(c) Whenever required upon the property to the guardian only in extreme
application of an interested person. cases, where the right or title of the ward is
[Sec. 7, Rule 96] clear and indisputable or where his title
(8) To report to the court any property thereto has already been judicially decided.
of the ward not included in the [Cui v. Piccio, G.R. L-5131 (1952)]
inventory which is discovered, or
succeeded to, or acquired by the ward Selling and Encum bering the Property
within 3 months after such discovery, of the W ard
succession, or acquisition [Sec. 7, Rule 96] Court may order that personal or real
property or any part thereof be sold,
PAGE 242 OF 425

mortgaged or otherwise encumbered, and letters of guardianship, a true and

the proceeds invested in safe and productive com plete inventory of all the real and
security, or in the improvement or security of personal property of his ward which shall
other real property. come to his possession or knowledge or to
the possession or knowledge of any other
Grounds person in his behalf;
(1) When the income of a property under (2) To faithfully execute the duties of his
guardianship is insufficient to maintain trust, to manage and dispose the
the ward and his family; or property according to this rule for the
(2) When it is for the benefit of the ward [Sec. best interests of the ward, and to
1, Rule 95] provide for his proper care, custody and
education;
Sale must first be confirmed by the court and (3) To render a true and just account of
until such confirmation, not even equitable all the property of the ward in his hands,
title passes. [Herrera] and of all proceeds or interest derived
from them, and of the management and
Order for Sale or Encumbrance disposition of the same, at the time
designated by this rule and such other
Contents: times as the court directs and at the
(1) Causes why sale or encumbrance is expiration of his trust, to settle his
necessary or beneficial; accounts with the court and deliver and
(2) Manner of sale (public or private); pay over all the property, effects, and
(3) Time and manner of payment; monies remaining in his hands, or due
(4) Security, if payment deferred; from him on such settlement, to the
(5) Additional bond from guardian, if required. person lawfully entitled thereto;
[Sec. 4, Rule 95] (4) To perform all orders of the court
and such other duties as may be required
Duration of Order of Sale or by law. [Rule 94 Sec 1; Sec. 14 AM 03-02-
Encum brance 05]
No order of sale granted in pursuance of this
section shall continue in force for more than 1
year after granting of the same, without a B. RULE IN GUARDIANSHIP OVER
sale being had. [Sec. 4, Rule 95] MINOR [A.M. NO. 03-02-05-SC]
Investment of Proceeds and General Rule: The father and the mother
Management of Property shall jointly exercise legal guardianship
The court may authorize and require the over the property of their unemancipated
guardian to invest the proceeds of sales common child without the necessity of a
or encum brances, and any other court appointment. [Sec. 1; also Art. 225, FC]
money of his ward in his hands, in real or
personal property, for the best interests of the In case of disagreement, the fathers
ward. decision shall prevail, unless there is a
judicial order to the contrary. [Art. 225, FC]
The court may make such other orders for the
management, investment, and disposition of However, if the market value of the property
the property and effects, as or the annual Income of the child exceeds
circumstances may warrant. [Sec. 5, Rule 95] P50,000.00, the parent concerned shall
furnish a bond.
CONDITIONS OF THE BOND OF THE
GUARDIAN
NOTE: Applicable for both Guardianship of
Minors and incompetents
(1) To make and return to the court, within
three months after the issuance of his
PAGE 243 OF 425

Procedure PETITION FOR APPOINTMENT OF

Filing of petition. GUARDIAN

Court shall fix a time and place for hearing. W ho may file
(1) Resident minor:
Court shall cause reasonable notice to be (a) Any relative; or
given to: (b) Other person on behalf of a minor; or
The persons mentioned in the petition (c) Minor himself, if 14 years of age or over;
The minor, if he is 14 years of age or over or
- If non-resident minor, notice shall be (d) The Secretary of DSWD or the
given to the minor by publication or Secretary of DOH, in the case of an
any other means as the court may insane minor who needs to be
deem proper. hospitalized. [Sec. 2]
The court may also direct other general or (2) Non-resident m inor who has
special notice to be given. property in the Philippines:
(a) Any relative or friend of such minor; or

(b) Anyone interested in his property, in
Court shall order a social worker to conduct a expectancy or otherwise. [Sec. 12]
case study of the minor and all the
prospective guardians and submit his report W here to file [Sec. 3]
and recommendation to the court for its
Family Court of the
guidance before the scheduled hearing.
province or city
Resident minor
where the minor
Hearing actually resides.
Compliance with notice requirement must Family Court of the
be shown. province or city
The prospective ward shall be presented Non-Resident minor where his property or
to the court. any part thereof is
- If the minor is non-resident, the court situated
may dispense with his presence.
At the discretion of the court, the hearing Grounds for filing
on guardianship may be closed to the (1) Death, continued absence, or incapacity of
public. parents;
The records of the case shall not be (2) Suspension, deprivation or termination of
released without court approval. parental authority;
(3) Remarriage of surviving parent, if the
Issuance or denial of letters of guardianship. latter is found unsuitable to exercise
parental authority;
Service of final and executory judgment or (4) When the best interests of the minor so
order upon the Local Civil Registrar of the require. [Sec. 4]
municipality or city where the minor resides Grounds are not exhaustive. [Herrera]
and the Register of Deeds of the place where
his property or part thereof is situated, who Qualifications of Guardians
shall annotate the same in the corresponding The court shall consider the guardians:
title, and report to the court their compliance (1) Moral character;
within fifteen days from receipt of the order. (2) Physical, mental and psychological
condition;
(3) Financial status;
(4) Relationship of trust with the minor;
(5) Availability to exercise the powers and
duties of a guardian for the full period of
the guardianship;
(6) Lack of conflict of interest with the minor;
PAGE 244 OF 425

(7) Ability to manage the property of the Grounds for Opposition

minor. [Sec. 5] (1) Majority of the minor;
(2) Unsuitability of the person for whom
letters are prayed. [Sec. 10]
Order of Preference in Appointment
(in default of parents or a court- POWERS AND DUTIES
approved guardian)
(1) The surviving grandparent. In case In General
several grandparents survive, the court Guardian of:
shall select any of them taking into (1) Resident minor: Care and custody of the
account all relevant considerations. person of his ward and management of
(2) The oldest brother or sister of the his property, or only management of his
minor over 21 years of age, unless unfit or property.
disqualified. (2) Non-resident minor: Management of all
(3) The actual custodian of the minor over his property within the Philippines [Sec.
21 years of age, unless unfit or disqualified. 17]
(4) Any other person, who in the sound
discretion of the court, would serve the Bonds of Guardians
best interests of the minor. [Sec. 6] Before a guardian enters upon the execution
of his trust, or letters of guardianship issue,
Contents of petition he must file a bond as determined by the
(1) Jurisdictional facts; Court. [Sec. 14]
(2) Name, age and residence of prospective
ward; NOTE: Conditions of the bond are similar to
(3) Ground rendering the appointment those for guardians of incompetent persons.
necessary or convenient;
(4) Death of the parents of the minor, or the Whenever necessary, the court may require
termination, deprivation or suspension of the guardian to post a new bond and may
their parental authority, or remarriage of discharge from further liability the sureties on
the minors surviving parent; the old bond. [Sec. 15]
(5) Names, ages, and residences of relatives
within the 4th civil degree of the minor, Liability: In case of breach of any of its
and of persons having him in their care conditions, the guardian may be prosecuted
and custody; in the same proceeding for the benefit of the
(6) Probable value, character and location of ward or of any other person legally interested
the property of the minor; in the property. [Sec. 15]
(7) Name, age and residence of person for
whom letters of guardianship are prayed. REMOVAL, RESIGNATION AND
[Sec. 7] TERMINATION OF GUARDIANSHIP
The petition shall be verified and Removal

accom panied by a certification How: Upon reasonable notice to the
against forum shopping. No defect in the guardian.
petition or verification shall render void the
issuance of letters of guardianship. [Sec. 7] Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
W ho may file Opposition discharging his trust; or
(1) Any interested person by written (2) Is found to be unsuitable;
opposition [Sec. 10] (3) Wasted or mismanaged the property of
(2) The social worker ordered to make the the ward; or
case study report, may intervene on behalf (4) Failed to render an account or make a
of the minor if he finds that the petition for return for thirty days after it is due. [Sec.
guardianship should be denied [Sec. 9] 24]
PAGE 245 OF 425

Resignation (1) Court motu proprio; or

Ground: Any justifiable cause. (2) Upon verified motion of any person
allowed to file a petition for guardianship.
Upon the removal or resignation of the
guardian, the court shall appoint a new one. Duty to notify: Guardian shall notify the
court of the fact of coming of age or death of
No motion for removal or resignation shall be the ward within 10 days of its occurrence. [Sec.
granted unless the guardian has submitted 25]
the proper accounting of the property of the
ward and the court has approved the same. The final and executory judgment or order
[Sec. 24] removing a guardian or terminating the
guardianship shall be served upon the Local
Termination Civil Registrar of the municipality or city
where the minor resides and the Register of
Grounds Deeds of the province or city where his
(1) The ward has come of age; or property or any part thereof is situated, who
(2) The ward has died. shall enter the final and executory judgment
or order in the appropriate books in their
How Term inated offices. [Sec. 26]
PAGE 246 OF 425

XIII. Adoption
A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Domestic Adoption (RA 8552) Inter-country Adoption (RA 8043)

Kind of proceedings
Judicial Adoption Extra-judicial Adoption
W hat it governs
RA 8552 amended Art. 183 193 of the Family Code
and is the governing law for Filipino citizens
RA 8043 governs adoption of Filipinos by
adopting other Filipinos (whether relatives
foreigners and non-resident citizen and is
or strangers) with some exceptions.
implemented by the Inter-Country Adoption Board
Rescission of adoption is no longer allowed.
Definition of child
A person below fifteen (15) years of age unless
A person below 18 years of age [Sec. 3(a)]
sooner emancipated by law [Sec 3 (b)]
W ho m ay adopt
(1)Any Filipino citizen;
(2)Any alien possessing the same qualifications for An alien or Filipino citizen permanently residing
Filipino nationals; abroad [Sec. 9]
(3)The guardian with respect to the ward [Sec. 7]
Qualifications
Filipino Citizen (a) At least twenty-seven (27) years of age and at
(a) Legal age, in possession of full civil capacity least sixteen (16) years older than the child to
and legal rights; be adopted, at the time of application, unless
(b) Of good moral character, has not been the adopter is the parent by nature of the child
convicted of any crime involving moral to be adopted or the spouse of such parent;
turpitude; (b) If married, his/her spouse must jointly file for
(c) Emotionally and psychologically capable of the adoption;
caring for children; (c) Has the capacity to act and assume all rights
(d) At least sixteen (16) years older than the and responsibilities of parental authority under
adoptee (waived when adopter is the biological his national laws, and has undergone the
parent of the adoptee, or is the spouse of the appropriate counseling from an accredited
adoptees parent) [Sec. 7(a)] counselor in his/her country;
(d) Has not been convicted of a crime involving
Alien moral turpitude;
(a) Same as qualifications of Filipino citizens; and (e) Eligible to adopt under his/her national law;
(b) His/her country has diplomatic relations with (f) In a position to provide the proper care and
the Republic of the Philippines; support and to give the necessary moral values
(c) Has been living in the Philippines for at least 3 and example to all his children, including the
continuous years prior to filing of application child to be adopted;
and maintains such residence until adoption (g) Agrees to uphold the basic rights of the child as
decree is entered; embodied under Philippine laws, the U.N.
(d) Has been certified by his/her Convention on the Rights of the Child, and to
diplomatic/consular office or any appropriate abide by the rules and regulations issued to
government agency that he/she has legal implement the provisions of this Act;
capacity to adopt in his/her country; (h) Comes from a country with whom the
PAGE 247 OF 425


(e) His/her government allows the adoptee to Philippines has diplomatic relations and whose
enter the country as his/her adopted child. government maintains a similarly authorized
and accredited agency and that adoption is
NOTE: Residency and certification of allowed under his/her national laws; and
qualification m ay be waived if: (i) Possesses all the qualifications and none of the
(i) Former Filipino citizen who seeks to adopt disqualifications provided herein and in other
th
a relative within the 4 degree of applicable Philippine laws. [Sec. 9]
consanguinity or affinity; or
(ii) One who seeks to adopt legitimate child of
his/her Filipino spouse; or
(iii) One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse. [Sec. 7(b)]
W ho m ay be adopted
(a) Any person below 18 years of age who has been
administratively or judicially declared available
for adoption;
(b) The legitimate son/daughter of one spouse by
the other spouse;
(c) An illegitimate son/daughter by a qualified
Only a legally free child may be the subject of inter-
adopter to improve his/her status to that of
country adoption. [Sec 8]
legitimacy;
(d) A person of legal age if, prior to adoption, said
Legally-free child means a child who has been
person has been consistently considered and
voluntarily or involuntarily committed to the
treated by the adopter(s) as his/her own child
Department, in accordance with the Child and
since minority;
Youth Welfare Code.[Sec. 3(f)]
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive parent(s)
has died: provided that no proceedings shall be
initiated within 6 months from time of death of
said parents. [Sec. 8]
W here to file application
(a) Philippine Regional Trial Court having
jurisdiction over the child, or
(b) Inter-Country Adoption Board, through an
Family Court of the place where adopter resides intermediate agency, whether governmental or
an authorized and accredited agency, in the
country of the prospective adoptive parents,
[Sec. 10]
W hat the petition for adoption m ay include
May include prayer for change of name, rectification
of simulated birth or declaration that the child is
Only petition for adoption
foundling, abandoned, dependent or neglected
child
Annexes
PAGE 248 OF 425


RA 8552 does not provide for any annexes but Sec 11
AM 02-6-02-SC Rule on Domestic and Intercountry
Adoption, requires the following to be annexed to
the petition:
(a) Birth, baptismal or foundling certificate, as the
case may be, and school records showing the
name, age and residence of the adoptee;
(b) Affidavit of consent of the following:
(1) The adoptee, if ten (10) years of age or over;
(2) The biological parents of the child, if known, Application must be supported by the following
or the legal guardian or the child-placement documents (written and officially translated in
agency, child-caring agency, or the proper English):
government instrumentality which has legal (a) Birth certificate of applicant(s);
custody of the child; (b) Marriage contract, if married, and divorce
(3) The legitimate and adopted children of the decree, if applicable;
adopter and of the adoptee, if any, who are (c) Written consent of their biological or adoptive
ten (10) years of age or over; children above ten (10) years of age, in the form
(4) The illegitimate children of the adopter of sworn statement;
living with him who are ten (10) years of age (d) Physical, medical and psychological evaluation
or over; by a duly licensed physician and psychologist;
(5) The spouse, if any, of the adopter or (e) Income tax returns or any document showing
adoptee. the financial capability of the applicant(s);
(c) Child study report on the adoptee and his (f) Police clearance of applicant(s);
biological parents; (g) Character reference from the local
(d) If the petitioner is an alien, certification by his church/minister, the applicant's employer and a
diplomatic or consular office or any appropriate member of the immediate community who have
government agency that he has the legal known the applicant(s) for at least five (5) years;
capacity to adopt in his country and that his and
country and that his government allows to (h) Recent postcard-size pictures of the
adoptee to enter his country as his own adopted applicant(s) and his immediate family [Sec. 10]
child unless exempted under Section 4 (2);
(e) Home study report on the adopters. If the
adopter is an alien or residing abroad but
qualified to adopt, the home study report by a
foreign adoption agency duly accredited by the
Inter-Country Adoption Board; and
(f) Decree of annulment, nullity or legal separation
of the adopter as well as that of his biological
parents of the adoptee, if any.
Publication
Petition must be published at least once a week for
3 consecutive weeks in a newspaper of general
circulation in the province or city where the court is
No publication requirement.
situated;
Rescission of adoption is no longer allowed.

Supervised Trial Custody
For at least six (6) months within which the parties Trial period for 6 months in country of adopter for at
are expected to adjust psychologically and least 6 months; Only after lapse of period shall
emotionally to each other and establish a bonding a decree of adoption be issued. [Sec. 14]
relationship. During said period, temporary parental
PAGE 249 OF 425

authority shall be vested in the adopter(s).
Period may be reduced by court if in the best

interest of adoptee. [Sec 12]
Penalties
Any govt official, employee or functionary who shall
be found guilty of violating any of the provisions
Same [Sec. 17]
shall automatically suffer suspension until
resolution of the case.
Pertinent statutes and rules: A child legally available for
RA 8552 (Domestic Adoption Act) adoption: It refers to a child who has been
RA 8043 (Inter-Country Adoption Act) voluntarily or involuntarily com m itted to the
A.M. 02-6-02-SC (Rule on Domestic and DSWD or to a duly licensed and accredited
Inter-Country Adoption) child-placing or child caring agency, freed
A.M. 02-1-19-SC (Re Proposed Rule on of the parental authority of his biological
Commitment of Children) parents, or in case of rescission of adoption,
his guardian or adopter(s). [Sec. 3]
A.M. 03-04-04-SC (Rule on Custody of
Minors and Writ of Habeas Corpus in
General Rule: Husband and wife shall
Relation to Custody of Minors)
adopt jointly
Adoption
Exceptions:
A juridical act which creates between two
(1) If one spouse seeks to adopt the
persons a relation similar to that which
legitimate child of other
results from legitimate paternity and filiation.
(2) If one spouse seeks to adopt his own
[Prasnik v. Republic, G.R. No. L-8639 (1956)]
illegitimate child, provided the other
spouse has signified his/her consent
It is a proceeding in rem.
(3) If spouses are legally separated [Sec 7(c)]
Objective: Best interest of the child
PROCEDURE
Only an adoption made in pursuance with the
procedures laid down under the Rules on Order of hearing
Domestic and Inter-Country Adoption is valid
in this jurisdiction.
Publication at least once a week for three
Adoption is strictly personal between the consecutive weeks in newspaper of general
adopter and the adopted. [Teotico v. Del Val, circulation in province or city where the court is
G.R. No. L-18753 (1965)] situated. Court shall notify the Solicitor General if
the petition prays for a change of name.
Construction of adoption statutes:
All sections are designed to protect the best
interests of the adoptee. Child and Home Study Report
B. DOMESTIC ADOPTION ACT

Hearing within six months from issuance of Order
RA 8552 (Domestic Adoption Act) and the

Rule on Adoption govern the dom estic
Supervised Trial Custody for at least six (6)
adoption of Filipino children.
Decree of Adoption
PAGE 250 OF 425

Rule on Domestic and Inter-Country

Venue: The petition for adoption shall be Adoption]
filed with the Family Court of the province or
city where the prospective adoptive W hen to file:
parents reside. [Sec. 6, AM 02-6-02 Rule (1) Within 5 years after reaching age of
on Domestic and Inter-Country Adoption] majority
(2) If he was incompetent at the time of the
EFFECTS OF ADOPTION adoption, within 5 years after recovery
(1) Adopters shall exercise parental authority. from such incompetency. [Sec. 21, AM 02-
(2) All legal ties between biological parent(s) 6-02-SC, Rule on Domestic and Inter-
and adoptee shall be severed (except in Country Adoption]
cases where the biological parent is the
spouse of the adopter), and the same EFFECTS OF RESCISSION OF ADOPTION
shall be vested on the adopter(s); [Sec. 16, (1) Adoptee is still a minor - Restoration of
RA 8552] parental authority to biological parent if
(3) Adoptee shall be considered the known, or legal custody to the DSWD;
legitimate child of the adopter(s) for all (2) Reciprocal rights and obligations of
intents and purposes; [Sec. 17, RA 8552] adopter and adoptee are extinguished;
(4) Adopters shall have reciprocal rights of (3) Cancellation of amended birth certificate
succession without distinction from and restoration of original;
legitimate filiation; [Sec. 18, RA 8552] (4) Successional rights shall revert to its
status prior to adoption, as of the date of
INSTANCES WHEN ADOPTION MAY BE final judgment of rescission.
RESCINDED; EFFECTS OF RESCISSION OF (5) Vested rights prior to judicial rescission
ADOPTION shall be respected [Sec. 20, RA 8552]
Rescission may only be at the petition of the
adoptee. C. INTER-COUNTRY ADOPTION
(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the RA 8043 (Inter-country Adoption Act)
assistance of the DSWD governs the adoption of Filipino children by:
(3) If the adoptee is over 18 years of age but (1) Foreign nationals, and
incapacitated, by his guardian or counsel. (2) Filipino citizens permanently residing
[Sec. 19] abroad. [Sec. 3 (a)]
Grounds WHEN ALLOWED

NOTE: These are committed by the adopter
(1) Repeated physical and verbal Inter-country Adoption as the Last
maltreatment despite having undergone Resort; Best Interest of the child as
counseling; objective
(2) Attempt on the life of the adoptee; The Inter-country Adoption Board (ICAB)
(3) Sexual assault or violence; shall ensure that all possibilities for adoption
(4) Abandonment or failure to comply with of the child under the Family Code (domestic
parental obligations. adoption) have been exhausted and that
inter-country adoption is in the best interest
Adoption, being in the best interests of the of the child [Sec. 7, RA 8043]
child, shall not be subject to rescission by the
adopter. However, the adopter may disinherit FUNCTIONS OF THE RTC
the adoptee for causes provided in Article 919 (1) Filing of petition may be made with the
of the Civil Code. [Sec. 19] Family Court having jurisdiction over the
place where the child resides or may be
W here to file petition for rescission: found. [Sec. 28, AM 02-6-02 SC]
Family Court of the city or province where the (2) Court shall determine whether or not
adoptee resides. [Sec. 20, AM 02-6-02-SC, petition is sufficient in form and
PAGE 251 OF 425

substance and a proper case for inter-

country adoption. XIV. Writ of Habeas
(3) Transmit the petition to the ICAB for
appropriate action. Corpus
BEST INTEREST OF THE MINOR W RIT OF HABEAS CORPUS
STANDARD Essentially a writ of inquiry, granted to test
The best interests of the minor refer to: the right under which a person is detained,
(1) Totality of the circumstances and and to relieve a person if such restraint is
conditions as are most congenial to the illegal. [Velasco v. CA, G.R. No. 118644 (1995)]
survival, protection, and feelings of
security of the minor encouraging to his Extends to all cases of illegal confinement or
physical, psychological and emotional detention by which any person is deprived of
development; and his liberty, or by which the rightful custody of
(2) The least detrimental available alternative any person is withheld from the person
for safeguarding the growth and entitled thereto. [Sec. 1, Rule 102]
development of the minor. [Sec. 14 AM No.
03-04-04-SC, Re: Proposed Rule on Can only be suspended in cases of rebellion
Custody of Minors and Writ of Habeas or invasion and when public interest requires
Corpus in Relation to Custody of Minors] it [Sec. 15, Art. III]
The rule that there should be no contact VITAL PURPOSES

between the adoptee and his/her biological
parents shall not apply in exceptional cases In general
where the childs best interests are at stake The purpose of the writ is to inquire into all
[Sec. 37, IRR of RA 8043] manner of involuntary restraint, and to relieve
a person therefrom if such restraint is illegal.
In case physical transfer fails to occur, the (1) To relieve persons from unlawful restraint
ICAB shall take appropriate steps for the (2) To liberate those who may be imprisoned
protection of the best interests of the child. without sufficient cause
[Sec. 44, IRR of RA 8043] (3) To deliver them from unlawful custody
[Villavicencio v. Lukban, G.R. No. L-14639
Placement may be terminated if it is not in (1919)]
the best interests of the child. [Sec. 45, IRR of
RA 8043] Concept of restraint
Actual and effective and not merely nominal
Any doubt or vagueness in the provisions of or moral restraint is required. [Zagala v.
these rules shall be interpreted in Illustre, G.R. No. L-23999 (1926)]
consideration of the best interests of the child.
[Sec. 61, IRR of RA 8043] However, actual physical restraint is not
always required; any restraint which will
prejudice freedom of action is sufficient.
[Moncupa v. Enrile, G.R. No. L-63345 (1986)]
In the case of minors

(1) Prosecuted for the purpose of determining
the right of custody over a child.
(2) Question of identity is relevant and
material and must be convincingly
established. [Tijing v. CA, G.R. No. 125901
(2001)]
PAGE 252 OF 425

The underlying rationale is not the illegality a. Threat of killing their families if they
of the restraint but the right of custody. tried to escape
[Tijing v. CA, G.R. No. 125901 (2001)] b. Failure of the military to protect
them from abduction
W ho may issue the writ c. Failure of the military to conduct
(1) The SC, CA, and RTC have concurrent effective investigation [Secretary of
jurisdiction to issue WHC [Sec. 2, Rule Justice v. Manalo]
102]
(2) Family courts have jurisdiction to hear NATURE
petitions for custody of minors and the Not a suit between private parties, but an
issuance of the writ in relation to custody inquisition by the government, at the
of minors [Sec. 20, AM 03-04-04-SC, Re: suggestion and instance of an individual, but
Proposed Rule on Custody of Minors and still in the name and capacity of the sovereign.
Writ of Habeas Corpus in Relation to There can be no judgment entered against
Custody of Minors] anybody since there is no real plaintiff and
defendant. [Alimpos v. CA, 106 SCRA 159
Temporary release may constitute (1981)]
restraint
(a) Where a person continued to be Proceedings in habeas corpus are separate
unlawfully denied one or more of his and distinct from the main case from which
constitutional rights the proceedings spring.
(b) Where there is present denial of due
process The question whether one shall be
(c) Where the restraint is not merely imprisoned is always distinct from the
involuntary but appear to be unnecessary question of whether the individual shall be
(d) Where a deprivation of freedom originally convicted or acquitted of the charge on which
valid has in light of subsequent he is tried, and therefore these questions are
developments become arbitrary. separate, and may be decided in different
[Moncupa v. Enrile, G.R. No. L-63345 courts [Herrera, citing 4 Cranch, 75, 101]
(1986)]
The writ of habeas corpus is not designed to
General Rule: Release of detained person, interrupt the orderly administration of the
whether permanent or temporary, makes the laws by a competent court acting within the
petition for habeas corpus moot. limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint.
Exceptions: [People v. Valte, G.R. No. L-18760 (1922)]
(1) Doctrine of Constructive Restraint
Restraints attached to release which Proceedings on habeas corpus to obtain
precludes freedom of action, in which release from custody under final judgment
case the Court can still inquire into the being in the nature of collateral attack, the
nature of the involuntary restraint writ deals only with such radical defects as
render the proceeding or judgment
The essential object and purpose of the absolutely void, and cannot have the effect of
writ of habeas corpus is to inquire into all appeal, writ of error or certiorari, for the
manner of involuntary restraint. Any purpose of reviewing mere error and
restraint which will preclude freedom of irregularities in the proceedings. [People v.
action is sufficient. [Villavicencio v Lukban Valte, G.R. No. L-18760 (1922)]
(1919)]
It is a prerogative writ which does not issue as
(2) Violation of freedom from threat by the a matter of right but in the sound discretion
apparent threat to life, liberty and of the court. [Mangila v. Judge Pangilinan,
security of their person from the following G.R. No. 160739 (2013)]
facts:
PAGE 253 OF 425

W HC may be used with writ of assumed appellation, and the person

certiorari for purposes of review who is served with the writ shall be
The two writs may be ancillary to each other deemed the person intended;
where necessary to give effect to the (3) The place where he is so imprisoned or
supervisory powers of higher courts. [Galvez v. restrained, if known;
CA, G.R. No. 114046 (1994)] (4) Copy of the commitment or cause of
detention of such person, if it can be
WHC reaches the body and the jurisdictional procured without impairing the efficiency
matters, but not the record. Writ of certiorari of the remedy
reaches the record, but not the body [Galvez v. - If imprisonment or restraint is without
CA, G.R. No. 114046 (1994)] any legal authority, such fact shall
appear. [Sec. 3, Rule 102]
While generally, the WHC will not be granted
when there is an adequate remedy like writ of W ho may apply
error, appeal, or certiorari, it may still be (1) The party for whose relief it is intended; or
available in exceptional cases [Herrera, citing (2) By some person on his behalf [Sec. 3, Rule
39 C.J.S. Habeas corpus 13, 486-488] 102]
- Some person any person who has a
PROCEDURE legally justified interest in the freedom
(1) Application for the writ by petition [Sec. 3, of the person whose liberty is restrained
Rule 102] or who shows some authorization to
(2) Grant or disallowance of writ and issuance make the application [Velasco v. CA,
by court or judge [Secs. 4-5, Rule 102] G.R. No. 118644 (1995)]
(3) Clerk of Court issues the writ under the
seal of court (in case of emergency, by the B. THE RETURN
judge himself) [Sec. 5, Rule 102]
(4) Service: Form
- By whom : sheriff or other proper
- Signed by the person who makes it
officer
- Sworn by the person who makes it if:
- How: leaving the original with the
o The prisoner is not produced; and
person to whom it is directed and
o In all other cases, unless the return is
preserving a copy on which to make
made and signed by a sworn public
return
officer in his official capacity [Sec. 11,
- To whom: officer in custody or any
Rule 102]
officer (when in custody of person other
than an officer) [Sec. 7, Rule 102]
By whom m ade: The person or officer who
(5) Hearing by the court (upon return) [Sec. 12,
has the person under restraint, or in whose
Rule 102]
custody the prisoner is found. [Sec. 10, Rule
(6) Execution of the writ
102]
- Officer brings the person before the
judge, and
Contents
- Officer makes due return [Sec. 8, Rule
(1) Whether he has or has not the party in his
102]
custody or power, or under restraint
(2) If he has the party in his custody or power,
A. CONTENTS OF THE PETITION or under restraint, the authority and the
true and whole cause thereof, set forth at
Verified petition m ust set forth: large, with a copy of the writ, order
(1) That the person in whose behalf the execution, or other process, if any, upon
application is made is imprisoned or which the party is held
restrained of his liberty; (3) If the party is in his custody or power or is
(2) The officer or name of the person by whom restrained by him, and is not produced,
he is so imprisoned or restrained particularly the nature and gravity of the
- If unknown or uncertain, such officer or sickness or infirmity of such party by
person may be described by an reason of which he cannot, without
PAGE 254 OF 425
danger, be bought before the court or

judge W HC is proper:
(4) If he has had the party in his custody or Remedy for reviewing proceedings for
power, or under restraint, and has deportation of aliens [De Bisschop v. Galang,
transferred such custody or restraint to G.R. No. L-18365 (1963)]
another, particularly to whom, at what
time, for what cause, and by what Where the court has no jurisdiction to impose
authority such transfer was made. the sentence [Banayo v. President of San
Pablo, G.R. No. 1430 (1903)]
W hen the return considered evidence,
and when only a plea [Sec. 13, Rule 102] E. WHEN WRIT DISALLOWED OR
Custody is pursuant Restraint is by private
DISCHARGED
to law authority
The return shall be
considered only as a (1) The person alleged to be restrained of his
The return shall be liberty is:
plea of the facts
considered prim a (a) In custody of an officer or under
therein set forth,
facie evidence of process issued by the court or judge or
and the party
the cause of by virtue of a judgment or order of a
claiming the custody
restraint court of record, and
must prove such
facts (b) Said court had jurisdiction to issue the
process, render the judgment or make
the order; or
C. DISTINGUISH PEREMPTORY (2) Jurisdiction appears after the writ is
WRIT FROM PRELIMINARY allowed despite any informality or defect
CITATION in the process, judgment, or order; or
(3) Person is charged with or convicted of an
Preliminary citation Peremptory writ
offense in the Philippines; or
Unconditionally (4) Suffering from imprisonment under lawful
Requires the commands the
judgment. [Sec. 4, Rule 102]
respondent to appear respondent to have (5) If it appears that the prisoner was lawfully
and show cause why the body of the
committed, and is plainly and specifically
the peremptory writ detained person charged in the warrant of commitment
should not be before the court at a
with an offense punishable by death [Sec.
granted time and place
14, Rule 102]
therein specified (6) Even if the arrest of a person is illegal, the
[Lee Yick Hon v. Collector of Customs, G.R. No. following supervening events may bar
L-16779 (1921)] release:
(a) Issuance of a judicial process [Sayo v.
D. WHEN NOT PROPER OR Chief of Police of Manila, G.R. No. L-
APPLICABLE 2128 (1948)]
Judicial process is defined as a writ,
(1) For asserting or vindicating the denial of warrant, subpoena, or other formal
right to bail. [Galvez v. CA, G.R. No. 114046 writing issued by authority of law.
(1994)] [Malaloan v. CA, G.R. No. 104879
(2) Where the petitioner has the remedy of (1994)]
appeal or certiorari. [Galvez v. CA, G.R. No. (b) The filing of a complaint before a trial
114046 (1994)] court which issued a hold departure
(3) For correcting errors in the appreciation of order and denied motion to dismiss
facts or law [Sotto v. Director of Prisons, and to grant bail [Velasco v. CA, G.R.
G.R. No. L-18871 (1962)] No. 118644 (1995)]
Exception: If error affects courts (c) Filing of an information for the offense
jurisdiction making the judgment void for which the accused is detained bars
[Herrera] the availability of WHC [Velasco v. CA,
G.R. No. 118644 (1995)]
PAGE 255 OF 425
PETITION FOR CUSTODY OF MINORS

F. DISTINGUISHED FROM WRIT OF
AMPARO AND HABEAS DATA W ho may file: Any person claiming right of
custody. [Sec. 2]
Writ of Party against whom it may be filed shall be
Writ of Writ of Habeas designated as the respondent.
Habeas
Amparo Data
Corpus
W here to file: Family Court of the province
Designed to
Extends to protect the or city:
(1) where the petitioner resides or
all cases of image, privacy,
(2) where the minor may be found. [Sec. 3]
illegal honor,
confinemen information, and
Covers Contents of petition: The verified petition
t or freedom of
extralegal shall allege the following:
detention information of
killings and (a) The personal circumstances of the
(deprivation an individual,
enforced petitioner and of the respondent;
of liberty), and to provide a
disappeara (b) The name, age and present whereabouts
or where forum to enforce
nces or of the minor and his or her relationship to
rightful ones right to the
threats the petitioner and the respondent;
custody is truth and to
thereof (c) The material operative facts constituting
withheld informational
deprivation of custody; and
from person privacy [Vivares
(d) Such other matters which are relevant to
entitled v. St. Theresas
the custody of the minor. [Sec. 4]
thereto College, G.R. No.
202666 (2014)]
Answer to the Petition must be verified
and filed within 5 days after service of
The writ of amparo, in its present form, is
summons and copy of petition. [Sec. 7]
confined only to these two instances of
extralegal killings and enforced
Motion to Dismiss is not allowed except
disappearances. [Rev. Fr. Reyes v. CA, G.R. No.
on ground of lack of jurisdiction over:
182161 (2009)]
(1) Subject matter or
The writ of habeas data is not only confined
(2) Parties [Sec. 6]
to cases of extralegal killings and enforced
disappearances. [Vivares v. St. Theresas
Case study upon the filing of the verified
College, G.R. No. 202666 (2014)]
answer or the expiration of the period to file it,
the court may order a social worker to make a
SEE Annex A for detailed distinction
case study of the minor and the parties and to
submit to the court at least 3 days before pre-
G. RULES ON CUSTODY OF MINORS trial. [Sec. 8]
AND WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF Pre-trial is m andatory. [Sec. 9]
(1) Failure to file the pre-trial brief or
MINORS (A.M. NO. 03-04-04-SC) to comply with its required contents has
same effect as failure to appear at the pre-
Applicability trial. [Sec.10]
(1) Petitions for custody of minors and (2) If the petitioner fails to appear
(2) Writs of habeas corpus in relation thereto. personally at the pre-trial, the case shall
[Sec. 1] be dismissed.
Unless his counsel or a duly authorized
Rules of Court shall apply suppletorily. [Sec. representative appears in court and proves
1] a valid excuse for the non-appearance of
the petitioner. [Sec. 11]
(3) If the respondent has filed his
answer but fails to appear at the pre-
PAGE 256 OF 425

trial, the petitioner shall be allowed to (2) Hold Departure Order the minor
present his evidence ex parte. The Court child shall not be brought out of the
shall then render judgment on the basis of country without prior order from the court
the pleadings and the evidence thus while the petition is pending.
presented. [Sec. 9] - The Court, motu proprio or upon
application under oath, may issue ex
Provisional Order awarding custody parte a hold departure order,
After an answer has been filed or after addressed to the Bureau of
expiration of the period to file it, the court Immigration and Deportation (BID),
may issue a provisional order awarding directing it not to allow the departure
custody of the minor. As far as practicable, of the minor from the Philippines
the following order of preference shall without court permission.
be observed in the award of custody: - The Family Court issuing the hold
(1) Both parents jointly; departure order shall furnish the DFA
(2) Either parent taking into account all and the BID of the DOJ a copy of the
relevant considerations, especially the hold departure order within 24 hours
choice of the minor over seven years of age from its issuance.
and of sufficient discernment, unless the - The court may recall the hold
parent chosen is unfit; departure order motu proprio or upon
(3) The grandparent, or if there are several verified motion of any of the parties
grandparents, the grandparent chosen by after summary hearing. [Sec. 16]
the minor over 7 years of age and of
sufficient discernment, unless (3) Protection Order (PO) - court may
grandparent chosen is unfit or issue a PO requiring any person:
disqualified; (a) To stay away from the home, school,
(4) The eldest brother or sister over 21 years of business, or place of employment of
age, unless unfit or disqualified; the minor, other parent or any other
(5) The actual custodian of the minor over 21 party, or from any other specific place;
years of age, unless unfit or disqualified; (b) To cease and desist from harassing,
(6) Any other person or institution the court intimidating, or threatening such minor
may deem suitable. [Sec. 13] or the other parent or any person to
whom custody of the minor is awarded;
In awarding custody, the court shall consider (c) To refrain from acts or omission that
the best interests of the minor and shall create an unreasonable risk to minor;
give paramount consideration to his material (d) To permit a parent, or a party entitled
and moral welfare. [Sec. 14] to visitation by a court order or a
separation agreement, to visit the
Interim Reliefs minor at stated periods;
(e) To permit a designated party to enter
(1) Temporary visitation rights - court the residence during a specified period
shall provide in its order awarding of time in order to take personal
provisional custody appropriate visitation belongings not contested in a
rights to the non-custodial parent or proceeding pending with the Family
parents. Court;
- Unless the court finds said parent or (f) To comply with such other orders as
parents unfit or disqualified. are necessary for the protection of the
- The temporary custodian shall give the minor. [Sec. 17]
court and non-custodial parent or
parents at least 5 days' notice of any Judgment
plan to change the residence of the Court shall render judgment awarding the
minor or take him out of his residence custody of the minor to the proper party
for more than 3 days. [Sec. 15] considering the best interests of the minor.
PAGE 257 OF 425

If both parties are unfit to have the care and found, the writ is enforceable within the
custody of the minor, the court may designate judicial region where the Family Court
either the paternal or maternal grandparent belongs.
of the minor, or his oldest brother or sister, or
any reputable person to take charge of such If filed with the CA or the SC, or with any of its
minor, or commit him to any suitable home. members, the writ shall be enforceable
anywhere in the Philippines.
Court may order either or both parents to give
an amount necessary for the support, If the presiding judge of the Family Court is
maintenance and education of the minor, absent, then the petition may be filed with a
irrespective of custodianship. regular court, provided that the regular court
shall refer the case to the regular court as
The court may also issue any order that is just soon as the presiding judge returns to duty.
and reasonable permitting the parent who is
deprived of the care and custody of the minor If there are no Family Courts in the area, then
to visit or have temporary custody. [Sec. 18] the petition may be filed with the regular
courts.
Appeal
Appeal from the decision shall be allowed, The writ is returnable to the Family Court, or
unless the appellant has filed a motion for to any regular court within the judicial region
reconsideration or new trial within 15 days where the petitioner resides or where the
from notice of judgment. minor may be found, for hearing and decision
on the merits.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within Upon return of the writ, the court shall decide
15 days from notice of the denial of the the issue on custody of minors. [Sec. 20]
motion for reconsideration or new trial and
serving a copy on the adverse parties. [Sec. The best interest of the child prevails over any
19] agreement on custody. Any such agreement
is void for being contrary to Article 213 of the
WRIT OF HABEAS CORPUS IN RELATION TO Family Code. In this case, the child was below
CUSTODY OF MINORS seven years when such agreement was
executed. But since the child had in the
A verified petition for a writ of habeas meantime turned 15, it is now the best
corpus involving custody of minors is interest of the child which becomes the
filed with the Family Court of the province or standard for custody. [Dacasin v. Dacasin, G.R.
city where the petitioner resides, or where the No. 168785 (2010)]
minor may be found, or with the CA or the SC.
If filed with the Family Court where the

petitioner resides, or where the minor may be
Comparative Table on Habeas Corpus and Rule on Custody of Minors

Rule on Custody and Habeas Corpus for
Habeas Corpus [Rule 102]
Minors [A.M. 03-04-04]
Right to liberty
Petition for the rightful custody of a
Rights Involved
Rightful custody of the aggrieved minor
party
Unlawful deprivation of rightful
Actual violation of the aggrieved custody, or
partys right to liberty, or rightful A minor is being kept from a parent by
Situations Applicable custody [Sec. 1] the other parent (e.g. which parent
shall have the care and custody of a
PAGE 258 OF 425
Rule on Custody and Habeas Corpus for

Habeas Corpus [Rule 102]
Minors [A.M. 03-04-04]
minor, when such parent is in the
midst of nullity or legal separation
proceedings). [Herrera; Secs. 2 & 20]
Any person claiming rightful custody
this covers:
Party for whose relief it is intended or (1) Unlawful deprivation of the
Party Authorized to File by some person in his behalf [Sec. 1] custody of a minor
(2) Which parent shall have the care
and custody of a minor [Herrera]
Respondents May or may not be an officer
(1) RTC or any judge thereof (1) Family Court, writ enforceable
(2) CA or any member thereof in within its judicial region
instances authorized by law (2) Regular court in the absence of
(3) SC or any member thereof [Sec. 2] the presiding judge of the Family
(4) First level courts in the absence of Court, provided, however, that the
RTC judges in a province or city regular court shall refer the case
[Sec. 35, BP 129] to the Family Court as soon as its
Before which court or
(5) Sandiganbayan, in aid of appellate presiding judge returns to duty.
judicial authority filed
jurisdiction of the Sandiganbayan (3) Appropriate regular courts in
[RA 8249 further expanding its places where there are no Family
jurisdiction] Courts. [Sec. 20]
Signed, verified either by the party for
whose relief it is intended, or by some
person in his behalf and shall set
forth:
The verified petition shall allege the
(1) That the person in whose behalf
following:
the application is made is
(1) The personal circumstances of the
imprisoned or restrained on his
petitioner and of the respondent
liberty;
(2) The name, age and present
(2) The officer or name of the person
whereabouts of the minor and his
by whom he is so imprisoned or
or her relationship to the petitioner
restrained or, if both are unknown
and the respondent
or uncertain, such officer or person
(3) The material operative facts
may be described by an assumed
Contents of the petition constituting deprivation of custody
appellation, and the person who is
and
served with the writ shall be
(4) Such other matters which are
deemed the person intended;
relevant to the custody of the
(3) The place where he is so
minor.
imprisoned or restrained, if known;
(4) A copy of the commitment or
The verified petition shall be
cause of detention of such person,
accompanied by a certificate against
if it can be procured without
forum shopping, which the petitioner
impairing the efficiency of the
must sign personally. [Sec. 4]
remedy or, if the imprisonment or
restraint is without any legal
authority, such fact shall appear.
[Sec. 3]
PAGE 259 OF 425

XV. Writ of Amparo The writ applies only to the right to life,
liberty and security of persons and not
(A.M. 07-9-12-SC) property.
W RIT OF AMPARO Right to security as a guarantee of

Literally means to protect protection by the government, is violated by
the apparent threat to the life, liberty and
Came originally from Mexico and evolved into security of their person.
many forms
(1) Amparo libertad for protection of B. DISTINGUISH FROM HABEAS
personal freedom CORPUS AND HABEAS DATA
(2) Amparo contra leyes for judicial review
of the constitutionality of statutes
See previous discussion in writ of habeas
(3) Amaparo casacion judicial review of
corpus (page ___). Likewise, see Annex A.
constitutionality and legality of judicial
decisions
(4) Amparo agrario for protection of C. AMPARO VS SEARCH WARRANT
peasants rights
Sec. of National Defense v. Manalo,
AM No. 7-9-12-SC (Rules on the Writ of G.R. No. 180906 (2008)
Amparo) was promulgated by the Supreme The production order under the Amparo
Court by virtue of the 1987 Constitution Rule should not be confused with a search
stating that the SC has the power to warrant for law enforcement under Article III,
[p]romulgate rules concerning the Section 2 of the 1987 Constitution.
protection and enforcement of constitutional
rights [Sec. 5, Art. VIII ] The Constitutional provision is a protection of
the people from the unreasonable intrusion
A. COVERAGE of the government, not a protection of the
government from the demand of the people
such as respondents.
Available to any person whose right to life,
liberty and security is violated or threatened
Instead, the Amparo production order may be
with violation by an unlawful act or omission
likened to the production of documents or
of a public official or employee, or of a private
things under Section 1, Rule 27 of the Rules of
individual or entity.
Civil Procedure i.e. Upon motion of any party
showing good cause therefor, the court in
The writ shall cover:
which an action is pending may (a) order any
(1) Extralegal killings (killings committed
party to produce and permit the inspection
without due process of law) and
and copying or photographing, by or on
(2) Enforced disappearances [Sec. 1]
behalf of the moving party, of any designated
documents, papers, books of accounts,
Elements of enforced disappearance:
letters, photographs, objects or tangible
(1) An arrest, detention or abduction of a
things, not privileged, which constitute or
person by a government official or
contain evidence material to any matter
organized groups or private individuals
involved in the action and which are in his
acting with the direct or indirect
possession, custody or control...
acquiescence of the government
(2) The refusal of the State to disclose the
fate or whereabouts of the person D. PETITION
concerned or a refusal to acknowledge
the deprivation of liberty which places WHO MAY FILE
such persons outside the protection of (1) Aggrieved party; or
law [Sec. of National Defense v. Manalo, (2) Qualified person or entity in the following
G.R. No. 180906 (2008)] order:
PAGE 260 OF 425
(a) Any member of the immediate family CONTENTS OF PETITION

namely: the spouse, children and (1) The personal circumstances of the
parents of the aggrieved party; petitioner;
(b) Any ascendant, descendant or (2) The name and personal circumstances of
collateral relative of the aggrieved the respondent responsible for the threat,
party within the fourth civil degree of act or omission
consanguinity or affinity, in default of - If the name is unknown or uncertain,
those mentioned in the preceding may be described by an assumed
paragraph; or appellation;
(c) Any concerned citizen, organization, (3) The right to life, liberty and security of the
association or institution if there is no aggrieved party violated or threatened
known member of the immediate with violation by an unlawful act or
family or relative of the aggrieved party. omission of the respondent
- How such threat or violation is
The filing of a petition by the aggrieved party committed
suspends the right of all other authorized - With the attendant circumstances
parties to file similar petitions. [Sec. 2] detailed in supporting affidavits;
(4) The investigation conducted, if any,
Ratio for preference specifying:
(1) Necessary for the prevention of - Names, the personal circumstances
indiscriminate and groundless filing of and addresses of the investigating
petitions for amparo which may even authority or individuals
prejudice the right to life, liberty or - Manner and conduct of the
security of the aggrieved party investigation
(2) Untimely resort to the writ by a non- - Together with any report;
member of the family may endanger the (5) The actions and recourses taken by the
life of the aggrieved party petitioner to determine the fate or
whereabouts of the aggrieved party and
WHERE TO FILE the identity of the person responsible for
(1) RTC where the threat, act or omission was the threat, act or omission; and
committed or any of its element occurred; (6) The relief prayed for.
or May include a general prayer for other just
(2) Sandiganbayanunlike the writ of habeas and equitable reliefs.
corpus, because public officials and
employees will be respondents in amparo Signed and verified [Sec. 5]
petitions; or
(3) Court of Appeals; or Issuance of W rit
(4) Supreme Court; or Upon filing of petition, writ shall
(5) Any justice of such courts [Sec. 3] immediately issue if on its face it ought to
issue.
May be filed on any day, including Saturdays,
Sundays, and holidays; from morning until Date and time for summary hearing of the
evening. petition shall be set not later than 7 days
from date of issuance. [Sec. 6]
The writ shall be enforceable anywhere in
the Philippines. [Sec. 3] E. THE RETURN
No docket fees.
W hen to file return
Petitioner shall be exempted from payment
Respondent must file a verified written return
of docket fees and other lawful fees when
within 72 hours after service of writ,
filing the petition. [Sec. 4]
together with supporting affidavits.
PAGE 261 OF 425

CONTENTS OF RETURN (5) Counterclaim or cross-claim;

(1) The lawful defenses to show that the (6) Third-party complaint;
respondent did not violate or threaten (7) Reply;
with violation the right to life, liberty and (8) Motion to declare respondent in default;
security of the aggrieved party, through (9) Intervention;
any act or omission; (10) Memorandum;
(2) The steps or actions taken by the (11)Motion for reconsideration of interlocutory
respondent to determine the fate or orders or interim relief orders; and
whereabouts of the aggrieved party and (12) Petition for certiorari, mandamus or
the person responsible for the threat, act prohibition against any interlocutory order.
or omission; [Sec. 11]
(3) All relevant information in the possession
of the respondent pertaining to the threat, To whom returnable
act or omission against the aggrieved (1) If filed with RTC, returnable to RTC or any
party; and judge
(4) If the respondent is a public official or (2) If filed with Sandiganbayan, CA or any
employee the return shall further state the justice, returnable to such court or any
actions that have been or will still be justice or the RTC where the threat, act or
taken: omission was committed or any of its
(a) to verify the identity of the aggrieved elements occurred.
party; (3) If filed with the SC, returnable to the SC or
(b) to recover and preserve evidence any justice, or to the CA, SB or any of its
related to the death or disappearance justices, or the RTC where the threat, act
of the person identified in the petition or omission was committed or any of its
which may aid in the prosecution of the elements occurred. [Sec. 3]
person or persons responsible;
(c) to identify witnesses and obtain EFFECT OF FAILURE TO FILE
statements from them concerning the
death or disappearance;
RETURN
(d) to determine the cause, manner, In case the respondent fails to file a return,
location and time of death or the court, justice, or judge shall proceed to
disappearance as well as any pattern hear the petition ex parte. [Sec. 12]
or practice that may have brought
about the death or disappearance; OMNIBUS WAIVER RULE
(e) to identify and apprehend the person
All defenses shall be raised in the return,
or persons involved in the death or otherwise, they shall be deemed waived. [Sec.
disappearance; and
10]
(f) to bring the suspected offenders before
a competent court.; and
(5) The return shall also state matters F. HEARING
relevant to the investigation, its resolution
and the prosecution of the case. Sum m ary Hearing
Hearing on the petition shall be summary.
No general denial allowed. [Sec. 9]
BUT: The court, justice, or judge may call for
Prohibited Pleadings and Motions: The a preliminary conference to simplify the
following pleadings and motions are issues and determine the possibility of
prohibited: obtaining stipulations and admissions from
(1) Motion to dismiss; the parties.
(2) Motion for extension of time to file return,
opposition, affidavit, position paper and Hearing shall be from day to day until
other pleadings; completed and given the same priority as
(3) Dilatory motion for postponement; petitions for habeas corpus. [Sec. 13]
PAGE 262 OF 425

Judgment petition for a writ of amparo, the latter shall

The court shall render judgment within ten be consolidated with the criminal action.
(10) days from the time of petition is
submitted for decision. After consolidation, the procedure under this
Rule shall continue to apply to the disposition
Archiving and revival of cases of the reliefs on the petition. [Sec. 23]
If the case cannot proceed for valid cause, the
court shall not dismiss the petition but shall H. INTERIM RELIEFS AVAILABLE TO
archive it. If after the lapse of two (2) years
from the notice of archiving, the petition shall
PETITIONER AND RESPONDENT
be dismissed for failure to prosecute. [Sec.
20] W hen: Upon filing of the petition or at any
time before final judgment
G. OTHER ACTIONS
Interim Reliefs available to the
Petitioner
INSTITUTION OF SEPARATE (1) Temporary Protection Order.
- Issued upon motion or motu proprio
ACTION
- That the petitioner or the aggrieved
The Rule shall neither preclude the filing of party and any member of the
separate criminal, civil or administrative immediate family be protected in a
actions [Sec. 21] government agency or by an accredited
person or private institution capable of
But a claim for damages should instead be keeping and securing their safety. If
filed in a proper civil action. the petitioner is an organization,
association or institution referred to in
If the evidence so warrants, the amparo court Section 3(c) of this Rule, the protection
may refer the case to the Department of may be extended to the officers
Justice for criminal prosecution, because the concerned. [Sec. 14(a)]
amparo proceeding is not criminal in nature - Different from the inspection and
and will not determine the criminal guilt of production order in that the temporary
the respondent protection order and the witness
protection order do not need a
EFFECT OF FILING A CRIMINAL verification and may be issued motu
ACTION proprio or ex parte.
Reliefs under the writ shall be available by
motion in a criminal case. (2) Inspection Order.
- Procedure under this Rule shall govern the - Issued only upon verified motion and
disposition of the reliefs available under after due hearing
the writ of amparo. - Directed to any person in possession or
control of a designated land or other
When a criminal action has been commenced, property, to permit entry for the
no separate petition for the writ shall be filed. purpose of inspecting, measuring,
[Sec. 22] surveying, or photographing the
property or any relevant object or
operation thereon.
CONSOLIDATION
- The order shall expire five (5) days after
When a crim inal action is filed the day of its issuance, unless extended
subsequent to the filing of a petition for the for justifiable reasons. [Sec. 14(b)]
writ, the latter shall be consolidated with the - Requires hearing, may be availed of
criminal action. both the petitioner and the respondent
- If the court, justice or judge gravely
When a crim inal action and a separate abuses his or her discretion in issuing
civil action are filed subsequent to a the inspection order, the aggrieved
PAGE 263 OF 425

party is not precluded from filing a

petition for certiorari with the Supreme Requisites:
Court (1) Verified motion of the respondent
(2) Due hearing
(3) Production Order. (3) Affidavits or testimonies of witnesses
- Issued only upon verified motion and having personal knowledge of the
after due hearing defenses of the respondent.
- Directed to any person in possession,
custody or control of any designated I. QUANTUM OF PROOF IN
documents, papers, books, accounts,
APPLICATION FOR ISSUANCE OF
letters, photographs, objects or
tangible things, or objects in digitized WRIT OF AMPARO
or electronic form which constitute or
contain evidence relevant to the The parties shall establish their claims by
petition or the return, to produce and substantial evidence.
permit their inspection, copying or
photographing by or on behalf of the If respondent is a public official or
movant. employee
- In case of opposition, the court, justice Must prove that extraordinary diligence as
or judge may conduct a hearing in required as required by the applicable laws,
chambers to determine the merit of the rules and regulations was observed in the
opposition. [Sec. 14(c)]. Opposition may performance of duty.
be had on the following grounds:
(a) National security Cannot invoke the presumption that official
(b) Privileged nature of the information duty has been regularly performed to evade
responsibility or liability
Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the If respondent is a private individual or
Constitution since the latter is a protection of entity
the people from unreasonable intrusion of Must prove that ordinary diligence as
the government, not a protection of the required by applicable laws, rules and
government from the demand of the people regulations was observed in the performance
such as respondents of duty. [Sec. 17]
More similar to production of documents or With the secret nature of an enforced

things under Sec. 1 Rule 27 of Rules of Civil disappearance and the torture perpetrated
Procedure [Sec. of National Defense v. Manalo, on the victim during detention, it logically
G.R. No. 180906 (2008)] holds that much of the information and
evidence of the ordeal will come from the
(4) W itness Protection Order. victims themselves.
- Issued upon motion or motu proprio
- Order may refer the witnesses to Their statements can be corroborated by
(a) The Department of Justice for other evidence such as physical evidence left
admission to the Witness Protection, by the torture or landmarks where detained.
Security and Benefit Program. [Sec. of National Defense v. Manalo, G.R. No.
(b) Other government agencies, or to 180906 (2008)]
accredited persons or private
institutions capable of keeping and The writ can only be issued upon reasonable
securing their safety. [Sec. 14(d)] certainty. Substantial evidence is sufficient to
grant the writ because the respondent is the
Interim Reliefs available to the State which has more resources than the
Respondent petitioner. However, the SC held that mere
(1) Inspection Order inclusion in an Order of Battle List is
(2) Production Order [Sec. 15] insufficient to grant the writ absent a finding
PAGE 264 OF 425

of a direct relation between prior deaths and

the subject list. No evidence was shown that XVI. Writ of Habeas
the deaths occurred due to inclusion in the
list. [Ladaga v. Magapu, G.R. No. 189689 Data [A.M. No. 08-1-16-
(2012)]
SC]
That a public official failed to observe
extraordinary diligence in the performance of A. SCOPE OF THE WRIT
his duties does not result in the automatic
grant of the writ. Such failure does not relieve
the petitioner from establishing his claim by The writ of habeas data is a remedy available
substantial evidence. [Yano v. Sanchez, G.R. to any person whose right to privacy in life,
No. 186640 (2010)] liberty or security is violated or threatened by
an unlawful act or omission of a public official
or employee, or of a private individual or
entity engaged in the gathering, collecting or
storing of data or information regarding the
person, family, home and correspondence of
the aggrieved party. [Sec. 1]
It is an independent and summary remedy

designed to protect the image, privacy, honor,
information, and freedom of information of
an individual, and to provide a forum to
enforce ones right to the truth and to
informational privacy. It seeks to protect a
persons right to control information
regarding oneself, particularly in instances in
which such information is being collected
through unlawful means in order to achieve
unlawful ends. There must be a nexus
between the right to privacy, as well as the
violation or threatened violation of the rights
to life, liberty, and security, for the writ to
issue. [Gamboa v. Chan, G.R. No. 193636
(2012)]
Writ of Habeas Data was not enacted

solely for the purpose of complementing the
Writ of Amparo in cases of extralegal killings
and enforced disappearances. It may be
availed of in cases outside of extralegal
killings and enforced disappearances. Habeas
data, to stress, was designed to safeguard
individual freedom from abuse in the
information age. It can be availed of as an
independent remedy to enforce ones right to
privacy, more specifically the right to
informational privacy. [Vivares v. St Theresas
College G.R. No. 202666 (2014)]
PAGE 265 OF 425

B. AVAILABILITY OF WRIT (2) The manner the right to privacy is violated

or threatened and how it affects the right
Who may file: Any aggrieved party may file to life, liberty or security of the aggrieved
a petition for the writ of habeas data. party;
(3) The actions and recourses taken by the
However, in cases of extralegal killings petitioner to secure the data or
and enforced disappearances, the information;
petition may be filed by: (4) The location of the files, registers or
(a) Any member of the immediate family of databases, the government office, and the
the aggrieved party, namely: the spouse, person in charge, in possession or in
children and parents; or control of the data or information, if
(b) Any ascendant, descendant or collateral known;
relative of the aggrieved party within the (5) The reliefs prayed for, which may include
fourth civil degree of consanguinity or the updating, rectification, suppression or
affinity, in default of those mentioned in destruction of the database or information
the preceding paragraph [Sec. 2] or files kept by the respondent.
- In case of threats, the relief may
W here to file: include a prayer for an order enjoining
(1) RTC, at the option of the petitioner the act complained of; and
(a) Where petitioner resides; or (6) Such other relevant reliefs as are just and
(b) Where respondent resides; or equitable. [Sec. 6]
(c) Which has jurisdiction over the place
where the data or information is Issuance of W rit
gathered, collected or stored Upon the filing of the petition, the court,
(2) SC, CA, SB (when action concerns justice or judge shall immediately order the
public data files of government offices). issuance of the writ if on its face it ought to
[Sec. 3] issue. [Sec. 7]
Writ is enforceable anywhere in the

Philippines. [Sec. 4] E. THE RETURN
Indigent petitioner no need to pay W hen to file return

docket fees Respondent must file a verified written return
The petition of the indigent shall be docked within five (5) work days from service
and acted upon immediately, without of the writ, together with supporting
prejudice to subsequent submission of proof affidavits. The 5-day period may be
of indigency not later than fifteen (15) days reasonably extended by the Court for
from the filing of the petition. [Sec. 5] justifiable reasons.
C. DISTINGUISHED FROM HABEAS CONTENTS

(1) The lawful defenses such as national
CORPUS AND AMPARO security, state secrets, privileged
communication, confidentiality of the
See previous discussion in habeas corpus and source of information of media and
Annex A. others;
(2) In case of respondent in charge, in
D. THE PETITION possession or in control of the data or
information subject of the petition:
CONTENTS a. disclosure of the data or information
A verified written petition for a writ of habeas about the petitioner, the nature of
data should contain: such data or information, and the
(1) The personal circumstances of the purpose for its collection;
petitioner and the respondent; b. the steps or actions taken by the
respondent to ensure the security and
PAGE 266 OF 425
confidentiality of the data or When a crim inal action and a separate

information; and civil action are filed subsequent to a
c. the currency and accuracy of the data petition for a writ of habeas data, the petition
or information held; and shall be consolidated with the criminal action.
(3) Other allegations relevant to the [Sec. 21]
resolution of the proceeding.
EFFECT OF FILING CRIMINAL
A general denial of the allegations in the
petition shall not be allowed. [Sec. 10]
ACTION
Reliefs under the writ shall be available to an
aggrieved party by motion in a criminal case.
Prohibited Pleadings and Motions: The - Procedure under this Rule shall govern the
following pleadings and motions are disposition of the reliefs available under
prohibited: the writ of habeas data.
(1) Motion to dismiss;
(2) Motion for extension of time to file return, When a criminal action has been commenced,
opposition, affidavit, position paper and no separate petition for the writ shall be filed.
other pleadings; [Sec. 22]
(3) Dilatory motion for postponement;
(5) Counterclaim or cross-claim;
INSTITUTION OF SEPARATE
(6) Third-party complaint; ACTION
(7) Reply; The filing of a petition for the writ of habeas
(8) Motion to declare respondent in default; data shall not preclude the filing of separate
(9) Intervention; criminal, civil or administrative actions. [Sec.
(10) Memorandum; 20]
(11) Motion for reconsideration of
interlocutory orders or interim relief XVII. Change of Name
orders; and
(12) Petition for certiorari, mandamus or DISTINCTIONS BETWEEN THE RULES [103,
prohibition against any interlocutory 108, R.A. 9048]
order. [Sec. 13] See Annex B.
F. INSTANCES WHEN DEFENSES Procedure:

(1) Petition for Change of Name
MAY BE HEARD IN CHAMBERS
(2) Court order fixing the date and place of
hearing
(1) Where the respondent invokes the defense (3) Publication of the court order fixing the
that the release of the data or information date and place of hearing, at least once a
in question shall compromise national week for 3 consecutive weeks in a
security or state secrets, or newspaper of general circulation.
(2) When the data or information cannot be (4) Hearing on the petition
divulged to the public due to its nature or (5) Judgment granting/denying the change of
privileged character. [Sec. 12] name. Copy of the judgment shall be
served upon the civil registrar, who shall
G. OTHER ACTIONS annotate the same.
W hat is changed is the name register of

CONSOLIDATION
the petitioner that appears in the civil register.
When a crim inal action is filed - The name that can be changed is the
subsequent to the filing of a petition for the name that appears in the civil register,
writ, the latter shall be consolidated with the and not in the baptismal certificate or that
criminal action. which the person is known in the
community. [No Yao Siong v. Republic,
G.R. No. L-20306 (1966)]
PAGE 267 OF 425
- A change of name granted by the court [Ang Chay v. Republic, G.R. No. L-28507
affects only a petitioner. A separate (1970)]
petition for change of name must be filed (6) Intersexuality is a valid ground for change
for his/her spouse and children. [Secan of name and change of entry of sex in the
Kok v. Republic, G.R. No. L-27621 (1973)] civil registry. Where the person is
biologically or naturally intersex the
JURISDICTIONAL REQUIREMENTS determining factor in his gender
An alien may petition for change of name but classification would be what the
he must be domiciled in the Philippines. [Ong individual, having reached the age of
Huan Tin v. Republic, G.R. No. L-20997 majority, with good reason, thinks of his
(1967)] sex. Sexual development in cases of
intersex persons makes the gender
Verification is a formal, not a jurisdictional, classification at birth inconclusive. It is at
requirement. The lack of verification is not a maturity that the gender of such persons
ground for dismissing the petition. However, is fixed. [People v. Cagandahan, G.R. No.
before setting the petition for hearing, the 166676 (2008)]
court should have required the petitioner to
have the petition verified. [Oshito v. Republic, WHEN NOT PROPER
G.R. No. L-21180 (1967)] When what is sought to be changed relates to
status.
All aliases of the applicant must be set forth
in the petitions title. Such defect is fatal, Rule 103 cannot be resorted to for expediency
even if said aliases are contained in the body if the petition substantially seeks to change
of the petition. [Go Chiu Beng v. Republic, G.R. ones status from legitimacy to illegitimacy.
No. L-29574 (1972)] [Republic v. Coseteng-Magpayo, G.R. No.
189476 (2011)]
Failure to implead the local civil registrar as
well as all persons who have or claim any Legal separation is not a ground for the
interest did not render the petition fatally female spouse to apply for a change of name
defective. Cagandahan furnished the local under Rule 103. [Laperal v. Republic, G.R. No.
civil registrar a copy of the petition, the order L-18008 (1962)]
to publish, and all pleadings, orders or
processes in the course of the proceedings. A persons first name cannot be changed on
There was therefore substantial compliance the ground of sex reassignment. RA 9048
of the provisions of Rules 103 and 108 of the does not sanction a change of first name on
Rules of Court. [People v. Cagandahan, G.R. the ground of sex reassignment. Before a
No. 166676 (2008)] person can legally change his given name, he
must present proper or reasonable cause or
GROUNDS FOR CHANGE OF NAME any compelling reason justifying such change.
[Republic v. Hernandez (1996)] In addition, he must show that he will be
prejudiced by the use of his true and official
Valid Grounds for Change of Nam e name. Silverio failed to show, or even allege,
(1) The name is ridiculous, tainted with any prejudice that he might suffer as a result
dishonor or extremely difficult to write or of using his true and official name. Rather
pronounce. than avoiding confusion, changing
(2) Change results as a legal consequence of petitioners first name may only create grave
legitimation complications in the civil registry and the
(3) The change will avoid confusion. public interest. [Silverio v. Republic, G.R. No.
(4) A sincere desire to adopt a Filipino name 184689 (2007)]
to erase signs of former alienage [Uy v.
Republic, G.R. No. L-22712 (1965)]
(5) Having continuously used and been No law allows the change of entry in the birth
known since childhood by a Filipino name, certificate as to sex on the ground of sex
having been unaware of alien parentage reassignment. RA 9048 only allows
PAGE 268 OF 425

correction of clerical or typographical errors.

A correction in the civil registry involving the XVIII. Cancellation or
change of sex is not a mere clerical or
typographical error. The birth certificate of Correction of Entries in
petitioner contained no error. All entries
therein, including those corresponding to his the Civil Registry
first name and sex, were all correct. No
correction is necessary. Proceedings for cancellation or
correction of entries in the Civil
Registry may be:
(1) Sum m ary when the correction sought
to be made is a mere clerical error (now
governed by RA 9048)
(2) Adversarial where the rectification
affects civil status, citizenship or
nationality of a party or any other
substantial change.
Substantial Change change that affects

the civil status, citizenship, or nationality of a
party.
A. ENTRIES SUBJECT TO
CANCELLATION OR CORRECTION IN
RELATION TO R.A. 9048
RULE 108
Substantial changes in entries in the civil
registry
Entries:
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
(6) Judgments declaring marriages void from
the beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name [Sec. 2, Rule 108]
Such changes have public interest

implications and must only be made upon
approval of the Court.
PAGE 269 OF 425

Cancellation or correction of substantial Exception:

errors is allowed provided proceeding is (1) Clerical or typographical errors and
adversary. [Chiao Ben Lim v. Zosa, G.R. No. L- (2) Change of:
40252 (1986)] (a) First name or nickname
(b) The day and month in the date of birth
Unfortunately, even under R.A. No. 9048, a or
correction in the civil registry involving a (c) Sex of a person
change of sex is not a mere clerical or where it is patently clear that there was a
typographical error. Such involves a clerical or typographical error or mistake
substantial change to which Rule 108 should in the entry, which can be corrected or
apply. [Silverio v. Republic, G.R. No. 174689 changed by the concerned city or
(2007)] municipal civil registrar or consul general
in accordance with the provisions of this
Appropriate adversary proceeding Act and its implementing rules and
One where the trial court has conducted regulations. [Sec. 1, RA 9048, as
proceedings where all relevant facts have amended]
been fully and properly developed, where
opposing counsel have been given Clerical or typographical error: A
opportunity to demolish the opposite partys mistake committed in the performance of
case, and where the evidence has been clerical work in writing, copying, transcribing
thoroughly weighed and considered. or typing an entry in the civil register that:
[Eleosida v. Local Civil Registrar of Quezon City, (1) Is harmless and innocuous.
G.R. No. 130277 (2002)] (2) Is visible to the eyes or obvious to the
understanding (patent)
Parties (3) Can be corrected or changed only by
(1) Civil registrar and reference to other existing record or
(2) All persons who have or claim any interest records
which would be affected are made parties (4) Does not involve the change of nationality,
[Sec. 3, Rule 108] age, status or sex of the petitioner. [Sec.
2(3), RA 9048, as amended]
Notice and publication
Reasonable notice be given to persons The procedure recited in Rule 103 regarding
named in the petition, and publication once a change of name and in Rule 108 concerning
week for 3 consecutive weeks [Sec. 4, Rule the cancellation or correction of entries in
108] civil registry are separate and distinct. They
may not be substituted one for the other. If
Opposition both reliefs are to be sought in the same
Period to file:15 days from notice of proceedings all the requirements of Rule 103
petition, or from last date of publication of and 108 must be complied with. [Republic v.
notice [Sec. 5, Rule 108] Valencia, G.R. No. L-32181 (1986)]
May be filed by:

(1) Civil registrar or
(2) Any person having or claiming any interest
under the entry whose cancellation or
correction is sought. [Sec. 5, Rule 108]
RA 9048, AS AMENDED BY RA 10172
Clerical or Typographical Errors
General Rule: Entry in a civil register shall

be changed or corrected with a judicial order.
PAGE 270 OF 425

XIX. Absentees - If the absentee left an administrator of

his property. [Sec. 2, Rule 107]
A. PURPOSE OF THE RULE W ho may file:

(1) The spouse present
The declaration of absence made in (2) The heirs instituted in a will, who may
accordance with the provisions of the Civil present an authentic copy of the same
Code has for its sole purpose to enable the (3) The relatives who would succeed by the
taking of the necessary precautions for the law of intestacy
administration of the estate of the absentee. (4) Those who have over the property of the
Since Roberto left no properties, there was no absentee some right subordinated to the
need to judicially declare him absent. [In Re: condition of his death. [Sec. 2, Rule 107]
Petition for Declaration of Absence of Roberto
L. Reyes, G.R. No. L-32036 (1986)] C. WHO MAY BE APPOINTED
(1) Spouse present shall be preferred when

General Rule: No independent action for
declaration of presumption of death [In Re: there is no legal separation;
(2) Any competent person if absentee left
Petition for the Presumption of Death of
Nicolai V. Szatraw, G.R. No. L-1780 (1948)] no spouse, or spouse is incompetent. [Sec.
7, Rule 107]
Exception: For purpose of contracting a
second marriage [Art. 41, FC] D. TERMINATION OF ADMINISTRATION
Termination of administration:
B. WHO MAY FILE; WHEN TO FILE Trusteeship or administration of the property
of the absentee shall cease upon order of
PETITION FOR APPOINTMENT OF the court if:
REPRESENTATIVE [PAR] (1) Absentee appears personally or through
an agent;
W hen filed: (2) Absentees death is proved and heirs
To provisionally represent absentee when a appear;
person: (3) Third person appears, showing that he
(1) Disappears from his domicile, his acquired title over the property of the
whereabouts being unknown; and absentee.
(2) Has not left an agent to administer his
property or the power conferred upon the Effects of Reappearance
agent has expired. [Sec. 1, Rule 107] If the absentee appears, or without appearing
his existence is proved, he shall recover his
W ho may file property in the condition in which it may be
(1) Any interested party found, and the price of any property that may
(2) Relative have been alienated or the property acquired
(3) Friend [Sec. 1, Rule 107] therewith; but he cannot claim either fruits or
rents. [Art. 392, NCC]
PETITION FOR DECLARATION OF ABSENCE
AND APPOINTMENT OF TRUSTEE OR The subsequent marriage referred to in the
ADMINISTRATOR [PDA] preceding Article shall be automatically
terminated by the recording of the affidavit of
W hen filed: reappearance of the absent spouse, unless
(1) After 2 years: there is a judgment annulling the previous
(a) From the disappearance of and without marriage or declaring it void ab initio. [Art. 42,
any news from the absentee or FC]
(b) Since the receipt of the last news about
him.
(2) After 5 years:
PAGE 271 OF 425

XX. Appeals in Special B. WHEN TO APPEAL
Proceedings General Rule: In a special proceeding, the

period of appeal is 30 days. [Sec. 3, Rule 41]
A. JUDGMENTS AND ORDERS FOR Exceptions:

WHICH APPEAL MAY BE TAKEN (1) Habeas corpus: 48 hours from notice of
judgment in final order appealed from.
[Sec. 39, BP 129, Sec. 3, Rule 41]
(1) If it allows or disallows a will;
(2) Am paro: 5 working days from the date of
(2) If it wholly determines who are the lawful
notice of the adverse judgment. [Sec. 19,
heirs or the distributive shares;
AM No. 07-9-12-SC]
(3) If it wholly or partially allows or disallows
(3) Habeas data: 5 working days from the
a claim against a decedents estate, or any
date of notice of the adverse judgment
claim presented on the decedents estate,
[Sec. 19, AM No. 08-1-16-SC]
or any claim presented on the estates
behalf in offset to claim against it;
See also Annex A.
(4) If it settles the account of an
executor/administrator/trustee/guardian;
The appeal period may be interrupted by the
(5) If it constitutes a final determination in the
filing of an MFR/MNT. Once the appeal
lower court of the rights of the party
period expires without an appeal/MF/MNT,
appealing in proceedings relating to
the order becomes final. [Sec. 3, Rule 41]
estate settlement or administration of a
trustee/guardian
- Exception: Appointment of a special C. MODES OF APPEAL
administrator is not appealable
Remedy: Petition for certiorari under Notice and record on appeal required. [Sec. 3,
Rule 65, if there is grave abuse of Rule 41]
discretion.
(6) If it is the final order/judgment rendered Rule 109 contemplates multiple appeals
in the case, and affects the substantial during the pendency of special proceedings.
rights of the person appealing A record on appeal in addition to the notice
- Exception: Orders granting/denying a of appeal is thus required to be filed as the
MFR/MNT [Sec. 1, Rule 109] original records of the case should remain
with the trial court to enable the rest of the
While some of the items in Sec. 1, Rule 109 case to proceed in the event that a separate
may be considered as interlocutory under and distinct issue is resolved by said court
ordinary special actions, the nature of special and held to be final. However, a record on
proceedings declares them as appealable as appeal is not necessary where no other
exceptions to Sec. 1, Rule 41. matter remained to be heard and determined
by the trial court after it issued the appealed
Rationale: To enable the rest of the case to order granting the petition for cancellation of
proceed in the event that a separate and birth record and change of surname in the
distinct issue is resolved by the court and civil registry. [Republic v. Nishina, G.R. No.
held to be final. [Marinduque Mining and 186053 (2010)]
Industrial Corporation v. CA, G.R. No. 161219
(2008)] D. RULE ON ADVANCE
DISTRIBUTION
Notwithstanding a pending
controversy/appeal in estate settlement
proceedings, the court may permit that the
estates parts which are not affected by the
PAGE 272 OF 425

controversy/appeal be distributed, upon

compliance with Rule 90. [Sec. 2, Rule 109]
Comparative Table of Writs
Legend:
WHC Writ of Habeas Corpus WA Writ of Amparo
WD Writ of Habeas Data RWA - Rules on the Writ of Amparo
RWD Rules on Habeas Data SC Supreme Court
CA - Court of Appeals SB Sandiganbayan
RTC Regional Trial Court CoC Clerk of Court
Habeas Corpus Amparo Habeas Data

(1) All cases of illegal
Involves the right to
confinement and
privacy in life, liberty or
detention which any
Involves right to life, liberty security violated or
person is deprived of his
and security violated or threatened by an
liberty
threatened with violation unlawful act or omission
(2) Deprivation of rightful
by an unlawful act or of a public official or
custody of any person
omission of a public official employee, or of a private
from the person entitled
Nature, scope, or employee or a private individual or entity
[Sec. 1]
function individual or entity engaged in the
gathering, collecting
Actual violation before writ
Covers extralegal killings or storing of data or
issues.
and enforced inform ation regarding
disappearances or threats the person, family, home
NOTE: Villavicencio v. Lukban
thereof. [Sec. 1] and correspondence of
(G.R. No. L-14639, 1919) on
the aggrieved party. [Sec.
applicability of the writ in
1]
case of constructive restraint.
May not be suspended except
Shall not diminish,
in cases of invasion or Shall not diminish,
increase or modify
Limitations rebellion when public safety increase or modify
substantive rights [Sec.
requires it [Sec. 15, Art. III, substantive rights [Sec. 23]
23]
1987 Const.]
Petition filed by the Any aggrieved party may
aggrieved party or by any file a petition.
qualified person or entity
in the following order: However, in cases of
extralegal killings and
(1) Any member of the enforced
immediate family disappearances, the
By a petition signed and petition may be filed by
verified by the party for (2) Any ascendant, (also successive):
Who may file whose relief it is intended, or descendant or
by some person on his behalf collateral relative of (1) Any member of the
[Sec. 3] the aggrieved within immediate family of
the 4th civil degree of the aggrieved
affinity or
consanguinity (2) Any ascendant,
descendant or
(3) Any concerned citizen, collateral relative of
organization, the aggrieved party
association or within the fourth civil
PAGE 273 OF 425

institution degree of
consanguinity or
Filing by the aggrieved affinity [Sec. 2]
suspends the right of all
others [Sec. 2]
(1) At the option of
petitioner, RTC
where:
(1) SC or any member
(a) Petitioner resides
thereof, on any day and at
or
any time
(b) Respondent
(2) CA or any member
(1) SB, CA, SC, or any resides or
thereof in instances
justice of such courts (c) That which has
authorized by law
(2) RTC of place where the jurisdiction over
(3) RTC or a judge thereof, on
Where filed threat, act, or omission the place where
any day and at any time,
was committed or any the data or
enforceable only within
element occurred [Sec. information is
his judicial district [Sec. 2]
3] gathered,
(4) MTC or first level courts in
collected or
the absence of RTC
stored
judges in a judicial region
(2) SC, CA, or SB If
[Sec. 35, BP 129]
public data files of
government offices
[Sec. 3]
If SC/CA issued, anywhere
in the Philippines.
If granted by the RTC or

judge thereof, it is
Where Anywhere in the Anywhere in the
enforceable in any part of the
enforceable Philippines [Sec. 4] Philippines [Sec. 3]
judicial region [Sec. 21, BP
129 which modified the term
judicial district in Sec. 2, Rule
102 into judicial region]
where the judge sits
If issued by: If issued by:
(1) SC or any of its justices, (1) SC or any of its
returnable before such justices, before such
court or any justice Court or any justice
thereof, or before the thereof, or CA/SB or
If issued by:
CA/SB or any of their any of its justices, or
(1) SC/CA, or a member
justices, or to any RTC the RTC of the place
thereof, returnable
of the place where the where the petitioner
before such court or any
Where threat, act or omission or respondent
member thereof or an
returnable was committed or any resides/has
RTC
of its elements jurisdiction over the
(2) RTC, or a judge thereof,
occurred place where the data
returnable before
(2) CA/SB or any of their or information is
himself [Sec. 2]
justices, returnable gathered, stored or
before such court or collected
any justice thereof, or (2) CA/SB or any of its
to any RTC of the place justices, before such
where the threat, act, court or any justice
PAGE 274 OF 425

or omission was thereof, or RTC
committed or any of its (same with scenario:
elements occurred SC issued and then
(3) RTC or any judge returned in RTC)
thereof, returnable (3) RTC, returnable
before such court or before such court or
judge [Sec. 3] judge [Sec. 4]
None for indigent
Petitioner shall be petitioner
exempted from the
Upon the final disposition of payment of the docket and Petition shall be
such proceedings the court or other lawful fees docketed and acted upon
Docket Fees judge shall make such order immediately, without
as to costs as the case Court, justice or judge prejudice to subsequent
requires [Sec. 19] shall docket the petition submission of proof of
and act upon it indigency not later than
immediately [Sec 4] 15 days from filing [Sec.
5]
Verified and written
petition shall contain:
Signed and verified and
shall allege:
(1) Personal
circumstances of
(1) The personal
Signed and verified either by petitioner and
circumstances of the
the party for whose relief it is respondent
petitioner
intended or by some person (2) Manner the right to
(2) Name or appellation
on his behalf, setting forth: privacy is violated or
and circumstances of
threatened and its
the respondent
(1) The person in whose effects
(3) The right to life,
behalf the application is (3) Actions and
Essential liberty, and security
made is imprisoned or recourses taken by
allegations/ violated or threatened
restrained of his liberty the petitioner to
Contents of with violation,
(2) Name of the person secure the data or
petition (4) The investigation
detaining another or information
conducted, if any, plus
assumed appellation (4) The location of the
circumstances of each
(3) Place where he is files, registers, or
(5) The actions and
imprisoned or restrained databases, the
recourses taken by the
of his liberty government office,
petitioner
(4) Cause of detention [Sec. and the person in
(6) Relief prayed for
3] charge or control
(5) The reliefs prayed for
May include a general
prayer for other just and
Such other relevant
equitable reliefs [Sec. 5]
reliefs as are just and
equitable [Sec. 6]
Court or judge must, when a Upon the filing of the Upon filing of the
petition is presented and it petition, the court, justice, petition, the court,
appears that it ought to or judge shall immediately justice, or judge shall
issue, grant the same and order the issuance of the immediately order the
When proper
then: writ if on its face it ought issuance of the writ if on
to issue its face it ought to issue.
- the clerk of court (CoC)
shall issue the writ under - CoC shall issue the writ - CoC shall issue the
PAGE 275 OF 425

the seal of the court or under the seal of the writ under the seal of
- in case of emergency, the court or the court and cause
judge may issue the writ - In case of urgent it to be served within
under his own hand, and necessity, the justice or 3 days from issuance
may depute any officer or the judge may issue the or
person to serve it writ under his or her - In case of urgent
own hand, and may necessity, the justice
Also proper to be issued deputize any officer or or judge may issue
when the court or judge has person to serve it. [Sec. the writ under his or
examined into the cause of 6] her own hand, and
restraint of the prisoner, and may deputize any
is satisfied that he is officer or person to
unlawfully imprisoned [Sec. serve it [Sec. 7]
5]
Writ may be served in any
province by the (a) sheriff, (b)
The writ shall be served The writ shall be served
other proper officer, or (c)
upon the respondent by a upon the respondent by a
person deputed by the court
judicial officer or by a judicial officer or by a
or judge.
person deputized by the person deputized by the
court, justice or judge who court, justice or judge
Service is made by leaving
shall retain a copy on who shall retain a copy
the original with the person
which to make a return of on which to make a
Service to whom it is directed and
service. return of service.
preserving a copy on which to
make return of service.
In case the writ cannot be In case the writ cannot be
If that person cannot be
served personally on the served personally on the
found, or has not the prisoner
respondent, the rules on respondent, the rules on
in his custody, service shall
substituted service shall substituted service shall
be made on any other person
apply [Sec. 8] apply [Sec. 9]
having or exercising such
custody [Sec. 7]
A public official or
Respondent is a public employee or a private
May or may not be an officer official or employee or individual or entity
Respondent
[Sec. 6] private individual or entity engaged in gathering,
[Sec. 1] collecting or storing data
[Sec. 1]
The officer to whom the writ
is directed shall convey the
person so imprisoned or
restrained before:
- the judge allowing the

writ, or
How executed - in his absence or Respondent files the Respondent files the
and returned disability, before some return [Sec. 9] return [Sec. 10]
other judge of the same
court
on the day specified in the

writ, unless person directed
to be produced is sick or
infirm, and cannot, without
PAGE 276 OF 425

danger, be brought therein.
Officer shall then make due
return of the writ, with the
day and cause of the caption
and restraint according to
the command thereof [Sec.
8]
Within 5 working days
When to file On the day specified on the
after service of the writ Same as WA [Sec. 10]
return writ [Sec. 8]
[Sec. 9]
Within 5 working days
after service of the writ, the
respondent shall file a (1) Lawful defenses such
verified written return as national security,
When the person to be together with supporting state secrets,
produced is imprisoned or affidavits which shall, privileged
restrained by an officer, the contain: communications,
person who makes the return confidentiality of the
shall state, and in other (1) Lawful defenses source of information
cases the person in whose (2) The steps or actions of media etc.
custody the prisoner is found taken to determine the (2) In case of respondent
shall state in writing to the fate or whereabouts of in charge, in
court or judge before whom the aggrieved party possession or in
the writ is returnable: (3) All relevant control of the data or
information in the information subject of
(1) Truth of custody/power possession of the the petition:
over the aggrieved party respondent pertaining (a) A disclosure of the
(2) If he has custody or to the threat, act or data or
power, or under restraint, omission against the information about
the authority and the aggrieved party the petitioner, the
cause thereof, with a copy (4) If the respondent is a nature of such
Contents of
of the writ, order, public official or data or
return
execution or other employee, the return information, and
process, if any upon shall further state acts: the purpose for its
which the party is held (a) To verify identity of collection
(3) If the party is in his aggrieved party (b) The steps or
custody or power, and is (b) To recover and actions taken by
not produced, particularly preserve evidence the respondent to
the nature and gravity of (c) To identify and ensure the
the sickness or infirmity collect witness security and
(4) If he has had the party in statements confidentiality of
his custody or power, and (d) To determine the data or
has transferred such cause, manner, information
custody or restraint to location, and time (c) The currency and
another, particularly to of death or accuracy of the
whom, at what time, for disappearance data or
what cause, and by what (e) To identify and information held
authority such transfer apprehend persons (3) Other allegations
was made. [Sec. 10] involved relevant to the
(f) Bring suspected resolution of the
offenders before a proceeding [Sec. 10]
competent court
[Sec. 9]
PAGE 277 OF 425

Return or statement shall be
signed and sworn to by the
person who makes it if the Respondent shall file a Respondent shall file a
Formalities of prisoner is not produced, verified written return verified written return
return unless the return is made together with supporting together with supporting
and signed by a sworn public affidavits [Sec. 9] affidavits [Sec. 10]
officer in his official capacity
[Sec. 11]
(1) CoC who refuses to issue (1) Contempt without
(1) Contempt without
the writ after allowance prejudice to other
prejudice to other
and demand, or disciplinary actions
disciplinary actions
(2) A person to whom a writ is (a) CoC who refuses to
(a) CoC who refuses to
directed, who: issue the writ after
issue the writ after
(a) neglects/refuses to its allowance, or
its allowance, or
obey or make return of (b) A deputized person
Penalties (b) A deputized person
the same according to who refuses to
who refuses to serve
the command thereof, serve the writ [Sec.
For refusing to the writ [Sec. 7]
(b) or makes false return, 8]
issue or serve (2) Contempt punishable
(c) or upon demand made (2) Contempt punishable
by imprisonment or a
by or on behalf of the by imprisonment or a
For faulty fine
prisoner, refuses to fine
return (a) A respondent who
deliver to the person (a) A respondent who
refuses to make a
demanding, within 6 refuses to make a
return, or
hours a true copy of return, or
(b) A respondent who
the warrant or order of (b) A respondent who
makes a false
commitment, makes a false
return, or
shall forfeit to the party return, or
(c) Any person who
aggrieved the sum of P1000, (c) Any person who
otherwise disobeys
recoverable in a proper otherwise disobeys
or resist a lawful
action, and may also be or resist a lawful
process or order of
punished for contempt [Sec. process or order of
the court [Sec. 16]
16] the court [Sec. 11]
Is period of
No, not even on highly Yes, for justifiable
return
meritorious grounds. reasons [Sec. 10]
extendable?
Is a general
Not allowed [Sec. 9] Not allowed [Sec. 10]
denial allowed?
Defenses not Deemed waived if not
pleaded raised in return [Sec. 10]
Court, judge, or justice
shall hear the motion ex
parte, granting the
petitioner such reliefs as
Court or justice shall
Effect of failure the petition may warrant
proceed to hear the
to file return
petition ex parte [Sec. 12]
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary. Summary.
Nature of
Hearing However, the court, justice, With possibility of
or judge may call for a preliminary conference
PAGE 278 OF 425

preliminary conference to similar to the WA [Sec.
simplify the issues and 14]
look at possibility of
obtaining stipulations and Hearing in chambers
admissions from the may be conducted where
parties. respondent invokes the
defense of national
Hearing shall be from day security or state secrets,
to day until completed or the data is of
same priority as petitions privileged character [Sec.
for WHC [Sec. 13] 12]
As specified in the writ, not As specified in the writ,
Date and time As specified in the writ [Sec. later than 7 days from the not later than 10 working
of hearing 8] issuance of the writ [Sec. days from the date of
6] issuance writ [Sec. 7]
(1) Motion to dismiss
(2) Motion for extension of
time to file opposition,
affidavit, position paper
and other pleadings
(3) Dilatory motion for
postponement
(4) Motion for bill of
particulars
(5) Counterclaims or cross-
In custody of m inors: a
claims
motion to dismiss, except
Prohibited (6) Third-party complaint Same as WA [Sec. 13,
on the ground of lack of
pleadings (7) Reply RWD]
jurisdiction [Sec. 6, Rule on
(8) Motion to declare
Custody of Minors and WHC]
respondent in default
(9) Intervention
(10) Memorandum
(11) Motion for
reconsideration of
interlocutory orders or
interim relief orders
(12) Petition for certiorari,
mandamus, or
prohibition [Sec. 11]
Substantial evidence
if respondent is a
private individual or
Substantial evidence
Burden of Clear and convincing entity, ordinary
required to prove the
Proof/Standard evidence [Dizon v. Eduardo, diligence
allegations in the
of Diligence G.R. No. L-59118 (1988)] if public official or petition [Sec. 16]
employee,
extraordinary diligence
[Sec. 17]
Yes. Consonant with Sec. 13, Public official or employee
stating that if warrant of cannot invoke the
Presumption of
commitment is in pursuance presumption that official
Official Duty
with law, serves as prima duty has been regularly
facie cause of restraint performed [Sec. 17]
PAGE 279 OF 425

Upon filing of the petition
or at any time before final
judgment, the court,
justice or judge may grant
any of the following reliefs:
Interim reliefs - temporary protection
order
- inspection order
- production order
- witness protection
order [Sec. 14]
Within 10 days from the Within 10 days from the
time the petition is time the petition is
Judgment
submitted for decision submitted for decision
[Sec. 18] [Sec. 16]
5 working days from the 5 working days from the
Within 48 hours from notice
date of notice of adverse date of notice of adverse
Appeal of the judgment of final order
judgment to the SC under judgment to the SC
appealed [Sec. 39, BP 129]
Rule 45 [Sec. 19] under Rule 45 [Sec. 19]
Consolidated with a Consolidated with a
Consolidation criminal action filed criminal action filed
of actions subsequent to the petition subsequent to the
[Sec. 23] petition [Sec. 21]
No more separate petition
Effect of filing shall be filed. Reliefs
Same as WA [Sec. 21]
criminal action available by motion in the
criminal case [Sec. 22]
PAGE 280 OF 425

UP LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW
REMEDIAL LAW
CRIMINAL
PROCEDURE
PAGE 281 OF 425

I. General Matters which it must be tried. [Buaya v. Polo, G.R. No.

L-75079 (1989)]
CRIMINAL JURISDICTION It cannot be fixed by the will of the parties,

The authority to hear and try a particular the court or the accused, or by mere
offense and impose the punishment for it administrative policy of any trial court [Riano
[People v. Mariano, G.R. No. L-40527 (1976)] (2011)].
A. JURISDICTION OVER SUBJECT STATUTE APPLICABLE

MATTER AND JURISDICTION OVER Jurisdiction of a court to try a criminal action
PERSON OF THE ACCUSED is determined by the law in force at the time
of the institution of the action, and not the
DISTINGUISHED law in force at the time of the commission of
the crime [People v. Lagon, G.R. No. 45815
Jurisdiction over Jurisdiction over (1990)].
subject matter person of the
accused IMPOSABLE PENALTY
Definition Refers to the Refers to the In determining whether or not the court has
authority of the authority of the jurisdiction over an offense, we consider the
court to hear court over the penalty which may be imposed upon the
and determine person charged accused for the charge in the complaint and
a particular not the actual penalty imposed after the trial
criminal case [People v. Purisima, G. R. No. L-40902 (1976)].
How Conferred by May be
acquired law; can never acquired by the PRINCIPLE OF ADHERENCE OF
be acquired apprehension JURISDICTION
solely by of the accused, General rule: Under the principle of
consent of the or by consent of adherence of jurisdiction or
accused the accused, or continuing jurisdiction, once a court
by waiver of acquires jurisdiction over a controversy, it
objections as shall continue to exercise such jurisdiction
when the until the final determination of the case.
accused enters
his plea It is not affected by:
(1) A subsequent valid amendment of the
Waiver of Right to object Right to object information [People v. Chupeco, G.R. No.
objection is never waived; may be waived; L-19568 (1964)]; or
the absence of failure of the (2) A new law vesting jurisdiction over such
jurisdiction accused to proceedings in another tribunal [Palana v.
over the subject object in time People, G. R. No. 149995 (2007)].
matter may be would Exception: The succeeding statute:
raised at any constitute (a) expressly provides, or
stage of the waiver (b) is construed to the effect that it is
proceeding intended to operate to actions pending
before its enactment [Palana v. People,
A.1 JURISDICTION OVER SUBJECT MATTER G. R. No. 149995 (2007)].
This refers to the right to act or the power and
authority to hear and determine a cause. A.2. JURISDICTION OVER THE PERSON OF
[Gomez v. Montalban, G.R. No. 174414 THE ACCUSED
(2008)] This is acquired either by:
(a) Arrest of the accused; or
It is determined by the allegations in the (b) Voluntary appearance or submission of
complaint or information. The averments in the accused to the jurisdiction of the court
the complaint or information characterize the [Antiporda v. Garchitorena, G.R. No.
crime to be prosecuted and the court before
133289 (1999), citing Arula v. Espino, G.R. very issue in the motion to quash a
No. L-28949 (1969)]. warrant of arrest [Miranda v. Tuliao,
G.R. No. 158763 (2006)];
Voluntary appearance of the accused is (2) Giving bail.
accomplished by:
(1) Filing pleadings seeking affirmative relief, B. REQUISITES FOR EXERCISE OF
Except: In case of special appearance to CRIMINAL JURISDICTION
challenge the jurisdiction of the court over
the person [Garcia v. Sandiganbayan, G.R.
(1) Subject matter jurisdiction, that is,
Nos. 170122 & 171381 (2009)], e.g.
whether or not the court has jurisdiction
(a) a motion to quash a complaint on the
over the offense by virtue of the imposable
ground of lack of jurisdiction over the
penalty and its nature;
person of the accused because failure
(2) Jurisdiction over the person of the
to file would be a waiver of the defense
accused;
of lack of jurisdiction over the person,
(3) Territorial jurisdiction, which refers to
or
venue or the place where the case is to be
(b) a motion to quash the warrant of arrest
tried.
because it is the very legality of the
court process forcing the submission of
the person of the accused that is the
C. JURISDICTION OF CRIMINAL COURTS

C.1. REGULAR (CIVIL) COURTS
MTC/MeTC/MCTC RTC Sandiganbayan
(1) Exclusive original jurisdiction (1) Exclusive original jurisdiction (1) Exclusive original jurisdiction
over all violations of city in all crim inal cases not in those cases expressly
or m unicipal ordinances within the exclusive enumerated in PD 1606,
committed within their jurisdiction of any court, as amended by RA 8249,
respective territorial tribunal or body [Sec. 20, violations of RA 3019,
jurisdiction [Sec. 32(1), BP BP 129]; RA 1379, and Chapter II,
129] Section 2, Title VII, Book
(2) Exclusive appellate II, RPC;
(2) Exclusive original jurisdiction jurisdiction over all
over all offenses cases decided by the The officials enumerated are:
punishable with MTC within its territorial (a) Officials of the executive
im prisonm ent not jurisdiction [Sec. 22, BP 129]; branch occupying the
exceeding 6 years positions of regional
irrespective of the amount of (3) Criminal cases where one or director and higher,
fine, and regardless of other m ore of the accused is otherwise classified as
imposable accessory or other below 18 years of age Grade 27 and higher, of
penalties, including the civil but not less than 15 the Compensation and
liability arising from such years, or where one or Position Classification Act
offenses or predicated m ore of the victim s is a of 1989 [RA 6758];
thereon, irrespective of kind, m inor at the tim e of the NOTE: The shift from,
nature, value, or amount com m ission of the offense PNP chief
thereof [Sec. 32(2), BP 129]; [RA 9344]; superintendent and PNP
officers of higher rank to
(3) Exclusive original jurisdiction (4) Cases against minors Officers of the PNP while
over offenses involving cognizable under the occupying the position of
damage to property Dangerous Drugs Act, as provincial director and
through crim inal amended [RA 8369 (Family those holding the rank of
negligence [Sec. 32(2), BP Courts Act of 1997)]; senior superintendent
129; RA 7691] (this rule and higher in this
PAGE 283 OF 425
MTC/MeTC/MCTC RTC Sandiganbayan

disregarding the amount of (5) Violations of RA 7610 enumeration, as provided
fine and other accessory (Child Abuse Act); by the amendment in RA
penalties in determining 10660.
jurisdiction does not apply (6) Cases of domestic (b) Members of Congress
when the offense is violence against wom en and officials thereof
punishable by fine only); and children. If an act classified as Grade 27
committed against women and up under the
For Nos. 1-3, cases falling within and children likewise Compensation and
the exclusive jurisdiction of the constitute a criminal offense, Position Classification Act
RTC and Sandiganbayan are not the accused or batterer shall of 1989;
included. be subject to criminal (c) Members of the judiciary
proceedings and the without prejudice to the
(4) Cases classified under the corresponding penalties [RA provisions of the
Revised Rules on Summary 8369 (Family Courts Act of Constitution;
Procedure [SC Resolution, 1997)]; (d) Chairmen and members
October 15, 1991]; of Constitutional
(a) Violations of traffic (7) Violations of intellectual Commissions, without
laws, rules, or property rights [AM 03- prejudice to the
regulations; 03-03-SC (2003); RA 8293]; provisions of the
(b) Violations of rental Constitution;
law; (8) Money Laundering Cases (e) All other national and
(c) Cases where the penalty (RA 9160), except those local officials classified as
prescribed by law for committed by public officers Grade 27
the offense charged and private persons who are
is im prisonm ent not in conspiracy with such public (2) Other offenses or
exceeding 6 months, officers shall be under the felonies whether sim ple
or a fine not jurisdiction of the or com plexed with other
exceeding P1,000, or Sandiganbayan. crim es com m itted by
both, irrespective of public officials and
other imposable employees in relation to
penalties, accessory or their office. The following
otherwise, or of the civil must concur:
liability arising therefrom; (a) Accused is any one of the
(d) Offenses involving public officials
damage to property enumerated in subsection
through crim inal (a) of Sec. 4 of RA 8249,
negligence (imposable Grade 27 or higher
fine does not exceed (b) Accused commits any
P10,000); other offense or felony,
than those specified in
(5) Violations of BP 22 [AM subsec. (a), whether
00-11-01-SC (2003)]; simple or complexed with
other crimes
(6) Special jurisdiction to decide (c) The offender commits
on applications for bail such other offense or
in crim inal cases in the felony in relation to his
absence of all RTC office
judges in a province or city
[Sec. 35, BP 129]. (3) Cases filed pursuant to
and in connection with
EO 1, 2, 14, 14-A (1986).
PAGE 284 OF 425


II. Prosecution of
C.2. MILITARY COURTS
General rule: Ordinary courts will have
Offenses
jurisdiction over cases involving members of
the armed forces, and other persons subject A. CRIMINAL ACTIONS; HOW
to military law, regardless of who the co- INSTITUTED
accused or victims are.
A.1. IN GENERAL
Exception: When the offense is service- The institution of a criminal action generally
oriented, it will be tried by the court martial; depends upon whether the offense is one
Provided, that the President may, in the which requires a preliminary investigation or
interest of justice, order or direct, at any time not.
before arraignment, that any such crimes or
offenses be tried by the proper civil courts. A criminal action is commenced by the filing
of a complaint or information. The complaint
D. WHEN INJUNCTION MAY BE may be filed either with the MTC, when
ISSUED TO RESTRAIN CRIMINAL allowed, or with a public prosecutor for
purposes of conducting a preliminary
PROSECUTION investigation. [Sec. 1, (Rule 110]
General rule: The prosecution of a criminal A.2. OFFENSES REQUIRING PRELIMINARY
case may not be enjoined by INVESTIGATION
prohibition/injunction because public interest Offenses which require preliminary
requires that criminal acts be immediately investigation are those where the penalty
investigated and prosecuted for the prescribed by law is at least 4 years, 2
protection of society [Domingo v. months and 1 day [Sec. 1, Rule 112].
Sandiganbayan, G.R. No. 109376 (2000)].
The criminal action is instituted by filing the
Exceptions [Brocka v. Enrile, G.R. No. complaint with the appropriate officer for
69863-65 (1990)]: preliminary investigation [Sec. 1(a), Rule 110].
(1) When necessary in the protection of the
constitutional rights of the accused; A.3. OTHER OFFENSES
(2) When necessary for the orderly For all other offenses, or in offenses
administration of justice or to avoid cognizable by inferior courts (MTCs or
oppression or multiplicity of suits; MCTCs), the complaint or information is filed
(3) Where there is a prejudicial question directly with said courts or the complaint is
which is sub judice; filed with the fiscal [Sec. 1(b), Rule 110].
(4) Where acts of the officer are without or in
excess of authority; A.4. IN METROPOLITAN MANILA AND
(5) When the prosecution is under an invalid OTHER CITIES
law or statute; In Metropolitan Manila and other chartered
(6) When double jeopardy is apparent; cities, the complaint shall be filed with the
(7) When court has no jurisdiction over the office of the public prosecutor unless
offense; otherwise provided in their charters [Sec. 1(b),
(8) When it is a case of persecution rather Rule 110].
than prosecution;
(9) Where the charges are manifestly false A.5. EFFECT OF INSTITUTION ON
and motivated by vengeance; PRESCRIPTIVE PERIOD
(10) Where there is no prima facie case and a The institution of a criminal action shall
motion to quash on that ground has been interrupt the running of the period of
denied; prescription of the offense charged unless
(11) Where preliminary injunction has been otherwise provided in special laws [Sec. 1,
issued by the SC to prevent the Rule 110].
threatened unlawful arrest of petitioner.
PAGE 285 OF 425

There is no more distinction between cases For Private Crimes [Sec. 5, Rule 110]
under the RPC and those covered by special Private crimes which may only be prosecuted
laws with respect to the interruption of the by a complaint filed by the private offended
period of prescription. [People v. Pangilinan, party [Sec. 5, Rule 110]
G.R. No. 152662 (2012)] Crime Who May File Conditions
Adultery and Offended (1) Must
SUSPENSION OF PRESCRIPTIVE PERIODS concubinage spouse include
IN CASES FALLING UNDER THE both
AUTHORITY OF THE LUPON guilty
While the dispute is under mediation, parties
conciliation or arbitration, the prescriptive (2)Must not
periods for offenses and causes of action have
under existing laws shall be interrupted upon consented
filing of the com plaint with the to the
Punong Barangay. The prescriptive offense
periods shall resume upon receipt by the (3) Must not
complainant of the complaint or the have
certificate of repudiation or of the certification pardoned
to file action issued by the Lupon or Pangkat the
Secretary. Such interruption however shall not offenders
exceed sixty (60) days from the filing of the Seduction, (1) Offended The
complaint with the punong barangay [Sec. abduction, party offender
410[c], RA 7160 (The Local Government Code acts of includes must not
of 1991)]. lasciviousnes minors, have been
s except if pardoned
B. WHO MAY FILE; CRIMES THAT incompetent by any of (1)
CANNOT BE PROSECUTED DE or incapable to (4) in the
OFICIO (2) Parents preceding
General rule: All criminal actions (3) Grandparent column
commenced by a complaint or information (4) Guardian
shall be prosecuted under the direction and (5) State
control of the prosecutor [Sec. 5, Rule 110]. Defamation, Offended party
which
B.1. WHO MAY FILE COMPLAINT OR consists of
INFORMATION imputation of
For Non-Private Crimes any of the
Persons authorized to file a com plaint [Sec. foregoing
3, Rule 110]: offenses
(1) The offended party
(2) Any peace officer B.2. EVENTS SUBSEQUENT TO FILING
(3) Other public officer charged with the
enforcement of the law violated B.2.A. DEATH OF OFFENDED PARTY
Death after filing the complaint would not
Persons authorized to file an inform ation deprive the court of jurisdiction.
[Sec. 4, Rule 110]:
(1) City or provincial prosecutor and their The State shall initiate the action on behalf of
assistants; and the offended party in case of his/her
(2) Duly appointed special prosecutors death/incapacity and he/she has no known
parents/grandparents/guardians.
In adultery/concubinage, death does not

extinguish the criminal liability of accused.
PAGE 286 OF 425


B.2.B. DESISTANCE BY OFFENDED PARTY Pardon Consent

Desistance does not bar the People of the
Philippines from prosecuting the criminal Given after the Given before the
commission of the commission of the
action, but it operates as a waiver of the right
to pursue civil indemnity. crime crime
B.2.C. PARDON BY OFFENDED PARTY SUBSEQUENT MARRIAGE

In adultery and concubinage, the crime shall The marriage of the offender with the
not be prosecuted if the offended party has offended party shall extinguish the criminal
consented to the offense or pardoned the action or remit the penalty already imposed
offenders. [Sec. 5, Rule 110] upon him, together with the co-principals,
accomplices and accessories after the fact of
In seduction, abduction and acts of the above-mentioned crimes. [Art. 344, RPC]
lasciviousness of a minor, the pardon will
be effective if given expressly by his/her Except:
parents, grandparents, guardian or the (1) In adultery and concubinage
offended party [Sec. 5, Rule 110]: (2) Marriage was invalid or contracted in bad
(a) The parents/grandparents/guardian of faith to escape criminal liability [People v.
the offended minor (in that order) cannot Santiago, G.R. No. L-27972 (1927)]
extend a valid pardon without conformity (3) In private libel, or the libelous
of the offended party, even if the latter is imputation to the complainant of the
a minor [US v. Luna, G.R. No. 892 (1902)]; commission of the crimes of concubinage,
(b) If the offended woman is of age and not adultery, seduction, abduction, or acts of
incapacitated, only she can extend a valid lasciviousness, and in slander by deed
pardon which would absolve the offender. [People v. Orzame (39 O.G. 1168)]
(4) In multiple rape, insofar as the other
General rule: Pardon must be made before accused in the other acts of rape
the filing of the criminal complaint in court. respectively committed by them are
concerned [People v. Bernardo (38 O.G.
Exception: In rape, marriage between the 3479)]
offender and the offended party would be
effective as pardon even when the offender C. CONTROL OF PROSECUTION
has already commenced serving his sentence.
C.1. IN GENERAL
If there is more than one accused, the pardon General rule: All criminal actions
must be extended to all offenders. commenced by a complaint or information
shall be prosecuted under the direction and
Pardon or desistance extinguishes civil control of the prosecutor [Sec. 5, Rule 110].
liability. Pardon or express condonation has
the effect of waiving the civil liability with Exceptions:
regard to the interest of the injured party. The private prosecutor may be authorized in
Liability arising from an offense is writing by the Chief of the Prosecution Office
extinguished in the same manner as other or the Regional State Prosecutor to prosecute
obligations. the case subject to the approval of the court.
(1) In case of heavy work schedule of the
Pardon Consent public prosecutor or
(2) In the event of lack of public prosecutors.
Refers to past acts Refers to future acts
In order to absolve In order to absolve However, the criminal action is still
the accused from the accused from prosecuted under the direction and control of
liability, it must be liability, it is the public prosecutor, which requires that the
extended to both sufficient even if prosecutor must be present during the
offenders granted only to the proceedings. [People v. Beriales, G. R. No. L-
offending spouse 39962 (1976)].
PAGE 287 OF 425


C.2. BEFORE THE COURT OF APPEALS dismissing motion to dismiss; otherwise,

AND THE SUPREME COURT the judgment is void.
General rule: Only the Solicitor General
may bring or defend actions in behalf of the C.3.D. EFFECT OF LACK OF INTERVENTION
Republic of the Philippines, or represent the OF FISCAL
People of the Philippines or State in criminal Although the private prosecutor had
proceedings before the Supreme Court and previously been authorized by the special
the Court of Appeals. counsel to present the evidence for the
prosecution, in view of the absence of the City
Exceptions: Fiscal at the hearing, it cannot be said that
(1) When there is denial of due process of law the prosecution of the case was under the
to the prosecution and the State or its control of the City Fiscal. It follows that the
agents refuse to act on the case to the evidence presented by the private prosecutor
prejudice of the State and the private at said hearing could not be considered
offended party, and as evidence for the plaintiff [People v.
(2) When the private offended party questions Beriales, G.R. No. L-39962 (1976)].
the civil aspect of a decision of a lower
court. D. SUFFICIENCY OF COMPLAINT OR
INFORMATION
C.3. EXTENT OF THE PROSECUTORS A complaint is a sworn written statement
CONTROL charging a person with an offense,
subscribed by the offended party, any peace
C.3.A. PRIOR TO FILING OF THE CASE
officer or other public officer charged with the
These matters are within the control and
enforcement of the law violated [Sec 3, Rule
supervision of the prosecutor:
110].
(1) What case to file;
(2) Whom to prosecute;
An inform ation is an accusation in writing,
(3) Manner of prosecution;
charging a person with an offense,
(4) Right to withdraw information before
subscribed by the prosecutor and filed with
arraignment even without notice and
the court [Sec. 4, Rule 110].
hearing.
C.3.B. AFTER FILING OF THE CASE

It is the prosecutors duty to proceed with the Complaint Information
presentation of his evidence. Subscribed by the Subscribed by the
offended party, any fiscal. (Indispensable
Once a complaint or information is filed in peace officer or other requirement. Lack of
Court, any disposition of the case as its officer charged with authority of the officer
dismissal or the conviction or acquittal of the the enforcement of signing it cannot be
accused rests on the sound discretion of the the law violated. cured by silence,
Court. A motion to dismiss should be filed acquiescence or even
with the Court, which has the option to grant express consent.)
or deny it. [Crespo v. Mogul, GR No L-53373 May be filed either in Filed with the court.
(1987)] court or in the
prosecutors office.
C.3.C. LIMITATIONS OF CONTROL BY THE Must be sworn Requires no oath.
COURT hence, under oath. The fiscal filing the
(1) The prosecution is entitled to notice of information is acting
hearing; under the oath of his
(2) The court must await for a petition for office.
review (maximum of 60 days);
Usually refers to Usually refers to
(3) Prosecs stand to maintain prosecution felonies which public crimes.
should be respected by the court cannot be
(4) The court must make its own independent prosecuted de officio.
assessment of evidence in granting or
PAGE 288 OF 425

(2) Aver the acts and omissions constituting

TEST OF SUFFICIENCY the offense; and
A complaint or information is sufficient if it (3) Specify the qualifying and aggravating
states: circumstances.
(1) The name of the accused;
(2) The designation of the offense given by If there is no designation of the offense,
the statute; reference shall be made to the section or
(3) The acts or omissions complained of as subsection of the statute punishing it [Sec. 8,
constituting the offense; Rule 110].
(4) The name of the offended party;
(5) The approximate date of the commission This is a procedural requirement to safeguard
of the offense; and the right of the accused to be informed of the
(6) The place where the offense was nature and cause of the accusation against
committed [Sec. 6, Rule 110]. him.
The test for sufficiency of the complaint or Specific acts of accused do not have to be
information is whether the crime is described described in detail in the information, as it is
in intelligible terms with such particularity as enough that the offense be described with
to apprise the accused with reasonable sufficient particularity to make sure the
certainty of the offense charged [Lazarte v. accused fully understands what he is being
Sandiganbayan, G.R. No. 180122 (2009)]. charged with [Guy v. People, G.R. No. 166794-
96 (2009)].
An accused is deemed to have waived his
right to assail the sufficiency of the D.3 CAUSE OF THE ACCUSATION
information when he voluntarily entered a The acts or omissions complained of as
plea when arraigned and participated in the constituting the offense and the qualifying
trial [Frias v. People, G.R. No. 171437 (2007)]. and aggravating circumstances must be
stated:
Consequently, objections as to form cannot (1) In ordinary and concise language; and
be made for the first time on appeal. The (2) Not necessarily in the language used in
accused should have moved for a bill of the statute; but
particulars or for quashal of information (3) In terms sufficient to enable a person of
before arraignment, otherwise he is deemed common understanding to know what
to have waived his objections to such a defect offense is being charged as well as its
[People v. Teodoro (2009)]. qualifying and aggravating circumstances
and for the court to pronounce judgment
D.1 NAME OF THE ACCUSED [Sec. 9, Rule 110].
The complaint or information must state the
name and surname of the accused or any Qualifying and aggravating circumstances
appellation or nickname by which he has must be alleged. Otherwise, they are not to
been or is known. If his name cannot be be considered even if proven during the trial.
ascertained, he must be described under a The failure to allege such cannot be cured by
fictitious name with a statement that his true an amendment of the information after the
name is unknown. accused entered his plea. [People v. Antonio
(2002)]
If the true name of the accused is thereafter
disclosed by him or appears in some other Although aggravating circumstances cannot
manner to the court, such name shall be be appreciated for the purpose of fixing a
inserted in the complaint or information and heavier penalty, they should, however, be
record [Sec. 7, Rule 110]. considered as bases for the award of
exemplary damages [People v. Evina, G.R.
D.2 DESIGNATION OF OFFENSE Nos. 124830-31 (2003)].
The complaint or information shall:
(1) State the designation of the offense given
by the statute;
PAGE 289 OF 425

WHERE THE LAW PRESCRIBES D.5 DATE OF COMMISSION OF THE

EXCEPTIONS: OFFENSE
RULE ON NEGATIVE AVERMENTS General Rule: It is not necessary to state in
General rule: Where the law alleged to the complaint or information the precise
have been violated prohibits generally acts date the offense was committed. The offense
therein defined and is intended to apply to all may be alleged to have been committed on a
persons indiscriminately, but prescribes date as near as possible to the actual date of
certain limitations/exceptions from its the commission.
violation, the indictment/information is
sufficient if it alleges facts which the offender Exception: When it is a material ingredient
did as constituting a violation of law, without of the offense [Sec. 11, Rule 110]
explicitly negating the exception, as the
exception is a matter of defense which the D.6 NAME OF THE OFFENDED PARTY
accused has to prove. The complaint or information must state the
name and surname of the person against
Exception: Where the statute alleged to whom or against whose property the offense
have been violated applies only to specific was committed, or any appellation or
classes of persons and special conditions and nickname by which such person has been or
the exemptions from its violation are so is known. If there is no better way of
incorporated in the language defining the identifying him, he must be described under a
crime that the ingredients of the offense fictitious name.
cannot be accurately and clearly set forth if
the exemption is omitted, then the OFFENSES AGAINST PROPERTY
indictment must show that the accused does If the name of the offended party is unknown,
not fall within the exemptions. the property must be described with such
particularity as to properly identify the
Sim ply put, if the exception is needed for offense charged. [Sec. 12(a), Rule 110]
defining the offense, then the information
should negate the exception [US v. Chan Toco, If the true name of the person against whom
G.R. No. L-3851 (1908)] or against whose property the offense was
committed is thereafter disclosed or
WHERE COMPLEX CRIME IS CHARGED ascertained, the court must cause such true
Where what is alleged in the information is a name to be inserted in the complaint or
complex crime and the evidence fails to information and the record. [Sec. 12(b), Rule
support the charge as to one of the 110]
component offenses, the defendant can only
be convicted of the offense proven. OFFENDED PARTY IS A JURIDICAL PERSON
Sufficient to state its name, or any name or
D.4 PLACE OF COMMISSION OF THE designation by which it is known or by which
OFFENSE it may be identified, without need of averring
General rule: It is sufficient if it can be that it is a juridical person or that it is
understood from its allegations that the organized in accordance with law [Sec. 12(c),
offense was committed or some of its Rule 110]
essential ingredients occurred at some place
within the jurisdiction of the court.
E. DUPLICITY OF THE OFFENSE;
Exception: The particular place where it EXCEPTION
was committed constitutes an essential Duplicity of the offense in an information or
element of the offense charged or is complaint means the joinder of two or more
necessary for its identification [Sec 10, Rule separate and distinct offenses in one and the
110] same information or complaint.
PAGE 290 OF 425


General rule: The information must charge

only one offense [Sec. 13, Rule 110]. Examples of Formal Am endm ent:
(a) New allegations which relate only to
Exception: Multiple offenses may be the range of penalty that the court
charged when the law prescribes a single might impose in the event of
punishment for various offenses. conviction;
(b) One which does not charge another
REMEDY offense distinct from that already
The filing of a motion to quash is the remedy charged;
in case of duplicity of offense in an (c) Additional allegation which do not
information. alter the prosecutions theory of the
case so as to surprise the accused or
Objection to a complaint or information affect the form of defense he has or will
which charges more than one offense must assume;
be timely interposed before trial [Sec. 3, (d) One which does not adversely affect
Rule 120]. any substantial right of the accused,
such as his right to invoke prescription.
Failure to do so constitutes a waiver [People v.
Tabio, G.R. No. 179477 (2008)] and the court (2) Substantial am endm ent consists of
may convict the accused of as many offenses the recital of facts constituting the
as are charged and proved, and impose on offense charged and determinative of the
him the penalty for each offense [Sec. 3, Rule jurisdiction of the court. All other matters
120]. are merely of form [Teehankee v. Madayag,
G.R. No. 103102 (1992)]
MODES OF COMMITTING OFFENSE NOT
DUPLICITOUS TEST AS TO WHETHER FORMAL OR
General rule: In case of crimes susceptible SUBSTANTIAL
of being committed in various modes, the The test as to whether the amendment is
allegations in the information of the various merely formal is whether or not a defense
ways of committing the offense would be under the original information would be
regarded as a description of only one offense equally available after the amendment and
and information is not rendered defective. whether or not any evidence the accused
might have would be equally applicable in
Exceptions: one form as in the other [People v. Degamo,
(1) Complex crimes; G.R. No. 121211 (2003), citing Teehankee v.
(2) Special complex crimes; Madayag, G.R. No. 103102 (1992)].
(3) Continuous crimes;
(4) Crimes susceptible of being committed in F.1. AMENDMENT BEFORE PLEA IN FORM
various modes; AND SUBSTANCE
(5) Crimes which another offense is an General rule: Amendment, formal or
ingredient [People v. Camerino, G.R. No. L- substantial, made before the accused
13484 (1960)]. enters his plea may be done without leave
of court. [Sec. 14, Rule 110]
F. AMENDMENT OR SUBSTITUTION
OF COMPLAINT OR INFORMATION Exception: If the amendment downgrades
the nature of the offense charged in, or
KINDS OF AMENDMENT: excludes any accused from, the
(1) Formal Amendment merely states complaint/information, it can be made only:
with additional precision something (1) Upon motion of the prosecutor
which is already contained in the original (2) With notice to the offended party and
information, and which, therefore adds (3) With leave of court. [Sec. 14, Rule 110]
nothing essential for conviction for the
crime charged [Gabionza v. CA, G.R. No. The court is mandated to state its reasons in
140311 (2001)] resolving the motion of the prosecutor and to
PAGE 291 OF 425


furnish all parties, especially the offended (2) The accused cannot be convicted of the
party, of copies of its order [Sec. 14, Rule 110]. offense charged or of any other offense
necessarily included therein;
F.2. AMENDMENT AFTER PLEA AND (3) The accused would not be placed in
DURING TRIAL double jeopardy.
F.2.A. AS TO FORM F.4. AMENDMENT AND SUBSTITUTION

Amendment as to form can only be made DISTINGUISHED
under two conditions: Amendment Substitution
(1) With leave of court;
(2) It does not cause prejudice to the rights of Scope Formal or Substantial
the accused [Sec 14, Rule 110]. substantial changes
changes
F.2.B. AS TO SUBSTANCE Necessity Can be effected Must be with
Substantial matter in a complaint is the of leave without leave of leave of court
recital of facts constituting the offense of court court
charged and determinative of the jurisdiction
Necessity Only as to form, Another PI is
of the court. [Almeda v. Villaluz, G.R. No. L-
31665 (1975)]. of new PI no need for entailed and
and plea another PI and accused has to
General rule: Amendment as to substance retaking of plea plead anew
at this state of the case is proscribed [People v. Offense The amended Involves a
Zulueta, G.R. No. L-4017 (1951)]. involved information different
refers to the offense which
Exception: Amendment may be allowed if it same offense does not
is beneficial to the accused [People v. Janairo, charged in the include those
G.R. No. 129254 (2007)]. original provided in the
information or original charge;
F.3. SUBSTITUTION to an offense cannot invoke
A complaint or information may be which is double
substituted if it appears at any time before included in the jeopardy
judgm ent that a mistake has been made in original charge; [Teehankee v.
charging the proper offense. The court shall can invoke Madayag, G.R.
dismiss the original complaint or information double No. 103102
upon the filing of a new one charging the jeopardy (1992)]
proper offense, provided the accused would
not be placed in double jeopardy [Sec. 14,
Rule 110].
G. VENUE OF CRIMINAL ACTIONS
General rule: In all criminal prosecutions,
the action must be instituted and tried in the
Subject to Sec. 19, Rule 119, when it becomes
courts of the municipality or territory where:
manifest at any time before judgment that a
(1) The offense was committed; or
mistake has been made in charging the
(2) Any of its essential ingredients occurred
proper offense and the accused cannot be
convicted of the offense charged or any other [Sec. 15(a), Rule 110]
offense necessarily included therein, the
accused shall not be discharged if there This is the principle of territoriality.
Venue in criminal cases is jurisdictional. The
appears good cause to detain him. The court
shall commit the accused to answer the court has no jurisdiction to try an offense
committed outside its territorial jurisdiction.
proper offense and dismiss the original case
It cannot be waived, or changed by
upon the filing of the proper information.
agreement of the parties, or by the consent of
the defendant.
Lim itations:
(1) No judgment has yet been rendered;
Thus, where an offense is wholly committed
outside the territorial limits wherein the court
PAGE 292 OF 425


operates, said court is powerless to try the Prevention Act of violation of the
case. For the rule is that one cannot be held 2012) provisions of the Act,
to answer for any crime committed by him including any
except in the jurisdiction where it was violation committed
committed [Hernandez v. Albano, G.R. No. L- by a Filipino national
19272 (1967)]. regardless of the
place of
Exceptions: com m ission [Sec.
Crime Venue 21]
Felonies under Art. 2, Proper court where In exceptional SC has the power to
RPC criminal action was circumstances to order a change of
first filed ensure a fair trial and venue or place of trial
Those committed on May be instituted impartial inquiry to avoid miscarriage
a railroad train, and tried in the court of justice [Sec. 5(4),
aircraft, or any other of any municipality or Art. VII, Constitution]
public or private territory where such
vehicle in the court of train, aircraft, or For transitory/continuing offenses, the courts
its trip other vehicle passed of the territories where the essential
during such trip, ingredients of the crime took place have
including place of concurrent jurisdiction. The first court taking
departure and arrival cognizance of the case will exclude the others
Those committed on May be instituted [People v. Grospe, G.R. No. L-74053-54
board a vessel in the and tried in the (1988)].
course of its voyage proper court of the
first port of entry or H. INTERVENTION OF OFFENDED
of any municipality or PARTY
territory through General rule: An offended party has the
which vessel passed, right to intervene in the prosecution of a
subject to the crime, where the civil action for recovery of
generally accepted civil liability is instituted in the criminal action
principles of
[Sec. 16, Rule 110].
international law
Piracy, which has no May be instituted NOTE: This is still subject to the control of
territorial limits anywhere [People v. the prosecutor [Phil. Rabbit Bus Lines v.
Lol-lo and Saraw, People, G.R. No. 147703 (2004)]
G.R. No. 17958
(1922)] Exceptions:
Libel May be instituted at (1) Where, from the nature of the crime and
the election of the the law defining and punishing it, no civil
offended party or liability arises in favor of a private
suing party in the offended party (e.g. treason, rebellion,
province or city, espionage and contempt);
subject to Art. 360, (2) Where, from the nature of the offense, the
RPC private offended party is entitled to civil
Cases filed under BP May be filed in the indemnity arising therefrom but he has
22 place where the waived the same or has expressly
check was reserved his right to institute a separate
dishonored or issued, civil action or he has already instituted
or in case of a cross- such action.
check, in the place of
the depositary or
collecting bank
Violations of RA RTCs have
10175 (Cybercrime jurisdiction over any
PAGE 293 OF 425


III. Prosecution of Civil B.3. SEPARATE ACTION FILED BY THE

ACCUSED
Action No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
A. RULE ON IMPLIED INSTITUTION could have been the subject thereof may be
OF CIVIL ACTION WITH CRIMINAL litigated in a separate civil action [Sec. 1, Rule
ACTION 111].
General rule: The civil action for the
recovery of civil liability arising from C. WHEN SEPARATE CIVIL ACTION
the offense charged is deemed instituted IS SUSPENDED
with the criminal action. After the criminal action has been
commenced, the separate civil action arising
Exception: The civil action is not deemed so therefrom cannot be instituted until final
instituted if the offended party: judgment has been entered in the criminal
(1) Waives the civil action; action [Sec. 2, Rule 111].
(2) Institutes the civil action prior to the
criminal action; or D. EFFECT OF DEATH OF THE
(3) Reserves the right to institute it separately
ACCUSED OR CONVICT ON CIVIL
[Sec. 1, Rule 111].
ACTION
B. WHEN CIVIL ACTION MAY Upon the death of the accused or convict,
criminal liability is extinguished [Art. 89,
PROCEED INDEPENDENTLY RPC].
B.1. INDEPENDENT CIVIL ACTIONS As regards civil liability:
Under the Rules, only civil liability arising (1) When death occurs before the
from the crime charged is deemed instituted. arraignm ent, the case shall be
Hence, the civil actions under the Civil Code, dismissed without prejudice to any civil
specifically Art. 32, 33, 34, and 2176, remain action against the estate of the deceased
separate, distinct, and independent of any [Sec. 4, Rule 111];
criminal prosecution although based on the (2) When death occurs after arraignm ent
same act [Phil. Rabbit Bus Lines v. People, G.R. and during pendency of criminal
No. 147703 (2004)]. action, it extinguishes civil liability arising
from the delict;
B.2. RESERVATION OF RIGHT TO FILE (3) When death occurs during pendency
CIVIL ACTION of appeal, it extinguishes criminal
The civil action may also proceed liability and the civil liability based
independently of the criminal action when thereon [People v. Ayochok, G.R. No.
reservation to institute the civil action 175784 (2010)].
separately is made. The reservation shall be
made before the prosecution starts Independent civil actions instituted under
presenting its evidence and under Arts. 32, 33, 34 and 2176, Civil Code, or those
circumstances affording the offended party a instituted to enforce liability arising from
reasonable opportunity to make such other sources of obligation may be continued
reservation [Sec. 1, Rule 111]. against the estate or legal representative of
the accused after proper substitution or
Instances where reservation to file the civil against his estate.
action separately shall not be allowed:
(1) B.P. 22 cases [Sec. 1(b), Rule 111] As regards the parties in the civil
(2) Cases cognizable by the Sandiganbayan action, the heirs of the accused may be
[PD 1606, as amended by Sec. 4, R.A. substituted without requiring the
8249] appointment of an executor/administrator.
(3) Tax cases [Sec. 7(b)(1), RA 9282] The court may appoint guardian ad litem for
the minors.
PAGE 294 OF 425

The court shall order the legal E.3. WHERE TO FILE PETITION FOR
representatives to appear and be substituted SUSPENSION
within 30 days from notice. (1) Office of the prosecutor (in the PI stage);
(2) Court conducting the PI; or
E. PREJUDICIAL QUESTION (3) Court where criminal action has been filed
for trial, at any time before the
E.1. ELEMENTS prosecution rests [Sec. 6, Rule 111].
A prejudicial question is that which arises in a
case the resolution of which is a logical NOTE: The Rules preclude a motu proprio
antecedent of the issue involved suspension by the judge of the civil action, it
therein, and the cognizance of which pertains must be by petition of the defendant. [Yap v.
to another tribunal. [People v. Consing, G.R. Paras, G.R. No. 101236 (1992)].
No. 148193 (2003)]
F. RULE ON FILING FEES IN CIVIL
Elements of a prejudicial question: ACTION DEEMED INSTITUTED WITH
(1) The previously instituted civil action
involves an issue similar or intimately THE CRIMINAL ACTION
related to the issue raised in the Filing fees apply when damages are being
subsequent criminal action; and claimed by the offended party, to be paid
(2) The resolution of such issue determines upon filing of the criminal action.
whether or not the criminal action may
proceed [Sec. 7, Rule 111]. General rule: The actual damages claimed
or recovered by the offended party are not
A civil action may be considered prejudicial included in the computation of the filing fees
when the following concur: [Sec. 1, Rule 111].
(1) The civil case involves facts intimately
related to those on which the criminal When the amount of damages, other than
prosecution would be based; actual, is specified in the complaint or
(2) In the resolution of the issue/s raised in information filed in court, then the
the civil action, the guilt/innocence of the corresponding filing fees shall be paid by the
accused would necessarily be determined; offended party upon the filing thereof in court
(3) Jurisdiction to try the action is lodged in for trial.
another tribunal [Prado v. People, G.R. No.
L-37652 (1984)]; In any other case (i.e., when the amount of
(4) The action is instituted prior to the damages is not so alleged in the complaint or
institution of the criminal action [Pimentel information filed in court), the corresponding
v. Pimentel, G.R. No. 172060 (2010)]. filing fees need not be paid and shall simply
constitute a first lien on the judgment, except
Ratio: The rule seeks to avoid two conflicting on an award for actual damages [General v.
decisions in the civil case and in the criminal Claravall, G.R. No. 96724 (1991)].
case [Sy Thiong Shiou vs Sy Chim, G.R. No.
174168 (2009)]. Exceptions: In criminal actions for
violation of BP 22, the amount of the
E.2. EFFECT check involved shall be considered as the
General rule: Where both a civil and a actual damages for which no separate civil
criminal case arising from the same facts are action is allowed. In estafa cases, the filing
filed in court, the criminal case takes fees shall be paid based on the amount
precedence [Sec. 2, Rule 111]. involved (AM 04-2-04).
Exception: If there exists a prejudicial

question which should be resolved first
before an action could be taken in the
criminal case.
PAGE 295 OF 425


IV. Preliminary against him provided that he raises the

challenge before entering his plea [Sec. 26,
Investigation Rule 114].
A.4. WHEN RIGHT DEEMED WAIVED

A. NATURE OF RIGHT (1) Express waiver or by silence [Pilapil v.
Sandiganbayan, G.R. No. 101978 (1993)];
A.1. DEFINITION (2) Failure to invoke it during arraignment
It is an inquiry or proceeding to determine [People v. De Asis, G.R. No. 105581 (1993)];
whether there is sufficient ground to and
engender a well-founded belief that a crime (3) Consenting to be arraigned and entering a
has been committed and the respondent is plea of not guilty without invoking the
probably guilty thereof, and should be held right to PI [People v. Bulosan, G.R. No. L-
for trial [Sec. 1, Rule 112]. 58404 (1988)].
Preliminary Investigation is merely The waiver, whether express or implied, must

inquisitorial, and it is often the only means of be in a clear and unequivocal manner
discovering the persons who may reasonably [Herrera (2007)].
be charged with a crime, to enable the
prosecutor to prepare his complaint or The right cannot be raised for the first time
information. It is not a trial of the case on the on appeal [Pilapil v. Sandiganbayan, G.R. No.
merits and does not place the persons 101978 (1993)].
against whom it is taken in jeopardy.
[Paderanga v. Drilon, G.R. No. 96080 (1991)] A.5. WHEN RIGHT NOT DEEMED WAIVED
(1) Failure to appear before the prosecutor
It is an executive, not a judicial function during the clarificatory hearing or when
[Metropolitan Bank and Trust Company v. summoned, when the right was invoked
Tonda, G.R. No. 134436 (2000)]. at the start of the proceeding [Larranaga
v. CA, G.R. No. 130644 (1998)]; or
A.2. RIGHT TO PRELIMINARY (2) When the accused filed an application for
INVESTIGATION bail and was arraigned over his objection
The right to preliminary investigation is a and the accused demand that preliminary
statutory right in those instances where it is investigation be conducted [Go v. CA, G.R.
required, and to withhold it would violate the No. 101837 (1992)].
constitutional right to due process [People v.
Oandasa, G.R. No. L-29532 (1968)]. B. PURPOSES OF PRELIMINARY
It is not a mere formal or technical right but a
INVESTIGATION
substantial right.
(1) To determine whether or not a crime has
A.3. WAIVER OF RIGHT been committed and whether or not there
The right to preliminary investigation is a is probable cause to believe that the
personal right which the accused may waive accused is guilty [Raro v. Sandiganbayan,
either expressly or by implication. G.R. No. 108431 (2000)];
(2) To secure the innocent against hasty,
When the accused waives his right to malicious and oppressive prosecution,
preliminary investigation, the fiscal may and to protect him from an open and
forthwith file the corresponding information public accusation of a crime, from the
with the proper court [People v. Perez, G.R. No. trouble, expense, anxiety of a public trial,
L-15231 (1960)]. and also protect the state from useless
and expensive trials [Tandoc v. Resultan,
An application for or admission to bail shall G.R. No. 59241-44 (1989)].
not bar the accused from assailing the
regularity or questioning the absence of a
preliminary investigation of the charge
PAGE 296 OF 425

C. WHO MAY CONDUCT on complaints filed in any form or manner

DETERMINATION OF EXISTENCE OF against public officials or employees of the
Government, or any subdivision, agency or
PROBABLE CAUSE instrumentality thereof, including GOCCs and
shall, in appropriate cases, notify the
Probable cause means the existence of such
complainants of the action taken and the
facts and circumstances as would excite the
result thereof [Sec. 12, Art. XI, Constitution].
belief, in a reasonable mind, acting on the
facts within the knowledge of the prosecutor,
The Ombudsman is authorized to conduct
that the person charged was guilty of the
preliminary investigation and to prosecute all
crime for which he was prosecuted.
criminal cases involving public officers and
employees, not only those within the
In general, the following may conduct the
jurisdiction of the Sandiganbayan, but also
determination of existence of probable cause:
those within the jurisdiction of regular courts
(1) Provincial/city prosecutors and their
as well. [Uy v. Sandiganbayan, G.R. No.
assistants;
105965-70 (2001)]
(2) National and regional state prosecutors;
(3) Other officers as may be authorized by law C.5. PROCEDURE FOR PRELIMINARY
[Sec. 2, Rule 112, as amended by AM 05-8- INVESTIGATION
26-SC].
Filing of the com plaint
C.1. PROSECUTOR (1) Stating the respondents name and
The executive determination of probable address
cause is one made during the PI. It is a (2) Include the affidavits of
function that properly pertains to the public complainant and the witnesses, and
prosecutor who is given a broad range of other documents to establish
probable cause, which must be
discretion to determine whether probable
cause exists for purposes of indictm ent.
1 subscribed and sworn to before a
Such finding will not be disturbed by the prosecutor or government official
court unless there is finding of grave abuse authorized to administer oath or
of discretion. [Mendoza v. People, G.R. No. notary public
197293 (2014)] (3) In such number of copies as there
are respondents, plus 2 copies for
C.2. COURT the official file [Sec. 3(a), Rule 112].
The judicial determination of probable cause Action of the investigating officer
is one made by the judge to ascertain (1) Within 10 days after the filing of the
whether a warrant of arrest should be complaint, the investigating officer
issued against the accused. will either:
(a) Dismiss, if he finds no ground to
NOTE: RTC judges have no power to continue; or
conduct PI; and MTC judges cannot conduct (b) Issue a subpoena to the
PI anymore after AM 05-8-26-SC eliminated respondent, attaching the
judges of the MTC and MCTC from those
authorized to conduct a PI effective October 3,
2 complaint and other
documents. If subpoena is not
2005. possible, the investigating
officer shall decide based on
C.3. COMELEC what complainant presented;
The COMELEC may conduct investigation as (2) Respondent has the right to
regards election offenses [Sec. 2(6), Art. IX-C, examine the evidence submitted by
Constitution; Sec. 265, Omnibus Election complainant, and copy evidence at
Code]. his expense [Sec. 3(b), Rule 112].
Defendants counter-affidavit
C.4. OMBUDSMAN
It must be made within 10 days from
The Ombudsman and his deputies, as 3 receipt of complaint, and must comply
protectors of the people, shall act promptly
with the same requirements as a
PAGE 297 OF 425

complaint [Sec. 3(c), Rule 112]. E. REVIEW

If not made within 10 days, the Within 5 days from resolution, the
investigating officer shall resolve the investigating officer will forward the
complaint based on the evidence case to the prosecutor or to the
presented by the complainant [Sec. 1 Ombudsman in cases cognizable by the
3(d), Rule 112]. Sandiganbayan in the exercise of its
Clarificatory hearing original jurisdiction.
Hearing is conducted only if there are Within 10 days from receipt of the
such facts and issues to be clarified
from a party or a witness.
2 resolution, the Prosecutor/Ombudsman
will act on the case.
The investigator must conduct a
hearing within 10 days from receipt of No complaint/information may be filed
the counter-affidavit. The hearing must or dismissed by an investigating
be finished in 5 days. prosecutor without the prior written
4 Parties may be present evidence, but
authority or approval of the prosecutor
or ombudsman.
In case the investigating officer
they have no right to examine or cross-
examine. Questions of parties shall be
3 recommends the dismissal of the
submitted to the investigating officer. complaint but the prosecutor or
Within 10 day after the investigation, Ombudsman disagrees, the latter may
the officer shall determine whether or file the information himself or any
not there is sufficient ground to hold deputy or order any prosecutor to do so,
respondent for trial [Sec. 3(e), Rule 112]. without conducting a new PI.
The DOJ Secretary may file the
D. RESOLUTION OF THE information without conducting another
PI or dismiss the information filed by
INVESTIGATING PROSECUTOR the prosecutor. The DOJ Secretary may
review resolutions, via petition for
If he finds probable cause to hold
respondent for trial, he shall prepare a
4 review to the Secretary of Justice, of his
subordinates in criminal cases despite
resolution and certify under oath in the the information being filed in court
information that: [Sec. 4, Rule 112; Community Rural Bank
(1) He or an authorized officer has personally of Guimba v. Talavera, RTJ-05-1909
examined the complainant and his (2005)]; see also DOJ Circ. No. 70].
witnesses;
(2) That there is reasonable ground to
believe that a crime has been committed The resolution of the Secretary of Justice may
be nullified in a petition for certiorari under
and that the accused is probably guilty
Rule 65 on grounds of grave abuse of
thereof;
(3) That the accused was informed of the discretion resulting to lack or excess of
jurisdiction [Ching v. Sec. of Justice, G.R. No.
complaint and evidences against him;
(4) That he was given opportunity to submit 164317 (2006)].
controverting evidence
The DOJ resolution is appealable
administratively before the Office of the
If he finds no probable cause, he shall
President and the decision of the latter may
recommend the dismissal of the complaint
[Sec. 4, Rule 112]. be appealed before the CA pursuant to Rule
43 [De Ocampo v. Sec. of Justice, G.R. No.
147932 (2006)].
PAGE 298 OF 425


F. WHEN WARRANT OF ARREST

MAY ISSUE
A complaint, which complies with Sec.
If the judge finds probable cause, he
shall issue a warrant of arrest, or a
1 3(a), Rule 112, is filed.
commitment order if the accused has already Within 10 days after the filing of the
been arrested, and hold him for trial. complaint/information, if the judge
finds no PC after personally evaluating
The PI conducted by the prosecutor is the evidence or after personally
executive in nature. It is for the purpose of 2 examining in writing and under oath the
determining whether or not there exists complainant and his witnesses in the
sufficient ground for the filing of information. form of searching questions and
answers, he shall dismiss the same.
The PI conducted by the judge which is
The judge may require submission of
properly called prelim inary examination
additional evidence within 10 days from
is for the determination of probable cause for 3 notice, to determine the existence of
the issuance of warrant of arrest [P/Supt.
PC.
Cruz v. Judge Areola, AM No. RTJ-01-1642
(2002)]. If the judge still If the judge finds
finds no PC PC, he shall issue
G. CASES NOT REQUIRING despite the a warrant of arrest
PRELIMINARY INVESTIGATION NOR additional or a commitment
evidence, he shall order (if already
COVERED BY THE RULE ON
SUMMARY PROCEDURE 4 dismiss the case arrested) and hold
within 10 days him for trial.
from its
These are cases punishable by imprisonment submission or
of less than 4 years, 2 months and 1 day, and expiration of said
filed with the prosecutor or MTC/MCTC. period.
If filed directly with the prosecutor, Sec. 3(a), If the judge is
Rule 112 applies. Thus, the complaint must be satisfied that
filed: there is no need to
(1) Stating the respondents name and 5 place the accused
address; under custody, he
(2) Include the affidavits of complainant and may issue
the witnesses, and other documents to summons instead.
establish probable cause, which must be
subscribed and sworn to before a H. REMEDIES OF ACCUSED IF
prosecutor or government official THERE WAS NO PRELIMINARY
authorized to administer oath or notary INVESTIGATION
public; and
(3) In such number of copies as there are
H.1. EFFECT OF DENIAL OF RIGHT
respondents, plus 2 copies for the official
The absence of PI [Villaflor v. Vivar, G.R. No.
file.
134744 (2001)]:
(1) Does not impair the validity of the
The prosecutor shall act on the complaint
information or otherwise render it
based on the affidavits and other supporting
defective;
documents submitted by the complainant
(2) Does not affect the jurisdiction of the
within 10 days from its filing.
court;
(3) Does not constitute a ground for quashing
the information.
PAGE 299 OF 425


REMEDIES OF THE ACCUSED IF THERE

WAS NO PI: General rule: PI is required to be
(1) Refuse to enter a plea upon arraignment conducted before a complaint/information is
and object to further proceedings upon filed for an offense where the penalty
such ground; prescribed by law is at least 4 years, 2
(2) Insist on a preliminary investigation; months and 1 day, without regard to the fine
(3) File a certiorari, if refused; [Sec. 1, Rule 112]
(4) Raise lack of PI as error on appeal [United
States v. Banzuela, G.R. No. L-10172 (1915)] Exception: When a person is lawfully
arrested without a warrant involving an
The trial court, instead of dismissing the offense that requires a PI, a
information, should hold in abeyance the complaint/information may be filed without
proceedings and order the public prosecutor conducting the PI if the necessary inquest is
to conduct a PI [Villaflor v. Vivar, G.R. No. conducted.
134744 (2001)].
However, before the complaint or information
After the filing of the complaint/information is filed, the person arrested may ask for a PI,
in court without a PI, the accused may within but he must sign a waiver of the provisions of
5 days from the time he learns of its filing, Art. 125, RPC in the presence of his counsel.
ask for a PI with the same right to adduce Notwithstanding the waiver, he may apply for
evidence in his defense as provided in Rule bail and the investigation must be terminated
112 [Sec. 6, Rule 112]. within 15 days from its inception [Sec. 6, Rule
112].
H.2. RESTRAINING PRELIMINARY
INVESTIGATION PROCEDURE
General rule: The power of the Fiscal to An inquest is considered commenced upon
investigate crimes committed within his receipt by the Inquest Officer from the law
jurisdiction will, ordinarily, not be restrained. enforcement authorities of the
complaint/referral documents which should
Exceptions: Extreme cases may exist where include:
relief in equity may be availed of to stop a (1) Affidavit of arrest, investigation report,
purported enforcement of a criminal law statement of the complainant and
where it is necessary: witnesses, all of which must be subscribed
(1) For the orderly administration of justice; and sworn to before him;
(2) To prevent the use of the strong arm of (2) Other supporting evidence gathered by
the law in an oppressive and vindictive the police in the course of the latter's
manner; investigation of the criminal incident
(3) To avoid multiplicity of actions; involving the arrested or detained person.
(4) To afford adequate protection to
constitutional rights; and It must be terminated within the period
(5) In proper cases, because the statute prescribed under the provisions of Art. 125,
relied upon is unconstitutional, or was RPC. Thus, if after the inquest proceedings:
held invalid [Ladlad v. Velasco, G.R. No. (1) There is no probable cause, the case
172070-72 (2007)]. is dismissed;
(2) The accused wants a PI and is
I. INQUEST willing to waive Art. 125, a
An inquest is an informal and summary preliminary investigation conducted;
investigation conducted by a public (3) The arrest was without warrant, but
prosecutor in criminal cases involving there possibly is PC, the accused is
persons arrested and detained without the released for regular PI;
benefit of a warrant of arrest issued by the (4) There is PC and the arrest was
court for the purpose of determining whether valid, an information is filed.
or not said persons should remain under
custody and correspondingly be charged in
court [DOJ-NPS Manual].
PAGE 300 OF 425

V. Arrest C. ARREST WITHOUT WARRANT,

WHEN LAWFUL
Arrest is the taking of a person into custody in
order that he may be bound to answer for the
General rule: No peace officer or person
commission of an offense [Sec. 1, Rule 113].
has the power or authority to arrest anyone
without a warrant except in those cases
A. IMMUNITY expressly authorized by law [Umil v. Ramos,
G.R. No. 81567 (1991)].
A.1. PARLIAMENTARY IMMUNITY
Senators and Members of the House of Exceptions:
Representatives, while Congress is in (1) In flagrante delicto [Sec. 5(a), Rule 113];
session and for offenses punishable by not (2) Hot pursuit arrest [Sec. 5(b), Rule 113];
more than 6 years imprisonment are (3) Arrest of escaped prisoner [Sec. 5(c), Rule
immune to arrest [Sec. 11, Art. VI, 113];
Constitution]. (4) Other lawful warrantless arrests:
(a) Where a person who has been lawfully
A.2. DIPLOMATIC IMMUNITY arrested escapes or is rescued [Sec. 13,
Ambassadors and ministers of foreign Rule 113]; any person may immediately
countries and their duly registered domestics pursue or retake him without a warrant
subject to the principle of reciprocity are at any time and in any place within the
immune to arrest [RA 75]. Philippines;
(b) By the bondsman, for the purpose of
NOTE: Diplomatic immunity is not limited to surrendering the accused [Sec. 23, Rule
immunity from arrest only. 114];
(c) Where the accused who is released on
B. HOW MADE bail attempts to leave the country
without permission of the court where
(1) By actual restraint of a person to be the case is pending [Sec. 23, Rule 114].
arrested;
(2) By his submission to the custody of the C.1. IN FLAGRANTE DELICTO
person making the arrest [Sec. 2, 1st par., A peace officer or a private person may,
Rule 113]. without warrant, arrest a person when the
person to be arrested:
It is enough that there be an intent on the (1) Has committed;
part of one of the parties to arrest the other (2) Is actually committing; or
and an intent on the part of the other to (3) Is attempting to commit
submit, under the belief and impression that an offense in the presence of the peace officer
submission is necessary [Sanchez v. or private person who arrested him [Sec. 5(a),
Demetriou, G.R. No. 111771-77 (1993)]. Rule 113].
No violence or unnecessary force shall be Requisites:

used in making an arrest [Sec. 2, 2nd par., (1) The person to be arrested must execute an
Rule 113]. overt act indicating that he has just
committed, is actually committing, or is
Application of actual force, manual touching attempting to commit a crime; and
of the body, physical restraint or a formal (2) Such overt act is done in the presence or
declaration of arrest is not required. within the view of the arresting officer
[Zalameda v. People, G.R. No. 183656
An arrest may be made on any day and at any (2009); People v. Laguio, G.R. No. 128587
time of the day or night [Sec. 6, Rule 113]. (2007)].
PAGE 301 OF 425


In his presence means:

(1) He sees the offense, even though at a Probable cause must be based on personal
distance; knowledge which means an actual belief or
(2) He hears the disturbances created by the reasonable grounds of suspicion [Abelita III v.
offense and proceeds at once to the scene; Doria, G.R. No. 170672 (2009)]
or
(3) Offense is continuing or has been NOTE: Where a warrantless arrest is made
consummated at the time arrest is made under the in flagrante and hot pursuit
[People v. Evaristo, G.R. No. 93828 (1992)]. exceptions, the person arrested without a
warrant shall forthwith arrested delivered to
The following are instances of this type of the nearest police station or jail [Sec. 5, 2nd
arrest without warrant: par., Rule 113].
(1) An arrest made after an entrapment
does not require a warrant inasmuch as it C.3. ARREST OF ESCAPED PRISONER
is considered a valid warrantless arrest A peace officer or a private person may,
pursuant to Sec. 5(a), Rule 113 [Teodosio v. without warrant, arrest a person when the
CA, G.R. No. 124346 (2004)]. This is person to be arrested is a prisoner who has
different from instigation, which means escaped [Sec. 5(c), Rule 113]:
luring the accused into a crime that he, (1) From a penal establishment or place
otherwise, had no intention to commit, in where he is serving final judgment or
order to prosecute him, and leads to temporarily confined while his case is
acquittal [People v. Dansico, G.R. No. pending; or
178060 (2011)]. (2) While being transferred from one
(2) When a person is caught in flagrante as a confinement to another.
result of the buy-bust operation, the
policemen are not only authorized but are Escapee may be immediately pursued or re-
also under obligation to apprehend the arrested without a warrant at any time and in
drug pusher even without a warrant of any place within the Philippines [Sec. 13, Rule
arrest [People v. de Lara, G.R. No. 94953 113].
(1994)].
Ratio: At the time of arrest, the escapee is in
C.2. HOT PURSUIT ARREST continuous commission of a crime (i.e.,
A peace officer or a private person may, evasion of service of sentence).
without warrant, arrest a person when an
offense has just been committed and the C.4. RULES ON ILLEGALITY OF ARREST
officer or private person has probable cause
to believe, based on personal knowledge of C.4.A. EFFECT
facts or circumstances, that the person to be The legality of the arrest affects only the
arrested has committed it [Sec. 5(b), Rule 113]. jurisdiction of the court over the person of the
accused [People v. Nuevas, G.R. No. 170233
Requisites: (2007)].
(1) An offense has just been committed.
There must be a large measure of C.4.B. WAIVER
immediacy between the time the offense Any objection involving the arrest or the
was committed and the time of the arrest. procedure in the courts acquisition of
If there was an appreciable lapse of time jurisdiction over the person of an accused
between the arrest and the commission of must be made before he enters his plea;
the crime, a warrant of arrest must be otherwise the objection is deemed waived
secured [People v. del Rosario, G.R. No. [Zalameda v. People, G.R. No. 183656 (2009)].
127755 (1999); People v. Agojo , G.R. No.
181318 (2009)]; and An application for or adm ission to bail
(2) The person making the arrest has shall not bar the accused from challenging
probable cause to believe, based on the validity of his arrest or the legality of the
personal knowledge of facts, that the warrant issued, provided that he raises the
person to be arrested has committed it.
PAGE 302 OF 425

objection before he enters his plea [Sec. 26,

Rule 114]. This is not a case of a warrantless
arrest but merely an instance of an
A waiver of the right to question an illegal arrest effected by the police authorities
warrantless arrest does not also mean a without having the warrant in their
waiver of the inadmissibility of evidence possession at that precise moment
seized during an illegal warrantless arrest [Mallari v. CA, G.R. No. 11069 (1996)].
[People v. Nuevas, G.R. No. 170233 (2007)].
(3) The officer executing the warrant shall
C.4.C. WHEN CURED arrest the accused and deliver him to the
(1) When the accused voluntarily submits to nearest police station or jail without
the jurisdiction of the trial court [Dolera v. unnecessary delay [Sec. 3, Rule 113];
People, G.R. No. 180693 (2009); People v.
Alunday, G.R. No. 181546 (2008)]; (4) No violence or unnecessary force shall be
(2) By the filing of an information in court used in making an arrest [Sec. 2, 2nd
and the subsequent issuance by the par., Rule 113].
judge of a warrant of arrest [Sanchez v.
Demetriou, G.R. No. 111771-77 (1993)]. D.1.B. RIGHTS OF THE ARRESTING
OFFICER
D. METHOD OF ARREST (1) To summon assistance [Sec. 10, Rule 113].
He may orally summon as many persons
D.1. BY OFFICER WITH WARRANT as he deems necessary to assist him in
effecting the arrest.
D.1.A. DUTIES OF ARRESTING OFFICER
(1) Execution of warrant [Sec. 4, Rule 113]: (2) To break into building or enclosure [Sec. 11,
(a) The head of the office to whom the Rule 113], when the following concur:
warrant of arrest was delivered shall (a) The person to be arrested is or is
cause the warrant to be executed reasonably believed to be in said
within 10 days from its receipt; building;
(b) The officer to whom it was assigned for (b) He has announced his authority and
execution shall make a report to the purpose of entering therein; and
judge who issued the warrant within 10 (c) He has requested and been denied
days after expiration of the period to admittance.
execute.
(c) In case of the officers failure to execute, (3) To break out from the building/enclosure
he shall state the reasons therefor. when necessary to liberate himself [Sec.
12, Rule 113];
(2) The officer shall inform the person to be
arrested of the cause of the arrest and the (4) To search the person arrested for
fact that a warrant has been issued for his dangerous weapons or anything which
arrest [Sec. 7, Rule 113]. may have been used or constitute proof in
(a) This duty does not apply: the commission of an offense without a
(i) When the person to be arrested warrant [Sec. 13, Rule 126].
flees;
(ii) When he forcibly resists before the NOTE: Nos. 2 and 3 are also applicable
officer has opportunity to so inform where there is a valid warrantless arrest.
him;
(iii) When the giving of such information D.2. BY OFFICER WITHOUT WARRANT
will imperil the arrest. General rule: The officer shall inform the
(b) The officer need not have the warrant person to be arrested of:
in his possession at the time of the (1) His authority; and
arrest but after the arrest, if the person (2) The cause of the arrest (Sec. 8, Rule 113).
arrested so requires, the warrant shall
be shown to him as soon as practicable
[Sec. 7, Rule 113].
PAGE 303 OF 425

Exceptions: fiscal regarding the existence of probable

(1) When the person to be arrested is cause:
engaged in the commission of the (1) If he finds probable cause, he shall issue a
offense; warrant of arrest; or
(2) When he is pursued immediately after its (2) If on the basis thereof he finds no
commission; probable cause, he may disregard the
(3) When he has escaped, flees or forcibly fiscals report and require the submission
resists before the officer has the of supporting affidavits of witnesses
opportunity to so inform him; or [People v. Gray, G.R. No. 180109 (2010);
(4) When the giving of such information will AAA v. Carbonell, G.R. No. 171465 (2007)].
imperil the arrest.
F. DETERMINATION OF PROBABLE
D.3. BY PRIVATE PERSON (CITIZENS CAUSE FOR ISSUANCE OF
ARREST) WARRANT OF ARREST
(1) The private person shall inform the
Probable cause, in connection with the
person to be arrested of the intention to
issuance of a warrant of arrest,
arrest him and the cause of the arrest
assumes the existence of facts and
[Sec. 9, Rule 113], except in the same
circumstances that would lead a reasonably
cases as those for arrest by an officer
discreet and prudent man to believe that a
without a warrant.
crime has been committed and that it was
(2) The private person must deliver the
likely com m itted by the person sought
arrested person to the nearest police
to be arrested [People v. Tan, G.R. No.
station or jail, and he shall be proceeded
182310 (2009)].
against in accordance with Sec. 7, Rule
112. Otherwise, the private person may be
held liable for illegal detention.
G. PROBABLE CAUSE OF FISCAL
AND JUDGE DISTINGUISHED
E. REQUISITES OF A VALID Fiscal Judge
WARRANT OF ARREST Nature Executive Judicial
determination determination
E.1. ESSENTIAL REQUISITES of PC of PC
The warrant must:
Purpose Determination Determination
(1) Be issued upon probable cause
of PC to hold a of PC to issue a
determined personally by the judge
person for trial warrant of
after examination under oath or
arrest
affirmation of the complainant and the
witnesses he may produce; and Standard Whether or not Whether or not
(2) Particularly describe the person to be there is a there is
arrested [Sec. 2, Art. III, Constitution] reasonable reasonable
ground to ground to
E.2. WHEN ISSUED believe that believe that a
A judge issues a warrant of arrest upon the the accused is crime has been
filing of the information by the public guilty of the committed and
prosecutor and after personal evaluation by offense that it was
the judge of the prosecutors resolution charged and likely
and supporting evidence [Sec. 5(a), Rule should be held committed by
112]. for trial the person
sought to be
The judge does not have to personally arrested
examine the complainant and his witnesses.
Established doctrine provides, he shall
personally evaluate the report and the
supporting documents submitted by the
PAGE 304 OF 425


VI. Bail General rule: Bail is a matter of right.
Exception: When the offense involved is a

A. NATURE capital offense, admission to bail is
discretionary, and may only be denied when
A.1. DEFINITION evidence of guilt is strong.
Bail is the security given for the release of a
person in custody of the law, furnished by him Exception to the exception: When the
or a bondsman, to guarantee his appearance accused is a minor, he is entitled to bail
before any court as required under conditions regardless of whether the evidence of guilt is
hereinafter specified [Sec. 1, Rule 114]. strong.
A.2. PURPOSE B.1. CAPITAL OFFENSE

(1) To relieve an accused from imprisonment A capital offense is an offense which under
until his conviction and yet secure his the law existing at the time of commission
appearance at the trial [People v. Hon. and of the application for admission to bail is
Donato, G.R. No. 79269 (2011)]; punishable by death [Sec. 6, Rule 114].
(2) To honor the presumption of innocence
until his guilt is proven beyond reasonable The capital nature of the offense is
doubt [Sec. 14, Art. III, Constitution]; and determined by the penalty prescribed by
(3) To enable him to prepare his defense law and not the one actually imposed.
without being subject to punishment
prior to conviction [Cortes v. Judge Catral, Note: RA 9346 (An Act Prohibiting the
AM No. RTJ-97-1387 (1997)]. Imposition of Death Penalty in the
Philippines) enacted on June 24, 2006 (which
A.3. REQUIREMENT OF CUSTODY repealed RA 8177 and RA 7659) prohibited
General rule: Custody of the law is the imposition of the death penalty. Under
required before the court can act on an Sec. 7, RA 9346, it stated that [c]apital
application for bail [Miranda v. Tuliao, G.R. offense or an offense punishable by reclusion
No. 158763 (2006)]. perpetua or life imprisonment.
Exceptions: Custody is not required in cases B.2. EXTRADITION PROCEEDINGS

of witnesses posting bail: General rule: Right to bail is available only
(1) When bail is required to guarantee the in criminal proceedings and does not apply to
appearance of a material witness [Sec. 14, extradition proceedings because extradition
Rule 119]; courts do not render judgments of conviction
(2) When bail is required to guarantee the or acquittal [Gov. of USA v. Purganan and
appearance of a prosecution witness in Jimenez, G.R. No. 148571 (2002)].
cases where there is substitution of the
information [Sec. 14, Rule 110]. Exception: Only upon clear and convincing
evidence:
B. WHEN A MATTER OF RIGHT; (1) That once granted, the applicant will not
EXCEPTIONS be flight risk or will not pose danger to the
community; and
Bail is a matter of right:
(2) That there exists special humanitarian and
(1) Before or after conviction, but pending
compelling circumstances.
appeal, by the MTC;
(2) Before conviction by RTC of an offense
Note: Bail is a matter of discretion in
not punishable by death, reclusion
extradition proceedings [Govt. of HK Special
perpetua, or life imprisonment. [Sec. 4,
Administrative Region v. Olalia, G.R. No.
Rule 114].
153675 (2007)].
PAGE 305 OF 425


B.3. WHEN NOT AVAILABLE violated bail conditions without valid

Right to bail is also not available: justification;
(1) After a judgment of conviction has (3) Commission of offense while under
become final; probation, parole or conditional pardon by
NOTE: If he applied for probation before the accused;
finality, he may be allowed temporary (4) Probability of flight;
liberty under his bail; (5) Undue risk that the accused may commit
(2) After the accused has commenced to another crime during pendency of appeal.
serve his sentence [Sec. 24, Rule 114].
(3) To military personnel accused under Upon conviction of the RTC, the bail posted
general courts martial [Comendador v. de earlier as a matter of right loses its force and
Villa, G.R. No. 93177 (1991)]. the accused must file a new and separate
petition for bail.
C. WHEN A MATTER OF
DISCRETION In deportation proceedings, bail is
(1) Before conviction, in offenses punishable discretionary upon the Commissioner of
by death, reclusion perpetua or life Immigration and Deportation [Harvey v.
imprisonment and evidence of guilt is Defensor-Santiago, G.R. No. 82544 (1990)].
not strong;
(2) Upon conviction by the RTC, which has NOTE: In Enrile v. People, G.R. No. 213847
not become final as the accused still has (2015), the Court ruled that an accused
the right to appeal, of an offense not should be granted bail if it is shown that: (1)
punishable by death, reclusion perpetua the detainee will not be a flight risk or a
or life imprisonment. danger to the community; and (2) there exist
special, humanitarian, and compelling
It may be filed in and acted upon by the RTC circumstances.
despite the filing of notice of appeal, provided
that it has not transmitted the original record D. HEARING OF APPLICATION FOR
to the appellate court. BAIL IN CAPITAL OFFENSES
If the RTC decision changed nature of the D.1. IN GENERAL
offense from non-bailable to bailable, the At the hearing of an application for bail filed
application for bail can be resolved only by by a person in custody for the commission of
the appellate court [Sec. 5, Rule 114]. an offense punishable by reclusion perpetua
or life imprisonment, the prosecution has
If the conviction by the trial court is for a the burden of showing that evidence
capital offense, the accused convicted of a of guilt is strong [Sec. 8, Rule 114].
capital offense is no longer entitled to bail,
and can only be released when the conviction Evidence of guilt in the Constitution and
is reversed by the appellate court [Sec. 13, the Rules refers to a finding of innocence or
Article III, Constitution]. culpability, regardless of the modifying
circumstances.
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused D.2. MINORS CHARGED WITH CAPITAL
shall be denied bail or his bail shall be OFFENSE
cancelled upon showing by the prosecution, If the person charged with a capital offense is
with notice to the accused, of any of the admittedly a minor, which would entitle him,
following [Sec. 5, Rule 114]: if convicted, to a penalty next lower than that
(1) Recidivism, quasi-recidivism, or habitual prescribed by law, he is entitled to bail
delinquency or commission of a crime regardless of whether the evidence of guilt is
aggravated by reiteration of the accused; strong.
(2) The accused previously escaped from
legal confinement, evaded sentence or
PAGE 306 OF 425


Reason: One who faces a probable death the province or city/municipality where he
sentence has a particularly strong temptation is held [Sec. 17, Rule 114].
to flee. NOTE: Where the grant of bail is a matter of
This reason does not hold where the accused discretion, or the accused seeks to be
has been established without objection to be released on recognizance, the application
minor who by law cannot be sentenced to may only be filed in the court where the case
death. is pending, on trial, or appeal.
D.3. DUTIES OF JUDGE HEARING THE E. GUIDELINES IN FIXING AMOUNT

PETITION FOR BAIL
(1) Notify the prosecutor of the hearing and
OF BAIL
require him to submit his The considerations are primarily, but not
recommendation; limited, to the following [Sec. 9, Rule 114]
(2) Conduct a hearing of the application (1) Financial ability of the accused;
regardless of whether or not prosecution (2) Nature and circumstances of the offense;
refuses to present evidence to show that (3) Penalty for the offense charged;
the guilt of the accused is strong; (4) Character and reputation of the accused;
(5) Age and health of the accused;
(3) Decide whether the evidence of guilt of the
accused is strong based on the summary (6) Weight of the evidence against the
of the evidence of the prosecution; accused;
(4) If the guilt of the accused is not strong, (7) Probability of the accused appearing at
discharge the accused upon the approval the trial;
of the bail bond. Otherwise, petition (8) Forfeiture of other bail;
should be denied [Riano (2011), citing (9) Fact that accused was a fugitive from
justice when arrested;
Narciso v. Santa Romana-Cruz (2000)].
(10) Pendency of other cases where the
Note: Evidence presented during the bail accused is on bail.
hearing are automatically reproduced at the
trial, but upon motion of either party, the F. WHEN BAIL NOT REQUIRED
court may recall any witness for additional Bail is not required:
examination. [Sec. 8, Rule 114]. (1) When a person has been in custody for a
period equal to or more than the possible
D.4. WHERE APPLICATION FOR BAIL IS maximum imprisonment of the offense
FILED charged to which he may be sentenced;
General rule: The application may be filed (2) If the maximum penalty is destierro, he
with the court where the case is pending. shall be released after 30 days of
preventive imprisonment [Sec. 16, Rule
Exceptions: 114];
(1) If the judge of the court where the case is (3) In cases filed with the MTC/MCTC for an
pending is absent or unavailable, the offense punishable by an imprisonment of
application may be filed with any less than 4 yrs, 2 mos. and 1 day, and the
RTC/MTC/MeTC/MCTC judge in the judge is satisfied that there is no necessity
province, city or municipality; for placing the accused under custody
(2) Where the accused is arrested in a [Sec. 8, Rule 112];
province, city/municipality other than (4) In cases where a person is charged with
where the case is pending, the application violation of a municipal/city ordinance, a
may be filed with any RTC of the said light felony and/or criminal offense, the
place. If no judge is available, then with penalty of which is not higher than 6
any MeTC/MTC/MCTC judge in the said months imprisonment and/or a fine of
place. Judge who accepted the application 2000, or both, where it is established that
shall forward it, together with the order of he is unable to post the required cash or
release and other supporting papers bail bond [Sec. 1, RA 6036].
where the case is pending;
(3) When a person is in custody but not yet
charged, he may apply with any court in
PAGE 307 OF 425

Bail is nonetheless required: [Sec. 1, RA H. FORFEITURE AND

6036] CANCELLATION OF BAIL
(1) When accused was caught committing the
offense in flagrante; H.1. FORFEITURE OF BAIL
(2) When accused confesses to the When the appearance of the accused out on
commission of the offense unless he later bail is required by court and he failed to
repudiates the same in a sworn statement appear, the court shall issue an order of
or in open court as having been extracted forfeiture wherein:
through force or intimidation; (1) The provisional liberty of the accused due
(3) When accused is found to have previously to the bail bond shall be revoked and;
escaped legal confinement, evaded (2) It shall require the bondsman to produce
sentence, or jumped bail; the principal
(4) When accused is found to have violated
Section 2, RA 6036, which provides that If the accused failed to appear in person as
the violation of the accused of the sworn required, the bondsmen are given 30 days
statement (required instead of bail) shall within which to:
justify the court to order his immediate (1) Produce the body of the principal or give
arrest, if the failure of the accused to reason for the non-production. The
report is not justified; bondsmen may:
(5) Accused is a recidivist or habitual (a) Arrest the accused;
delinquent or has been previously (b) Cause him to be arrested by a police
convicted for an offense to which the officer or any other person of suitable
law/ordinance attaches an equal/greater age or discretion upon written authority
penalty or for two/more offenses to which endorsed on a certified copy of the
it attaches a lighter penalty undertaking.
(6) Accused committed the offense while on (2) Explain why the accused failed to appear:
parole or under conditional pardon; (a) If the bondsmen fail to do these,
(7) Accused has previously been pardoned for judgment is rendered against them,
violation of municipal/city ordinance for at jointly and severally, for the amount of
least two times. the bail.
(b) Bondsmens liability cannot be
G. INCREASE OR REDUCTION OF mitigated or reduced, unless the
BAIL accused has been surrendered or is
After the accused is admitted to bail and for acquitted [Sec. 21, Rule 114].
good cause, the court may increase or
decrease the amount [Sec. 20, Rule 114] Bondsmen can prevent the accused from
leaving country by arresting him or asking for
G.1. INCREASED BAIL him to be re-arrested by a police officer upon
The accused may be committed to custody if written authority [Sec. 23, Rule 114].
he does not give bail in the increased amount
within a reasonable period of time [Sec. 20, Judgment against the bondsmen cannot be
Rule 114]. entered unless such judgment is preceded by
an order of forfeiture and an opportunity
G.2. REDUCED BAIL given to the bondsmen to produce the
A person in custody for a period equal to or accused or to adduce satisfactory reason for
more than the minimum of the principal their inability to do so. An order of forfeiture
penalty prescribed for the offense charged is interlocutory and is different form the
may be released on a reduced bond [Sec. 16, judgment on the bond which is issued if the
Rule 114]. accused was not produced within the 30-day
period [Mendoza v. Alarma, G.R. No. 151970
(2008)].
PAGE 308 OF 425


H.2. CANCELLATION OF BAIL (4) Absence of preliminary investigation.
H.2.A. APPLICATION BY BONDSMEN The court shall resolve the objections as early
Upon application of the bondsmen with due as practicable but not later than the start of
notice to the prosecutor, bail may be the trial of the case.
cancelled upon: J. HOLD/ALLOW DEPARTURE
(1) Surrender of the accused; or ORDER AND BUREAU OF
(2) Proof of his death. [Sec. 22(1), Rule 114]
IMMIGRATION WATCHLIST
The accused may be prohibited from leaving
H.2.B. AUTOMATIC CANCELLATION the country during the pendency of his case
(1) Upon acquittal of the accused [People v. Uy Tuising, G.R. No. 42118-20
(2) Upon dismissal of the case (1935); Manotoc v. CA, G.R. No. L-62100
(3) Upon execution of judgment of conviction (1986)]. If the accused released on bail
[Sec. 22(2), Rule 114]. attempts to depart from the Philippines
without the permission of the court where his
I. APPLICATION NOT A BAR TO case is pending, he may be re-arrested
without warrant [Sec. 23, Rule 114].
OBJECTIONS ON ILLEGAL ARREST,
LACK OF OR IRREGULAR A hold-departure order may be issued
PRELIMINARY INVESTIGATION only in criminal cases within the exclusive
Bail is no longer a waiver of these objections jurisdiction of the RTCs [SC Circ. No. 39-97].
[Sec. 26, Rule 114; Leviste v. Alameda, G.R. No.
182677 (2011)]. SC Circular 39-97 deals only with criminal
cases pending in the RTC. As to those cases
Thus, provided that the proper objections pending in the MTC as well as those under
are tim ely raised (i.e., before accused preliminary investigation, the DOJ
enters a plea), an application or an admission promulgated DOJ Circular No. 41 governing
to bail shall not bar the accused from the issuance of HDO, Watchlist Orders, and
challenging or questioning the: Allow Departure Orders.
(1) Validity of his arrest;
(2) Legality of the arrest warrant;
(3) Regularity of preliminary investigation;
PAGE 309 OF 425

Hold Departure Order Watchlist Order

When it (1) Against the accused, irrespective of nationality, in (1) Against the accused,
may issue criminal cases falling within the jurisdiction of irrespective of nationality, in
first-level courts (MeTC, MTC, MCTC); criminal cases pending before
the RTC;
(2) Against the alien whose presence is required
either as a defendant, respondent, or witness in a (2) Against the respondent,
civil or labor case pending litigation, or any case irrespective of nationality, in
before an administrative agency of the criminal cases pending
government; preliminary investigation, PFR,
or MR before the DOJ or any of
(3) Against any person, either motu proprio, or upon its prosecution offices;
the request by the Head of a Department of the
Government, the Chief Justice of the Supreme (3) Against any person pursuant to
Court for the Judiciary; the Senate President or the Anti-Trafficking in Persons
the House Speaker for the Legislature, when the Act of 2003 (RA 9208) or in the
adverse party is the Government or any of its interest of national security,
agencies or instrumentalities, or in the interest of public safety or public health.
national security, public safety or public health.
Validity An HDO is valid for 5 years reckoned from the date of A watchlist order is valid 60 days
its issuance, unless sooner terminated. reckoned from the date of its
issuance, unless sooner terminated
or extended for a non-extendible
period of not more than 60 days.
Grounds for (1) When the validity period has already expired; (1) When the validity period has
lifting or (2) When the accused has been allowed to leave the already expired;
cancellation country during the pendency of the case, or has (2) When the accused has been
been acquitted of the charge, or the case in which allowed by the court to leave
the warrant/order of arrest was issued has been the country during the
dismissed or the warrant/order of arrest has been pendency of the case, or has
recalled. been acquitted of the charge;
(3) When the PI is terminated, or
when the PFR or MR has been
denied and/or dismissed.
ADOs may issue for exceptional reasons to

allow the person to leave upon submission of
the following:
(1) An affidavit of purpose, including an
undertaking to report to the DOJ
immediately upon return;
(2) Authority to travel or travel clearance from
the court or appropriate government office
or from the investigating prosecutor.
VII. Rights of the presumption of innocence tilts the scales in

favor of the accused [People v. Erguioza, G.R.
Accused No. 171348 (2008)].
B. RIGHT TO BE INFORMED OF THE

A. RIGHT TO BE PRESUMED
NATURE AND CAUSE OF THE
INNOCENT UNTIL THE CONTRARY
ACCUSATION AGAINST HIM
IS PROVED BEYOND REASONABLE
DOUBT General rule: An accused cannot be
convicted of an offense, unless it is clearly
The presumption of regularity in the charged in the complaint or information
performance of official duty cannot by itself [People v. Ortega, G.R. No. 116736 (1997)].
overcome the presumption of innocence nor
constitute proof beyond reasonable doubt Exception: An information which lacks
[People v. Sanchez, G.R. No. 175832 (2008)]. certain essential allegations may still sustain
a conviction when the accused fails to object
The Rules or the law may, however, provide to its sufficiency during the trial, and the
for a presumption of guilt. However, the deficiency was cured by competent evidence
statutory presumption is merely prima facie. presented therein [People v. Palarca, G.R. No.
At no instance can the accused be denied the 146020 (2002)]
right to rebut the presumption. [Hizon v. CA,
G.R. No. 119619 (2009)]. The charge must be set forth with sufficient
particularity as will reasonably indicate the
Proof beyond reasonable doubt does not exact offense to enable the accused to
mean such a degree of proof as, excluding intelligently prepare his defense [Balitaan v.
possibility of error, produces absolute CFI of Batangas, G.R. No. L-38544 (1982)].
certainty. Moral certainty only is required,
or that degree of proof which produces The purpose is served by arraignment [Borja v.
conviction in an unprejudiced mind [Rule 133, Mendoza, G.R. No. L-45667 (1977)]. The title
Sec.2]. of the complaint, or the designation of the
offense charged or the particular law violated
The legislature may enact that when certain is not controlling, but the description of the
facts have been proven they shall be prima crime charged and the particular facts therein
facie evidence of the existence of the guilt of recited. No information for a crime will be
the accused and shift the burden of proof sufficient if it does not accurately and clearly
provided there be rational connection allege the elements of the crime charged
between that facts proved and the ultimate [People v. Dimaano, G.R. No. 168168 (2005)].
fact presumed so that the inference of the
one from proof of the others is not C. RIGHT TO BE PRESENT AND
unreasonable and arbitrary because of lack of
connection between the two in common
DEFEND IN PERSON AND BY
experience [People v. Mingoa, G.R. No. L-5371 COUNSEL AT EVERY STATE OF THE
(1953)]. PROCEEDINGS
EQUIPOSE RULE C.1. RIGHT TO BE PRESENT
Where the inculpatory facts and General rule: Presence of the accused
circumstances are capable of two or more during the criminal action is not required and
explanations, one of which is consistent with shall be based on his sole discretion.
the innocence of the accused and the other
consistent with his guilt, then the evidence Exceptions: Presence of the accused is
does not fulfill the test of moral certainty and mandatory:
is not sufficient to support a conviction. (1) For purposes of identification;
Where the evidence in a criminal case is (2) At arraignment; [Sec. 1(b), Rule 116];
evenly balanced, the constitutional
PAGE 311 OF 425

(3) At the promulgation of judgment except presentation of the evidence for the
when the conviction is for a light offense. defense was due, he appears by himself
[Sec. 6, Rule 120] alone because of the inexcusable absence
of his counsel [Sayson v. People, G.R. No.
The right to be present at trial is deemed L-51745 (1988)];
waived when: (4) Violation of this right entitles the accused
(1) The accused is absent without just cause to new trial [People v. Serzo, G.R. No.
at the trial of which he had notice; or 118435 (1997)]. The right to counsel may
(2) The accused under custody escapes, until be waived but to insure that the waiver is
custody over him is regained. voluntary and intelligent, the waiver must
REQUIREMENTS OF WAIVER: be in writing and in the presence of the
(1) Existence of the right; counsel of the accused [People v. Del
(2) Knowledge of the existence thereof; Castillo, G.R. No. 153254 (2004)]. It must
(3) Intention to relinquish which much be also not be contrary to law, public order,
shown clearly and convincingly; and public policy, morals or good customs;
(4) Where the Constitution or law provides, it (5) Even a person under investigation for an
must be with the assistance of counsel to offense shall the right to have a
be valid. competent and independent counsel
preferably of his own choice. Included in
Effects of waiver of right to appear by this right is the right to be informed of his
the accused: right to counsel [Sec. 12(1), Art. III,
(1) Waiver of the right to present evidence Constitution; Sec. 2(b) RA 7438].
and cross-examine witnesses; During arraignment, the court has the
(2) Prosecution can present evidence if affirmative duty to inform the accused of his
accused fails to appear; and right to counsel and to provide him with one
(3) The court can decide without accuseds in case he cannot afford it. The court must act
evidence. on its own volition, unless the right is waived
by the accused. During trial, it is the accused
C.2. TRIAL IN ABSENTIA who must assert his right to counsel.
Requisites:
(1) Prior arraignment; C.4. RIGHT TO DEFEND IN PERSON
(2) Proper notice of the trial; The accused may be allowed to defend
(3) Failure to appear is unjustifiable [Parada v. himself in person when it sufficiently appears
Veneracion, AM No. RTJ-96-1353 (1997), to the court that he can properly protect his
citing Sec. 14(2), Art. 3, Constitution]. rights without the assistance of counsel [Sec.
1(c), Rule 115].
An escapee who has been duly tried in
absentia waives his right to present evidence D. RIGHT TO TESTIFY AS WITNESS
on his own behalf and to confront and cross- IN HIS BEHALF
examine witnesses who testified against him
[Gimenez v. Nazareno, G.R. No. L-37933 This is subject to cross-examination on any
(1988)]. matter covered by his direct examination [Sec.
1(d), Rule 115].
C.3. RIGHT TO COUNSEL
(1) It means reasonably effective legal General rule: Silence will not, in any
assistance [Gideon v. Wainright (1963)]; manner, prejudice him.
(2) It is absolute and may be invoked at all
times, even on appeal [Telan v. CA, G.R. Exception: Unfavorable inference is drawn
No. 95026 (1991)]; when:
(3) Duty to appoint counsel de oficio is (1) The prosecution has already established a
mandatory only at the time of prima facie case, the accused must
arraignment, especially when the present proof to overturn the evidence
accused has proceeded with the
arraignment and the trial with a counsel
of his choice but, when the time for the
PAGE 312 OF 425
(2) The defense of the accused is an alibi and F. RIGHT TO CONFRONTATION

he does not testify, the inference is that
the alibi is not believable. This applies to any witness against the
accused at the trial.
E. RIGHT AGAINST SELF-
INCRIMINATION Where the adverse party is deprived of the
right to cross-examine the persons who
The right against self-incrimination has no executed the affidavits, said affidavits are
application to juridical persons [BASECO v. generally rejected for being hearsay [Estrella v.
PCGG, G.R. No. 75885 (1987)]. Robles, G.R. No. 171029 (2007)].
The constitutional guaranty, that no person However, either party may utilize as part of its
shall be compelled in any criminal case to be evidence the testimony of a witness who is
a witness against himself, is limited to a deceased, out of or cannot with due diligence
prohibition against compulsory testimonial be found in the Philippines, unavailable or
self-incrimination. The corollary to the otherwise unable to testify, given in another
proposition is that, an ocular inspection of the case or proceeding, judicial or administrative,
body of the accused is permissible [Villafor vs. provided they involve the same parties and
Summers, G.R. No. 16444 (1920)]. subject matter and the adverse party had the
opportunity to cross-examine him [Sec. 1(f),
The right is applicable to one who is Rule 115].
compelled to produce a document, and one
who is compelled to furnish a specimen of his This right is waived by non-appearance.
handwriting, for in both cases, the witness is [Carredo v. People, G.R. No. 77542 (1990)].
required to furnish evidence against himself
[Beltran v. Samson, G.R. No. 32035 (1929)]. The right does not apply in a preliminary
investigation. The parties may, however,
An accused occupies a different tier of submit to the investigating officers questions
protection from an ordinary witness. He is which may be asked to the party or witness
entitled: concerned [Sec. 3(e), Rule 112].
(1) To be exempt from being a witness
against himself; and Identification by a witness of the accused is
(2) To testify as witness in his own behalf. inadmissible if the accused had no
opportunity to confront witness [People v.
But if he offers himself as a witness he may Lavarias, G.R. No. L-24339 (1968)].
be cross-examined as any other witness;
however, his neglect or refusal to be a G. RIGHT TO COMPULSORY
witness shall not in any manner prejudice or PROCESS
be used against him [People v. Judge Ayson,
G.R. No. 85215 (1989)]. This right may be invoked by the accused to
secure the attendance of witnesses and the
Thus, the right may be waived by the failure production of evidence in his behalf.
to timely assert the right, that is, by
answering an incrim inating question If a subpoena is issued and the witness failed
[Beltran v. Samson, G.R. No. 32025 (1929)] to appear, the court should order the arrest of
when the accused testifies in his own behalf the witness if necessary [People v. Montejo,
and is cross-examined on matters covered by G.R. No. L-24154 (1967)].
the direct examination [Sec. 1(f), Rule 115].
The questions on cross examination should H. RIGHT TO SPEEDY, IMPARTIAL
be on matters related to his direct
examination [People v. Judge Ayson, G.R. No.
AND PUBLIC TRIAL
85215 (1989)].
In determining whether or not the right to
speedy disposition of cases has been violated,
this Court has laid down the following
PAGE 313 OF 425
guidelines [Tan v. People, G.R. No. 173637 J. RIGHTS OF PERSONS UNDER

(2009); Olbes v. Buemio, G.R. No. 173319 CUSTODIAL INVESTIGATIONS
(2009)]:
(1) Length of the delay; Custodial investigation involves any
(2) Reasons for such delay; questioning initiated by law enforcement
(3) Assertion or failure to assert such right by officers after a person has been taken into
the accused; and custody or otherwise deprived of his freedom
(4) Prejudice caused by the delay. of action in any significant way [Aquino v.
Paiste, G.R. No. 147782 (2008)].
When the accused is denied of this right, he
may pursue the following remedies: It shall include the practice of issuing an
(1) Motion to dismiss [Corpuz v. invitation to a person who is investigated in
Sandiganbayan, G.R. No. 162214 (2004)]; connection with an offense he is suspected to
(2) Mandamus [Lumanlaw v. Peralta, G.R. No. have committed, without prejudice to the
164953 (2006)]. liability of the inviting officer for any
violation of law.
The accused is not entitled to a dismissal
where delay was caused by proceedings or A persons under custodial investigation has
motions instituted by him. A dismissal based the following rights [Sec. 2, RA 7438]
on a violation of the right to speedy trial is (1) To be assisted by counsel at all times;
equivalent to an acquittal and double (2) To remain silent;
jeopardy may attach even if the dismissal is (3) To be informed, in a language known to
with the consent of the accused [Condrada v. and understood by him, of his rights to
People (2003)]. remain silent and to have competent and
independent counsel, preferably of his
I. RIGHT TO APPEAL own choice, who shall at all times be
allowed to confer privately with the
In all criminal prosecutions, the accused shall person arrested, detained or under
have the right to appeal in the manner custodial investigation;
prescribed by law [Hilario v. People, G.R. No. (4) To be furnished a custodial investigation
161070 (2008)]. report in writing, and if the person
arrested does not know how to read and
An appeal in criminal case opens the entire write, it shall be read to him by counsel
case for review and the appellate court may before it is signed or thumb marked,
correct even unassigned errors [People v. otherwise, such report is void;
Tambis, G.R. No. 175589 (2008)]. (5) To have counsel present for any
extrajudicial confession made, otherwise
The right to appeal is a statutory right and such confession shall be void;
the requirements must be complied with; (6) To be allowed visits by and conferences
otherwise, the right is lost [People v. with specified persons.
Sabellano, G.R. No. 93932-33 (1991)].
Silence is not an admission of guilt when
If the accused escapes from confinement, under custodial investigation. [People v.
appeal is not allowed unless he voluntarily Guillen, 191756 (2013)]
surrenders within period for appeal [People v.
Omar, G.R. No. 92415 (1991)]. General rule: Extrajudicial confessions are
binding only on the confessant, and cannot
The right to appeal is lost by the unjustified bind a co-accused on account of the principle
failure to appear at the promulgation of of res inter alios acta alteri nocere non debet
judgment of conviction [Villena v. People, G.R. (rights of a party cannot be prejudiced by an
No. 184091 (2011)]. act, declaration or omission of another)
[Salapuddin v. CA, G.R. No. 184681 (2013)]
PAGE 314 OF 425

Exception: Sec. 30, Rule 130 allows the the person under investigation fully
admission of a conspirator but there must be understands the nature and the consequence
a prior establishment of a conspiracy by of his extrajudicial confession in relation to
evidence other than the confession. his constitutional rights. [Lumanog v. People,
[Salapuddin v. CA, G.R. No. 184681 (2013)] G.R. No. 182555 (2010)].
J.1. RIGHT TO BE ASSISTED BY COUNSEL The assisting counsel may be any lawyer,
AT ALL TIMES except those:
Waiver of the right to counsel must be made (1) Directly affected by the case;
with the assistance of counsel [Sec. 1(1), Art. (2) Charged with conducting preliminary
III, Constitution]. investigation;
(3) Charged with the prosecution of crimes.
This applies specifically in the following [Sec. 3, RA 7438].
instances:
(1) Signing of the written custodial report; J.2. RIGHT TO BE ALLOWED VISITS
(2) Signing of the written extra-judicial A person under custodial investigation has a
confession. right to be allowed visits by and conferences
(3) Signing of the waiver to the provisions of with:
Art. 125, RPC. (1) Any member of his immediate family,
which includes his or her spouse, fianc or
For a valid extrajudicial confession made by a fiance, parent or child, brother or sister,
person arrested, detained or under custodial grandparent or grandchild, uncle or aunt,
investigation, the following must concur: nephew or niece, and guardian or ward;
(1) It shall be in writing and signed by such (2) Any medical doctor; or
person; and (3) Priest or religious minister, chosen by him
(2) It must be signed in the presence of his or by any member of his immediate family
counsel or, in the latters absence, upon a or by his counsel, or by any national NGO
valid waiver. duly accredited by the Commission on
Human Rights or by any international
In the event of a valid waiver, it must be NGO duly accredited by the Office of the
signed in the presence of any of the parents, President.
elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, J.3. CONSEQUENCES OF VIOLATION OF
district school supervisor, or priest or minister CUSTODIAL RIGHTS
of the gospel as chosen by him.
J.3.A. FAILURE TO INFORM
If he cannot afford to have his own counsel, The arresting public officer or employee, or
he must be provided with a competent and any investigating officer, shall suffer a fine of
independent counsel by the investigating P6,000 or a penalty of imprisonment of not
officer. less than 8 years but not more than 10 years,
or both.
The modifier com petent and
independent in the 1987 Constitution is not The investigating officer who has been
empty rhetoric. It stresses the need to accord previously convicted of a similar offense shall
the accused, under the uniquely stressful suffer the penalty of perpetual absolute
conditions of a custodial investigation, an disqualification [Sec. 4, 1st par., RA 7438].
informed judgment on the choices explained
to him by a diligent and capable lawyer. This J.3.B. OBSTRUCTION, PREVENTION OR
requires that the lawyer be present and able PROHIBITION OF RIGHT TO VISITS AND
to advise and assist his client from the time CONFERENCES
the confessant answers the first question Any person guilty thereof shall suffer the
asked by the investigating officer until the penalty of imprisonment of not less than 4
signing of the extrajudicial confession. years nor more than 6 years and a fine of
Moreover, the lawyer should ascertain that P4,000.00 [Sec. 4, 2nd par., RA 7438].
the confession is made voluntarily and that
PAGE 315 OF 425
VIII. Arraignment and 60 days from filing of petition with the

reviewing office;
Plea (3) Motion to quash the complaint or
information on any of the grounds under
Sec. 3, Rule 117 in relation to Sec. 1, Rule
A. ARRAIGNMENT AND PLEA; HOW 117;
MADE (4) Challenge the validity of the arrest or
legality of the warrant or assail the
This is the stage where the accused is regularity or question the absence of
formally informed of the charge against him preliminary investigation of the charge.
by reading before him the
information/complaint and asking him If the accused does not question the legality
whether he pleads guilty or not guilty [Sec. of the arrest or search, this objection is
1(a), Rule 116]. deemed waived.
It is the stage where the issues are joined and A.2. PROCEDURE OF ARRAIGNMENT
without which the proceedings cannot The Court shall issue an order directing
advance further or, if held, will otherwise be the public prosecutor to submit the
void. [People v. Albert, G.R. No. 114001 (1995)].
1 record of the PI to the branch COC for
the latter to attach the same to the
Rationale: The importance of arraignment record of the case.
is based on the constitutional right of the
accused to be informed. It is at this stage that The court shall inform the accused of
the accused, for the first time, is given the his right to counsel and ask him if he
opportunity to know the precise charge that desires to have one. Unless the accused
confronts him. [Kummer v. People, G.R. No. 2 is allowed to defend himself in person
174461 (2013)] or has employed counsel of his choice,
the court must assign a counsel de
PLEA oficio to defend him.
Pertains to the matter which the accused, on (1) If the accused pleads not guilty,
his arraignment, alleges in answer to the either:
charge against him. (a) He raises an affirmative defense,
that is, he admits the charge
A.1. DUTY OF THE COURT BEFORE but raises exempting or
ARRAIGNMENT justifying circumstances, in
The court shall: which case the order of trial is
(1) Inform the accused of his right to counsel; reversed;
(2) Ask him if he desires to have one; and (b) He raises a negative defense,
(3) Must assign a counsel de oficio to defend that is, he denies the charge, in
him, unless the accused: which case regular trial
(a) Is allowed to defend himself in person; 3 proceeds;
or (2) If the accused pleads guilty:
(b) Has employed a counsel of his choice (a) For a non-capital offense, the
[Sec. 6, Rule 116]. court will promulgate a
judgment of conviction;
Before arraignment and plea, the accused (b) For a capital offense, the
may avail of any of the following: prosecution is still required to
(1) Bill of particulars to enable him to prove guilt beyond reasonable
properly plead and prepare for trial; doubt;
(2) Suspension of arraignment; upon motion, (3) If the accused does not enter any
he may ask for suspension of arraignment plea, a plea of not guilty is entered
to pursue a petition for review before the by the court.
DOJ Secretary under Sec. 11, Rule 116, for
a period of suspension shall not exceed
PAGE 316 OF 425

The time of the pendency of a motion to in the offense charged with the conformity of
quash or for a bill of particulars or other the trial prosecutor alone [Sec. 1(f), Rule 116;
causes justifying suspension of the AM No. 03-1-09-SC Part B(2)].
arraignment shall be excluded in computing
the period [Sec. 1(g), Rule 116]. In case of failure of accused to appear despite
due notice, there is no arraignment in
A.2.A. HOW MADE absentia [Nolasco v. Enrile (1985)]. The
(1) In open court where the complaint or presence of the accused is not only a personal
information has been filed or assigned for right but also a public duty, irrespective of the
trial; gravity of the offense and the rank of the
(2) By the judge or clerk of court; court.
(3) By furnishing the accused with a copy of
the complaint or information; There can be no trial in absentia without first
(4) Reading it in a language or dialect known arraigning the accused; otherwise, the
to the accused; judgment is null and void.
(5) Asking the accused whether he pleads
guilty or not guilty. A.2.C. SPECIFIC RULES
(6) The accused must be present and must (1) Trial in absentia may be conducted only
personally enter his plea. after valid arraignment.
(7) Both arraignment and plea shall be made (2) Accused must personally appear during
on record but failure to enter of record arraignment and enter his plea; counsel
shall not affect the validity of the cannot enter plea for the accused.
proceedings [Sec. 1, Rule 116]. (3) Accused is presumed to have been validly
arraigned in the absence of proof to the
A.2.B. WHEN HELD contrary.
General rule: The accused should be (4) Generally, judgment is void if accused has
arraigned within 30 days from the date the not been validly arraigned.
court acquires jurisdiction over his person. (5) If accused went into trial without being
arraigned, subsequent arraignment will
Exceptions: When the law provides for cure the error provided that the accused
another period, arraignment should be held was able to present evidence and cross
within said period, as in the following cases: examine the witnesses of the prosecution
(1) When an accused is under preventive during trial.
detention, his case should be raffled
within 3 days from filing and accused If an information is amended in substance
shall be arraigned within 10 days from which changes the nature of the offense (not
receipt by the judge of the records of the merely as to form), arraignment on the
case [RA 8493 (Speedy Trial Act)]; amended information is mandatory
(2) Where the complainant is about to depart [Teehankee v. Madayag, G.R. No. 103102
from the Philippines with no definite date (1992)].
of return, the accused should be
arraigned without delay [RA 4908]. The need for arraignment is imperative in an
amended information or complaint. This,
Presence of the offended party: however, pertains only to substantial and not
The private offended party shall be required to formal amendments. [Kummer v. People,
to appear in the arraignment for the purpose G.R. No. 174461 (2013)]
of:
(1) Plea bargaining; B. WHEN A PLEA OF NOT GUILTY
(2) Determination of civil liability; and SHOULD BE ENTERED
(3) Other matters requiring his presence
(1) When the accused so pleaded;
In case of failure of the offended party to
(2) When he refuses to plead;
appear despite due notice, the court may
(3) When he makes a conditional or qualified
allow the accused to enter a plea of guilty to
plea of guilt [Sec. 1(c), Rule 116];
a lesser offense which is necessarily included
PAGE 317 OF 425
(4) When the plea is indefinite or ambiguous; C.3. AFTER TRIAL HAS BEGUN
(5) When he pleads guilty but presents After the prosecution has rested its case, a
exculpatory evidence [Sec. 1(d), Rule 116]. change of plea to a lesser offense may be
granted by the judge, with the approval of the
Plea of guilty is mitigating if it is made before prosecutor and the offended party if the
prosecution starts to present evidence. prosecution does not have sufficient evidence
to establish the guilt of the accused for the
Plea of not guilty should be entered: crime charged. The judge cannot on its own
(1) Where the plea of guilty was compelled by grant the change of plea.
violence or intimidation
(2) When the accused did not fully D. ACCUSED PLEADS GUILTY TO
understand the meaning and CAPITAL OFFENSE; DUTY OF THE
consequences of his plea
(3) Where the information is insufficient to
COURT
sustain conviction of the offense charged
Conditions that the trial court must observe
(4) Where the information does not charge an
to obviate an improvident plea of guilty by
offense, any conviction thereunder being
the accused:
void
(1) Conduct a searching inquiry into the
(5) Where the court has no jurisdiction
voluntariness and full comprehension of
the consequences of the pleas;
C. WHEN ACCUSED MAY ENTER A (2) Require prosecution to present evidence
PLEA OF GUILTY TO A LESSER to prove the guilt and precise degree of
OFFENSE culpability of the accused;
(3) Ask the accused if he desires to present
Requisites: evidence in behalf and allow him to do so
(1) The lesser offense is necessarily included if he desires [Sec. 3, Rule 116].
in the offense charged;
(2) The plea must be with the consent of NOTE: A plea of guilty to a capital offense
both the offended party and the does not result to an immediate rendering of
prosecutor, except when the offended judgment.
party fails to appear despite due notice;
(3) The penalty for the lesser offense is not E. SEARCHING INQUIRY
more than two degrees lower than the
imposable penalty for the crime charged. The procedure in Sec. 3, Rule 116, when the
accused pleads guilty to a capital offense, is
C.1. DURING ARRAIGNMENT mandatory.
At arraignment, the accused, with the
consent of the offended party and prosecutor, The plea must be clear, definite and
may be allowed by the trial court to plead unconditional. It must be based on a free and
guilty to a lesser offense which is necessarily informed judgment.
included in the offense charged. [Sec. 2, Rule
116] The judge must ask whether the accused was
assisted by counsel during custodial
C.2. AFTER ARRAIGNMENT BUT BEFORE investigation and PI; ask questions on age,
TRIAL educational attainment and socio-economic
After arraignment but before trial, the status; and ask the defense counsel whether
accused may still be allowed to plead guilty or not he conferred with the accused [People v.
to said lesser offense after withdrawing his Nadera, G.R. Nos. 181384-87 (2000)].
plea of not guilty. No amendment of the
complaint or information is necessary [Sec. 2, Rationale: This is to enjoin courts to
Rule 116]. proceed with more care where the possible
punishment is in its severest form and to
avoid improvident pleas of guilt [People v.
Samontanez, G.R. No. 134530 (2000)].
PAGE 318 OF 425
against him and a denial of his right to

Guidelines for conducting a search due process.
inquiry: (6) All questions posed to the accused should
(1) Ascertain from the accused himself: be in a language known and understood
(a) How he was brought into the custody of by the latter.
the law; (7) The trial judge must satisfy himself that
(b) Whether he had the assistance of a the accused, in pleading guilty, is truly
competent counsel during the guilty. The accused must be required to
custodial and preliminary narrate the tragedy or reenact the crime or
investigations; and furnish its missing details [People v. Pastor,
(c) Under what conditions he was detained G.R. No. 140208 (2002)].
and interrogated during the
investigations. This is intended to rule F. IMPROVIDENT PLEA OF GUILTY
out the possibility that the accused has
been coerced or placed under a state of
TO A CAPITAL OFFENSE
duress either by actual threats of
An improvident plea is one without proper
physical harm coming from malevolent
information as to all the circumstances
quarters or simply because of the
affecting it; based upon a mistaken
judges intimidating robes.
assumption or misleading information/advice
(2) Ask the defense counsel a series of
[Blacks Law Dictionary].
questions as to whether he had conferred
with, and completely explained to, the
General rule: An improvident plea should
accused the meaning and consequences
not be accepted. If accepted, it should not be
of a plea of guilty.
held to be sufficient to sustain a
(3) Elicit information about the personality
conviction [People v. De Ocampo Gonzaga,
profile of the accused, such as his age,
G.R. No. L-48373 (1984)]. The case should be
socio-economic status, and educational
remanded to the lower court for further
background, which may serve as a
proceedings.
trustworthy index of his capacity to give a
free and informed plea of guilty.
Exception: If the accused appears guilty
(4) Inform the accused the exact length of
beyond reasonable doubt from the evidence
imprisonment or nature of the penalty
adduced by the prosecution and defense.
under the law and the certainty that he
will serve such sentence. For not
F.1. WHEN IMPROVIDENT PLEA MAY BE
infrequently, an accused pleads guilty in
WITHDRAWN
the hope of a lenient treatment or upon
At any time before judgment of conviction
bad advice or because of promises of the
becomes final, the court may permit an
authorities or parties of a lighter penalty
improvident plea of guilty to be withdrawn
should he admit guilt or express remorse.
and be substituted by a plea of not guilty.
It is the duty of the judge to ensure that
[Sec. 5, Rule 116]
the accused does not labor under these
mistaken impressions because a plea of
The withdrawal of a plea of guilty is not a
guilty carries with it not only the
matter of right of the accused but of sound
admission of authorship of the crime
discretion of the trial court [People v. Lambino,
proper but also of the aggravating
G.R. No. L-10875 (1958)].
circumstances attending it, that increase
punishment.
The reason for this is that trial has already
(5) Inquire if the accused knows the crime
begun and the withdrawal of the plea will
with which he is charged and fully explain
change the theory of the case and put all past
to him the elements of the crime which is
proceedings to waste.
the basis of his indictment. Failure of the
court to do so would constitute a violation
Moreover, at this point, there is a
of his fundamental right to be informed of
presumption that the plea was made
the precise nature of the accusation
voluntarily
PAGE 319 OF 425
committing the criminal act. It is the test

G. GROUNDS FOR SUSPENSION OF adopted in this jurisdiction.
ARRAIGNMENT (2) Test of volition, which requires a total
deprivation of free will.
G.1. UNSOUND MENTAL CONDITION OF
THE ACCUSED AT THE TIME OF THE G.2. EXISTENCE OF PREJUDICIAL
ARRAIGNMENT QUESTION
When the accused can neither comprehend Rationale: A prejudicial question would be
the full import of the charge nor can he give determinative of guilt or innocence.
an intelligent plea, the court shall order his
mental examination and, if necessary, his It may be raised during PI. If the information
confinement. is filed in court, it may be raised as ground to
suspend the arraignment.
The need for suspension may be determined
from physical and outward manifestations at G.3. PENDENCY OF PETITION FOR REVIEW
the time of arraignment indicative of a When the accused filed a petition for review
mental disorder which the court had of the resolution of the prosecutor with the
observed and defense counsel had called DOJ or the Office of the President, the
attention to [People v. Alcalde, G.R. Nos. accused may file a motion to suspend the
139225-28 (2002)]. arraignment and secure a ruling on his
petition for review within 60 days from the
In People v. Dungo, G.R. No. 89420 (1991), filing of the petition (DOJ Circ. No. 70).
there are three major criteria to determine
insanity: Rationale: This is to observe judicial
(1) Delusion test, where insanity is courtesy and avoid legal complications in
manifested by a false belief for which case the resolution would be different from
there is no reasonable basis and which the offense for which the accused was
would be incredible under the given arraigned, especially if it would upgrade the
circumstances; offense.
(2) Irresistible impulse test, where the
accused has lost the power to choose If petition for review is not resolved within 60
between right and wrong, to avoid the act days, court may insist on the arraignment.
in question, his free agency being at that
time destroyed. With the arraignment of the accused, the DOJ
(3) Right and wrong test, where a Secretary can no longer entertain the appeal
perverted condition of mental and mortal or petition for review because petitioner had
faculties afflicts the accused as to render already waived or abandoned the same.
him incapable of distinguishing between [Gandarosa v. Flores, G.R. No. 167910 (2007)].
right and wrong.
G.4 OTHER PENDING INCIDENTS
In People v. Pascual, G.R. No. 95029 (1993), Such as:
there are two tests to determine insanity: (1) Motion to quash
(1) Test of cognition, which requires (2) Motion for inhibition; and
complete deprivation of intelligence in (3) Motion for Bill of particulars
PAGE 320 OF 425

IX. Motion To Quash otherwise terminated without his express

consent (Sec. 3, Rule 117).
Form and content NOTE: Although the rule is that grounds not
(1) In writing; asserted in the motion to quash are waived,
(2) Signed by the accused or his counsel; and the following objections are not subject to
(3) Distinctly specify the factual and legal waiver:
grounds [Sec. 2, Rule 117]. (1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction
A. WHEN FILED over the offense charged
(3) Criminal action or liability has been
General Rule: At any time before entering extinguished
his plea, the accused may move to quash the (4) Double jeopardy
complaint or information [Sec. 1, Rule 117].
B.1. FACTS CHARGED DO NOT
Exception: When the grounds relied upon CONSTITUTE AN OFFENSE
the motion are: An information which does not charge an
(1) Failure to charge an offense offense or does not allege essential elements
(2) Lack of jurisdiction over the offense of a crime is void.
charged
(3) Extinction of the offense or penalty The test is whether or not the facts alleged, if
(4) Double jeopardy hypothetically admitted, would establish the
essential elements of the offense, as defined
In cases covered by the Rules on Summary by law without considering matters aliunde
Procedure, MTQ is allowed only if made on [People v. Romualdez, G.R. No. 166510
the grounds of lack of jurisdiction or failure to (2008)].
comply with barangay conciliation
proceedings [Sec. 19, Rules on Summary That the missing element may be proved
Procedure]. during the trial or that the prosecution has
presented evidence to establish the same
B. GROUNDS cannot have the effect of validating the void
information or of proving an offense which
In general does not exist [People v. Asuncion, G.R. No.
The following grounds for MTQ are exclusive: 80066 (1988)].
(1) Facts charged do not constitute an
offense; The defect is not cured by a failure to move to
(2) Court trying the case has no jurisdiction quash or by a plea of guilty [Suy Sui v. People,
over the offense charged; G.R. No. L-5278 (1953)].
(3) Court trying the case has no jurisdiction
over the person of the accused; Instead of dismissing, however, the court
(4) Officer who filed the information had no should give the prosecution an opportunity to
authority to do so; amend the information.
(5) The information does not conform
substantially to the prescribed form; Should the prosecutor fail to make the
(6) More than one offense is charged, except amendment or should the information suffer
when a single punishment for various from the same defect despite amendment,
offenses is prescribed by law; the MTQ shall be granted [Sec. 4, Rule 117].
(7) Criminal action or liability has been
extinguished; B.2. COURT HAS NO JURISDICTION OVER
(8) Averments which, if true, would constitute THE OFFENSE CHARGED
a legal excuse or justification; In a criminal prosecution, the place where the
(9) Accused has been previously convicted or offense was committed not only determines
acquitted of the offense charged, or the venue, but is an essential element of
case against him was dismissed or jurisdiction [Sec. 15, Rule 110; Lopez v. City
Judge, G.R. No. L-25795 (1966)].
PAGE 321 OF 425
General rule: Lack of substantial

In private crimes, the complaint of the compliance renders the accusatory pleading
offended party is necessary to confer nugatory.
authority to the court.
Exception: Mere defects in matter of form
B.3. COURT HAS NO JURISDICTION OVER may be cured by amendment.
THE PERSON OF THE ACCUSED
When the accused files a MTQ based on this Objections not raised are deemed waived,
ground, he must do so only on this ground. If and the accused cannot seek affirmative relief
he raises other grounds, he is deemed to have on such ground nor raise it for the first time
submitted his person to the jurisdiction of the on appeal [People v. Garcia, G.R. No. 120093
court [Sanchez v. Demetriou, G.R. No. L-11171- (1997)].
77 (1993)].
Vague or broad allegations are generally not
When the objection is raised, the court should grounds for a MTQ. The correct remedy is to
resolve it before conducting trial to avoid file for a bill of particulars [Sec. 9, Rule 116].
unnecessary expenditure of time and money
[Mead v. Argel, G.R. No. L-41958 (1982)]. B.6. MORE THAN ONE OFFENSE IS
CHARGED
B.4. OFFICER WHO FILED THE General rule: The complaint or information
INFORMATION HAD NO AUTHORITY TO must charge only one offense [Sec. 13, Rule
DO SO 110].
Authority to file and prosecute criminal cases
is vested in: Exceptions:
(1) Provincial fiscals and their assistants. (1) Those cases in which existing laws
(2) City fiscals and their assistants. prescribe a single punishment for various
(3) Chief State Prosecutor and his deputies offenses;
(4) Other officers authorized by law (e.g., (2) Complex and compound crimes, except
Ombudsman, COMELEC). where one offense was committed to
conceal another;
The prosecutor who signed the information (3) An offense incidental to the gravamen of
must have territorial jurisdiction to conduct the offense charged;
preliminary investigation of the offense (4) A specific crime set forth in various counts,
[Cudia v. CA, G.R. No. 110315 (1998)]. each of which may constitute a distinct
offense.
An information filed in the Sandiganbayan
must be signed by a graft investigating officer However, this ground is waivable. The
with prior approval of the Ombudsman. accused may be convicted of all the offenses
alleged and proved if he goes to trial without
For election offenses, it must be signed by the objecting to the inclusion of two or more
duly deputized prosecutors and legal officers separate offenses in the same information
of the COMELEC. [People v. Villamor, G.R. No. 124441 (1998)].
Lack of authority of the officer is not cured by B.7. CRIMINAL ACTION OR LIABILITY HAS
silence, acquiescence, express consent or BEEN EXTINGUISHED
even by amendment. When criminal liability is extinguished:
(1) Death of the accused, but liability for
B.5. COMPLAINT OR INFORMATION DOES pecuniary penalties is extinguished only if
NOT CONFORM SUBSTANTIALLY TO THE death occurs before final judgment;
PRESCRIBED FORM (2) Service of sentence, which must be by
The formal and substantial requirements are virtue of a final judgment and in the form
provided for in Secs. 6-12, Rule 110. prescribed by law;
(3) Amnesty;
(4) Absolute pardon;
(5) Prescription of the crime;
PAGE 322 OF 425
(6) Prescription of the penalty; (b) Exceptions:

(7) Pardon in private offenses. (i) The graver offense developed due to
supervening facts arising from the
Protection from prosecution under a statute same act or omission constituting
of limitation is a substantive right. Where the the former charge;
statute fixes a period of limitation as to a (ii) The facts constituting the graver
prosecution for a particular offense, the charge became known or were
limitation so fixed is jurisdictional, and the discovered only after a plea was
time within which the offense is committed is entered in the former complaint or
a jurisdictional fact, it being necessary that information;
the indictment or information be actually (iii)The plea of guilty to the lesser
filed within the time prescribed. [People v. offense was made without the
Sandiganbayan, G.R. No. 101724 (1992)] consent of the prosecutor and of the
offended party except when
B.8. CONTAINS AVERMENTS THAT IF offended party failed to appear
TRUE WOULD CONSTITUTE A LEGAL during such arraignment.
EXCUSE OR JUSTIFICATION (c) W hat: The offenses are penalized
Examples: either by different sections of the same
(1) Justifying circumstances law or by different statutes. The
(2) Exempting circumstsnces essential elements of each must be
(3) Absolutory causes examined.
(d) Test: Whether or not evidence that
B.9. ACCUSED HAS BEEN PREVIOUSLY proves one likewise proves the other
CONVICTED OR ACQUITTED OF THE [People v. Ramos (1961)].
OFFENSE CHARGED, OR THE CASE
AGAINST HIM WAS DISMISSED OR (b) When an act punished by a law and an
OTHERWISE TERMINATED WITHOUT HIS ordinance, conviction or acquittal under
CONSENT either shall be a bar to another
prosecution for the same act [Sec. 21, Art.
DOUBLE JEOPARDY III, Constitution].
The right against double jeopardy prohibits (a) The second sentence of the
the prosecution for a crime of which he has constitutional protection was precisely
been previously convicted or acquitted [Caes intended to extend to situations not
v. IAC, G.R. No. 74989-90 (1989)]. covered by the first sentence. Although
the prior offense charged under an
Rule of double jeopardy ordinance be different from the offense
When a person is charged with an offense charged under a national statute, the
and the case is terminated either by acquittal constitutional protection is available
or conviction or in any other manner without provided that both arise from the same
the express consent of the accused, the latter act or set of acts [People v. Relova, G.R.
cannot again be charged with the same or No. L-45129 (1987)].
identical offense [Sec. 3(i), Rule 117]. (b) But: An offense penalized by
ordinance is, by definition, different
Kinds of double jeopardy from an offense penalized under a
(a) No person shall be put twice in jeopardy statute. Hence, they would never
for the same offense [Sec. 21, Art. III, constitute double jeopardy. [People v.
Constitution]; Relova, G.R. No. L-45129 (1987)]
(a) General rule: There is identity
between the two offenses not only Requisites to successfully invoke
when the second offense is exactly the double jeopardy
same as the first, but also when the (1) A first jeopardy must have attached;
second offense is an attempt to or (2) The first jeopardy must have been validly
frustration of or is necessarily included terminated; and
in the offense charged in the first (3) The second jeopardy must be for the
information. same offense or the second offense
PAGE 323 OF 425
necessarily includes or is necessarily

included in the offense charged in the Dismissal Acquittal
first information, or is an attempt to
Does not decide the Always based on the
commit the same or a frustration thereof
case on the merits. merits. Defendants
[People v. Espinosa, G.R. Nos. 153714-20
Does not determine guilt was not proven
(2003)].
innocence or guilt beyond reasonable
doubt
Requisites for first jeopardy to attach
(1) Valid indictment; Double jeopardy will Double jeopardy
(2) Before a competent court; not always attach always attaches
(3) Arraignment;
(4) A valid plea entered; and Provisional dismissal
(5) The accused has been convicted or Provisional dismissal is dismissal without
acquitted, or the case dismissed or prejudice to its being refiled or revived.
otherwise validly terminated without his
express consent [People v. Honrales, G.R. Cases are provisionally dismissed where there
No. 182651 (2010)]. has already been arraignment and the
accused consented to a provisional dismissal.
However, a dictated, coerced and scripted
verdict of acquittal is a void judgment. It Grounds
neither binds nor bars anyone [Galman v. Sec. 8 does not state the grounds for
Sandiganbayan, G.R. No. 72670 (1986)]. provisional dismissal. However, according to
the case of Los Baos v. Pedro, G.R. No.
W ithout express consent 173588 (2007), the delimitation of the
This refers only to dism issal or grounds available in MTQ suggests that
term ination of the case. It does not refer where the grounds cited are those listed
to the conviction or acquittal [People v. under Sec. 3, then the appropriate remedy is
Labatete, G.R. No. L-12917 (1960)]. to file a motion to quash, and not any other
remedy.
If consent is not express, dismissal will be
regarded as final (i.e., with prejudice to Conversely, where a ground does not appear
refilling) [Caes v. IAC, G.R. Nos. 74989-90 under Sec. 3, then a motion to quash is not a
(1989)]. proper remedy. A motion for provisional
dismissal may then apply if the conditions
Even with the consent of the accused, required by Sec. 8 obtain.
however, dismissal has the effect of acquittal
when predicated on: W hen dismissal becomes permanent
(1) Insufficiency of the prosecutions evidence (tim e bar rule)
or One year after issuance of the order without
(2) Denial of the right to a speedy trial the case having been revived for offenses
[Almario v. CA, G.R. No. 127772 (2001)]. punishable:
(1) By imprisonment not exceeding 6 years;
W hen dismissal constitutes acquittal (2) By fine of any amount;
Dismissal constitutes acquittal when it is (3) By both [Sec. 8, Rule 117];
granted: (4) Two years after issuance of the order
(1) Upon demurrer to evidence; without the case having been revived for
(2) Due to violation of right to speedy trial offenses punishable by imprisonment of
(even if dismissal was upon motion of the more than 6 years.
accused or with his express consent).
The State may revive beyond the periods
provided there is a justifiable necessity for the
delay.
The Court is not mandated to apply Sec. 8

retroactively simply because it is favorable to
PAGE 324 OF 425
the accused. The time-bar under the new rule C. MOTION TO QUASH AND
was fixed for the benefit of the State and the DEMURRER DISTINGUISHED
accused, and not for the accused only [People
Motion to Demurrer to
v. Lacson, G.R. No. 149453 (2003)].
quash evidence
The following are conditions sine qua non for When Filed before Filed after the
the application of the time-bar rule: filed entering plea prosecution has
(1) The prosecution, with the express rested its case
conformity of the accused, or the accused Basis for Does not go into Based upon the
moves for the provisional (sin perjucio) grant or the merits of the inadequacy of the
dismissal of the case; or both the denial case evidence adduced
prosecution and the accused move for a by the prosecution
provisional dismissal of the case [Sec. 8, Grounds Grounds are Ground is
Rule 117]; stated in Rule insufficiency of
(2) The offended party is notified of the 117 evidence to
motion for the provisional dismissal of the convict
case Neces- Does not May be filed either
(3) The court issues an order granting the sity of require a prior with leave or
motion and dismissing the case leave leave of court without leave of
provisionally; court
(4) The public prosecutor is served with a Effect of Grant does not Grant is deemed
copy of the order of provisional dismissal grant necessarily an acquittal and
of the case [People v. Lacson, G.R. No. follow a would preclude
149453 (2003)]. dismissal (Court the filing of
may order the another
filing of a new information or
A case may be revived by:
complaint or appeal by the
(1) Refiling of the information; information) prosecution
(2) Filing of a new information for the same
offense or one necessarily included in the Remedy If the court, in The order denying
original offense charged. denying the the motion for
motion to quash leave to file a
acts with grave demurrer shall
General rule: Upon revival of the case, abuse of not be reviewable
there is no need for a new PI. discretion, then by appeal or by
certiorari or certiorari before
Exceptions: prohibition lies. judgment
(1) If the original witnesses have recanted If the court denies
their testimonials or have died; the demurrer to
(2) If the accused is charged under a new evidence filed with
criminal complaint for the same offense; leave of court, the
(3) If the original charge is upgraded; accused may
adduce evidence
(4) If the criminal liability is upgraded from in his defense.
accessory to principal.
When the
demurrer is filed
without leave, the
accused waives
the right to
present evidence
and submits the
case for judgment
[Section 23, Rule
119]
PAGE 325 OF 425

D. EFFECTS OF SUSTAINING THE to arraignment and on MTQ [People v.

MOTION TO QUASH Purisima (1978)].
D.1. FILING ANOTHER COMPLAINT OR Order denying MTQ Order granting MTQ
INFORMATION Interlocutory Final Order
General rule: Court may order that another
Not appealable absent Immediately
complaint or information be filed [Sec. 5,
a showing of GAD. If appealable but
Rule 117) there is GAD, then file subject to rules on
petition for certiorari double jeopardy
Exception: If MTQ was based on the
following: Does not dispose of the Disposes of the case
(1) Criminal action or liability has been case upon its merits upon its merits
extinguished; Proper remedy: appeal Proper remedy:
(2) Double jeopardy. after the trial appeal the order
Consequence: Consequence:
D.2. DISCHARGE OF THE ACCUSED Arraignment Amend information
General rule: If in custody, the accused if possible
shall not be discharged unless admitted to
bail [Sec. 5, Rule 117]. The order granting the Note: The remedy for an order denying a
MTQ must state either release of the accused MTQ is to go to trial, without prejudice to
or cancellation of his bond. reiterating the special defenses invoked in
their MTQ [Serana v. Sandiganbayan (2008)].
Exception: When there is no order to file However, if the court in denying the motion to
another complaint/information or, if there is quash acts without or in excess of jurisdiction
one, when no new information is filed within or with grave abuse of discretion, then
the time specified in the order or within such certiorari or prohibition lies [Lazarte v.
further time as the court may allow for good Sandiganbayan (2009); Javier v.
cause, the accused shall be discharged. Sandiganbayan (2009)].
Exception to the exception: The accused Exception to the rule that sustaining
will not be discharged if he is in custody for the m otion is not a bar to another
another charge. prosecution
General rule: Grant of the MTQ will not be
D.3. REMEDIES OF THE PROSECUTION a bar to another prosecution for the same
General rule: The prosecution may amend offense [Sec. 6, Rule 117].
the information to correct the defects if the
TC makes the order, and thereafter prosecute Exception: It will bar another prosecution
on the basis of the amended information [Sec. when the ground for the quashal is either:
4, Rule 117]. (1) The criminal action or liability has been
extinguished; or
Exception: Prosecution is precluded where (2) The accused has been previously
the ground for quashal would bar another convicted, or in jeopardy of being
prosecution for the same offense. convicted, or acquitted of the offense
charged.
The prosecution may appeal from the order of
quashal to the appellate court.
If the information was quashed because it did

not allege the elements of the offense, but
the facts so alleged constitute another
offense under a specific statute, the
prosecution may file a complaint for such
specific offense where dismissal is made prior
PAGE 326 OF 425

X. Pre-Trial Period
General rule: The court shall order a pre-
Application of Judicial Affidavit Rule trial conference after arraignment and within
Under Sec. 9, AM 12-8-8-SC: 30 days from the time the court acquires
(1) This Judicial Affidavit Rule shall apply to jurisdiction over the person of the accused.
all criminal actions:
(a) Where the maximum of the imposable Exception: A shorter period may be
penalty does not exceed six years; provided by special laws or SC circulars.
(b) Where the accused agrees to the use of
judicial affidavits, irrespective of the Things considered
penalty involved; or (1) Plea bargaining;
(c) With respect to the civil aspect of the (2) Stipulation of facts;
actions, whatever the penalties (3) Marking for identification of evidence;
involved are. (4) Waiver of objections to admissibility of
evidence;
(2) The prosecution shall submit the judicial (5) Modification of the order of trial if accused
affidavits of its witnesses not later than admits the charge but interposes a lawful
five days before the pre-trial, serving defense (reverse trial);
copies if the same upon the accused. The (6) Other matters that will promote a fair and
complainant or public prosecutor shall expeditious trial of the civil and criminal
attach to the affidavits such documentary aspects of the case [Sec. 1, Rule 118].
or object evidence as he may have,
marking them as Exhibits A, B, C, and so Role of the judge
on. No further judicial affidavit, During the pre-trial, the judge shall be the
documentary, or object evidence shall be one to ask questions on issues raised therein
admitted at the trial. and all questions must be directed to him to
(3) If the accused desires to be heard on his avoid hostilities between the parties [AM 03-
defense after receipt of the judicial 1-09-SC].
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit Stipulation of facts
as well as those of his witnesses to the This is no longer prohibited in criminal cases
court within ten days from receipt of such [People v. Hernandez, G.R. No. 108028
affidavits and serve a copy of each on the (1996)].
public and private prosecutor, including
his documentary and object evidence However, in a case of rape with the allegation
previously marked as Exhibits 1, 2, 3, and that the victim is below 12 years of age which
so on. These affidavits shall serve as direct qualifies said crime and increases its penalty
testimonies of the accused and his to death, nothing short of proof beyond
witnesses when they appear before the reasonable doubt of every fact necessary to
court to testify. constitute the elements of the crime must be
established. Circumstances that qualify a
A. NATURE AND OBJECTIVE OF crime and increases its penalty to death
PRE-TRIAL cannot be the subject of stipulation [People v.
Sitao, G.R. No. 146790 (2002)].
Pre-trial is mandatory in all criminal cases. Its
main objective is to achieve an expeditious Marking for identification of evidence
resolution of the case. Proffer of exhibits is not allowed. It ought to
be done at the time a party closes the
Coverage presentation of evidence.
The court shall order pre-trial in all criminal
cases cognizable by the Sandiganbayan, RTC
and MTC or MTCC or MCTC or MeTC.
PAGE 327 OF 425

WHAT THE COURT SHOULD DO WHEN inadmissible in evidence). The constitutional

PROSECUTION AND OFFENDED PARTY right to present evidence is waived expressly.
AGREE TO THE PLEA OFFERED BY THE
ACCUSED General rule: Court approval is required.
Plea bargaining Exception: Agreements not covering

It is the process in criminal procedure matters referred to in Sec. 1, Rule 118, need
whereby the accused, offended party, and the not be so approved [AM 03-1-09-SC].
prosecution work out a mutually satisfactory
disposition of the case subject to court Effect
approval (See DOJ Circ. No. 35, as amended The stipulations become binding on the
by Circ. No. 55 for the guidelines on plea parties who made them. They become judicial
bargaining as well as note on Rule 116). admissions of the fact or facts stipulated.
It usually involves the defendant pleading Even if placed at a disadvantageous position,

guilty to a lesser offense or to one or some of a party may not be allowed to rescind them
the counts of a multi-count indictment in unilaterally; he must assume the
return for a lighter sentence than that for the consequences of the disadvantage [Bayas v.
graver charge [People v. Mamarion, G.R. No. Sandiganbayan, G.R. No. 143689-91 (2002)].
137554 (2003)].
NON-APPEARANCE DURING PRE-TRIAL
The conviction of the accused of the lesser The court may impose proper sanctions or
offense precludes the filing and prosecution penalties (reprimand, fine or imprisonment),
of the offense originally charged in the if counsel for the accused or the prosecutor to
information, except when the plea of guilty to enforce the mandatory character of the pre-
a lesser offense is without the consent of the trial in criminal cases:
offended party and the prosecutor [People v. (1) Does not appear at the pre-trial
De Luna, G.R. No. L-77969 (1989); Sec. 7(c), conference; and
Rule 117, see Sec. 2, Rule 116]. (2) Does not offer an acceptable excuse [Sec.
3, Rule 118].
Effect when the prosecution and the NOTE: The accused is not included because
offended party agree to the plea his constitutional right to remain silent may
offered by the accused be violated. The accused is not required to
The Court shall: attend (unless ordered by the court) and is
(1) Issue an order which contains the plea merely required to sign the written
bargaining arrived at; agreement arrived at in the pre-trial
(2) Proceed to receive evidence on the civil conference, if he agrees to the contents of
aspect of the case; and such. The complainant is also not required to
(3) Render and promulgate judgment of appear during pre-trial. It is the prosecutor
conviction, including the civil liability or who is required to appear at the pre-trial.
damages duly established by the evidence
[AM 03-1-09-SC]. C. PRE-TRIAL ORDER
B. PRE-TRIAL AGREEMENT Issuance
The pre-trial order is:
Requirements [Sec. 2, Rule 118] (1) Issued by the court;
(1) Must be in writing; (2) Within 10 days after the pre-trial [AM 03-
(2) Signed by the accused and his counsel; 1-09-SC].
(3) With approval of court if agreements cover
matters in Sec. 1, Rule 118. Judgment of acquittal based on pre-trial
despite disputed documents and issues of
If this is not followed, the admissions cannot fact amounts to grave error and renders the
be used against the accused (i.e., judgment void [People v. Santiago, G.R. No.
L-80778 (1989)].
PAGE 328 OF 425

Judges and Clerks of Court in the Conduct or

Content Pre-Trial and use of Deposition-Discovery
(1) Actions taken; Measures), after the arraignment, the court
(2) Facts stipulated; shall forthwith set the pre-trial conference
(3) Evidence marked; within 30 days from the date of arraignment,
(4) Admissions made; and issue an order:
(5) The number of witnesses to be presented; (1) Requiring the private offended party to
and appear thereat for purposes of plea-
(6) The schedule of trial [Sec. 4, Rule 118]. bargaining except for violations of the
Comprehensive Dangerous Drugs Act of
NOTE: Nos. 4 to 6 are added by AM 03-1-09- 2002, and for other matters requiring his
SC to the requirements under Sec. 4, Rule 118. presence;
(2) Referring the case to the Branch COC, if
Effect warranted, for a preliminary conference to
(1) Binds the parties. The procedure is be set at least three days prior to the pre-
substantially the same in civil cases, trial to mark the documents or exhibits to
except that any modification of the pre- be presented by the parties and copies
trial order in civil cases must be made thereof to be attached to the records after
before the trial. No such limitation is comparison and to consider other matters
provided for in criminal cases; as may aid in its prompt disposition; and
(2) Limits the trial to those matters not (3) Informing the parties that no evidence
disposed of; shall be allowed to be presented and
(3) Controls the course of the action during offered during the trial other than those
trial, except if modified by the court to identified and marked during the pre-trial
prevent manifest injustice. except when allowed by the court for good
cause shown. In mediatable cases, the
REFERRAL OF SOME CASES FOR COURT- judge shall refer the parties and their
ANNEXED MEDIATION AND JUDICIAL counsel to the PMC unit for purposes of
DISPUTE RESOLUTION mediation if available.
Under AM No. 03-1-09 (Proposed Rule on
Guidelines to be Observed by Trial Court
PAGE 329 OF 425

XI. Trial Counsel for the accused, the public

prosecution or public attorney may be
punished if he knowingly allows the case to
A. PRESENCE OF PERSONS AS be set for trial without disclosing that a
REQUIRED BY LAW necessary witness would be unavailable for
trial.
A.1. OF ACCUSED
General rule: The presence of the accused Conditional exam ination
during the trial may be waived. When it satisfactorily appears that a witness
for the prosecution is too sick or infirm to
Exception: For purposes of identification. appear at the trial as directed by the court, or
has to leave the Philippines with no definite
Exception to the exception: The date of returning, he may forthwith be
presence of the accused is no longer required conditionally examined before the court
when he unqualifiedly admits in open court where the case is pending.
after arraignment that he is the person
named as defendant in the case on trial Such examination, in the presence of the
[Lavides v. CA, G.R. No. 129670 (2000)]. accused, or in his absence after reasonable
notice to attend the examination has been
Note: The presence of the accused is also served on him, shall be conducted in the
required in the following cases: same manner as an examination at the trial.
(1) At arraignment; [Sec. 1(b), Rule 116]
(2) At the promulgation of judgment, unless Failure or refusal of the accused to attend the
the conviction is for a light offense [Sec. 6, examination after notice shall be considered
Rule 120]. a waiver. The statement taken may be
admitted in behalf of or against the accused
A.2. OF WITNESSES [Sec. 15, Rule 119].
Requisites before trial can be
suspended on account of absence of B. RESPONSIBILITY OF COUNSEL
witness
(1) The witness must be either absent or The court may, without prejudice to any
unavailable; appropriate criminal and administrative
(2) The absent or unavailable witness must be charges to be instituted by the proper party
essential [Riano (2011)]. against the erring counsel if and when
warranted, punish the counsel for the
Absent means that his whereabouts are accused, the public prosecution or public
unknown or cannot be determined by due attorney who;
diligence. [Sec. 3(b), Rule 119] (1) Knowingly allows the case to be set for
trial without disclosing the fact that a
Unavailable means that his whereabouts necessary witness would be unavailable
are known but presence for trial cannot be for trial; or
obtained by due diligence. [Sec. 3(b), Rule 19] (2) Otherwise willfully fails to proceed to trial
without justification consistent with the
Essential means indispensable, provisions of the Speedy Trial Act.
necessary, or important in the highest degree
[Blacks Law Dictionary]. C. TRIAL IN ABSENTIA
Requisites:
Effect of absence of witness (1) Accused has been arraigned;
The period of delay resulting from the (2) He was duly notified of trial;
absence or unavailability of an essential (3) His failure to appear is unjustified.
witness shall be excluded in computing the
time within which trial must commence [Sec. Rationale: This is to speed up disposition of
3, Rule 119]. cases.
PAGE 330 OF 425

D. DELAY IN CONDUCT OF TRIAL would simply corroborate or

strengthen the evidence in the
Rem edy when accused is not brought hands of the prosecution. [Flores v.
to trial within the prescribed period Sandiganbayan, G.R. No. L-63677
On motion of the accused, the information (1983)];
may be dismissed on the ground of denial of (b) There is no other direct evidence
his right to speedy trial [Sec 9, Rule 119]. available for the proper prosecution of
the offense, except the testimony of the
Factors to consider: said accused;
(1) Duration of the delay; (c) The testimony can be substantially
(2) Reason therefor; corroborated in its material points;
(3) Assertion of the right or failure to assert (d) The accused does not appear to be the
it; and most guilty;
(4) Prejudice caused by such delay [Corpuz v. (e) The accused has not, at any time, been
Sandiganbayan, G.R. No. 162214 (2004)]. convicted of any offense involving
moral turpitude [Sec. 17, Rule 119].
Must be raised prior to trial; otherwise, the
right to dismiss is considered waived under Discharge of a co-accused
Sec. 9, Rule 119. It is the duty of the prosecutor to include all
the accused in the complaint/information. He
Burden of proof may ask the court to discharge one of them
The accused has the burden of proving the after complying with the conditions
ground of denial of right to speedy trial for prescribed by law [Sec. 17, Rule 119]. This
the motion. applies only when the information has
already been filed in court. Thus, even the
The prosecution has the burden of going state witness is included as accused prior to
forward with the evidence to establish the discharge.
exclusion of time.
While all the accused may be given the same
This is subject to the rules on double jeopardy. penalty by reason of conspiracy, one may
Hence, if with prejudice, the case cannot be be considered the least guilty if we take into
revived anymore. account his degree of participation in the
perpetration of the offense. [People v. Ocimar,
E. DISCHARGE OF ACCUSED TO BE G.R. No. 94555 (1992)]
STATE WITNESS Effects of discharge of accused as
state witness
Requisites
General rule: The order of discharge shall:
(1) Two or more persons are jointly charged
(1) Amount to an acquittal of the discharged
with the commission of any offense.
accused;
(2) Upon motion of the prosecution before
(2) Bar future prosecutions for the same
resting its case
offense [Sec. 18, Rule 119].
(3) Petition for discharge is filed before the
defense has offered its evidence. [People v.
Exception: If the accused fails/refuses to
Anion (1988)]
testify against his co-accused in accordance
(4) Hearing in support of the discharge where
with his sworn statement constituting the
the prosecution is to present evidence and
basis for his discharge, these effects do not
the sworn statement of each proposed
set in.
state witness.
(5) The court is satisfied of the following:
Any error in asking for and in granting the
(a) Absolute necessity for the testimony of
discharge cannot deprive the one discharged
the accused whose discharge is
of the acquittal and the constitutional
requested;
guaranty against double jeopardy [People v.
(i) He alone has the knowledge of the
Verceles, G.R. No. 130650 (2002)].
crime, and not when his testimony
PAGE 331 OF 425
Conviction of the accused against whom (b) Without leave of court [Sec. 23, Rule
discharged state witness testified is not 119].
required.
Motion for leave to file demurrer
Subsequent amendment of the information (1) It must specifically state its grounds.
does not affect discharge [People v. Taruc, (2) It must be filed within a non-extendible
G.R. No. L-14010 (1962)]. period of 5 days after the prosecution rests
(i.e. after the court shall have ruled on the
NOTES prosecutions formal offer). Prosecution
(1) The evidence adduced in support of the may then oppose within a non-extendible
discharge shall automatically form part period of 5 days from receipt.
of the trial. (3) If leave of court is granted, the demurrer
(2) If the discharge is not granted, the must be filed within a non-extendible
affidavit of the accused cannot be used by period of 10 days from notice. Prosecution
the prosecution. may oppose within a similar period [Sec.
23, Rule 119].
F. DEMURRER TO EVIDENCE
A dem urrer to evidence is defined as an Effect granting dem urrer
objection or exception by one of the parties in The court dismisses the action on the ground
an action at law, to the effect that the of insufficiency of evidence [Sec. 23, Rule 119].
evidence which his adversary produced is This amounts to acquittal of the accused.
insufficient in point of law (whether true or
not) to make out his case or sustain the issue Sufficient evidence for frustrating a
[Pasag v. Parocha, G.R. No. 155483 (2007), demurrer is evidence that proves:
citing Blacks Law Dictionary]. a. Commission; and
b. Precise degree of participation [Gutib v. CA,
General rule: An order granting the G.R. No. 131209 (1999)].
accuseds demurrer to evidence amounts to
an acquittal. Effect of denial of motion for leave to
Exception: When there is a finding that file dem urrer
there was grave abuse of discretion on the (1) Accused may choose between:
part of the trial court in dismissing a criminal (a) Filing the demurrer even without leave;
case by granting the accuseds demurrer to or
evidence [Hon. Mupas v. People, G.R. No. (b) Adducing evidence for his defense;
189365 (2011)]. (2) Order denying the motion for leave or
order denying the demurrer itself, is not
The order granting the demurrer is not reviewable by appeal or by certiorari
appealable but may be reviewed via certiorari before judgment [Sec. 23, Rule 119];
under Rule 65 [People v. Sandiganbayan, (3) It is interlocutory, but it may be assigned
Marcos (2012)]. as error and reviewed in the appeal that
may be taken from the decision on the
Ratio: This is to prevent the filing of merits [Cruz v. People, G.R. No. 121422
demurrer based on frivolous and flimsy (1999)].
grounds.
How initiated
(1) By the court motu proprio, after giving the
prosecution the opportunity to be heard;
or
(2) Upon demurrer to evidence filed by the
accused:
(a) With leave of court;
PAGE 332 OF 425

Right of the accused to present

evidence after demurrer is denied XII. Judgment
Filed with leave Filed without leave
of court of court A. REQUISITES
A judgm ent is the adjudication by the court
May adduce Waives the right to that the accused is guilty or not guilty of the
evidence in his present evidence [Sec. offense charged and the imposition on him of
defense 23, Rule 119] the proper penalty and civil liability, if any
Purpose is to Submits the case for [Sec. 1, Rule 120]
determine whether judgment on the basis
or not the demurrer of the evidence for the A.1. FORM
was filed merely to prosecution (1) Written in official language. If given
stall the verbally, it is incomplete [People v.
proceedings Catolico, G.R. No. L-31260 (1972)];
Implied leave of If there are 2 or more (2) Personally and directly prepared by the
court is no longer accused and only one judge;
sufficient and presents a demurrer (3) Signed by the judge. The judge who
prevents accused without leave of court: presided over the entire trial would be in a
from presenting The court may defer better position to ascertain the truth or
evidence (e.g. resolution until falsity of the testimonies. But the judge
accused files decision is rendered on who only took over can render a valid
motion with the other accused decision by relying on the transcript. It
reservation to If it can be shown from does not violate due process [People v.
present evidence in the decision that the Badon, G.R. No. 126143 (1999)];
case motion is resolution on the (4) Contains clearly and distinctly a
denied) demurrer was statement of facts proved and the law
rendered not only on upon which judgment is based [Sec. 1,
the basis of the Rule 120].
prosecutions evidence
but also on the There is sufficient compliance if the decision
evidence adduced by summarizes the evidence of both parties,
his co-accused, then synthesizes the findings and concisely
the demurrer is narrates how the offense was committed.
deemed resolved
A.2. JUDGE WHO RENDERS DECISION
The fact alone that the judge who heard the
evidence was not the one who rendered the
judgment but merely relied on the record of
the case does not render his judgment
erroneous or irregular, especially when the
evidence on record is sufficient to support its
conclusion [People v. Alfredo, G.R. No.
188560 (2010)].
A.3. CONTENTS OF JUDGMENT

CONVICTION
The judgment of conviction shall state:
(1) The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances which attended its
commission;
(2) The participation of the accused in the
offense, whether as principal, accomplice
or accessory after the fact;
PAGE 333 OF 425
(3) The penalty imposed upon the accused; (1) The accused can be convicted of an
(4) The penalty should not be imposed in the offense only when it is both charged and
alternative. There should be no doubt as proven.
to the offense committed and the penalty (2) The mere fact that the evidence presented
for it; would indicate that a lesser offense
(5) The civil liability or damages caused by his outside the courts jurisdiction was
wrongful act/omission to be recovered committed does not deprive the court of
from the accused by the offended party, if its jurisdiction, which had vested in it
there is any, unless the enforcement of the under the allegations in the information.
civil liability by a separate civil action has
been reserved/waived [Sec. 2, Rule 120]. Exception to the exception: Where there
are facts that supervened after the filing of
Proof beyond reasonable doubt the information which change the nature of
It is that degree of proof which produces the offense.
conviction in an unprejudiced mind [People v.
Bacalzo, G.R. No. 89811 (1991)]. W hen an offense includes or is
included in another
FOR TWO OR MORE OFFENSES (1) The offense charged necessarily includes
Where accused fails to object to two or more the offense proved when some of the
offenses charged in a single information or essential elements/ingredients of the
complaint before trial, the court may: former, as alleged in the
(1) Convict him of as many offenses as are complaint/information, constitute the
charged and proved, except when one of latter.
the offenses has been a necessary means (2) An offense charged is necessarily included
for committing the other offense and in the offense proved when the essential
where both have been the result of a ingredients of the former constitute or
single act; and form part of those constituting the latter
(2) Impose on him the penalty for each [Sec. 5, Rule 120].
offense, setting out separately the findings (3) The effect is that the accused may be
of fact and law in each offense [Sec. 3, convicted of:
Rule 120], subject to the three-fold rule on (4) The offense proved which is included in
the service of penalty. the offense charged; or
(5) The offense charged which is included in
VARIANCE BETWEEN ALLEGATION AND the offense proved [Sec. 4, Rule 120].
PROOF
General rule: The defendant can be The right to be informed of the charges has
convicted only of the crime with which he is not been violated because where an accused
charged. is charged with a specific crime, he is duly
informed also of lesser crimes/offenses
However, minor variance between the included therein [People v. Villamar (1998)].
information and the evidence cannot be
ground for acquittal, such as when the Where a complex crime is charged and the
variance: evidence fails to support the charge as to one
(1) Does not alter the nature of the offense; of the component offenses, the accused can
(2) Does not determine or qualify the crime be convicted of the one which is proven.
or penalty. [Sayson v. People, G.R. No. L-
51745 (1988)] ACQUITTAL
The judgment of conviction shall state
Exception: He can be convicted of an whether:
offense proved provided it is included in the (1) The evidence of the prosecution absolutely
charge, or of an offense charged which is failed to prove the guilt of the accused; or
included in that which is proved [Sec. 4, Rule (2) Merely failed to prove his guilt beyond
120]. reasonable doubt.
PAGE 334 OF 425

In either case, the judgment shall determine

if the act or omission complained from which B. STATE LIABILITY FOR UNJUST
the civil liability might arise did not exist [Sec. CONVICTION
2, Rule 120].
The DOJ Board of Claims is authorized to
Acquittal Dismissal receive/evaluate/process/investigate claims
Terminates the case of victims of unjust imprisonment/detention
and victims of violent crimes [RA 7309].
Decision on the Not on the merits
merits based on a but no finding that The following m ay file claims for
finding that the accused is not guilty com pensation before the Board:
accused is not guilty (1) Any person who was unjustly accused,
convicted and imprisoned but
Reasonable doubt is doubt engendered by an subsequently released by virtue of a
investigation of the whole proof and an judgment of acquittal;
inability, after such investigation, to let the (2) Any person who was unjustly detained and
mind rest upon the certainty of guilt. released without being charged;
(3) Any victim of arbitrary or illegal detention
Acquittal based on failure to prove guilt by the authorities as defined in the RPC
beyond reasonable doubt does not extinguish under a final judgment of the court; and
the civil liability arising from his acts, since (4) Any person who is a victim of violent
the civil liability arose not from a crime but crimes, including rape and shall likewise
from the damage caused by such acts, which refer to offenses committed with malice
can be proven by a lower quantum of which resulted in death or serious physical
evidence. Thus, it does not bar a separate civil and/or psychological injuries, permanent
action based on quasi-delict [Lontoc v. MD incapacity or disability, insanity, abortion,
Transit, G.R. No. L-48949 (1988)]. serious trauma, or committed with torture,
cruelly or barbarity [Sec. 3, RA 7309].
The court may hold the accused civilly liable
even when it acquits him. Acquittal For victims of unjust imprisonment or
extinguishes civil liability only when the detention, the compensation shall be based
judgment includes a declaration that the on the number of months of imprisonment or
facts from which the civil liability might arise detention and every fraction thereof shall be
did not exist. Thus: considered one month; Provided, however,
(1) The court may nonetheless hold the That in no case shall such compensation
accused civilly liable in favor of the exceed P1,000 per month.
offended party, or it may deny the award In all other cases, the maximum amount for
of civil damages expressly or impliedly by which the Board may approve a claim shall
being silent on the matter. not exceed P10,000 or the amount necessary
(2) The losing party may appeal the ruling on to reimburse the claimant the expenses
the civil liability, as in any other ordinary incurred for hospitalization, medical
appeal, in his name and not in the name of treatment, loss of wage, loss of support or
the People. other expenses directly related to injury,
The judge acquitting an accused cannot whichever is lower. This is without prejudice
punish him at the same time. to the right of the claimant to seek other
remedies under existing laws [Sec. 4, RA
General rule: The court has authority to 7309].
express disapproval of certain acts even if
judgment is for acquittal.
Exception: The court is not permitted to

censure the accused in a judgment for
acquittal no matter how light, a censure is
still a punishment.
PAGE 335 OF 425

C. PROMULGATION OF JUDGMENT; C.2. PROMULGATION IN CERTAIN

INSTANCES OF PROMULGATION OF CIRCUMSTANCES
JUDGMENT IN ABSENTIA PROMULGATION WHERE THE JUDGE IS
ABSENT
Promulgation is the official proclamation
The judgment may be promulgated by the
or announcement of a judgment or order.
clerk of court when the judge is absent or
outside the province or city [Sec. 6, Rule 120].
Promulgation is made by reading it in the
presence of the accused and any judge of any
WHERE PRESENCE OF ACCUSED IS
court in which it was rendered [Sec. 6, Rule
REQUIRED; EXCEPTIONS
120]
General rule: Presence of the accused is
mandatory in the promulgation of judgment.
C.1. IN GENERAL
REQUISITES
Exception: Convictions for light offenses
(1) There must be a judge or judges legally
[Sec. 6, Rule 120].
appointed or elected and actually acting
either de jure or de facto;
If the judgment is for conviction and the
(2) The said judgment must be duly signed
failure of the accused to appear was without
and promulgated during the incumbency
justifiable cause, he shall lose the remedies
of the judge who signed it [Miguel v
available in the Rules against the judgment
Municipal Trial Court (1986)].
and the court shall order his arrest.
(3) The judgment or sentence does not
become a judgment or sentence in law
However, within 15 days from promulgation
until it is:
of judgment, he may surrender and file a
(a) Read and announced to the defendant;
motion for leave of court to avail of these
or
remedies. He shall state the reasons for his
(b) Has become a part of the record of the
absence.
court [US v. CFI of Manila (1913)].
If he proves his absence was for a justifiable
FAILURE TO PROMULGATE
cause, shall be allowed to avail of the
Where there is no promulgation of judgment,
remedies within 15 days from notice [Sec. 6,
no right to appeal accrues. Merely reading
Rule 120; People v. De Grano, G.R. No. 167710
the dispositive portion of the decision is not
(2009)].
sufficient.
Failure of the accused to appear at
NOTICE FOR PROMULGATION
the scheduled date of prom ulgation
The Clerk of Court gives notice to the accused
Promulgation is made by recording the
personally or through the bondsman or
judgment in the criminal docket and serving a
warden and counsel.
copy at the accuseds last known address or
through counsel [Sec. 6, Rule 120].
If the accused jumps bail or escapes from
prison and was tried in absentia, notice will
PROMULGATION WHEN ACCUSED IS
be served in last known address [Sec. 6, Rule
CONFINED OR DETAINED IN ANOTHER
120].
CITY
Promulgation will be done in the RTC which
SIN PERJUICIO JUDGMENT
has jurisdiction over the place of confinement.
It is a judgment without a statement of the
In this case, the court promulgating the
facts in support of its conclusion to be later
judgment shall have authority to accept
supplemented by the final judgment [Dizon v.
notice of appeal and to approve the bail bond
Lopez, AM RTJ-96-1338 (1997)].
pending appeal [Sec. 6, Rule 120]
PAGE 336 OF 425

PROMULGATION WHEN A JUDGE IS NO

LONGER A JUDGE XIII. New Trial or
A judgment promulgated after the judge who
signed the decision has ceased to hold office
Reconsideration
is not valid and binding. In like manner, it
cannot be promulgated after the retirement A. GROUNDS FOR NEW TRIAL
of the judge. [Nazareno v. CA, G.R. No. 111610
(2002)] A.1. ERRORS OF LAW OR IRREGULARITIES
The court shall grant a new trial when errors
D. FINALITY of law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial.
W hen does judgment become final
(1) After the lapse of the period for perfecting
General rule: Errors of the defense counsel
an appeal;
(2) When the sentence has been in the conduct of the trial is neither an error of
law nor an irregularity.
partially/totally satisfied or served;
(3) The accused has expressly waived in Exception: They become an error of law or
writing his right to appeal; irregularity when acquittal would, in all
probability, have followed the introduction of
(4) When the accused applies for probation,
and thereby waives right to appeal. [Sec. 7, certain testimony which was not submitted at
the trial under improper or injudicious advice
Rule 120]
of incompetent counsel of the accused.
Judgment also becomes final when judgment
is an acquittal [People v. Sandiganbayan, G.R. Irregularities must be with such seriousness
as to affect prejudicially the substantial rights
No. 164577 (2010)].
of the accused.
NOTE: Before the judgment becomes final,
A.2. NEW AND MATERIAL EVIDENCE
the TC has plenary power to make, either on
motion or motu proprio, such amendment or The court shall grant a new trial when new
and material evidence has been discovered
alterations as it may deem best, within the
frame of law, to promote the ends of justice which the accused could not with reasonable
diligence have discovered and produced at
[Sec. 7, Rule 120].
the trial and which if introduced and
After finality, the TC is divested of authority to admitted would probably change the
judgment [Estino v. People, G.R. No. 163957-
amend/alter the judgment, except to correct
clerical errors. 58 (2007)].
The determinative test is the presence of due

or reasonable diligence to locate the thing to
be used as evidence in the trial [Briones v.
People, G.R. No. 156009 (2009)].
Requisites:
The evidence:
(1) Was discovered after the trial;
(2) Could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence [US v.
Pico (1982)];
(3) Burden of proving this is on the accused.
[US v. Torrente (1922)];
(4) Is material, not merely cumulative/
corroborative/impeaching; and
PAGE 337 OF 425

(5) Is of such weight that it would probably variance with the health officers report at
change the judgment if admitted [Jose v. trial, that its contents raised doubts to the
CA (1997)]. guilt of the accused.
It must be of weighty influence and will affect B. GROUNDS FOR

the result of the trial [People v. Alfaro (2003)]. RECONSIDERATION
Interest of justice as gauge for The court shall grant reconsideration on the
introduction of new evidence ground of errors of law or fact in the
In People v. Almendras [G.R. No. 145915 judgment, which requires no further
(2003)], the court ruled that a motion for a proceedings [Sec. 3, Rule 121].
new trial may be granted on a ground not
specifically provided in the rules, provided
that it is sought in the interest of justice. In
C. EFFECTS OF GRANTING NEW
that case, the relief of a new trial was granted TRIAL OR RECONSIDERATION
to a client who has suffered by reason of
his/her counsels gross mistake and IN ALL CASES
negligence. (1) The original judgment set aside or
vacated;
W hen there is variance between two (2) A new judgment is rendered accordingly;
reports
In People v. del Mundo (1996), the court OTHER EFFECTS
allowed the presentation in a new trial of a Other specific effects (see table) also result
police report, not new, and which could have when granted upon different grounds [Sec. 6,
been discovered with due diligence, because Rule 121].
the evidence contained in such was at such
Ground Effect Action of the court
Errors of law or All proceedings and evidence affected shall be The court will allow
irregularities set aside and taken anew. introduction of additional
committed during the If error or irregularity goes into the jurisdiction, evidence in the interest of
trial the entire proceeding is void and must be set justice.
aside.
Newly-discovered Evidence already adduced shall stand and the The court will allow
evidence newly-discovered and such other evidence shall introduction of other such
be taken and considered together with the evidence in the interest of
evidence already in the record. justice.
In case of grave abuse of discretion the order dismissing a MNT or MR. Neypes v.
The remedy of the prosecution in case of CA [G.R. No. 141534 (2005)] declared that:
grave abuse of discretion in the grant of the Henceforth, this fresh period rule shall also
MNT/MR is certiorari or prohibition. apply to Rule 40 governing appeals from the
Otherwise, it may no longer have opportunity Municipal Trial Courts to the Regional Trial
to question the order if accused is acquitted Courts; Rule 42 on petitions for review from
after a new trial is conducted, because of the the Regional Trial
rule on double jeopardy [Luciano v. Estrella,
G.R. No. L-31622 (1970)]. Courts to the Court of Appeals; Rule 43 on
appeals from quasi-judicial agencies to the
D. APPLICATION OF THE NEYPES Court of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court.
DOCTRINE IN CRIMINAL CASES
The fresh period rule enunciated in Neypes
The Neypes doctrine allows a fresh period of
also applies to criminal actions, particularly
15 days within which to file the notice of
to Sec. 6 of Rule 122. [Yu v. Tatad, G.R. No.
appeal in the RTC, counted from receipt of
170979 (2011)]
PAGE 338 OF 425
XIV. Appeal provisions of the law [Estarija v. People, G.R.

No. 173990 (2009)].
A. EFFECT OF AN APPEAL D. WHO MAY APPEAL

An appeal in a criminal proceeding throws General rule: Any party may appeal from a
the whole case open for review and it judgment or final order [Sec. 1, Rule 122].
becomes the duty of the appellate court to
correct an error as may be found in the Exceptions:
appealed judgment WON it is made the (1) A party may not appeal if the accused will
subject of assignment of errors [People v. be placed in double jeopardy by such
Calayca, G.R. No. 121212 (1999)]. action [Sec. 1, Rule 122];
(2) If the judgment is for conviction and the
B. WHERE TO APPEAL accused fails to appear without justifiable
cause, he would lose the remedy to appeal
For cases decided by Appeal to [Sec. 6, Rule 120].
MTC/MeTC/MCTC RTC
E. PROCEDURE IN THE LOWER
RTC or MTC/MeTC/ MCTC (if it Sandigan
COURTS
is government duty-related, -bayan
i.e., filed under EO 1, 2, 4 and
14-A) When appeal to be taken. Within 15
days from promulgation of the
RTC (if it involves questions of CA
judgment or from notice of the final
fact and of law)
order appealed from.
(a) RTC SC 1 The period to appeal shall be
(b) Involves only questions of suspended from the time a MNT or MR
law is filed until notice of the order
(c) Involves constitutionality overruling the motion has been served
or validity of any treaty, upon the accused or his counsel.
law, ordinance, EO,
Transmission of record to RTC. Within 5
regulation or jurisdiction of
days from perfection of the appeal, the
the inferior court 2 COC shall transmit the original record
(d) In criminal cases involving
to the appropriate RTC.
offenses for which the
penalty imposed is death Notification of parties. Upon receipt of
or life imprisonment the complete record, TSN and evidence
(e) Other offenses, which,
3 of the case, the RTC COC shall notify
although not so punished, the parties of such fact.
arose out of the same Submission of memoranda/briefs.
occurrence or which may Within 15 days from receipt of said
have been committed by
the accused on the same
4 notice, the parties may submit
memoranda/briefs, or may be required
occasion, as that giving by the RTC to do so.
rise to the more serious
offense Decision. After submission of such
memoranda/briefs or upon the
CA or Sandiganbayan SC expiration of the period to file the same,
5 the RTC shall decide the case on the
C. HOW APPEAL TAKEN basis of the entire record of the case
and of such memoranda/briefs as may
The right to appeal is not a natural right nor a have been filed.
part of due process but merely a statutory
privilege and may be exercised only in the
manner and in accordance with the
PAGE 339 OF 425
General rule: The procedure to be observed courts notice that the evidence is already
in the MeTC/MTC/MCTC shall be the same as attached to the record [Sec. 3, Rule 124].
that in the RTC.
BRIEF FOR THE APPELLEE
Exceptions: Appellee shall file seven copies of his brief
(1) Where a particular provision applies only with the clerk of court, accompanied by proof
to either of said courts; of service of two copies on the appellant.
(2) Criminal cases governed by the Revised
Rules on Summary Procedure [Sec. 1, Rule It shall be filed within 30 days from receipt of
123]. the appellants brief [Sec. 4, Rule 124].
OFFENSES FALLING UNDER THE REPLY TO APPELLEES BRIEF

JURISDICTION OF THE MTC/MCTC Filing a reply is optional. Thus, the appellant
Notwithstanding the uniform procedure rule, may file a reply brief covering matters raised
if the offense falls under the jurisdiction of in the appellees brief but not in the brief of
the MTC/MCTC, complaint/information may the appellant.
be filed directly with said courts or with the
City Prosecutors Office [Salcedo v. Nobles- It must be filed within 20 days from receipt of
Bans, G.R. No. L-67540 (1985)]. the appellees brief [Sec. 4, Rule 124].
OFFENSES FALLING UNDER THE
JURISDICTION OF METC F.3. EXTENSION OF TIME FOR FILING
In Metro Manila and other chartered cities, BRIEFS
criminal cases shall be commenced only by General rule: Extension of time for the
information; thus, the complaint may be filed filing of briefs is not allowed.
only with the Office of the City Prosecutor.
Exception: Extension may be granted for
If the case is directly filed with the court, the good and sufficient cause.
case should not be dismissed. The court
should just refer it to the City Prosecutor for It is sought through a motion for extension,
the filing of the corresponding information which must be filed before the expiration of
[Salcedo v. Nobles-Bans, G.R. No. L-67540 the time sought to be extended [Sec. 5, Rule
(1985)]. 124].
F. PROCEDURE IN THE COURT OF The court may grant as many extensions as

APPEALS may be asked [Gregorio v. CA, G.R. No. L-
43511 (1976)].
F.1. PARTIES AND TITLE
In all criminal cases appealed to the CA, the F.4. FORM OF BRIEFS
party appealing shall be called the Briefs shall be printed/encoded/ typewritten,
appellant and the adverse party the in double space, on legal size good quality
appellee. unglazed paper, 330mm in length by 216mm
in width.
The title of the case shall remain as it was in
the court of origin (i.e., People v. John Doe) Mimeographed copies are not allowed [Sec. 6,
[Sec. 1, Rule 124]. Rule 124].
F.2. BRIEFS F.5. CONTENT OF BRIEFS

BRIEF FOR THE APPELLANT The briefs in criminal cases shall have the
The appellant shall file seven copies of his same contents as provided in Secs. 13 to 14,
brief with the clerk of court, accompanied by Rule 44 [Sec. 7, Rule 124].
proof of service of two copies on the appellee.
It shall be filed within 30 days from receipt by

the appellant or his counsel of the CA clerk of
PAGE 340 OF 425
F.6. DISMISSAL OF APPEAL FOR recaptured two hours after, the SC said
ABANDONMENT OR FAILURE TO circumstances were not sufficient to justify
PROSECUTE; GROUNDS dismissal of the appeal [People v. Valencia
(1949)];
APPELLANT FAILS TO FILE HIS BRIEF (2) If there was absolutely no evidence
WITHIN THE PRESCRIBED TIME against the accused as found by the
The CA may, upon motion of the appellee or appellate court, he should be acquitted in
motu proprio and with notice to the appellant order to prevent an injustice by
in either case, dismiss the appeal if the technicalities [People v. Buenaventura
appellant fails to file his brief with the time (1994)];
prescribed, except where the appellant is (3) In case of automatic review [People v.
represented by a counsel de oficio. Cornelio, G.R. No. L-1289 (1971)].
If failure to file brief on time is the ground, F.7. PROMPT DISPOSITION OF APPEAL
appellant must be given notice to give him Appeals of accused who are under detention
opportunity to reason out why his appeal are given precedence in their disposition over
should not be dismissed. other appeals.
The accused need not be present in court
However, dismissal is proper despite lack of during the hearing of the appeal [Sec. 9, Rule
notice: 124].
(1) If appellant has filed a MFR or motion to
set aside the order dismissing the appeal, REVERSAL OR MODIFICATION OF
in which he stated the reason why he JUDGMENT ON APPEAL
failed to file his brief on time and the General rule: No judgment shall be
appellate court denied the motion after reversed or modified.
considering reason [Baradi v. People, G.R.
No. L-2658 (1948)]; Exception: When the CA, after an
(2) If appeal was dismissed without notice but examination of the record and of the parties
appellant took no steps to have the appeal evidence, is of the opinion that error was
reinstated. Such action amounts to committed and such error injuriously affected
abandonment [Salvador v. Reyes, G.R. No. the appellants substantial rights [Sec. 10,
L-2606 (1949)]. Rule 124].
APPELLANT ESCAPES, JUMPS BAIL, OR When it involves credibility of witnesses,

FLEES appellate courts will not generally disturb the
The CA may also, upon motion of the TCs findings.
appellee or motu proprio, dismiss the appeal
if the appellant escapes from Ratio: The TC is in a better position to
prison/confinement, jumps bail or flees to a decide the question, having seen and heard
foreign country during the pendency of the the witnesses themselves. [People v. Cabiling,
appeal [Sec. 8, Rule 124]. G.R. No. L-38091 (1976)]
Likewise, when accused flees after the case G. THE COURT OF APPEALS
has been submitted for decision, he is
deemed to have waived his right to appeal G.1. SCOPE OF THE CAS JUDGMENT
[People v. Ang Gioc, G.R. No. L-48547 (1941)]. The CA may:
(1) Reverse/affirm/modify the judgment;
However, the appeal will not be dismissed (2) Increase/reduce the penalty imposed by
despite escape: the TC;
(1) In one exceptional case, the appellant (3) Remand the case to the RTC for new trial
took advantage of a mass jailbreak or retrial;
(because, according to his counsel de (4) Dismiss the case [Sec. 11, Rule 124].
oficio he was innocent and wanted to
elude an unjust punishment) but was
PAGE 341 OF 425

When the accused appeals from the sentence G.4. POST-CA JUDGMENT
of the TC, he waives the constitutional
safeguard against double jeopardy and CERTIFICATION OR APPEAL OF CASES TO
throws the whole case open to the review of THE SC
the appellate court, which is then called upon (1) If the CA finds that death penalty should
to render such judgment as law and justice be imposed, it shall render judgment but
dictate, WON favorable to the accused and refrain from making an entry of judgment.
WON made the subject of assignment of It shall then certify the case and elevate its
errors [Ko Bu Lin v. CA, G.R. No. L-57170 entire record to the SC for review. The
(1982)]. accused does not have to do anything.
(2) If the judgment also imposes a lesser
G.2. CAS POWER TO RECEIVE EVIDENCE penalty for offenses committed on the
The CA has power to try cases and conduct same occasion or which arose from the
hearings, receive evidence and perform any same occurrence that gave rise to the
and all acts necessary to resolve factual more severe offense for which death is
issues in cases: imposed, and the accused appeals, the
(1) Falling within its original jurisdiction; appeal shall be automatically included in
(2) Involving claims for damages arising from the case certified for review in the SC
provisional remedies; (3) If the CA imposes reclusion perpetua, life
(3) Where the court grants a new trial based imprisonment or a lesser penalty:
only on the ground of newly-discovered (4) It shall render and enter judgment
evidence. imposing such penalty.
(5) Appeal here is not automatic. The accused
CAs trials and hearings must be continuous has to file a notice of appeal with the CA
and completed within three months, unless [Sec. 113, Rule 124].
extended by the Chief Justice [Sec. 12, Rule
124]. JUDGMENT TRANSMITTED AND FILED IN
THE TC
G.3. QUORUM IN THE CA When the CAs entry of judgment is issued, a
(1) Three CA Justices constitute a quorum for certified true copy of the judgment shall be
the sessions of a division; attached to the original record. These shall
(2) The unanimous vote of the three Justices be remanded to the clerk of the court from
of a division is necessary for the which the appeal was taken [Sec. 17, Rule
pronouncement of a judgment or final 124].
resolution;
(3) Decision is reached through a consultation This copy of the entry serves as the formal
before the writing of the opinion by a notice to the court from which the appeal was
member of the division; taken of the disposition of the case in the
(4) If there is lack of unanimity, the Presiding appellate court, so that the judgment may be
Justice shall direct the CA raffle executed and/or placed or noted in the
committee to designate two additional proper file.
Justices to sit temporarily with them. They
shall then form a special division of five MOTION FOR NEW TRIAL DURING THE
members; PENDENCY OF APPEAL
(5) The concurrence of a majority of that (1) Appellant may file MNT on the ground of
special division is necessary for the newly discovered evidence material to his
pronouncement of a judgment or final defense any time:
resolution; (a) After the appeal from the lower court
(6) Designation of the additional Justices has been perfected; but
shall be made strictly by raffle and (b) Before the CA judgment convicting him
rotation among all other CA Justices [Sec. becomes final;
11, BP 129]. (2) The motion shall conform to Sec. 4, Rule
121 [Sec. 14, Rule 124];
PAGE 342 OF 425

(3) If the CA grants a MNT, it may either: H.1. UNIFORM PROCEDURE

(a) Conduct the hearing and receive General rule: The procedure in the SC in
evidence; original and in appealed cases shall be the
(b) Refer the trial to the court of origin [Sec. same as in the CA [Sec. 1, Rule 125].
15, Rule 124].
Exception: The procedure changes when
RECONSIDERATION OF CA JUDGMENT the Constitution or law so provides.
MFR may be filed within 15 days from notice
of the CA judgment or final order, with copies H.2. WHAT THE SC MAY DO ON REVIEW
served on the adverse party. In a criminal case, an appeal to the SC throws
open the whole case for review and it
The mittimus shall be stayed during the becomes its duty to correct such errors as
MFRs pendency. may be found in the judgment appealed from,
whether or not they were assigned as errors
General rule: No party shall be allowed a [People v. Olfindo, G.R. No. L-22679 (1924)].
second MFR of a judgment or final order [Sec.
16, Rule 124; Sec. 11, BP 129]. It may examine the judgment as to the
qualification of the crime and the degree of
Exception: Where the first MFR resulted in the penalty imposed [Macali v. Revilla, G.R.
a reversal or substantial modification of the No. L-25308 (1926)].
original decision or final resolution.
It may also assess and award civil indemnity
In this case, the party adversely affected by [Quemuel v. CA, G.R. No. L-22794 (1946)].
the reversal/modification may himself file a
MFR of the latest judgment of the court, H.3. MODES BY WHICH A CASE MAY
because with respect to him, said motion is a REACH THE SC
first pleading of that nature.
AUTOMATIC REVIEW
G.5. APPLICABLE CIVIL PROCEDURE Automatic review is not a matter of right on
RULES the part of the accused, but a matter of law.
Provisions of Rules 42, 44-46 and 48-56
relating to procedure in the CA and the SC in It is available when:
original and appealed civil cases, shall be (a) The RTC judgment upon the accused
applied to criminal cases insofar as they are imposes death penalty [Sec. 10, Rule 122];
applicable and not inconsistent with the (b) The RTC decision is appealed to CA and
provision of this Rule [Sec. 18, Rule 124]. the latter is of the opinion that the
penalty imposed should be death or life
H. PROCEDURE IN THE SUPREME imprisonment. CA judgment is imposed
COURT but no entry of judgment is made; instead,
the case is certified and the entire record
Composition of the SC is elevated to the SC for review [Sec. 13,
(1) SC is composed of one Chief Justice and Rule 124].
14 Associate Justices.
(2) SC may sit en banc or (in its discretion) in ORDINARY APPEAL
divisions of 3, 5 or 7 members. It is available when:
(3) No doctrine or principle of law laid down (a) The penalty imposed by the RTC is life
by the SC in a decision rendered en banc imprisonment, decision is appealable
or in division may be modified/reversed directly to the SC by filing a notice of
except by the court sitting en banc [Sec. 4, appeal with the RTC [Sec. 3, Rule 122];
Art. VIII, Constitution]. (b) An accused was charged with two or
more offenses committed on the same
occasion or arising out of the same
occurrence, and in one of those 2 cases,
he was sentenced to life imprisonment or
PAGE 343 OF 425

death penalty, the appeal with respect to (4) Where appeal was not considered as the
the others, though punished with a lesser appropriate remedy.
penalty, is to the SC [Sec. 3, Rule 122];
(c) The penalty of reclusion perpetua or death H.4. REVIEW OF CA DECISIONS
is imposed on some of the defendants The procedure for the review by the SC of CA
and a lesser penalty on the other co- decisions on criminal shall be the same as in
defendants, on account of their varying civil cases [Sec. 2, Rule 125].
degree of participation in the commission
of the offense or due to the presence of General rule: The appellate jurisdiction of
modifying circumstances, in which case the SC in cases brought to it from the CA is
the decision on the non-life convicts is limited to reviewing and revising the errors of
directly appealable to the SC [People v. law incurred by the latter. The CAs findings
Carino (2002)]. of fact are final. If an appeal in the SC
involves questions of facts, the SC has no
In these cases, the SC reviews not only errors jurisdiction and should dismiss appeal [Guico
of law but also the findings of fact by the TC. v. Mayuga, G.R. Nos. L-45274-5 (1936)].
PETITION FOR REVIEW ON CERTIORARI Exceptions:

It is available when: (1) When the conclusion is a finding founded
(a) The constitutionality or validity of any entirely on
treaty, executive agreement, law, speculations/surmises/conjectures;
ordinance or executive order or regulation (2) When the inference made is manifestly
is in question; mistaken/absurd/impossible;
(b) When validity of law is questioned by an (3) When there is GAD;
accused convicted under it by the TC, the (4) When the judgment is based on a
SC cannot review the evidence or pass misapprehension of facts;
upon any other question of law which may (5) When the findings of facts are conflicting;
appear on the record, but will only confine (6) When the CA, in making its findings, went
itself to the question of the in/validity of beyond the issues of the case and the
that law [Trinidad v. Sweeney, G.R. No. same are contrary to the admissions of
2487 (1904)]; both appellant and appellee [Napolis v. CA,
(c) When the jurisdiction of any inferior court G.R. L-28865 (1972)].
is in issue;
(d) When only an error or question of law is FAILURE TO SPECIFY APPELLATE COURT
involved. Failure of appellant to specify in his notice of
appeal the court to which the appeal is being
On decisions of the CA and the made is not fatal [RA 296].
Sandiganbayan, as a rule, review here is
limited to errors of law. ERRONEOUS MODE OF APPEAL
In the case of People v. Resuello (1969), the
General rule: Certiorari is used to correct contention of the adverse party that the
only errors of jurisdiction and not errors of ordinary appeal filed by appellant be
judgment of an inferior court. For errors of dismissed because the proper remedy is
judgment, ordinary appeal is available. petition for review on certiorari (only
Exceptions: questions of law were involved) was rejected.
In the following cases, certiorari is granted
despite existence of the remedy of appeal: The SC said that in cases similarly situated,
(1) Where public welfare and advancement of and as long as the steps formally required for
public policy so dictate; the perfection of an appeal were taken in due
(2) Where the broader interests of justice so time, appeal may be given due course,
require; without prejudice to requiring the appellant
(3) Where the orders complained of were to file the necessary petition for review on
found to be completely null and void; certiorari which is also a form of appeal.
PAGE 344 OF 425

DECISION IF OPINION IS EQUALLY DIVIDED H.5. GROUNDS FOR DISMISSAL OF

When the SC en banc is equally divided in APPEAL
opinion or the necessary majority cannot be
had on whether or not to acquit the appellant, WHEN APPEAL BY THE PEOPLE WILL NOT
the case shall again be deliberated upon. LIE
The People/State cannot appeal when it will
If no decision is reached after re-deliberation, put the accused in double jeopardy. The
the lower courts judgment of conviction shall constitutional mandate against double
be reversed and the accused is acquitted. jeopardy prohibits not only a subsequent
prosecution in a new and independent cause
If case is decided by a division of the SC but extends also to appeal in the same case
whose members are equally divided, the case by the prosecution after jeopardy had
shall be heard and decided by the SC en banc attached [Republic v. CA, G.R. No. L- 41115
[Sec. 3, Rule 125]. (1982)].
EFFECT OF APPEAL BY ANY OF SEVERAL
ACCUSED The prosecution cannot appeal from a
General rule: An appeal taken by one or judgment of acquittal.
more of several accused shall not affect those
who did not appeal. Ratio: A verdict of that nature is
immediately final and to try on the merits,
As to the appealing party, the execution of even in an appellate court, places the
judgment appealed from is stayed upon the accused in double jeopardy [Central Bank v.
perfection of the appeal. CA, G.R. No. 41859 (1989)].
As to the co-accused who did not appeal, the Dismissal of case upon filing of demurrer by
judgment of the TC insofar as it relates to him the accused was held to be final even though
becomes final and the appellate court has no based on erroneous interpretation of the law.
power to interfere with it [Salvatierra v. CA, Hence, an appeal therefrom by the
G.R. No. 107797 (1996)]. prosecution would constitute double jeopardy
[People v. Sandiganbayan, G.R. No. 174504
Exception: Insofar as the judgment of the (2011), citing People v. Nieto, 103 Phil. 1133]
appellate court is favorable and applicable to
those who did not appeal or who withdrew Where the TC has jurisdiction but mistakenly
his appeal [People v. Gandia, G.R. No. 175332 dismisses the complaint/information on the
(2008)]. ground of lack of it, the order of dismissal is
unappealable [People v. Duran, G.R. No. L-
The appeal of the offended party from the 13334 (1960)].
civil aspect shall not affect the criminal
aspect of the judgment or order appealed An appeal by the People will not lie if the
from [Sec. 11, Rule 122]. purpose is to correct the penalty imposed by
the trial court or to include in a judgment a
penalty erroneously omitted [People v. Paet,
G.R. No. L-9551 (1956)].
The preclusion against appeal by the State

from judgments or final orders having the
effect of acquittal applies even though
accused did not raise question of jeopardy
[People v. Ferrer, G.R. No. L-9072 (1956)].
PAGE 345 OF 425

XV. Search and Seizure absence of probable cause, the manner in

which the search and seizure was made, the
place or thing searched, and the character of
A. NATURE OF SEARCH WARRANT the articles procured [Rodriguez v. Villamiel,
L-44328 (1937)].
A.1. IN GENERAL
DEFINITION DOCTRINE OF ATTENUATION
It is an order in writing; issued in the name of Under the doctrine of attenuation, despite
the People of the Philippines; signed by a the illegality in obtaining evidence, such
judge; and directed to a peace officer, evidence may be admissible if the
commanding him to search for personal connection between the evidence and
property described in the warrant and bring it the illegal m ethod is sufficiently
before the court [Sec. 1, Rule 126]. rem ote or attenuated so as to dissipitate
the taint [Wong Sun v. US (1963)].
NATURE
A search warrant is in the nature of a criminal Directed upon acts of the governm ent,
process akin to a writ of discovery, employed not private persons
by the state to procure relevant evidence of a The constitutional protection is directed
crime [Malaloan v. CA, G.R. No. 104879 against the acts of the government and its
(1994)]. agents, not private persons [People v. Marti,
G.R. No. 81561 (1991)]
It is not available to individuals in the course
of civil proceedings. However, if the private person is acting upon
orders of government officials, the principle
It is interlocutory in character it leaves of agency applies, because in fact such
something more to be done, which is the private person is acting in the interest of
determination of the guilt of the accused. government, and is therefore subject to the
prohibition against unreasonable searches
CONSTITUTIONAL SAFEGUARD and seizures.
No search warrant or warrant of arrest shall
issue except upon probable cause to be General rule: Search of property is
determined personally by the judge after the unreasonable unless it has been authorized
examination under oath/affirmation of the by a valid search warrant.
complaint and the witness he may produce,
and particularly describing the place to be Exceptions:
searched, and the things/persons to be (1) Search incidental to a lawful arrest;
seized [Sec. 2, Art. III, Constitution]. (2) Consented search;
(3) Search of moving vehicle;
Under the exclusionary rule, any evidence (4) Checkpoints;
obtained in violation of this is inadmissible (5) Plain view;
for any purpose in any proceeding [Sec. 3, (6) Stop and frisk;
2nd par., Art. III, Constitution]. (7) Customs search;
(8) Other exceptions, such as exigent
The constitutional guarantee is not a blanket circumstances, buy-bust operations, and
prohibition against all searches and seizures. private searches.
It operates only against unreasonable
searches and seizures.
What constitutes a reasonable or

unreasonable search or seizure in any
particular case is purely a judicial question,
determinable from a consideration of the
circumstances involved, including the
purpose of the search, the presence or
PAGE 346 OF 425

ARREST AND SEARCH WARRANTS Warrant of

DISTINGUISHED Search warrant
arrest
Warrant of When Generally May be made
Search warrant
arrest executed served in the at any time of
Nature Order in Order directed day time, the day or
and writing in the to the peace unless there be night
purpose name of the officer to a direction in
People of the execute the the warrant
Philippines, warrant by that it may be
signed by the taking the served at any
judge and person stated time of the day
directed to the therein into or night
peace officer to custody that he [Section 9,
search may be bound Rule 126]
personal to answer for Validity Valid for 10 Does not expire
property the days
described commission of
therein and to the offense
bring it to court B. APPLICATION FOR SEARCH
Probable The judge must The judge does WARRANT
cause personally not have to
examine the personally B.1. WHERE FILED
complainant examine the It may be filed in any court within whose
and witnesses complainant territorial jurisdiction the crime was
in the form of and his committed.
searching witnesses.
questions and Instead, he For compelling reasons, which must be
answers may opt to stated in the application, it may also be filed:
personally (1) If the place of the commission of the crime
evaluate the is known, any court within the judicial
report and region where the crime was committed;
supporting (2) Any court within the judicial region where
documents the warrant shall be enforced.
submitted by
the prosecutor However, if the criminal action has already
[AAA v. been filed, the application shall only be made
Carbonell
in the court where the criminal action is
(2007)]
pending [Sec. 2, Rule 126].
Exam- The Examination
ination examination must be under Under AM 03-8-02-SC, Executive Judges and,
must be under oath. whenever they are on official leave of absence
oath or or are not physically present in the station,
affirmation of the Vice-Executive Judges of Manila and
the Quezon City RTCs shall have authority to act
complainant on applications for search warrants involving:
and his
(1) Heinous crimes;
witnesses.
(2) Illegal gambling;
Form It must It must (3) Illegal possession of firearms and
particularly particularly ammunitions
describe the describe the (4) Violations of the Comprehensive
place to be person to be Dangerous Drugs Act of 2000;
searched and arrested. (5) Violations of the Intellectual Property
the things to Code;
be seized.
PAGE 347 OF 425

(6) Violations of the Anti-Money Laundering

Act of 2001; D. SERVICE OF THE SEARCH
(7) Violations of the Tariff and Customs Code; WARRANT
and
(8) Other relevant laws that may hereafter be RIGHT TO BREAK DOOR OR WINDOW TO
enacted by Congress and included herein EFFECT SEARCH
by the Supreme Court. The officer, if refused admittance to the place
of directed search after giving notice of his
B.2. SUBSTANCE OF APPLICATION purpose and authority, may break open any
A search warrant shall not issue except: outer or inner door or window of a house or
(1) Upon probable cause any part of a house or anything therein to
(2) In connection with one specific offense; execute the warrant to liberate himself or any
(3) To be determined personally by the judge; person lawfully aiding him when unlawfully
(4) After examination under oath or detained therein [Sec. 7, Rule 126].
affirmation of the complainant and the
witness he may produce; KNOCK AND ANNOUNCE PRINCIPLE
(5) Particularly describing the place to be Generally, officers executing a search must
searched and the things to be seized do the following acts:
which may be anywhere in the Philippines (1) Announce their presence;
[Sec. 4, Rule 126]. (2) Identify themselves to the accused and to
the persons who rightfully have
C. ISSUANCE AND FORM OF possession of the premises to be searched;
SEARCH WARRANT (3) Show to them the search warrant; and
(4) Explain the warrant in a language or
If the judge is satisfied of the existence of dialect known and understood by them.
facts upon which the application is based or
that there is probable cause to believe that WHEN UNANNOUNCED INTRUSION
they exist, he shall issue the warrant, which PERMISSIBLE
must be substantially in the form prescribed (1) Person in the premises refuses to open it
the Rules [Sec. 6, Rule 126]. upon demand;
(2) Person in the premises already knew of
Thus, the search warrant must be in writing the identity and authority of the officers;
and contain: (3) When the officers have an honest belief
(1) Name of person against whom it is that there is an imminent danger to life
directed; and limb;
(2) Offense for which it was issued; (4) When those in the premises, aware of the
(3) The place to be searched and presence of someone outside, are then
(4) The description of the specific things to be engaged in activities which justifies the
seized; officers to believe that an escape or the
(5) A directive to law enforcement officers to destruction of evidence is imminent.
search and seize;
(6) And for them to bring in court the things SEARCH IN PRESENCE OF TWO
seized; WITNESSES
(7) Signature of the judge issuing it. No search of a house, room, or any other
premises shall be made except in the
VALIDITY OF THE SEARCH WARRANT presence of the lawful occupant thereof or
The search warrant is valid for 10 days from any member of his family or in the absence of
its date. Thereafter, it shall be void [Sec. 10, the latter, two witnesses of sufficient age and
Rule 126]. discretion residing in the same locality [Sec. 8,
Rule 126].
The lifetime of the search warrant also ends
when a return has already been made TIME OF MAKING SEARCH
[Mustang Lumber v. CA, G.R. No. 104988 The search shall be made at day time, unless
(1996)]. the affidavit asserts that the property is on
PAGE 348 OF 425
the person or in the place ordered to be require that the property seized be delivered
searched, in which case a direction may be to him. The judge shall see to it that delivery
inserted that it be served at any time of the has been complied with.
day or night [Sec. 9, Rule 126].
The return on the search warrant shall be
A search warrant violates Sec. 9, Rule 126 if filed and kept by the custodian of the log
the time for making the search is left blank, book on search warrants who shall enter
thus enabling the officers to conduct the therein the date of the return, the result, and
search in the evening of the appointed search, other actions of the judge [Sec. 12, Rule 126].
causing untold conveniences to the person
searched. The court which issued the search warrant
acquires jurisdiction over the items seized
Where a search is to be made during the under the said warrant. Goods seized lawfully
night time, the authority for executing the on the basis of the said warrant or its
same at that time should appear in the accepted exceptions are in custodia legis.
directive on the face of the search warrant Only that court which issued the warrant may
[Asian Surety v. Herrera, G.R. No. L-25232 order the release or disposition thereof. The
(1973)]. jurisdiction, custody and control of the court
over the items seized cannot be interfered
E. POST-SERVICE with. Custody lasts until the institution of the
appropriate criminal action with the proper
E.1. RECEIPT OF PROPERTY SEIZED court [Tenorio v. CA, G.R. No. 110604 (2003)].
If the lawful occupant is present: the
officer seizing the property under the search F. PROBABLE CAUSE
warrant must give a detailed receipt for the
same to the lawful occupant of the premises F.1. PROBABLE CAUSE IN SEARCH
in whose presence the search and seizure WARRANTS
were made. Probable cause means such facts and
circumstances which would lead a reasonably
If the lawful occupant is not present: discreet and prudent man to believe that an
the officer seizing the property under the offense has been committed, and that
search warrant must, in the presence of at objects sought in connection with the
least two witnesses of sufficient age and offense are in the place sought to be
discretion residing in the same locality, leave searched [Santos v. Pryce Gases Inc., G.R.
a receipt in the place in which he found the No. 165122 (2007)].
seized property [Sec. 11, Rule 126].
This probable cause must be shown to be
E.2. DELIVERY AND INVENTORY OF within the personal knowledge of the
PROPERTY complainant or the witnesses he may
The officer must forthwith deliver the produce and not based on mere hearsay. The
property seized to the judge who issued the probable cause must refer only to one specific
warrant, together with a true inventory offense [Roan v. Gonzales, G.R. No. 71410
thereof duly verified under oath. (1986)].
Ten days after issuance of the search warrant, Note: Probable cause to arrest does not
the issuing judge shall ascertain if the return necessarily involve a probable cause to
has been made, and if none, shall summon search and vice-versa.
the person to whom the warrant was issued
and require him to explain why no return was F.2. PERSONAL EXAMINATION BY JUDGE
made. OF THE APPLICANT AND WITNESSES
Aside from the requirements mandated by
If the return has been made, the judge shall Sec. 4, Rule 126, the Rules require the judge
ascertain whether Sec. 11, Rule 126, on giving to comply with a specific procedure in the
or receipts, has been complied with and shall conduct of the examination of the
PAGE 349 OF 425
complainant and the witnesses he may is bound in conscience to perform an act

produce [Sec. 5, Rule 126]: faithfully and truthfully.
(1) The examination must be personally
conducted by the judge; The oath required must refer to the truth of
(2) The examination must be in the form of facts within the personal knowledge of the
searching questions and answers; petitioner or his witnesses [Alvarez v. CFI, G.R.
(3) The complainant and the witnesses shall No. L-45358 (1937)].
be examined on those facts personally
known to them; Mere affidavits of the complainant or his
(4) The statements must be in writing and witnesses are not sufficient. The examining
under oath; and judge has to take depositions in writing of the
(5) The sworn statements of the complainant complaint or his witnesses, and attach the
and the witnesses, together with the same to the record [Prudente v. Judge Dayrit,
affidavits submitted, shall be attached to G.R. No. 82870 (1989)].
the record.
F.3. PARTICULARITY OF PLACE TO BE
SEARCHING QUESTIONS AND ANSWERS SEARCHED AND THINGS TO BE SEIZED
Searching questions are such questions Warrant issued must particularly describe the
which have the tendency to show the place to be searched and the things to be
commission of a crime and the perpetrator seized.
thereof [Luna v. Plaza, G.R. No. 27511 (1968)].
PARTICULARITY OF PLACE TO BE
In search cases, the application must be SEARCHED
supported by substantial evidence: Description of place to be searched is
(1) That the items sought are in fact seizable sufficient if the officer with the search warrant
by virtue of being connected with criminal can, with reasonable efforts, ascertain and
activity; and identify the place intended [People v. Veloso,
(2) That the items will be found in the place to G.R. No. L-23051 (1925)].
be searched [People v. Tuan, G.R. No.
176066 (2010)]. An apparent typographical error will not
necessarily invalidate the search warrant, as
A search warrant issued by a judge who did long as the application contains the correct
not ask searching questions but only leading address [Burgos v. Chief of Staff, G.R. No. L-
ones and in a general manner is invalid [Uy v. 64261 (1984)].
BIR, G.R. No. 129651 (2000)]. PARTICULARITY OF THINGS TO BE SEIZED
Although there is no hard-and-fast rule The scope of the search warrant is limited to
governing how a judge should conduct his personal property only. It does not issue for
investigation, it is axiomatic that the seizure of immovable properties.
examination must be probing and exhaustive,
not merely routinary, general, peripheral, General rule: Things to be seized must be
perfunctory or pro forma. The judge must not described particularly. General search
simply rehash the contents of the affidavit warrants are not allowed. Otherwise, the
but must make his own inquiry on the intent search and seizure of the items in the
and justification of the application. [Yao v. implementation of such search warrant is
People, G.R. No. 168306 (2007)] illegal and the items seized are inadmissible
in evidence [Sec. 2, Art. III, Constitution].
A warrant not based on personal knowledge
is void. Search warrants authorizing the seizure of
books of accounts and records showing all
EXAMINATION UNDER OATH the business transactions of certain persons,
The judge must examine under oath or regardless of whether the transactions were
affirmation the complainant and the witness legal or illegal, are general warrants
he may produce. Oath includes any form of prohibited by law. [Stonehill v. Diokno, G.R.
attestation by which a party signifies that he No. L-19550 (1967)].
PAGE 350 OF 425

G. EXCEPTIONS TO THE SEARCH

Likewise, a description of things to be seized WARRANT REQUIREMENT
as subversive documents, propaganda
materials, FAs, printing paraphernalia and all G.1. SEARCH INCIDENTAL TO LAWFUL
other subversive materials hardly provided a ARREST
definite guideline to the executing officers In a search incidental to an arrest, even
[Dizon v. Castro (1985)]. without a warrant, the person arrested may
be searched for:
Where the language used is too all- (a) Dangerous weapons;
embracing as to include all the paraphernalia (b) Anything which may have been used in the
of petitioner in the operation of its business, commission of an offense; or
the SW is constitutionally objectionable (c) Anything which may constitute proof in
[Columbia Pictures v. Flores, G.R. No. 78631 the commission of the offense [Sec. 13,
(1993)]. Rule 126].
Exceptions: The arrest must precede the search; generally,
Where, by the nature of the goods to be the process cannot be reversed. Nevertheless,
seized, their description must be rather a search substantially contemporaneous with
general, it is not required that a technical an arrest can precede the arrest as if the
description be given, for this would mean that police have probable cause to make the
no search warrant could issue [People v. arrest at the outset of the search [Riano
Rubio, G.R. No. L-35500 (1932)]. (2011)].
The general description of the documents The rule assumes that the arrest is legal. If
listed in the search warrant does not render the arrest is illegal, then the search is illegal
the it void if it is severable, and those items and as a result, the things seized are
not particularly described may be cut off inadmissible as evidence [People v. Aruta, G.R.
without destroying the whole [Uy v. BIR, G.R. No. 120195 (1998)].
No. 129651 (2000)].
The search is confined to his person, but as
PERSONAL PROPERTY TO BE SEIZED an incident of an arrest, the place or premises
W hat may be seized where the arrest was made can also be
(1) Personal property subject of the offense; searched without a search warrant. The
(2) Personal property stolen/embezzled and extent and reasonableness of the search
other proceeds/fruits of the offense; must be decided on its own facts and
(3) Personal property used or intended to be circumstances [Nolasco v. Pao, G.R. No. L-
used as the means of committing an 69803 (1985)].
offense [Sec. 3, Rule 126].
When an individual is lawfully arrested,
The rule does not require that the property to he/she may be frisked for concealed weapons
be seized should be owned by the person that may be used against the arresting officer
against whom the search warrant is directed. and all unlawful articles found in his person,
It is sufficient that the person against whom or within his immediate control, may be
the warrant is directed has control of seized. [OCA v. Barron, AM No. RTJ-98-1420
possession of the property sought to be (1998)]
seized [Burgos v. Chief of Staff, G.R. No. L-
64261 (1984)]. Where a search is first undertaken, and an
arrest was effected based on evidence
produced by such search, both search and
arrest are illegal [Lui v. Matillano, G.R. No.
141176 (2004)].
PAGE 351 OF 425

G.2. CONSENTED SEARCH (9) The possibly vulnerable subjective state of

Jurisprudence requires that in case of the person consenting [Caballes v CA, G.R.
consented searches or waiver of the No. 136292 (2002)].
constitutional guarantee against obtrusive
searches, it must first appear that: G.3. SEARCH OF A MOVING VEHICLE
(a) The right exists; Rationale: Peace officers may lawfully
(b) The person involved had knowledge, conduct searches of moving vehicles without
either actual or constructive, of the need of a warrant as it is impracticable to
existence of such right; and secure a judicial warrant before searching a
(c) The said person had an actual intention vehicle since it can be quickly moved out of
to relinquish the right [People v. Nuevas, the locality or jurisdiction in which the
G.R. No. 170233 (2007)]. warrant may be sought [People v. Tuazon, G.R.
No. 175783 (2007)].
Consent to a search is not to be lightly
inferred, but must be shown by clear and However, these searches would be limited to
convincing evidence. It is the State which has visual inspection and the vehicles or their
the burden of proving, by clear and positive occupants cannot be subjected to physical or
testimony, that the necessary consent was body searches, except where there is
obtained and that it was freely and probable cause to believe that the occupant
voluntarily given [Valdez v. People, G.R. No. is a law offender or the contents of the
170180 (2007)]. vehicles are instruments or proceeds of some
criminal offense.
A peaceful submission to a search or seizure
is not a consent or an invitation thereto, but is The search and seizure without warrant of
merely a demonstration of regard for the vessel and aircrafts for violation of customs
supremacy of the law [People v. Nuevas, G.R. laws has been a traditional exception to the
No. 170233 (2007)]. requirement of search warrant [Roldan v.
Arca, G.R. No. L-25434 (1975)].
Consented search is reasonable only if kept
within the bounds of the actual consent. A Nonetheless, in all cases falling under this
persons consent may limit the extent/scope category, there must be a showing of a
of a warrantless search in the same way that probable cause of a violation of the law
the specifications of a warrant limit the [Caroll v. US (1924)].
search pursuant thereto.
G.4. CHECKPOINTS; BODY CHECKS IN
Relevant to the determination of consent are AIRPORT
the following characteristics of the person Searches conducted in checkpoints are valid
giving consent and the environment in which as long as they are warranted by the
consent is given: exigencies of public order and conducted in a
(1) The age of the defendant; way least intrusive to motorists [People v.
(2) Whether he was in a public or secluded Vinecario, G.R. No. 141137 (2004)].
location;
(3) Whether he objected to the search or Routine inspections are not regarded as
passively looked on; violative of an individuals right against
(4) The education and intelligence of the unreasonable search:
defendant; (a) Where the officer merely draws aside the
(5) The presence of coercive police curtain of a vacant vehicle which is parked
procedures; on the public fair grounds;
(6) The defendant's belief that no (b) Officer simply looks into a vehicle;
incriminating evidence will be found; (c) Officer flashes a light therein without
(7) The nature of the police questioning; opening cars doors;
(8) The environment in which the questioning (d) Occupants not subjected to a physical
took place; and search;
PAGE 352 OF 425

(e) Inspection is limited to usual search or armed and presently dangerous, he is

inspection; or entitled to conduct a stop and frisk search.
(f) Routine check is conducted in a fixed area
[People v. CA (2002)]. Where in the course of investigating this
behavior he identifies himself as a policeman
G.5. PLAIN VIEW SITUATION and makes reasonable inquiry, and where
Requisites: nothing in the initial stage of the encounter
(a) A prior valid intrusion i.e., based on the serves to dispel his reasonable fear for his
valid warrantless arrest in which the police own or others safety, he is entitled for the
are legally present in the pursuit of their protection of himself and others in the area to
official duties; conduct a carefully limited search of outer
(b) Evidence was inadvertently discovered by clothing of such persons in an attempt to
the police who have a right to be where discover weapons which might be used to
they are; assault him [Terry v. Ohio (1968)].
(c) Evidence must be immediately and
apparently illegal (i.e., drug Under this theory, probable cause is not
paraphernalia); required to conduct a stop and frisk but
(d) Plain view justified mere seizure of mere suspicion or hunch will not validate a
evidence without further search [People v. stop and frisk.
Valdez (1999)].
The test is whether or not there is a
Lim itations: reasonable belief based on genuine reason
(a) It may not be used to launch unbridled and in the light of the officers experience and
searches and indiscriminate seizures. the surrounding circumstances, that a crime
(b) It does not extend to a general exploratory has either taken place or is about to take
search made solely to find evidence of place and the person to be stopped is armed
defendants guilt [People v. Musa, G.R. No. and dangerous.
96177 (1993)].
The doctrine is usually applied where a police G.7. ENFORCEMENT OF CUSTOMS LAW
officer is not searching for evidence against For the enforcement of customs duties and
the accused, but nonetheless inadvertently tariff laws, the Collector of Customs is
comes across an incriminating object. authorized to effect searches and seizure
[General Travel Services v. David, G.R. No. L-
Even if an object is in plain view, before it can 19259 (1966)].
be seized without a search warrant, its
incriminating nature must first be apparent. The Tariff Code authorizes customs officers
to:
Where police officers are on the premises (a) Enter, pass through or search any land,
pursuant to a valid consent to a search, an enclosure, warehouse;
item falling into their plain view may properly (b) Inspect/search/examine any vessel or
be seized even if the item is not connected aircraft and any
with their purpose in entering. trunk/package/box/envelope or any
person on board, or stop and examine any
G.6. STOP AND FRISK SITUATION vehicle/beast/person suspected of
Stop and frisk is a limited protective search of holding/conveying any
outer clothing for weapon [Malacat v. CA, G.R. dutiable/prohibited article introduced into
No. 123595 (1997)]. the Philippines contrary to law.
Where a police officer observes unusual General rule: The Tariff and Customs Code
conduct, which leads him reasonably to does not require a warrant for such searches.
conclude in the light of his experience that
criminal activity may be afoot, and that a Exception: In the search of a dwelling house,
person with whom he is dealing may be a search warrant is required.
PAGE 353 OF 425

G.8. OTHER EXCEPTIONS prevent it, without incurring any criminal

EXIGENT AND EMERGENCY liability [People v. Chan Fook, G.R. No. L-
CIRCUMSTANCES 16968 (1921)].
In one case, there was a prevailing general
chaos and disorder because of an ongoing FILE CRIMINAL ACTION AGAINST OFFICER
coup, and the raid of the office/building was A public officer/employee who procures a
precipitated by an intelligence report that search warrant without just cause is
said office was being used as HQ by the RAM. criminally liable under Art. 129, RPC, on
Also, the surveillance team before the raid search warrants maliciously obtained and
was fired upon by the people inside. The abuse in the service of those legally obtained.
raiding team had no opportunity to apply for
warrant as the court then was closed [People FILE A MOTION TO QUASH THE ILLEGAL
v. de Gracia, G.R. Nos. 102009-10 (1994)]. WARRANT
This remedy is employed if search is not yet
BUY-BUST OPERATION conducted.
This is a form of entrapment legally
employed by peace officers as an effective W ho may file
way of apprehending drug dealers in (1) Person injured;
committing an offense. There is no need for a (2) Person searched;
search warrant (or warrant of arrest) because (3) Owner of the property.
the accused is caught in flagrante delicto.
W here to file
PRIVATE SEARCHES General rule: Motions to quash a search
In one case, the evidence was obtained by a warrant and/or to suppress evidence
private person acting in a private capacity, obtained thereby may be filed in and acted
while performing company standard upon only by the court where the action has
operating procedures and without state been instituted.
participation and intervention. It was held
that the constitutional rights cannot be If no criminal action has been instituted,
invoked when there is no government motion may be filed in and resolved by the
interference [People v. Marti, G.R. No. 81561 court that issued the warrant.
(1991)].
If such court failed to resolve the motion, and
H. REMEDIES FROM UNLAWFUL a criminal case is subsequently filed in
SEARCH AND SEIZURE another court, the motion shall be resolved
by the latter court. [Sec. 14, Rule 126]
H.1. WHO MAY AVAIL
Only the party whose rights have been Grounds
impaired thereby; the objection to an The following may be raised in the MTQ:
unlawful search and seizure is purely (1) Absence of probable cause at the time of
personal and cannot be availed of by third the issuance of the search warrant;
parties [Stonehill v. Diokno, G.R. No. L-19550 (2) Non-compliance with substantive and
(1967); Santos v. Pryce Gases Inc., G.R. No. procedural requisites, such as:
165122 (2007)]. (a) No personal examination by the judge;
(b) More than one specific offense;
H.2. MEANS (c) No particular description [Bache & Co. v.
EMPLOY ANY MEANS TO PREVENT THE Ruiz, G.R. No. L-32409 (1971)].
SEARCH
Without a search warrant, the officer cannot These may also be raised in the criminal
insist on entering a citizens premises. If he action as matters of defense [DOH v. Sy Chi
does so, he becomes an ordinary intruder. Siong (1989)].
The person to be searched may resist the

search and employ any means necessary to
PAGE 354 OF 425
Failure to file motion to quash H.3. CIVIL AND CRIMINAL LIABILITY

Where no MTQ the search warrant was filed The following offenses may result from
in or resolved by the issuing court, the unreasonable search and seizure:
interested party may move in the court where (1) Violation of domicile [Art. 128, RPC];
the criminal case is pending for the (2) Search warrant maliciously obtained [Art.
suppression of the personal property seized if 129, RPC];
the same is offered therein as evidence (3) Searching domicile without witnesses [Art.
[Malaloan v. CA, G.R. No. 104879 (1994)] 130, RPC];
(4) Unjust interlocutory order [Art. 206, RPC].
The MTQ and Motion to Suppress Evidence
The public officer or employee may be held
are alternative, not cumulative remedies.
liable for:
(1) Entering without authority; against the will;
FILE A MOTION TO RETURN THINGS refuses to leave;
SEIZED (2) A search warrant procured without just
This is the remedy used if the search was cause or if with just cause, exceeds his
already conducted and goods were seized as authority or uses unnecessary severity of
a consequence thereof. force;
(3) Conducting the search without the required
Where the motion will be filed follows the witnesses.
same rules as in a motion to quash.
The judge may be held liable for:
An accused may file a motion to suppress (1) Knowingly rendering an unjust interlocutory
evidence if he is not among the persons who order;
can file a motion to quash. (2) Inexcusable negligence or ignorance.
General rule: Goods seized by virtue of an It may also result in civil liability for:
illegal warrant must be returned. (1) Violation of rights and liberties [Art. 32(9),
Civil Code];
Exception: If possession of the things seized (2) Malicious prosecution and acts referred to
is prohibited by law, they should not be Art. 32 [Art. 2218, Civil Code].
returned [Castro v. Pabalan, G.R. No. L-
Malice or bad faith is not required.
28642 (1976)].
Not only official actions, but all persons who are
Where the accused obtained goods from responsible for the violation are liable for
another through payment of bouncing checks damages [MHP Garments v. CA, G.R. No. 86720
and thereafter sold said goods to a buyer in (1994)].
good faith, but said goods were taken from
the purchaser with the use of a search H.4. WAIVER OF IMMUNITY AGAINST
warrant although the criminal case for estafa UNREASONABLE SEARCH AND SEIZURE
against the accused was still pending, the The constitutional immunity against
goods should be returned to the buyer. The unreasonable searches and seizure is a
buyer is entitled to possession of goods until personal right that may be waived
restitution is ordered by the court in the expressly/impliedly only by the person whose
criminal case [Yu v. Honrado, G.R. No. 50025 right is being invaded or one who is expressly
(1980)]. authorized to do so in his behalf [Pasion v.
Locsin, G.R. No. L-45950 (1938)].
MOTION TO SUPPRESS EVIDENCE
This refers to a motion to suppress as Requisites:
evidence the objects illegally taken pursuant (1) It must appear that the right exists;
to the exclusionary rule, which states that any (2) That the person involved had knowledge,
evidence obtained through unreasonable (actual or constructive) of the existence of
such right;
searches and seizures shall be inadmissible
(3) That the person had an actual intention to
for any purpose in any proceeding.
relinquish the right.
PAGE 355 OF 425

FLOWCHART:
SEARCH WARRANT PROCESS
PAGE 356 OF 425

FLOWCHART:
POST-ARREST PROCEDURE FOR WARRANTLESS ARRESTS
PAGE 357 OF 425

XIV. Provisional The accused may present evidence to prove

his defense and damages, if any, arising from
Remedies the issuance of a provisional remedy in the
case [Sec. 11(b), Rule 119].
A. NATURE B.2. PRELIMINARY ATTACHMENT
Provisional remedies in civil actions, insofar W hen proper
as they are applicable, may be availed of in When the civil action is properly instituted in
connection with the civil action deemed the criminal action, the offended party may
instituted with the criminal action [Sec. 1, have the property of the accused attached as
Rule 127]. security for the satisfaction of any judgment
that may be recovered from the accused in
Where the civil action has actually been the following cases:
instituted, or proceeded independently of the (a) When the accused is about to abscond
criminal action, these provisional remedies from the Philippines
cannot be availed of in the criminal action but (b) When the criminal action is based on a
may be applied for in the separate civil action. claim for money or property embezzled or
[Regalado (2010)] fraudulently misapplied or converted to
the use of the accused who is a
If the civil action is suspended on account of public/corporate officer, attorney, factor,
filing of the criminal action, the court with broker, agent or clerk, in the course of his
which the civil case is filed is not thereby employment as such, or by any other
deprived of its authority to issue auxiliary person in a fiduciary capacity, or for a
writs that do not go into the merits of the willful violation of duty
case [Ramcar, Inc v. de Leon, G.R. No. L-1329 (c) When the accused has concealed,
(1947)]. removed or disposed of his property, or is
about to do so
Provisional remedies are not available when: (d) When the accused resides outside the
(1) Offended party has waived the civil claim; Philippines [Sec. 2, Rule 127].
(2) Offended party has reserved the civil
claim; Issuance and implementation
(3) Offended party has already instituted a The writ may be issued ex parte before
separate civil action; acquisition of jurisdiction over the accused.
(4) Criminal action carries with it no civil
liability. However, it may be enforced only after
acquisition of jurisdiction over the person of
B. KINDS OF PROVISIONAL the accused [Gonzalez v. State Properties, G.R.
REMEDIES No. 140765 (2001)].
B.1. IN GENERAL No notice to the adverse party, or hearing on

Reference to provisional remedies in Sec. 1, the application is required before a writ of
Rule 127 is made in general terms, hence preliminary attachment may issue as a
preliminary injunction, preliminary hearing would defeat the purpose of the
attachment, receivership, replevin or support provisional remedy. The time which such
pendent lite may be availed of [Riano, hearing would take could be enough to
Criminal Procedure (2011)]. enable the defendant to abscond or dispose
of his property before a writ of attachment
However, only preliminary attachment is may issue [Mindanao Savings and Loan Assoc.
provided for under the same rule. v. CA, G.R. No. 84481 (1989)].
PAGE 358 OF 425

UP LAW BOC EVIDENCE REMEDIAL LAW
REMEDIAL LAW
EVIDENCE
PAGE 359 OF 425

I. General Principles APPLICABILITY

Under the Rules of Court, the rules of
evidence are specifically applicable only to
A. Concept of Evidence judicial proceedings. [Sec. 1, Rule 128]
B. Scope of the Rules of Evidence
C. Evidence in Civil Cases vs. Evidence in In quasi-judicial proceedings, the same apply
Criminal Cases by analogy or suppletorily AND whenever
D. Proof Versus Evidence practicable and convenient [Sec. 4, Rule 1],
E. Factum Probans Versus Factum except in cases where the governing law or
Probandum rules specify otherwise, e.g., the Rules on
F. Admissibility of Evidence Electronic Evidence covers quasi-judicial and
G. Burden of Proof and Burden of Evidence administrative bodies [Sec. 2, Rule 1, Rules on
H. Presumptions Electronic Evidence]; special rules are laid
I. Liberal Construction of the Rules of down in EO 292, series of 1987 [Revised
Evidence Administrative Code], etc.
J. Quantum of Evidence (Weight And
Sufficiency of Evidence) Administrative investigations shall be
conducted without necessarily adhering
A. CONCEPT OF EVIDENCE strictly to the technical rules of procedure and
evidence applicable to judicial proceedings
The means, sanctioned by these rules, of [Dela Cruz v. Malunao, AM No P-11-3019
ascertaining in a judicial proceeding, the (2012))
truth respecting a matter of fact [Sec. 1, Rule
128] JUDICIAL PROCEEDING [Sec. 3, Rule 1]
(1) Civil includes special civil actions
B. SCOPE OF THE RULES OF EVIDENCE (2) Criminal
[Sec. 2, Rule 128] (3) Special Proceeding
GENERAL RULE: Principle of NOTE: Disbarment is not included as it is an

uniformity exercise of the judiciarys quasi-executive
The rules of evidence shall be the same in all powers.
courts and in all trials and hearings.
SOURCE
EXCEPTIONS: The Rules of Court are not the only source of
If otherwise provided by: rules that apply to judicial proceedings (e.g.
(1) Law [e.g. 1987 Constitution, statutes] court issuances, constitutional provisions
(2) Rules of Court with exclusionary rule implications, etc).
(3) SC issuances [e.g., Judicial Affidavit Rule,
Rules on Procedure for Environmental C. EVIDENCE IN CIVIL CASES
Cases, Child Witness Rule, Rules on VERSUS EVIDENCE IN CRIMINAL
Electronic Evidence, Rules on DNA CASES
Evidence]
(4) Jurisprudence [e.g., Star Two v. Ko, G.R.
In Civil Cases In Criminal Cases
No. 185454 (2011), where evidence was
presented to support a MR of the denial of Preponderance Proof beyond reasonable doubt
an MTD but the adverse party failed to of evidence [Sec. 2, Rule 133]
attend the hearing for their reception. The [Sec. 1, Rule 133]
evidence not formally offered was Offer of EXCEPT for quasi-offenses
considered when it had been identified by compromise or those allowed by law to
testimony, duly recorded and it had been NOT an be compromised, offer of
incorporation in the records of the case.] admission of any compromise by the accused
liability may be received in evidence as
[Sec. 27, Rule an implied admission of guilt.
130] Exceptions:
PAGE 360 OF 425

In Civil Cases In Criminal Cases E. FACTUM PROBANS VERSUS

(1) Sec 204, RA 8424 Tax
FACTUM PROBANDUM
Reform Act of 1997, which
provides that payment of Factum Probans Factum Probandum
any internal revenue tax
and all criminal violations Facts or material The proposition to
may be compromised, evidencing the be established
except those already filed proposition
in Court and those
The evidentiary fact The ultimate fact
involving fraud.
(2) In rape cases, an offer of
tending to prove the sought to be
marriage is tantamount to fact in issue established
an offer of compromise
because, by virtue of the CLASSES OF EVIDENCE ACCORDING TO
amendment of Art. 266-C FORM
(Effect of Pardon) of the
(1) Object - those addressed to the senses of
RPC by RA 8353, the
subsequent valid marriage the court. [Sec. 1, Rule 130]
of the accused & the (2) Docum entary - consists of writings or
offended party any material containing letters, words,
extinguishes criminal numbers, figures, symbols or other modes
liability. Hence where the of written expressions offered as proof of
marriage does not take their contents [Sec. 2, Rule 130]
place or is subsequently (3) Testimonial - evidence elicited from the
declared to be void ab mouth of a witness [Riano, citing Blacks
initio, the offer of marriage Law Dictionary]. It involves two levels of
becomes admissible as an
perception: that of the witness perceiving
implied admission of guilt.
the event, and that of the judge evaluating
A plea of guilty later withdrawn the witness.
or an unaccepted offer of a plea
of guilty to a lesser offense, is There is no hierarchy with respect to the
not admissible in evidence physical forms of evidence. A fact may be
against the accused who made proved by any kind; the court may admit.
the plea or offer [Sec. 27, Rule There is no rule (in general) that prefers one
130] form rule as against another. [Adzuara v.
Presumption of Presumption of innocence a Court of Appeals, G.R. No. 125134 (1999)]
innocence does constitutional guarantee on the
NOT apply accused [Sec. 14, Art. III] CUMULATIVE AND CORROBORATIVE
EVIDENCE
An offer to pay or the payment of medical, Cumulative Corroborative
hospital or other expenses occasioned by an Evidence Evidence
injury is NOT admissible as proof of criminal
Evidence of the Additional evidence of a
or civil liability for the injury. [Sec. 27, Rule
same kind and to different character to
130]
the same state of prove the same factum
facts probandum
D. PROOF VERSUS EVIDENCE
PRIMA FACIE AND CONCLUSIVE EVIDENCE
Proof Evidence Prima Facie Conclusive
Result or effect Mode and manner of proving Standing alone, Class of evidence
of evidence competent facts in judicial unexplained or which the law does
[Regalado] proceedings [Bustos v. uncontradicted, is sufficient not allow to be
Lucero, G.R. No. L-2068, to maintain the proposition contradicted
(1948)] affirmed e.g. Torrens title
e.g. Police blotter
PAGE 361 OF 425

offer of evidence is an important part before

PRIMARY AND SECONDARY EVIDENCE courts can rule on their admissibility.
Primary Secondary
Best evidence Substitutionary Every objection to the admissibility of
evidence evidence shall be made at the time such
That which the law Inferior to primary; evidence is offered, or as soon thereafter as
regards as affording permitted only when the objection to its admissibility have become
the greatest the best evidence is not apparent, otherwise the objection shall be
certainty of the fact available considered waived. [Abrenica v. Gonda, G.R.
in question No. L-10100 (1916)]
NOTE: The Best Evidence Rule is a rule of [Secs. 35-37, Rule 132]
exclusion and it is not the same as the Form When objection made
classification that refers to the best evidence Testimonial Objection to the
to prove a fact in issue. evidence qualification of the
witness must be made at
For ex the time he is called to the
EXAMPLE: The failure to present a single stand, which is when the offer
official receipt to prove payment is contrary to of testimonial evidence is
the rule that a receipt, which is a written and made (orally)
signed acknowledgment that money and
goods have been delivered, is the best Objections to parts of
evidence of the fact of payment testim ony should be raised
although not exclusive. [Vitarich v. Losin, when the objectionable
G.R. 181560 (2010)] question is asked or after the
answer was given if the
POSITIVE AND NEGATIVE EVIDENCE objectionable feature became
apparent by reason of such
Positive Evidence Negative Evidence answer (also orally)
Witness affirms Witness states he/she did Object or Either:
that a fact did or not see or know of the real evidence (1) At the time it is
did not occur occurrence of a fact presented in ocular
inspection or
demonstration, or
F. ADMISSIBILITY OF EVIDENCE (2) When it is formally
offered
Admissibility of evidence refers to the
Documentary At the time it is formally
question of whether or not the circumstance
evidence offered
(or evidence) is to be considered at all. On the
other hand, the probative value of evidence
RELEVANCE OF EVIDENCE AND
refers to the question of whether or not it
COLLATERAL MATTERS
proves an issue. [PNOC Shipping and
Transport Corporation v. CA, G.R. No. 107518
Relevancy
(1998)]
Evidence is relevant when it has such a
relation to the fact in issue as to induce belief
REQUISITES FOR ADMISSIBILITY
in its existence or non-existence. [Sec. 4,
(1) Relevant to the issue; and
Rule 128] e.g., Evidence as to the age of a
(2) Competent i.e. not excluded by law or the
person who has been raped is relevant in a
ROC. [Sec. 3, Rule 128]
situation where the age would qualify the
offence to statutory rape
THE IMPORTANCE OF OFFER AND
OBJECTION IN RELATION TO ADMISSIBILITY
Determinable by the rules of logic and human
Admissibility is determined at the time the
experience.
evidence is offered to the court. Therefore,
PAGE 362 OF 425
DIRECT AND CIRCUMSTANTIAL

Collateral matters Direct Evidence Circumstantial
Matters other than the fact in issue which are
offered as a basis for inference as to the Proves the fact in Proof of a fact/s from
existence or non-existence of the facts in dispute without which, taken either singly
issue [Regalado] the aid of any or collectively, the
inference or existence of a particular
GENERAL RULE: Evidence on collateral presumption fact in dispute may be
matters is NOT allowed. [Sec. 4, Rule 128] inferred as a necessary or
probable consequence
EXCEPTION: When it tends in any
reasonable degree to establish the COMPETENCE
probability or improbability of the fact in Evidence is competent when it is not be
issue. [Sec. 4, Rule 128] excluded by (i) law or (ii) the ROC [Sec. 3,
Rule 128]
NOTE: What is prohibited by the Rules is not
evidence of all collateral matters, but Determined by the prevailing exclusionary
evidence of irrelevant collateral facts. rules of evidence [Regalado]
[Regalado]
NOTE: Exclusionary rules may affect due
EXAMPLE process. To the extent that they might
In an administrative case for sexual prejudice substantive rights, therefore, they
harassment, the respondent did not offer cannot be made to apply retroactively.
evidence that has a bearing on the
complainants chastity. What he presented EXCLUSIONARY RULES OF EVIDENCE
are different charges for unrelated filed (1) Constitutional exclusionary rules
against her. These pieces of evidence do not Unreasonable searches and seizures [Sec.
establish the probability or improbability of 2, Art. III]; privacy of communication and
the offense charged. Credibility means the correspondence [Sec. 3, Art. III]; right to
disposition and intention to tell the truth in counsel, prohibition on torture, force,
the testimony given. It refers to a persons violence, threat, intimidation or other
integrity, and to the fact that he is worthy of means which vitiate the free will;
belief. [Civil Service Commission v. Belagan, prohibition on secret detention places,
G.R. No. 132164 (2004)] solitary, incommunicado [Sec. 12, Art. III];
right against self-incrimination [Sec. 17,
NOTE: The court in this case had discussed Art. III]
Sec. 51(a), Rule 130 in relation to relevance (2) Statutory exclusionary rules
and stated that the question of a witness Lack of documentary stamp tax to
credibility should be referred to Sec. 11, Rule documents required to have one makes
132. such document inadmissible as evidence
in court until the requisite stamp/s shall
Circumstantial evidence is the evidence have been affixed thereto and cancelled
of collateral facts or circumstances from [Sec. 201, NIRC]; any communication
which an inference may be drawn as to the obtained by a person, not being
probability or improbability of the fact in authorized by all the parties to any private
dispute. They are evidence of relevant communication, by tapping any
collateral facts. [Regalado] wire/cable or using any other
device/arrangement to secretly
overhear/intercept/record such
information by using any device, shall not
be admissible in evidence in any
judicial/quasi-
judicial/legislative/administrative hearing
PAGE 363 OF 425

or investigation. [Secs. 1 and 4, RA 4200 Eligibility of evidence Worthiness of belief;

(Wire-Tapping Act)] to be received as such believability
(3) Under the ROC, Rule 130 is the applicable
rule in determining the admissibility of NOTE: Credibility does not, per se, exclude. It
evidence. only does in so far as it makes the piece of
(4) Court issuances (examples) evidence irrelavant to the fact in issue. (e.g.
(a) Rule on Electronic Evidence, e.g. the cross-examination of a witness is
compliance with authentication primarily about his credibility)
requirements for electronic evidence
(b) Child Witness Rule, e.g. sexual abuse
shield rule
G. BURDEN OF PROOF AND
(c) Judicial Affidavit Rule BURDEN OF EVIDENCE
DOCTRINES OF ADMISSIBILITY Burden of proof is the duty of a party to

present evidence on the facts in issue
Multiple admissibility necessary to establish his/her claim or
Where the evidence is relevant and defense by the amount of evidence required
competent for two or more purposes, such by law. [Sec. 1, Rule 131]
evidence shall be admitted for any or all the In civil cases, the quantum of evidence
purposes for which it is offered, provided it required to sustain the proponent of an issue
satisfies all the requisites of law for its is preponderance of evidence. The burden of
admissibility therefor. [Regalado] proof is on the party who would be defeated if
no evidence were given in either side, the
Conditional admissibility plaintiff with respect to his complaint, the
Where the evidence at the time of its offer defendant with respect to his counterclaim,
appears to be immaterial or irrelevant unless and the cross-claimant, with respect to his
it is connected with the other facts to be cross-claim.
subsequently proved, such evidence may be
received, on condition that the other facts will In crim inal cases:
be proved thereafter; otherwise, the evidence For the issuance of warrant of arrest -
already given shall be stricken out. evidence of probable cause that there
[Regalado] exist a reasonable ground that the
accused has committed an offense [Algas
Curative admissibility v. Garrido, AM No. 289-MJ, (1974))
Where the court has admitted incompetent To warrant the filing of an
evidence adduced by the adverse party, a inform ation if there is sufficient
party has a right to introduce the same kind ground to engender a well-founded belief
of evidence in his/her behalf. [Regalado] that a crime has been committed and the
respondent is probably guilty thereof, and
W hat determines the rule of curative should be held for trial [Sec. 1, Rule 112]
adm issibility: To sustain a conviction - evidence of
(1) Whether the incompetent evidence was guilt beyond reasonable doubt.
seasonably objected to - Lack of objection To deny bail when discretionary when
to incompetent evidence constitutes the evidence of guilt is strong
waiver on the part of the party against To accept a plea of guilty to a capital
whom it was introduced but the opposing offense that the accused voluntarily and
party is not deprived of his right to similar fully comprehended the consequences of
rebutting evidence; and his plea [Sec. 3, Rule 116]
(2) Whether the admission of such evidence To grant demurrer to evidence the
will cause a plain and unfair prejudice to evidence is insufficient to sustain a
the party against whom it was admitted conviction [Sec. 23, Rule 119]
[Regalado]
The burden of proof rests on the prosecution.
Competence Credibility
PAGE 364 OF 425
A party will have the burden of evidence should be against the party with the burden
only (i.e., will have to be a proponent) if there of proof. [Rivera v. CA, GR No. 115625 (1998);
is any factum probandum (whether Marubeni v. Lirag, GR No. 130998, (2001)]
evidentiary or otherwise) that the adverse
party has already established (whether by law, In criminal cases, the equipoise rule provides
rule, or by virtue of evidence that he has that where the evidence is evenly balanced,
presented) that he (the potential proponent) the constitutional presumption of innocence
has to overcome. That factum probandum tilts the scales in favor of the accused.
may, but does not have to be, nor is limited to [Malana v. People, G.R. No. 173612, (2008)]
a "prima facie presumption." Likewise, a
party will not have any burden of evidence at H. PRESUMPTIONS
all if the adverse party has not established
any factum probandum in the first place [Prof.
Avena]. Conclusive Disputable
Inferences which the Satisfactory if
In both civil and criminal cases, the burden of law makes so uncontradicted, but
evidence lies with the party who asserts an peremptory that it will may be contradicted
affirmative allegation. [Regalado] not allow them to be and overcome by
overturned by any other evidence. [Sec.
EXAMPLE: In a case for collection of a sum contrary proof however 3, Rule 131]
of money, if the defendant asserts that she strong [Datalift Movers
has paid, then she has the burden of proving v. Belgravia Realty,
that she had, not on the creditor that she had G.R. No. 144268
not. While the creditor had needed to prove (2006)]
the existence of a debt, the burden shifts to
the debtor because she alleged an affirmative
CONCLUSIVE PRESUMPTIONS UNDER THE
defense, which admits the creditors
RULES [Sec. 2, Rule 131]:
allegation. [Vitarich v. Losin, G.R. No. 181560
(1) A party is not permitted falsify a thing if:
(2010)]
(a) By his own declaration, act or omission;
(b) He intentionally and deliberately led
BURDEN OF PROOF AND BURDEN OF
another to believe a particular thing is
EVIDENCE
true;
Burden of (c) To act upon such belief; and
Burden of Evidence
Proof (d) The litigation arises out of such
Does not shift Shifts from party to party declaration act or omission.
throughout depending upon the (2) A tenant is not permitted to deny the title
the trial exigencies of the case in the of his landlord at the time of the
course of the trial commencement of the relation of landlord
Generally Generally determined by the and tenant between them.
determined by developments at the trial, or
the pleadings by the provisions of These conclusive presumptions are based
filed by the substantive law or procedural upon the doctrine of estoppel in pais under
party rules which may relieve the the Civil Code. [Regalado]
party from presenting
evidence on the fact alleged Once a contract of lease is shown to exist
(presumptions, judicial notice between the parties, the lessee cannot by any
and admissions) proof, however strong, overturn the
conclusive presumption that the lessor has a
valid title to or a better right of possession to
EQUIPOISE RULE OR EQUIPOISE DOCTRINE the subject premises than the lessee. [Santos
The doctrine refers to the situation where the v. National Statistics Office., G.R. No. 171129,
evidence of the parties are evenly balanced or (2011)]
there is doubt on which side the evidence
preponderates. In this case, the decision
PAGE 365 OF 425

What a tenant is estopped from denying is issue raised in a dispute submitted for
the title of his landlord at the time of the arbitration were laid before arbitrators
commencement of the landlord-tenant and passed upon by them;
relation. If the title asserted is one that is (16) Private transactions have been fair
alleged to have been acquired subsequent to and regular;
the commencement of that relation, the (17) Ordinary course of business has been
presumption will not apply. Hence, the tenant followed;
may show that the landlord's title has expired (18) There was a sufficient consideration
or been conveyed to another or himself; and for a contract;
he is not estopped to deny a claim for rent, if (19) Negotiable instrument was given or
he has been ousted or evicted by title indorsed for a sufficient consideration;
paramount. [Ermitao v Paglas, G.R. No. (20) An indorsement of negotiable
174436 (2013)] instrument was made before the
instrument was overdue and at the place
DISPUTABLE PRESUMPTIONS UNDER THE where the instrument is dated;
RULES [Sec. 3, Rule 131] (21) A writing is truly dated;
(1) Person is innocent of a crime or wrong; (22) Letter duly directed and mailed was
(2) Unlawful act is done with an unlawful received in the regular course of the mail;
intent; (23) Presumptions concerning absence:
(3) Person intends the ordinary consequences (a) Ordinary but continued absence of:
of his voluntary act; (i) 7 years, it being unknown WON
(4) Person takes ordinary care of his concerns; the absentee still lives, he is
(5) Evidence willfully suppressed would be considered dead for all purposes,
adverse if produced; except for those of succession
(6) Money paid by one to another was due to (ii) 10 yearsthe absentee shall be
the latter; considered dead for the purpose
(7) Thing delivered by one to another of opening his succession; but if
belonged to the latter; he disappeared after the age of
(8) Obligation delivered up to the debtor has 75 years, an absence of 5 years
been paid; shall be sufficient to open his
(9) Prior rents or installments had been paid succession
when a receipt for the later ones is (iii) 4 consecutive yearsthe spouse
produced; present may contract a
(10) A person found in possession of a subsequent marriage if s/he has
thing taken in the doing of a recent a well-founded belief that the
wrongful act is the taker and doer of the absent spouse is already dead;
whole act; otherwise, that things which a but where there is danger of
person possesses or exercises acts of death, an absence of only 2 years
ownership over are owned by him; shall be sufficient for remarriage
(11)Person in possession of an order on (b) Qualified absence
himself for the payment of the money or (i) A person on board a vessel lost
the delivery of anything has paid the during a sea voyage, or an
money or delivered the thing accordingly; aircraft which is missing, who
(12) Person acting in public office was has not been heard of for 4 years
regularly appointed or elected to it; since the loss of the vessel or
(13) Official duty has been regularly aircraft
performed; (ii) A member of the armed forces
(14) A court or judge acting as such, who has taken part in armed
whether in the Philippines or elsewhere, hostilities, and has been missing
was acting in the lawful exercise of for 4 years
jurisdiction; (iii) A person who has been in danger
(15) All the matters within an issue raised of death under other
in a case were laid before the court and circumstances and whose
passed upon by it; all matters within an
PAGE 366 OF 425

existence has not been known for (30) A thing once proved to exist
4 years continues as long as is usual with things of
(24) Acquiescence resulted from a belief the nature;
that the thing Persons acting as co- (31) The law has been obeyed;
partners have entered into a contract of (32) A printed/published book, purporting
co-partnership; to be printed/published by public
(25) A man and woman deporting authority, was so printed/published;
themselves as husband and wife have (33) A printed/published book, purporting
entered into a lawful contract of marriage; to contain reports of cases adjudged in
(26) Property acquired by a man and a tribunals of the country where the book is
woman who are capacitated to marry each published, contains correct reports of such
other and who live exclusively with each cases;
other as husband and wife without the (34) A trustee or other person whose duty
benefit of marriage or under a void it was to convey real property to a
marriage, has been obtained by their joint particular person has actually conveyed it
efforts, work or industry; to him when such presumption is
(27) In cases of cohabitation by a man and necessary to perfect the title of such
a woman who are not capacitated to person or his successor in interest;
marry each other and who have acquired (35) Presumptions regarding survivorship:
property through their actual joint (Applicable for all purposes except
contribution of money, property or succession)
industry, such contributions and their (a) When 2 persons perish in the same
corresponding shares including joint calamity,
deposits of money and evidences of credit (b) and it is not shown who died first,
are equal; (c) and there are no particular
(28) Presumptions governing children of circumstances from which it can be
women who contracted another marriage inferred,
within 300 days after termination of her (d) the survivorship is determined from the
former marriage (in the absence of proof probabilities resulting from the
to the contrary): acquiesced in was strength and the age of the sexes:
conformable to the law/fact; Person presumed
(29) Things have happened according to Situation
to have survived
the ordinary course of nature and ordinary
Both < 15 y/o The older
nature habits of life;
Both < 60 y/o The younger
When Child was One < 15 y/o, The one < 15
Presumption
Born the other > 60 y/o
Before 180 days Considered to have been Both > 15 and < 60 y/o, of The male
after the conceived during the different sexes
solemnization of former marriage, Both > 15 and <60 y/o, of The older
the subsequent provided it be born within the same sex
marriage 300 days after the
termination of the former One < 15 or > 60 y/o, and The one between
marriage the other between those those ages
ages
After 180 days Considered to have been
following the conceived during the (36) As between 2 or more persons called
celebration of the subsequent marriage, to succeed each other: If there is a doubt
subsequent even though it be born as to which of them died first, whoever
marriage within the 300 days after alleges the death of one prior to the
the termination of the other, shall prove the same. In the
former marriage. absence of proof, they shall be
considered to have died at the same time.
PAGE 367 OF 425

in the performance of official duties. [People

No presumption of legitimacy or v. Lagahit, G.R. No. 200877 (2014)]
illegitim acy
There is no presumption of legitimacy or There is a disputable presumption that things
illegitimacy of a child born after three have happened according to the ordinary
hundred days following the dissolution of course of nature and the ordinary habits of
marriage or the separation of spouses. life. All of the foregoing evidence, that a
Whoever alleges the legitimacy or person with typical Filipino features is
illegitimacy of such child must prove his abandoned in Catholic Church in a
allegation. [Sec. 4, Rule 131] municipality where the population of the
Philippines is overwhelmingly Filipinos such
MCMP contends that the Contract presented that there would be more than a 99% chance
by Monark is not the contract that they that a child born in the province would be a
entered into. Yet, it has failed to present a Filipino, would indicate more than ample
copy of the Contract even despite the request probability if not statistical certainty, that
of the trial court for it to produce its copy of petitioner's parents are Filipinos. That
the Contract. Normal business practice probability and the evidence on which it is
dictates that MCMP should have asked for based are admissible under Rule 128, Section
and retained a copy of their agreement. Thus, 4 of the Revised Rules on Evidence. [Poe-
MCMP's failure to present the same and even Llamanzares v. COMELEC, G.R. No. 221697
explain its failure gives rise to the disputable (2016)]
presumption adverse to MCMP that NOTE: case is outside BAR coverage
"evidence willfully suppressed would be
adverse if produced." [MCMP Construction v. I. LIBERAL CONSTRUCTION OF THE
Monark Equipment, G.R. No. 201001 (2014)] RULES OF EVIDENCE
The adverse presumption of suppression of Like all other provisions under the ROC, rules
evidence is not applicable when: of evidence must be liberally construed. [Sec.
(1) the suppression is not willful; 6, Rule 1]
(2) the evidence suppressed or withheld is
merely corroborative or cumulative; Rules on Electronic Evidence shall likewise be
(3) the evidence is at the disposal of both construed liberally. [Sec. 2, Rule 2, Rules on
parties; and Electronic Evidence]
(4) the suppression is an exercise of a
privilege. [Tarapen v. People, G.R. No.
173824 (2008)]
J. QUANTUM OF EVIDENCE
(WEIGHT AND SUFFICIENCY OF
The presumption of regularity in the EVIDENCE)
performance of official duty obtains only
when there is no deviation from the regular J.1. PROOF BEYOND REASONABLE DOUBT
performance of duty. Where the official act in Applicable quantum of evidence in criminal
question is irregular on its face, no cases. The accused is entitled to an acquittal
presumption of regularity can arise. [People v. if his guilt is not shown beyond reasonable
Casabuena, G.R. No. 186455 (2014)] doubt. [Sec. 2, Rule 133]
When there is gross disregard of the It does not mean such a degree of proof
procedural safeguards set forth in Republic excluding possibility of error and producing
Act No. 9165 (Comprehensive Dangerous absolute certainty. Only moral certainty is
Drugs Act of 2002), serious uncertainty is required that degree of proof which
generated as to the identity of the seized produces conviction in an unprejudiced mind.
items that the prosecution presented in [Sec. 2, Rule 133]
evidence. Such doubt cannot be remedied by
merely invoking the presumption of regularity The burden is on the prosecution to prove
guilt beyond reasonable doubt, NOT on the
PAGE 368 OF 425

accused to prove his/her innocence. [Boac v they are supported by substantial evidence.
People, G.R. No. 180597, (2008)] [Tan Brothers Corp. v. Escudero, G.R. No.
188711 (2013)]
The prosecution must not rely on the
weakness of the evidence of the defense. J.4. CLEAR AND CONVINCING EVIDENCE
[Ubales v People, G.R. No. 175692, (2008);
People v. Hu, G.R. No. 182232, (2008)] The standard of proof required in granting or
denying bail in extradition cases is clear and
J.2. PREPONDERANCE OF EVIDENCE convincing evidence that the potential
Applicable quantum of evidence in civil cases extradee is not a flight risk and will abide
[Sec. 1, Rule 133] with all the orders and process of the
extradition court. [Government of Hongkong
Means that the evidence adduced by one side Special Administrative Region v. Olalia, Jr.,
is, as a whole, superior to or has greater G.R. No. 153675, (2007)]
weight than that of the other. [Habagat Grill v.
DMC-Urban Property Developer, Inc., G.R. No. It must be added that the defenses of denial
155110, (2005); Bank of the Philippine Islands and improper motive can only prosper when
v. Reyes, G.R. No. 157177, (2008)] substantiated by clear and convincing
evidence. [People v. Colentava, G.R. No.
In determining preponderance of evidence, 190348 (2015)]
the court may consider:
(1) All the facts and circumstances of the It is used for overturning disputable
case; presumptions, such as the presumption of
(2) The witnesses manner of testifying, their regularity in the performance of official duties
intelligence, their means and opportunity [Portuguez v. People, G.R. No. 194499, (2015)]
of knowing the facts to which they testify, or the existence of a valuable consideration.
the nature of the facts to which they testify, [Tolentino v. Sps. Jerera, G.R. No. 179874
the probability or improbability of their (2015)]
testimony, their interest or want of interest,
and also their personal credibility so far as NOTE, however: The addressee's direct
the same may legitimately appear upon denial of receipt of mail alleged to have
the trial; been mailed to it defeats the presumption in
(3) Number of witnesses (although Sec. 3(v), Rule 131 and shifts the burden upon
preponderance is not necessarily with the the party favored by the presumption to prove
number of witnesses). [Sec. 1, Rule 133] that the mailed letter was indeed received by
the addressee. [Commissioner of Internal
J.3. SUBSTANTIAL EVIDENCE Revenue v. Metro Star, G.R. No. 185371 (2010)]
Degree of evidence required in cases filed
before adm inistrative or quasi-judicial It is also the standard of proof for invoking
bodies. [Sec. 5, Rule 133] the justifying circumstance of self-defense for
the defense and proving the aggravating
Also applies to petitions under the Rule on circumstance of treachery for the prosecution
the Writ of Amparo. [Sec. 17, Rule on the Writ [People v. Casas, G.R. No. 212565 (2015)] The
of Amparo] former is because having admitted the killing
SUBSTANTIAL EVIDENCE requires the accused to rely on the strength of
That amount of relevant evidence which a his own evidence, not on the weakness of the
reasonable mind might accept as adequate Prosecutions, which, even if it were weak,
to justify a conclusion. [Sec. 5, Rule 133] could not be disbelieved in view of his
admission. [People v. Mediado, G.R. No.
SUBSTANTIAL EVIDENCE RULE 169871 (2011)]
Factual findings, especially when affirmed by
the Court of Appeals, are accorded not only Intermediate in character lower than proof
great respect but also finality, and are beyond reasonable doubt, but higher than
deemed binding upon this Court so long as preponderance of evidence
PAGE 369 OF 425
II. Judicial Notice and Rules of Court [Riano citing Siena Realty v.
Gal-lang, G.R. No. 145169]
Judicial Admissions The Management Contract entered into by
A. What Need Not be Proved petitioner and the PPA is clearly not among
B. Matters of Judicial Notice the matters which the courts can take judicial
C. Judicial Admissions notice of. It cannot be considered an official
D. Judicial Notice of Foreign Laws, Law act of the executive department. The PPA
of Nations and Municipal Ordinance was only performing a proprietary function
when it entered into a Management Contract
A. WHAT NEED NOT BE PROVED with petitioner. As such, judicial notice
cannot be applied. [Asian Terminals v.
(1) Facts of Judicial Notice Malayan Insurance, G.R. No. 171406 (2011)]
(2) Judicial Admissions
(3) Conclusive Presumptions The RTC declared that the discrepancy arose
from the fact that Barrio Catmon was
NOTE: Evidence is also not required when previously part of Barrio Tinajeros. The RTC
the issue is purely a question of law. has authority to declare so because this is a
matter subject of mandatory judicial notice.
B. MATTERS OF JUDICIAL NOTICE Geographical divisions are among matters
that courts should take judicial notice of. [B.E.
JUDICIAL NOTICE San Diego, Inc. v. CA, G.R. No. 159230 (2010)]
Judicial notice is the cognizance of certain
facts that judges may properly take and act B.2. WHEN DISCRETIONARY
on without proof because these facts are (1) Matters of public knowledge;
already known to them. Put differently, it is (2) Matters capable of unquestionable
the assumption by a court of a fact without demonstration; and
need of further traditional evidentiary (3) Matters ought to be known to judges
support. The principle is based on because of their judicial functions. [Sec. 2,
convenience and expediency in securing and Rule 129]
introducing evidence on matters which are
not ordinarily capable of dispute and are REQUISITES
not bona fide disputed. [Republic v. For the court to take judicial notice, three
Sandiganbayan, G.R. No. 166859, (2011)) material requisites should be present:
(a) The matter must be one of common and
B.1. W HEN MANDATORY general knowledge;
(b) It must be well and authoritatively settled
(1) Existence and territorial extent of states;
and not doubtful or uncertain;
(2) Their political history, forms of (c) It must be known to be within the limits of
government, and symbols of nationality; the jurisdiction of the court. [State
(3) Law of nations;
Prosecutors v, Muro, A.M. No. RTJ-92-876
(4) Admiralty and maritime courts of the (1994)]
world and their seals;
(5) Political constitution and history of the Judicial notice is not judicial knowledge. The
Philippines;
mere personal knowledge of the judge is not
(6) Official acts of the legislative, executive the judicial knowledge of the court, and he is
and judicial departments of the
not authorized to make his individual
Philippines; knowledge of a fact, not generally or
(7) Laws of nature; professionally known, the basis of his action.
(8) Measure of time; and
Judicial cognizance is taken only of those
(9) Geographical divisions. [Sec. 1, Rule 129] matters which are "commonly" known. [State
Prosecutors v, Muro, A.M. No. RTJ-92-876
NOTE: It would be error for the court not to (1994)]
take judicial notice of an amendment to the
PAGE 370 OF 425

WITH RESPECT TO ORDINANCES [Republic v Court of Appeals, G.R. No. 119288,

Municipal trial courts are required to take (1997)]
judicial notice of the ordinances of the
municipality or city wherein they sit. WITH RESPECT TO RECORDS OF OTHER
CASES
Regional Trial Courts must take judicial
notice of such ordinances only: GENERAL RULE: Courts are not authorized
(a) When required to do so by statute e.g. in to take judicial notice of the contents or
Manila as required by the city charter records of other cases even if both cases
[City of Manila v. Garcia, et al., G.R. No. may have been tried or are pending
L-26053 (1967)]; and before the same judge. [Prieto v. Arroyo,
(b) In a case on appeal before them and G.R. No. L-17885 (1965))
wherein the inferior court took judicial
notice of an ordinance involved in said EXCEPTIONS:
case. [U.S. v. Blanco, G.R. No. 12435 In the absence of objection, and as a matter
(1917); U.S. v. Hernandez, 31 Phil. 342] of convenience to all parties, a court may
properly treat all or any part of the original
Note: The guides in determining what facts record of a case filed in its archives as read
may be assumed to be judicially known are into the record of a case pending before it,
either: when:
(1) Generally known within the territorial (1) With the knowledge of the opposing party,
jurisdiction of the trial court; or reference is made to it for that purpose, by
(2) Capable of accurate and ready name and number or in some other
determination by resorting to sources manner by which it is sufficiently
whose accuracy cannot reasonably be designated; or
questionable. [Riano] (2) The original record of the former case or
any part of it, is actually withdrawn from
B.3. WHEN HEARING NECESSARY the archives by the court's direction, at the
request or with the consent of the parties,
DURING THE TRIAL and admitted as a part of the record of the
The court, on its own initiative, or on request case then pending. [US v Claveria, G.R. No.
of a party, may announce its intention to take G.R. No. 9282 (1915)]
judicial notice of any matter and allow the
parties to be heard thereon. Courts may also take judicial notice of
proceedings in other causes because of their:
AFTER THE TRIAL (1) Close connection with the matter in
controversy. Ex: In a separate civil action
Before judgment or on appeal: against the administrator of an estate
The proper court, on its own initiative or on arising from an appeal against the report
request of a party, may take judicial notice of of the committee on claims appointed in
any matter and allow the parties to be heard the administration proceedings of the said
thereon if such matter is decisive of a estate, the court took judicial notice of the
material issue in the case. [Sec. 3, Rule 129] record of the administration proceedings
to determine whether or not the appeal
WITH RESPECT TO THE COURTS OWN was taken on time,
ACTS AND RECORDS (2) To determine whether or not the case
A court will take judicial notice of its own acts pending is a moot one or whether or not a
and records in the same case, of facts previous ruling is applicable in the case
established in prior proceedings in the same under consideration.
case, of the authenticity of its own records of (3) The other case had been decided by the
another case between the same parties, of same court, involving the same subject
the files of related cases in the same court, matter, with the same cause of action, and
and of public records on file in the same court. was between the same parties (which was
not denied), and constituted res judicata
PAGE 371 OF 425

on the current cause before the court. stationed in the foreign country in
[Tiburcio v. PHHC, G.R. No. L-13479, which the record is kept, and
(1959)] authenticated by the seal of his office.
Courts cannot take judicial notice that Unwritten foreign law may be proved
vehicular accidents cause whiplash injuries. through Sec. 46, Rule 130
[Dela Llana v Biong, G.R. No. 182356 (2013)] Published treatise, periodical or pamphlet on
a subject of history, law, science or art is
The classification of the land is obviously admissible as tending to prove the truth of a
essential to the valuation of the property. The matter stated therein if:
parties should thus have been given the (1) The court takes judicial notice, or
opportunity to present evidence on the nature (2) A witness expert in the subject testifies,
of the property before the lower court took that the writer of the statement in the
judicial notice of the commercial nature of a treatise, periodical or pamphlet is
portion of the subject landholdings. [LBP v. recognized in his profession or calling as
Honeycomb Farms, G.R. No. 166259 (2012)] expert in the subject.
B.4. JUDICIAL NOTICE OF FOREIGN LAWS, DOCTRINE OF PROCESSUAL

LAW OF NATIONS AND MUNICIPAL PRESUMPTION
ORDINANCE In the absence of proof, the foreign law will
be presumed to be the same as the laws of
the jurisdiction hearing the case. [Northwest
FOREIGN LAWS
Orient Airlines v Court of Appeals, G.R. No.
112573 (1995)]
GENERAL RULE: Courts cannot take
judicial notice of foreign laws. They must be
The court may take judicial notice of
alleged and proved as any other fact. [Yao-
the foreign law
Kee v. Sy-Gonzales, G.R. No. L-55960 (1988)]
(1) Where the foreign law is within the actual
knowledge of the court such as when the
W ritten foreign law may be proved by:
law is well and generally known such as
(1) An official publication; or
when they are well and generally known or
(2) A duly attested and authenticated copy.
they had been ruled upon in other cases
[Rule 132, Sec. 24]
before it and none of the parties claim
otherwise [PCIB v Escolin G.R. L-27860
Attested copy
and L-27896 (1974], citing Moran]
(1) Attestation must be made by the officer
(2) When the foreign law is part of a
having legal custody of the record or by his
published treatise, periodical or pamphlet
deputy. [Sec. 24, Rule 132]
and the writer is recognized in his/her
(a) It must state, in substance, that the
profession or calling as expert in the
copy is a correct copy of the original,
subject [Sec. 46, Rule 130]
or a specific part thereof [Sec. 25,
Rule 132]
LAW OF NATIONS
(b) It must be under the official seal of
The Philippines adopts the generally
the attesting officer, if there be any,
accepted principles of international law as
or if he be a clerk of court having a
part of the law of the land. [Sec. 2, Art. II,
seal, under the seal of such court.
1987 Constitution]
[Sec. 25, Rule 132]
(2) It must be accompanied by a certificate
Being part of the law of the land, they are
that attesting officer has custody [Sec. 24,
therefore in the nature of local laws, and
Rule 132]
hence, subject to mandatory judicial notice
(a) The certificate may be made by a
under Sec. 1 of Rule 129.
secretary of the embassy or legation,
consul general, consul, vice consul, or
consular agent or by any officer in the
foreign service of the Philippines
PAGE 372 OF 425
C. JUDICIAL ADMISSIONS
There are averments made in pleadings
To be a judicial admission, the same: which are not deemed admissions even if the
(1) Must be made by a party to the case; adverse party fails to make a specific denial
(2) Must be made in the course of the of the same like immaterial allegations [Sec.
proceedings in the same case; and 11, Rule 8], conclusions, non-ultimate facts in
NOTE: As regards judicial admissions the pleading [Sec. 1, Rule 8] as well as the
made in the trial of another case, the amount of liquidated damages [Sec. 11, Rule
same would be considered an extrajudicial 8]. [Riano]
admission for the purpose of the other
proceeding where such admission is Although an admission made during the pre-
offered. [Riano] trial is deemed to have been made in the
(3) May be verbal or written. [Sec. 4, Rule 129] course of the judicial proceeding and is
necessarily a judicial admission, an
Judicial admissions may be adm ission m ade by the accused in the
(1) Made in: pre-trial of a crim inal case is not
(a) Pleadings filed by the parties necessarily admissible against him. To be
This does not include pleadings admissible, it must comply with the
superseded by an amendment. Sec. conditions set forth under Sec. 2, Rule 118:
8, Rule 10 provides that [a]n (1) Reduced in writing, and
amended pleading supersedes the (2) Signed by the accused and counsel.
pleading that it amends. However, [Riano]
adm issions in superseded
pleadings may be received in However, in the civil case instituted with the
evidence against the pleader. criminal case, such admission will be
Admissions in superseded pleadings admissible against any other party.
have to be received in evidence
precisely because they become NOTE: The theory of adoptive
extra-judicial in nature the moment adm ission has been adopted by the court in
the pleading containing them are this jurisdiction. An adoptive admission is a
superseded by virtue of amendment. partys reaction to a statement or action by
(b) Stipulations of facts by the parties in a another person when it is reasonable to treat
pre-trial conference [People v. the partys reaction as an admission of
Hernandez, G.R. No. 108028, (1996)] something stated or implied by the other
(c) The course of the trial either by verbal person. The basis for admissibility of
or written manifestations or admissions made vicariously is that arising
stipulations from the ratification or adoption by the party
(d) Other stages of judicial proceedings of the statements which the other person had
(e) Motions [Republic v. de Guzman, G.R. made. In the Angara Diary, Estradas
No. 175021 (2011), where allegations options started to dwindle when the armed
made in a motion to dismiss were forces withdrew its support. Thus, Executive
considered to be, among others Secretary Angara had to ask Senate
requiring denial by the adverse party President Pimentel to advise petitioner to
and absence of such led to the consider the option of dignified exit or
application of Sec. 4, Rule 129] resignation. Estrada did not object to the
(2) Obtained through: suggested option but simply said he could
(a) Depositions never leave the country. His silence on this
(b) Written interrogatories and other related suggestions can be taken
(c) Request for admissions as an admission by him. [Estrada v. Desierto,
NOTE: Admissions made by a party G.R. Nos. 146710-15 (2001)]
pursuant to a request for admission is
for the purpose of the pending action JUDICIAL PROCEEDING [Sec. 3, Rule 1]
only. [Sec. 3, Rule 26] (1) Civil includes special civil actions
[Regalado; See also Civil Procedure Rules] (2) Criminal
PAGE 373 OF 425

(3) Special Proceeding

III. Object (Real)
Examples of statem ents m ade that
are not judicial adm issions
Evidence
(1) Statements made during preliminary
investigation A. Nature of Object Evidence
(2) Statements in a memorandum filed with B. Requisites for Admissibility
the Labor Arbiter C. Categories of Object Evidence
(3) Statements during Court-Annexed D. Demonstrative Evidence
Mediation E. View of an Object or Scene
F. Chain of Custody in Relation to
NOTE: Execution of judgment is part of a Section 21 of the Comprehensive Dangerous
judicial proceeding. The Court retains control Drugs Act of 2002
over the case until the full satisfaction of the G. Rule on DNA Evidence (A.M. No. 06-
final judgment. [People v. Gallo, G.R. No. 11-5-SC)
124736 (1999)]
A. NATURE OF OBJECT
EFFECT OF JUDICIAL ADMISSIONS EVIDENCE
It does NOT require proof. [Sec. 4, Rule 129]
OBJECT EVIDENCE
GENERAL RULE: Judicial admissions
Those addressed to the senses of the court
CANNOT be contradicted. [Sec. 4, Rule 129]
[Sec. 1, Rule 130]
An original complaint, after being amended,
A persons appearance, where relevant, is
loses its character as a judicial admission,
admissible as object evidence, the same
which would have required no proof. It
being addressed to the senses of the court.
becomes merely an extra-judicial admission
[People v. Rullepa y Guinto, G.R. No. 131516
requiring a formal offer to be admissible.
(2003)]
[Torres v CA, G.R. No. L-37420, (1984)].
An ocular inspection of the body of the
A party who judicially admits a fact cannot
accused is permissible. [Villaflor v. Summers,
later challenge that fact as judicial
G.R., No. 16444 (1920)]
admissions are a waiver of proof; production
of evidence is dispensed with. [Alfelor v
The right against self-incrimination CANNOT
Halasan, G.R. No. 165987 (2006)]
be invoked against object evidence. [People v.
Malimit, G.R. No. 109775 (1996)]
HOW JUDICIAL ADMISSIONS MAY BE
CONTRADICTED
As an exception to the general rule, judicial B. REQUISITES FOR
admissions may be contradicted only by ADMISSIBILITY
showing that:
(1) It was made through palpable mistake; or Basic requisites for adm issibility
(2) No such admission was made. [Sec. 4, [Riano]
Rule 129] (1) Evidence must be relevant;
(2) Evidence must be authenticated;
This may be invoked when the statement of a (3) Authentication must be made by a
party is taken out of context or that his competent witness; and
statement was made not in the sense it is (4) Object must be formally offered [Sec. 34,
made to appear by the other party. [Phil. Rule 132]
Health Care Providers v. Estrada, G.R. No.
171052, (2008), citing Atillo, III v. CA (1997)] Requisites for the admissibility of
tape recording:
(1) A showing that the recording was capable
of taking testimony
PAGE 374 OF 425

(2) A showing that the operator of the A witness can testify to those facts which
recording device is competent he/she knows of his/her personal knowledge
(3) Establishment of the authenticity and [Sec. 36, Rule 130]
correctness of recording
(4) A showing that no changes, deletions, or C. CATEGORIES OF OBJECT
additions have been made on the EVIDENCE
recordings
(5) A showing of the manner of preservation C.1. THE THING ITSELF
of the recording
Unique Objects that have E.g., a
(6) Identification of speakers
objects readily caliber 45
(7) A showing that the testimony elicited was
identifiable marks pistol by
voluntarily made without any kind of
virtue of its
inducement. [Torralba v. People, G.R. No.
serial
153699 (2005))
number
RELEVANT Objects Objects with no E.g., a
made unique typical
GENERAL RULE: When an object is unique characteristic but kitchen
relevant to the fact in issue, it may be are made readily knife with
exhibited to, examined or viewed by the court. identifiable identifying
[Sec. 1, Rule 130] marks
placed on it
EXCEPTIONS: Court may refuse exhibition by the
of object evidence and rely on testimonial witness
evidence alone if Non- Objects with no E.g.,
(1) Exhibition is contrary to public policy, unique identifying marks narcotic
morals or decency; objects and cannot be substances
(2) It would result in delays, inconvenience, marked
unnecessary expenses, out of proportion
to the evidentiary value of such object; C.2. DEMONSTRATIVE EVIDENCE
[People v. Tavera, G.R. No. L-23172 (1925)] Not the actual thing, rather it represents or
(3) Evidence would be confusing or demonstrates the real thing, e.g.,
misleading. photographs, motion pictures and recordings
(4) The testimonial or documentary evidence [Riano]
already presented clearly portrays the
object in question as to render a view Audio, photographic and video evidence of
thereof unnecessary events, acts or transactions shall be
admissible provided it shall be:
COMPETENT (1) shown, presented or displayed to the
court, and
Evidence Must be Authenticated (2) identified, explained or authenticated
To authenticate the object is to show that (a) by the person who made the recording,
the object is the very thing that is either the or
subject matter of the lawsuit or the very one (b) by some other person competent to
involved to prove an issue in the case. testify on the accuracy thereof [Sec. 1,
Rule 11, Rules on Electronic Evidence]
Authentication Must be Made by
Competent W itness
To authenticate the object, the witness must C.3. EPHEMERAL ELECTRONIC
have the capacity to identify the object as the COMMUNICATIONS
very thing involved in the litigation. Refers to telephone conversations, text
messages, chatroom sessions, streaming
audio, streaming video, and other electronic
forms of communication the evidence of
PAGE 375 OF 425

which is not recorded or retained. [Sec. 1(k), PURPOSE OF ESTABLISHING CHAIN OF

Rule 2, Rules on Electronic Evidence] CUSTODY
To guaranty the integrity of the physical
How proven evidence and to prevent the introduction of
(1) By the testimony of a person who was a evidence which is not authentic. [Riano]
party to the same;
(2) By the testimony of a person who has NOTE: A unique characteristic of narcotic
personal knowledge thereof; or substances is that they are not readily
(3) In the absence or unavailability of such identifiable. Hence, in authenticating the
witnesses, by other competent evidence same, a more stringent standard than that
[Sec. 2, Rule 11, Rules on Electronic applied to readily identifiable objects is
Evidence] necessary. This exacting standard entails a
chain of custody of the item with sufficient
When recorded, the communication ceases to completeness to render it improbable for the
be ephemeral and shall be proven in the original item to be exchanged with another,
same manner as proving audio, photographic contaminated or tampered with [Lopez v.
and video evidence [Sec. 2, Rule 11, Rules on People, G.R. No. 172953 (2008))
Electronic Evidence].
ESTABLISHING CHAIN OF CUSTODY IN
D. VIEW OF AN OBJECT OR SCENE DRUG CASES
The apprehending team having initial
When an object is relevant to the fact in issue, custody and control of the drugs shall:
it may be exhibited to, examined or viewed by (1) immediately after seizure and confiscation,
the court. [Sec. 1, Rule 130] (2) physically inventory, and
(3) photograph the same,
Court has an inherent power to order view (4) in the presence of
when there is a need to do so. [Riano, citing (a) accused or the person/s from whom
Sec. 1, Rule 130] the drugs were seized, or his/her
representative or counsel
Inspection may be made inside or outside the (b) representative from the media
courtroom. An inspection outside should be (c) a representative from the Department
made in the presence of the parties or at least of Justice
with the previous notice to them. [In Re (d) any elected public official
Climaco, AC No. 134-J (1974); Riano, citing (5) who shall be required to sign the copies of
Moran] the inventory and be given a copy thereof.
[Sec. 21, Art. II, RA 9165 or the
E. CHAIN OF CUSTODY IN RELATION Comprehensive Dangerous Drugs Act of
2002]
TO SEC. 21 OF THE
COMPREHENSIVE DANGEROUS EFFECT OF NON-COMPLIANCE
DRUGS ACT OF 2002 Non-compliance with Sec. 21 of RA 9165,
particularly the making of the inventory and
MEANING OF CHAIN OF CUSTODY their photographing of the drugs confiscated
A method of authenticating evidence which will not render the drugs inadmissible in
requires that the admission of an exhibit be evidence. The issue if there is non-compliance
preceded by evidence sufficient to support a with the law is not admissibility, but of weight
finding that the matter in question is what evidentiary merit or probative value. [People
the proponent claims it to be. It would v Del Monte, G.R. No. 179940 (2008)]
include testimony about every link in the
chain, from the moment the item was picked
up to the time it is offered into evidence
[Lopez v People, G.R. No. 172953 (2008)]
PAGE 376 OF 425

F. RULE ON DNA EVIDENCE [AM NO. (1) A biological sample exists

06-11-5-SC] (2) Such sample is relevant to the case
(3) The testing would probably result in the
DNA EVIDENCE reversal or modification of the judgment of
The totality of the DNA profiles, results and conviction. [Sec. 6]
other genetic information directly generated
from DNA testing of biological samples. REMEDY IF RESULTS FAVORABLE TO THE
[Sec. 3(c)] CONVICT
Convict or the prosecution may file a petition
F.1. APPLICATION FOR DNA TESTING for a writ of habeas corpus in the court of
origin, CA or SC or any member of said courts.
ORDER
[Sec. 10]
WITH PRIOR COURT ORDER GENERAL RULE: If the court, after due
(1) The appropriate court may, at any time, hearing, finds the petition meritorious, it shall
either (i) motu proprio or (ii) on application reverse or modify the judgment of conviction
of any person who has a legal interest in and order the release of the convict. [Sec. 10]
the matter in litigation, order a DNA
testing. EXCEPTION: Continued detention is
(2) Such order shall issue after due hearing justified for a lawful cause. [Sec. 10]
and notice to the parties upon a showing
of the following: F.3. ASSESSING DNA EVIDENCE
(a) A biological sample exists that is
relevant to the case;
FACTORS IN ASSESSING THE PROBATIVE
(b) The biological sample: (i) was not
VALUE OF DNA EVIDENCE
previously subjected to the type of DNA
(1) Chain of custody
testing now requested; or (ii) was
(a) How the biological samples were
previously subjected to DNA testing,
collected
but the results may require
(b) How they were handled
confirmation for good reasons;
(c) Possibility of contamination
(c) The DNA testing uses a scientifically
(2) DNA testing m ethodology
valid technique;
(a) Procedure followed in analyzing the
(d) The DNA testing has the scientific
samples
potential to produce new information
(b) Advantages and disadvantages of
that is relevant to the proper resolution
the procedure
of the case; and
(c) Compliance with scientifically valid
(e) The existence of other factors, if any,
standards in conducting the tests
which the court may consider as
(3) Forensic DNA laboratory
potentially affecting the accuracy of
(a) Accreditation by any reputable
integrity of the DNA testing. [Sec. 4]
standards-setting institution
(b) Qualification of the analyst who
WITHOUT PRIOR COURT ORDER
conducted the tests
(1) This Rule shall not preclude a DNA testing,
(c) If not accredited, relevant
without need of a prior court order, at the
experience of the laboratory in
behest of any party. [Sec. 4]
forensic work and its credibility
(2) Post-conviction DNA testing [Sec. 6]
(4) Reliability of the testing result
[Sec. 7]
F.2. POST-CONVICTION DNA TESTING
Vallejo standards
HOW OBTAINED In assessing the probative value of DNA
(1) Without need of prior court order evidence, courts should consider the
(2) Available to the prosecution or any person following:
convicted by final and executory judgment (a) How the samples were collected
(b) How they were handled
REQUISITES
PAGE 377 OF 425
(c) The possibility of contamination of the

samples IV. Documentary
(d) The procedure followed in analyzing the
samples, whether the proper standards
Evidence
and procedures were followed A. Meaning of Documentary Evidence
(e) Qualification of the analyst who B. Requisites for Admissibility
conducted the tests [People v. Vallejo, G.R. C. Best Evidence Rule
No. 144656 (2002)] D. Rules on Electronic Evidence [AM No.
01-7-01- SC]
Factors that Determine the Reliability E. Parol Evidence Rule
of the DNA Testing M ethodology F. Authentication and Proof of
(1) Falsifiability of the principles or methods Documents
used, that is, whether the theory or
technique can be and has been tested A. MEANING OF DOCUMENTARY
(2) Subject to peer review and publication of EVIDENCE
the principles or methods
(3) General acceptance of the principles or Consist of writings or any material containing
methods by the scientific community letters, words, numbers, figures, symbols or
(4) Existence and maintenance of standards other modes of written expressions offered as
and controls to ensure the correctness of proof of their contents [Sec. 2, Rule 130]
data generated
(5) Existence of an appropriate reference To be deemed documentary evidence, such
population database writings or materials must be offered as
(6) General degree of confidence attributed to proof of their contents. If offered for
mathematical calculations used in some other purpose, they constitute object
comparing DNA profiles; and evidence.
(7) Significance and limitation of statistical
calculations used in comparing DNA
profiles [Sec. 5]
B. REQUISITES FOR ADMISSIBILITY
(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence [Riano]
C. BEST EVIDENCE RULE

When the subject of inquiry is the contents of
a document, no evidence shall be admissible
other than the original document itself.
[Sec. 3, Rule 130]
C.1. APPLICABILITY
W hen applicable (General Rule)

Only when the subject of inquiry is the
contents of a document [Sec. 3, Rule 130]
W hen not applicable

When the issue is only as to whether or not
such document was actually executed or in
PAGE 378 OF 425

the circumstances relevant to its execution. C.3. EXCEPTIONS [SEC. 3, RULE 130]
[People v Tandoy, G.R. No. 80505, (1990))
WHEN THE ORIGINAL HAS BEEN LOST OR
The Best Evidence Rule applies only when the DESTROYED, OR CANNOT BE PRODUCED
terms of a writing are in issue. When the IN COURT, WITHOUT BAD FAITH ON THE
evidence sought to be introduced concerns OFFERORS PART
external facts, such as the existence, Proponent must prove due execution or
execution or delivery of the writing, without existence, and the cause of the loss,
reference to its terms, the Best Evidence Rule destruction or unavailability of the original
cannot be invoked. In such a case, secondary [Sec. 5, Rule 130] and reasonable diligence
evidence may be admitted even without and good faith in the search for/attempt to
accounting for the original. produce the original [Tan v. CA, G.R. No. L-
56866 (1985))
The Best Evidence Rule was not applicable
because the terms of the deed of sale with ALL duplicates or counterparts must be
right to repurchase were not the issue. [Heirs accounted for before using copies [De Vera v.
of Prodon v., Heirs of Alvarez, G.R. No. 170604 Aguilar, GR. No. 83377 (1993)]
(2013)]
Due execution of the document should be
Affidavits and depositions are considered as proved through the testimony of either:
not being the best evidence, hence not (a) the person or persons who executed it;
admissible if the affiants or deponents are (b) the person before whom its execution was
available as witnesses. [Regalado citing 4 acknowledged; or
Martin, op cit., p. 82] (c) any person who was present and saw it
executed and delivered, or who, after its
C.2. ORIGINAL DOCUMENT execution and delivery, saw it and
recognized the signatures, or by a person
(1) A document, the contents of which is the to whom the parties to the instruments
subject of inquiry had previously confessed the execution
(2) All such copies executed at or about the thereof. [Director of Lands v. CA, G.R. No.
same time, and with identical contents L-29575 (1971))
NOTE: Carbon copies are deemed
duplicate originals. [People v Tan, G.R. No. W hat to present instead (in order)
(1959); Skunac v. Sylianteng, G.R. No. (a) By a copy
205879 (2014)) (b) By a recital of its contents in some
The picture images of the ballots, as authentic document
scanned and recorded by the PCOS, are (c) By the testimony of witnesses [Rule 130,
likewise official ballots that faithfully Sec. 5]
capture in electronic form the votes cast
by the voter, as defined by Sec. 2(3) of RA WHEN THE ORIGINAL IS IN THE CUSTODY
9369. As such, the printouts thereof are OR UNDER THE CONTROL OF THE PARTY
the functional equivalent of the paper AGAINST WHOM IT IS OFFERED, AND THE
ballots filled out by the voters and, thus, LATTER FAILS TO PRODUCE IT AFTER
may be used for purposes of revision of REASONABLE NOTICE
votes in an electoral protest. [Vinzons-
Chato v. House of Representatives Electoral W hat to present instead
Tribunal, G.R. No. 199149, (2013]] Same as when lost, destroyed, or cannot be
(3) All such entries made and repeated in the produced in court [Sec. 6, Rule 130]
regular course of business, at/near the
time of the transaction [Sec. 4, Rule 130] WHEN THE ORIGINAL CONSISTS OF
NUMEROUS ACCOUNTS OR OTHER
DOCUMENTS WHICH CANNOT BE
EXAMINED IN COURT WITHOUT GREAT
LOSS OF TIME, AND THE FACT SOUNDS TO
PAGE 379 OF 425
BE ESTABLISHED FROM THEM IS ONLY THE D.2. ADMISSIBILITY OF ELECTRONIC

GENERAL RESULT OF THE WHOLE DOCUMENTS
An electronic document is admissible in
WHEN THE ORIGINAL IS A PUBLIC RECORD evidence if it:
IN THE CUSTORY OF A PUBLIC OFFICER OR (a) complies with the rules on admissibility
IS RECORDED IN A PUBLIC OFFICE prescribed by the Rules of Court and
related laws and
W hat to present instead (b) is authenticated in the manner prescribed
Certified copy issued by the public officer in by these Rules. [Sec. 2, Rule 3]
custody thereof
ELECTRONIC EVIDENCE AND THE BEST
OTHER INSTANCES EVIDENCE RULE
When the original is outside the jurisdiction of An electronic document shall be regarded as
the court, secondary evidence is admissible the equivalent of an original document under
[PNB v. Olila, 98 Phil 1002, unreported the Best Evidence Rule if:
(1956)] (1) it is a printout or output readable by sight
or other means,
D. RULES ON ELECTRONIC (2) shown to reflect the data accurately [Sec. 1,
EVIDENCE [AM NO. 01-7-01-SC] Rule 4]
D.1. APPLICABILITY COPIES AS EQUIVALENT OF ORIGINAL

When a document is in two or more copies:
These Rules shall apply to all civil actions and (1) executed at or about the same time with
proceedings, as well as quasi-judicial and identical contents, or
administrative cases. [Sec. 2, Rule 1, REE] (2) is a counterpart produced by:
(a) the same impression as the original, or
APPLICATION TO CRIMINAL ACTIONS (b) from the same matrix, or
While the case of Ang v. CA [G.R. No. 182835 (c) by mechanical or electronic re-
(2010]) held that the Rules on Electronic recording, or
Evidence applies only to civil actions, quasi- (d) by chemical reproduction,
judicial proceedings and administrative (e) or by other equivalent techniques
proceeding, not to criminal action, in People which accurately reproduces the
vs. Enojas [G.R. No. 204894 (2014)], the SC original,
upheld the RTCs admission of text messages such copies or duplicates shall be regarded
as evidence in a murder case as conforming as the equivalent of the original. [Sec. 2, Rule
with the Courts earlier Resolution [AM No. 4]
01-7-01, dated September 24, 2002] applying
the Rules on Electronic Evidence to criminal EXCEPTION:
actions effective October 14, 2002. Copies or duplicates shall not be admissible
to the same extent as the original if:
FUNCTIONAL EQUIVALENCE (a) a genuine question is raised as to the
Electronic documents as functional authenticity of the original; or
equivalent of paper-based documents. (b) in the circumstances it would be unjust or
Whenever a rule of evidence refers to the inequitable to admit a copy in lieu of the
term of writing, document, record, instrument, original.
memorandum or any other form of writing,
such term shall be deemed to include an ELECTRONIC DOCUMENT
electronic document as defined in these (1) Information or the representation of
Rules. [Sec. 1, Rule 3] information, data, figures, symbols or
other modes of written expression,
(2) Described or however represented, by
which a right is established or an
obligation extinguished, or by which a fact
may be proved and affirmed,
PAGE 380 OF 425
(3) Which is received, recorded, transmitted, (c) Whether the electronic document was
stored, processed, retrieved or produced recorded or stored in the usual and
electronically. ordinary course of business by a person
(4) It includes digitally signed documents and who is not a party to the proceedings
any print-out or output, readable by sight and who did not act under the control
or other means, which accurately reflects of the party using it [Sec. 2, Rule 7]
the electronic data message or electronic (4) The familiarity of the witness or the person
document. who made the entry with the
communication and information system;
For purposes of these Rules, the term (5) The nature and quality of the information
electronic document may be used which went into the communication and
interchangeably with electronic data information system upon which the
message. [Sec. 1(h), REE] electronic data message or electronic
document was based; or
ELECTRONIC DATA MESSAGE (6) Other factors which the court may
Information generated, sent, received or consider as affecting the accuracy or
stored by electronic, optical or similar means. integrity of the electronic document or
[Sec. 1(g), REE] electronic data message.
D.3. EVIDENTIARY WEIGHT OF Text messages have been classified as

ELECTRONIC EVIDENCE [SEC. 1, RULE 7] ephemeral electronic communication under
In assessing the evidentiary weight of an Sec 1(k), Rule 2 of the Rules on Electronic
electronic document, the following factors Evidence, and shall be proven by the
may be considered: testimony of a person who was a party to the
(1) The reliability of the manner or method in same or has personal knowledge thereof.
which it was generated, stored or [Vidallon-Magtolis v. Salud, AM No. CA-05-
communicated, including but not limited 20-P (2005)]
to
(a) input and output procedures, D.4. METHOD OF PROOF
(b) controls, tests and checks for accuracy (1) Affidavit of Evidence [Sec. 1, Rule 9]
and reliability of the electronic data (a) Must state facts
message or document, (i) of direct personal knowledge, or
(c) in the light of all the circumstances as (ii) based on authentic records
well as any relevant agreement; (b) Must affirmatively show the
(2) The reliability of the manner in which its competence of the affiant to testify on
originator was identified; the matters contained in the affidavit
(3) The integrity of the information and (2) Cross-Examination of Deponent [Sec.
communication system in which it is 2, Rule 9]
recorded or stored, including but not (a) Affiant shall affirm the contents of the
limited to the hardware and computer affidavit in open court.
programs or software used as well as (b) Affiant may be cross-examined as a
programming errors; matter of right by the adverse party.
(a) Whether the information and
communication system or other similar AUTHENTICATION OF ELECTRONIC
device was operated in a manner that DOCUMENTS AND ELECTRONIC
did not affect the integrity of the SIGNATURES [Secs. 1-3, Rule 5; Secs. 1-2,
electronic document, and there are no Rule 11, REE]
other reasonable grounds to doubt the
integrity of the information and Of electronic documents
communication system;
(b) Whether the electronic document was Burden of Proving Authenticity: The
recorded or stored by a party to the person seeking to introduce the electronic
proceedings with interest adverse to document in any legal proceeding has the
that of the party using it; or
PAGE 381 OF 425

burden of proving its authenticity. [Sec. 1, (6) Abovementioned facts shown by the
Rule 5] testimony of the custodian or other
qualified witnesses [Sec. 1, Rule 8]
Before any private electronic document can
be offered as authentic is received in evidence, The presumption provided above m ay
its authenticity must be proved by any of the be overcom e by evidence of
following manner: (1) Untrustworthiness of the source of
(1) By evidence that it had been digitally information
signed by the person purported to have (2) Untrustworthiness of the method of the
signed the same; preparation, transmission or storage
(2) By evidence that other appropriate thereof
security procedures or devices as may be (3) Untrustworthiness of the circumstances of
authorized by the Supreme Court or by the preparation, transmission or storage
law for authentication of electronic thereof [Sec. 2, Rule 8]
documents were applied to the document;
or AUDIO, PHOTOGRAPHIC, VIDEO AND
(3) By other evidence showing its integrity EPHEMERAL EVIDENCE
and reliability to the satisfaction of the Refers to telephone conversations, text
judge. [Sec. 2, Rule 5] messages, chatroom sessions, streaming
audio, streaming video, and other electronic
Of electronic signatures [Sec. 2, Rule 6] forms of communication the evidence of
(1) By evidence that a method or process was which is not recorded or retained. [Sec. 1(k),
utilized to establish a digital signature Rule 2]
and verify the same;
(2) By any other means provided by law; or Admissibility of Ephemeral Evidence
(3) By any other means satisfactory to the Audio, video and similar evidence, to be
judge admissible shall be
(1) shown, presented or displayed to the court
BUSINESS RECORDS AS EXCEPTION TO and
THE HEARSAY RULE (2) identified, explained or authenticated by
What Constitute Business Records: Records the person who made the recording or by
of any business, institution, association, some other person competent to testify on
profession, occupation, and calling of every the accuracy thereof [Sec. 1, Rule 11]
kind, whether or not conducted for profit, or
for legitimate purposes [Sec. 1(b), Rule 2] Ephemeral electronic communications shall
be proven by the testimony of a person who
Requisites to an exception to the rule was a party to the same or has personal
on hearsay evidence knowledge thereof. In the absence or
A memorandum, report, record, or data unavailability of such witnesses, other
compilation of acts, events, conditions, competent evidence may be admitted. [Sec.
opinions or diagnosis: 2, Rule 11]
(1) Made by electronic, optical or other similar
means If ephemeral electronic communication and
(2) Made at or near the time of or from recording of telephone conversation under
transmission or supply of information Sec. 2, Rule 11 of the REE are recorded or
(3) Made by a person with knowledge thereof embodied in an electronic document, then
(4) Kept in the regular course or conduct of a the provisions of Rule 5 (Authentication of
business activity, Electronic Documents) shall apply.
(5) Such was the regular practice to make the
memorandum, report, record, or data E. PAROL EVIDENCE RULE
compilation by electronic, optical or
similar means Parol evidence
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or
PAGE 382 OF 425
contradict a complete and enforceable Imperfection includes inaccurate

agreement embodied in a document. statement in the agreement or
[Regalado] incompleteness in the writing or the presence
of inconsistent provisions [Regalado]
E.1. APPLICABILITY
Failure of the written agreement to
APPLICATION OF THE PAROL EVIDENCE express the true intent and agreement
RULE (GENERAL RULE) of the parties thereto
When the terms of an agreement (including
wills) have been reduced to writing, it is Purpose: To enable court to ascertain the
considered as containing all the terms agreed true intention of the parties [Tolentino v.
upon and there can be, between the parties Gonzales Sy Chiam, G.R. No. 26085 (1927)]
and their successors in interest, no evidence
of such terms other than the contents of the Validity of the written agreem ent
written agreement. [Sec. 9, Rule 130] Parol Evidence may be admitted to show:
(1) True consideration of a contract
W here not applicable (2) Want/Illegality of consideration
It does not apply when third parties are (3) Incapacity of parties
involved or those not privy to the written (4) Fictitious/simulated contract
instrument in question and does not base a (5) Fraud in inducement [Regalado]
claim or assent a right originating in the
instrument. [Lechugas v. CA, G.R. No. L- Existence of other term s agreed to by
39972 & L-40300 (1986)) the parties or their successors in
interest after the execution of the
E.2. INTRODUCTION AND PRESENTATION written agreement.
OF PAROL EVIDENCE
E.3. COLLATERAL AGREEMENTS
HOW PAROL EVIDENCE CAN BE
INTRODUCED GENERAL RULE: Parol Evidence Rules
(1) A party presents parol evidence to modify, applies
explain or add to the terms of a written
agreement AND EXCEPTIONS:
(2) Ground/s for presenting parol evidence is (1) Collateral agreement is not inconsistent
put in issue in the pleading with the terms of the written contract
(2) Collateral agreement has not been
GROUNDS FOR PRESENTING PAROL integrated in and is independent of the
EVIDENCE written contract
(3) Collateral agreement is subsequent to and
Intrinsic am biguity, m istake or novatory of the written contract
im perfection in the written agreement (4) Collateral agreement constitutes a
condition precedent which determines
Intrinsic ambiguity writing admits of whether the written contract may become
two constructions both of which are in operative or effective (does not apply to
harmony with the language used conditions subsequent not stated in the
agreement) [Regalado]
NOTE: If ambiguity is intermediate (both
latent and patent), parol evidence is
admissible [Regalado, citing 20 Am. Jur 1011]
Mistake refers to mistake of fact which is

mutual to the parties [BPI v. Fidelity and
Surety, Co., G.R. No. L-26743 (1927)]
PAGE 383 OF 425

E.4. DISTINCTIONS BETWEEN THE BEST PUBLIC DOCUMENTS

EVIDENCE RULE AND PAROL EVIDENCE (3) Written official acts or records of the
RULE [Regalado] official acts of the sovereign authority,
Best Evidence Rule Parol Evidence Rule official bodies and tribunals, and public
officers, whether of the Philippines or of a
Contemplates the foreign country
situation wherein the (4) Public records, kept in the Philippines, of
original writing is not Presupposes that the private documents required by law to be
available and/or there original document is entered therein
is a dispute as to available in court (5) Notarial documents (except last wills and
whether said writing is testaments) [Sec. 19, Rule 132]
the original
Prohibits the All other writings are private.
introduction of
substitutionary A public document enjoys the presumption of
Prohibits the varying regularity. It is a prima facie evidence of the
evidence in lieu of the
of the terms of a truth of the facts stated therein and a
original document
written agreement conclusive presumption of its existence and
regardless of WON it
varies the contents of due execution. To overcome this presumption,
the original there must be clear and convincing
evidence. [Chua v. Westmont Bank, G.R. No.
Applies only to
182650 (2012)]
Applies to all kinds of documents
documents contractual in nature
A public document is self-authenticating and
(Exception: wills)
requires no further authentication in order to
Can be invoked only be presented as evidence in court. [Patula v.
when the controversy People, G.R. No. 164457 (2012)]
Can be invoked by any
is between the
party to an action
parties to the written Proof of public documents
regardless of WON
agreement, their (1) Records of Official Acts [Sec. 24, Rule 132]
such party participated
privies or any party (2) By an official publication thereof; or
in the writing involved
directly affected (3) By an attested copy of the document
thereby
NOTE: Documents without documentary
F. AUTHENTICATION AND PROOF stamp affixed thereto, unless specifically
OF DOCUMENTS exempted by law, may not be admitted or
used in evidence in any court until the
requisite stamp shall have been affixed. [Sec.
MEANING OF AUTHENTICATION
201, NIRC] Also, there is a presumption that
The preliminary step in showing the
the requisite stamps have been affixed in the
admissibility of evidence
original copy when only the carbon copies of
the same is available. [Mahilum v CA, G.R.
Proving that the objects and documents
No. L-17666 (1966))
presented in evidence are not counterfeit
PRIVATE DOCUMENTS
F.1. PUBLIC AND PRIVATE DOCUMENTS
A private document is any other writing,
Private Documents Public Documents deed, or instrument executed by a private
person without the intervention of a notary or
When offered as
Admissible without other person legally authorized by which
authentic, due
further proof of its due some disposition or agreement is proved or
execution and
execution and set forth. [Patula v. People, G.R. No. 164457
authenticity must be
authenticity (2012)]
proved
PAGE 384 OF 425

W hen offered as authentic W hen evidence of authenticity of a

private writing is not required
GENERAL RULE: Authentication necessary The requirement of authentication of a
private document is excused only in four
How to Prove Due Execution and instances, specifically:
Authenticity (1) when the document is an ancient one
(1) By anyone who saw the document which is:
executed or written; OR (a) More than 30 years old;
(2) By evidence of the genuineness of the (b) Produced from a custody in which it
signature or handwriting of the maker would naturally be found if genuine;
[Sec. 20, Rule 132] and
(c) Unblemished by any alterations or
Before a private document is admitted in circumstances of suspicion. [Sec. 21,
evidence, it must be authenticated either by: Rule 132]
(1) the person who executed it, (2) when the genuineness and authenticity of
(2) the person before whom its execution was the actionable document have not been
acknowledged, specifically denied under oath by the
(3) any person who was present and saw it adverse party;
executed, or (3) when the genuineness and authenticity of
(4) who after its execution, saw it and the document have been admitted; or
recognized the signatures, or (4) when the document is not being offered as
(5) the person to whom the parties to the genuine.
instruments had previously confessed
execution thereof. [Malayan Insurance v. F.3. OTHER INSTANCES WHEN
Phil. Nails and Wires Corp., G.R. No. AUTHENTICATION IS NOT REQUIRED
138084 (2002)] (1) Writing is a public document/record [Sec.
19, Rule 132]
Private documents in the custody of PCGG (2) Notarial document acknowledged,
are not public documents. What became proved/certified [Sec. 30, Rule 132]
public are not the private documents (3) When authenticity and due execution has
(themselves) but the recording of it in the been admitted as in the case of actionable
PCGG. If a private writing itself is inserted documents under Sec. 8, Rule 8
officially into a public record, its record, its (4) That which it is claimed to be:
recordation, or its incorporation into the Authentication not necessary [Sec. 20,
public record becomes a public document, Rule 132]
but that does not make the private writing
itself a public document so as to make it F.4. HOW TO PROVE GENUINENESS OF
admissible without authentication. [Republic HANDW RITING
v Sandiganbayan, G.R. No. 188881, (2014)] (1) By any witness who believes it to be the
handwriting of such person because:
Additional Modes of Authentication (a) he has seen the person write;
under American Jurisprudence (b) he has seen writing purporting to be his
[Regalado] upon which the witness has acted or
(1) Doctrine of Self-Authentication been charged, and has thus acquired
Where the facts in writing could only have knowledge of the handwriting of such
been known by the writer person [Sec. 22, Rule 132]
(2) Rule of Authentication by adverse (2) A comparison by the witness or the court
party Where the reply of the adverse of the questioned handwriting, and
party refers to and affirms the transmittal admitted genuine specimens thereof or
to him and his receipt of the letter in proved to be genuine to the satisfaction of
question, a copy of which the proponent is the judge [Sec. 22, Rule 132]
offering as evidence (3) Expert evidence [Sec. 49, Rule 130]
PAGE 385 OF 425

F.5. ATTESTATION OF A COPY OF A

DOCUMENT OR RECORD [Sec. 25, WHAT TO ESTABLISH TO IMPEACH
Rule 132] JUDICIAL RECORD [Sec. 29, Rule 132]
(1) Must be made by the officer having the (4) Want of jurisdiction in the court or judicial
legal custody of the record, or by his officer;
deputy (5) Collusion between the parties; OR
(2) Must state that the copy is a correct copy (6) Fraud in the party offering the record, with
of the original or a specific part thereof, as respect to the proceedings
the case may be
(3) Must be under the official seal of the F.8. PROOF OF NOTARIAL DOCUMENTS
attesting officer, if there be any, or if he be
the clerk of a court having a seal, under NOTARIAL DOCUMENTS (except last wills
the seal of such court and testaments)
Every instrument duly acknowledged or
If the record is not kept in the proved and certified as provided by law which
Philippines, attested copy must be may be presented in evidence without further
accompanied with a certificate, which: proof, the certificate of acknowledgment
(1) May be made by a secretary of the being prima facie evidence of the execution of
embassy/legation, consul-general, consul, the instrument or document involved. [Sec.
vice-consul, consular agent or any officer 30, Rule 132]
in the foreign service of the Philippines
stationed in the foreign country in which Such notarized documents are evidence, even
the record is kept; against 3rd persons, of the facts which gave
(2) Must state that such officer has the rise to their execution and of the date of
custody; and execution. [Sec. 23, Rule 132]
(3) Must be authenticated by the seal of his
office. [Sec. 24, Rule 132] F.9. HOW TO EXPLAIN ALTERATIONS IN A
DOCUMENT [SEC. 31, RULE 132]
F.6. PUBLIC RECORDS OF PRIVATE
DOCUMENTS [Sec. 27, Rule 132]
WHEN APPLICABLE
(1) By the original record; or
(1) Document is being presented as genuine;
(2) By a copy thereof, attested by the legal
(2) Document has been altered and appears
custodian of the record, with an
to have been altered;
appropriate certificate that such officer
(3) Alteration was made after execution of the
has the custody. [Sec. 27, Rule 132]
document; and
(4) Alteration is in a part material to the
NOTE: Please refer to Attestation of Copy
question in dispute
under Rule 132, Sec. 25.
WHAT TO SHOW ABOUT ALTERATION
F.7. ATTACKING RECORDS
(1) Was made by another, without his
concurrence;
PROOF OF LACK OF RECORD [Sec. 28, Rule (2) Was made with the consent of the parties
132] affected by it;
(1) Written statement (3) Was otherwise properly or innocently
(a) Signed by an officer having the custody made; or
of an official record or by his deputy (4) Did not change the meaning or language
(b) Must state that after diligent search, no of the instrument.
record or entry of a specified tenor is
found to exist in the records of his WHOSE BURDEN OF PROOF
office Party producing the document must account
(2) Certificate for the alteration. Failure to do so would
(a) Accompanying the written statement result in the inadmissibility of evidence.
(b) Must state that that such officer has
the custody
PAGE 386 OF 425
F.10. DOCUMENTARY EVIDENCE IN AN

UNOFFICIAL LANGUAGE [Sec. 33, Rule V. Testimonial
132]
NOT admissible unless accompanied by a
Evidence
translation into English or Filipino.
A. QUALIFICATIONS OF A WITNESS
Parties or their attorneys are directed to have
the translation prepared before trial. WITNESS
A witness is one who, being present,
The OCT written in the Spanish language personally sees or perceives a thing, a
already formed part of the records of the case beholder, spectator or eyewitness. One who
for failure of the adverse parties to interpose testifies to what he has seen or heard, or
a timely objection when it was offered as otherwise observed. [Herrera citing Blacks
evidence. Any objection to the admissibility Law Dictionary]
of such evidence not raised will be considered
waived and said evidence will have to form QUALIFICATIONS OF A WITNESS [Sec. 20,
part of the records of the case as competent Rule 130]
and admitted evidence. [Heirs of Doronio v. All persons who can perceive, and, in
Heirs of Doronio, G.R. No. 169454 (2007)] perceiving, can make their known perception
to others, may be witnesses.
Religious/political belief, interest in the

outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not
be ground for disqualification.
QUALIFICATIONS OF A WITNESS [Herrera]

(1) To observe, the testimonial quality of
perception; [Sec. 20, Rule 130]
(2) To remember, the testimonial quality of
memory;
(3) To relate, the testimonial quality of
narration; [Sec. 20, Rule 130]
(4) To recognize a duty to tell the truth, the
testimonial quality of sincerity; [Sec. 1,
Rule 132]
(5) He must not possess any of the
disqualifications imposed by the law or
rules. [Sec. 1, Rule 132]
A deaf-mute is competent to be a witness so

long as he/she has the faculty to make
observations and he/she can make those
observations known to others. [People v.
Aleman y Longhas, G.R. No. 181539 (2013)]
Parties declared in default are not

disqualified from taking the witness stand for
non-disqualified parties. The law does not
provide default as an exception. [Marcos v.
Heirs of Navarro, G.R. No. 198240 (2013)].
There is no substantive or procedural rule

which requires a witness for a party to
present some form of authorization to testify
PAGE 387 OF 425
as a witness for the party presenting him or [Icutanim v. Hernandez, G.R. No. L-1709, June
her. [AFP Retirement and Separation Benefits 8, 1948]
System v. Republic, G.R. No. 188956 (2013)]
CREDIBILITY NOT REVIEWABLE
W hen determined Credibility of a witness is a question of fact,
Qualification of a witness is determined at the which is not reviewable by the Supreme Court
time the said witness are produced for [Addenbrook v. People, G.R. No. L-22995
examination or at the taking of their (1967])
depositions.
TWO KINDS OF INCOMPETENCY TO TESTIFY
With respect to children of tender years, [Herrera]
competence at the time of the occurrence is Absolute Partial
also taken into account. Forbidden to testify
only on certain
In case person is convicted of a crime matters specified
under Secs. 22-23,
GENERAL RULE: Not disqualified Forbidden to testify
Rule 130 due to
on any matter
interest or
EXCEPTION: Otherwise provided by law, relationship, or to
e.g. under Art. 821 of the Civil Code, a person privileges of the
convicted of any of the following crimes parties
cannot be a witness to a will:
(a) Falsification of documents, COMPETENCY PRESUMED
(b) Perjury; or A person who takes the witness stand is
(c) False testimony presumed to possess the qualifications of a
witness. His competence may be questioned
B. COMPETENCY VERSUS by the other party by interposing an objection.
CREDIBILITY [Herrera]
COMPETENCY OF A WITNESS [Herrera] INCOMPETENCE AND PRIVILEGE [Herrera]

(1) One is qualified to take the witness stand Incompetence Privilege
if: Excuses a witness
Disqualifies a witness
(2) He is capable of perceiving at the time of from testifying
the occurrence of the fact; and
(3) He came make his perception known C. DISQUALIFICATIONS OF
WITNESSES
Competence Credibility
EFFECT OF INTEREST IN THE SUBJECT
A matter of law and of Has nothing to do MATTER [Regalado]
rules with the law or rules A person is not disqualified (except if covered by
Refers to the basic the Dead Mans statute)
qualifications of a
Refers to the weight Interest only affects credibility, not competency.
witness as his capacity
and trustworthiness
to perceive and his
or reliability of the EFFECT OF RELATIONSHIP
capacity to
testimony
communicate his GENERAL RULE: Mere relationship does not
perception to others impair credibility.
REMEDY FOR ERRORS OR QUESTIONS ON EXCEPTION:

COMPETENCE To warrant rejection, it must be clearly shown:
Appeal, not certiorari, is the proper remedy (1) Testimony was inherently improbable or
defective
for the correction of any error as to the
(2) Improper/evil motives had moved the witness
competency of a witness committed by an to incriminate falsely
inferior court in the course of the trial.
PAGE 388 OF 425
speak, and are capable of communicating their

C.1. BY REASON OF MENTAL CAPACITY OR Ideas with respect thereto. [People v. Hayag, G.R.
IMMATURITY No. L-38635 (1980))
BY REASON OF MENTAL INCAPACITY [Sec. They may give evidence by signs, or through an
interpreter or in writing, and such testimony,
21(a), Rule 130]
through an interpreter, is not hearsay. But sign
language must be capable of verification. [People
Requisites
v. Hayag, GR No. L-38635 (1980))
(1) Person must be incapable of intelligently
making known his perception to others
(2) His incapability must exist at the time of his CHILD WITNESS
production for examination [Riano] The competency of a child witness is determined
by his capacity for observation, recollection and
BY REASON OF IMMATURITY [Sec. 21(b), communication. [People v. Mendoza, G.R. No.
113791 (1996))
Rule 130]
Requisites
C.2. BY REASON OF MARRIAGE
Also known Martial Disqualification Rule or
(1) Mental maturity of the witness (child) must
Spousal Immunity
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception REQUISITES [Sec. 22, Rule 130]
truthfully. [Riano] (1) Marriage is valid and existing as of the time of
the offer of testimony.
CONCEPTS (2) That the spouse for or against whom the
testimony is offered is a party to the case;
(3) That the case is not one against the other.
When incapacity matters for
[Herrera]
disqualification
Incapacity must occur at the time the witness
perceives the event. EXCEPTIONS: [Sec. 22, Rule 130]
Spouse may testify for or against the other even
without the consent of the latter
Presumption of sanity [Herrera]
(1) In a civil case by one against the other; or
(2) In a criminal case for a crime committed by
GENERAL RULE: The law presumes that every
one against the other or the latter's direct
person is of sound mind, in the absence of proof to
descendants/ascendants.
the contrary. [Art. 800, Civil Code]
EXCEPTION: if the witness is a lawful inmate of RATIONALE [Alvarez v. Ramirez, G.R. No.
an asylum for the insane. [Herrera citing Torres v. 143439 (2005)]
Lopez (1926)] (1) There is identity of interests between husband
and wife;
A mental retardate is not therefore, per se, (2) If one were to testify for or against the other,
disqualified from being a witness. As long as his there is a consequent danger of perjury;
senses can perceive facts and if he can convey his (3) Policy of the law is to guard the security and
perceptions in court, he can be a witness. [People confidence of private life, and to prevent
v. Espaola, G.R. No. 119308 (1997), citing People v. domestic disunion and unhappiness; and
Salomon, G.R. No. 96848 (1994)] (4) Where there is want of domestic tranquility,
there is danger of punishing one spouse
Unsound mind through the hostile testimony of the other.
(1) Includes any mental aberration
(organic/functional), induced by DURATION
drugs/hypnosis The privilege lasts only during the marriage and
(2) Not disqualified as long as the witness can terminates upon divorce or annulment or death.
convey ideas by words/signs [Herrera]
Deaf-Mutes SCOPE OF RULE

Deaf-mutes are competent witnesses where they The rule also includes utterance as to facts or
have sufficient knowledge to understand and mere production of documents. It does not only
appreciate the sanctity of an oath and prevent disclosure of matters communicated in
comprehend the facts as to which they wish to nuptial confidence but is an absolute prohibition
PAGE 389 OF 425

against the spouses testifying to any facts (1) The survivor may testify against the estate of
affecting the other however these facts may have the deceased where the latter was guilty of
been acquired. [Herrera] fraud which fraud was established by evidence
other than the testimony of the survivor. [Ong
WAIVER OF DISQUALIFICATION Chua v. Carr, G.R. No. L-29512 (1929))
If a spouse imputed the conviction to the other. (2) He may also testify where he was the one sued
by the decedents estate since the action then
SPOUSES AS CO-ACCUSED is not against the estate. [Tongco v. Vianzon,
The other cannot be called as an adverse party G.R. No. 27498 (1927))
witness under this Rule. (3) He may likewise testify where the estate had
filed a counterclaim against him or where the
C.3. BY REASON OF DEATH OR INSANITY estate cross-examined him as to matters
OF ADVERSE PARTY (ALSO KNOWN AS occurring during the lifetime of the deceased.
[Goi v. CA, G.R. No. L-27434 (1986)]
DEAD MANS STATUTE OR
(4) No application to a mere witness
SURVIVORSHIP RULE) (5) No application to nominal parties, officers and
Also known as Dead Mans Statute or stockholders against corporations
Survivorship Rule (6) Cannot be used in a negative testimony
(7) If the defendant did not object
REQUISITES [Sec. 23, Rule 130] (8) When the party cross-examines the witness
(1) Defendant is the executor or administrator or a (9) Where the purpose of the oral testimony is to
representative of the deceased or of the person prove a lesser claim than what might be
of unsound mind; warranted by clear written evidence, to avoid
(2) Suit is upon a claim by the plaintiff against the prejudice to the estate of the deceased [Icard v.
estate of said deceased or person of unsound Marasigan, G.R. No. L-47442 (1941)]
mind; (10) Agent of the deceased as to transactions or
(3) Witness is the plaintiff, or an assignor of that communications with the deceased or
party, or a person in whose behalf the case is incompetent person which were made with
prosecuted; and an agent of such person in cases in which the
(4) Subject of the testimony is as to any matter of agent is still alive and competent to testify
fact occurring before the death of such [Goi v. CA, G.R. No. L-27434 (1986)]
deceased person or before such person
became of unsound mind. What the Dead Mans Statute proscribes is the
admission of testimonial evidence upon a claim
APPLICABILITY which arose before the death of the deceased.
This rule is applied only to civil cases. The incompetency is confined to the giving of
testimony. [Sanson v. CA, G.R. No. 127745
It is still applicable even if the property has (2003)]
already been judicially adjudicated to the heirs
regardless whether the deceased died before or C.4. BY REASON OF PRIVILEGED
after the suit. COMMUNICATIONS
RATIONALE PRIVILEGE
To close lips of the plaintiff when death has closed A privilege is a rule of law that, to protect a
the lips of the defendant in order to discourage particular relationship or interest, either permits a
perjury and protect the estate from fictitious witness to refrain from giving testimony he
claims. otherwise could be compelled to give, or permits
someone usually one of the parties, to prevent the
SCOPE witness from revealing certain information.
[Herrera]
Facts favorable to the deceased are not
prohibited HUSBAND AND WIFE [Sec. 24(a), Rule 130]
The rule does not operate to exclude testimony Also known as marital privilege
favorable to the deceased because the rule seeks
to protect his interests. [Herrera, citing Go Chi Gun Rationale
v. Co Cho, G.R. No. (L-13342 (1962), which cited Confidential nature of the privilege; to preserve
Jones on Evidence] marital and domestic relations.
W hen the Dead Mans statute is not
applicable
PAGE 390 OF 425
Requisites: Marital Disqualification Marital Privilege [Sec.

(1) There must be a valid marriage between the [Sec. 22] 24(a)]
husband and wife; Constitutes a total Prohibition is limited to
(2) There is a communication received in prohibition on any testimony on
confidence by one from the other; and testimony for or against confidential
(3) The confidential communication was received the spouse of the communications
during the marriage. witness. between spouses.
(4) The spouse against whom such is being
offered has not given his consent to such ATTORNEY AND CLIENT [Sec 24(b), Rule
testimony. 130]
A widow of a victim allegedly murdered may Requisites

testify as to her husbands dying declaration as to (1) There must be a communication made by the
how he died the since the same was not intended client to the attorney or an advice given by the
to be confidential. [US v. Antipolo, G.R. No. L- attorney to his client;
13109 (1918)] (2) The communication must have been given in
confidence; and
Scope: Any communication (3) The communication or advice must have been
Includes utterances, either oral or written, or acts. given either in the course of the professional
[Herrera] employment or with a view to professional
employment.
When not applicable (4) The client has not given his consent to the
(1) When the communication was not intended to attorneys testimony thereon.
be kept in confidence
(2) When the communication was made prior to Attorneys secretary, stenographer, or clerk are
the marriage also covered by the rule and cannot be examined
(3) When the communication was concerning any fact the knowledge of which has
overheard/comes into the hands of a third been acquired in such capacity without the
party whether legally or not consent of the client AND their employer.
(4) Waiver of the privilege
(5) In a civil case by one against the other Subject-matter of the privilege [Herrera]
(6) In a criminal case for a crime committed by (1) Communications
one against the other or the latter's direct (2) Observations by the lawyer (regardless of
descendants/ascendants. medium of transmission which may include
oral or written words and actions)
Waiver [Herrera] (3) Tangible evidence delivered to a lawyer
(1) Failure of the spouse to object; or (4) Documents entrusted to a lawyer
(2) Calling spouse as witness on cross
examination When not applicable
(3) Any conduct constructed as implied consent. (1) When the communication made was not for
the purpose of creating relationship (even if
The objection to the competency of the spouse afterwards he become counsel)
must be made when he or she is first offered as a (2) When the communication was intended to be
witness. The incompetency is waived by failure to made public
make a timely objection to the admission of (3) When the communication was intended to be
spouses testimony. [People v. Pasensoy, G. R. No. communicated to others
140634 (2002)] (4) When the communication was intended for an
unlawful purpose
In Contrast to Marital Disqualification (5) When the communication was received from
Marital Disqualification Marital Privilege [Sec. third persons not acting in behalf/as agents of
[Sec. 22] 24(a)] clients
One spouse should be a Neither of the spouses (6) When the communication was made in the
party to the case; needs to be a party; presence of third parties stranger to the
Applies only if the attorney-client relationship
Does not cease even
marriage is existing at (7) When the communication has something to do
after the marriage is
the time the testimony is with a clients contemplated criminal act
dissolved; and
offered; and [People v. Sandiganbayan, G.R. Nos. 115439-41
(1997)]
(8) When there is a controversy between the client
and attorney [Herrera]
PAGE 391 OF 425
(4) Communication was intended for the

Identity of Client commission/concealment of a crime
(5) Communication was intended to be made
GENERAL RULE: The attorney-client privilege public/divulged in court
may not be invoked to refuse to divulge the (6) When there was a waiver
identity of the client. (7) When the doctor was presented as an expert
witness and only hypothetical problems were
EXCEPTIONS: [Regala v. Sandiganbayan, G.R. presented to him. [Lim v. CA, G.R. No. 91114
No. 105938 and G.R. No. 108113 (1996)]: (1992)]
(1) When a strong probability exists that revealing
the name would implicate that person in the Waiver
very same activity for which he sought the (1) Express waiver may only be done by the
lawyers advice; patient.
(2) When disclosure would open the client to (2) Implied waiver [Herrera]
liability; (a) By failing to object
(3) When the name would furnish the only link (b) When the patient testifies
that would form the chain of testimony (c) A testator procures an attending doctor to
necessary to convict. subscribe his will as an attesting witness
(d) Disclosure of the privileged information
Duration of the privilege either made or acquiesced by the privilege
In the absence of a statute, the privilege is holder before trial
permanent. It may even be claimed by a clients (e) Where the patient examines the physician
executor or administrator after the clients death. as to matters disclosed in a consultation
[Herrera] (f) Also check Rule 28 on Mental or Physical
Examination [Rules on Civil Procedure]
PHYSICIAN AND PATIENT [Sec. 24(c), Rule
130] Professional capacity
When the doctor attends to a patient for curative
Requisites: [Krohn v. CA, G.R. No. 108854 treatment, or for palliative or preventive
(1994), citing Lim v. CA, G.R. No. 91114 (1992)] treatment. [Herrera]
(1) Physician is authorized to practice medicine,
surgery or obstetrics; Extent of rule
(2) Information was acquired or the advice or The privilege extends to communications which
treatment was given by him in his professional have been addressed to physicians assistants or
capacity for the purpose of treating and curing agents. [Herrera]
the patient;
(3) The information was necessary to enable him Physician allowed to testify as an expert
to act in that capacity; A doctor is allowed to be an expert witness when
(4) Information, advice or treatment, if revealed, he does not disclose anything obtained in the
would blacken the reputation of the patient; course of his examination, interview and
and treatment of a patient. [Lim v. CA, G.R. No. 91114
(5) Privilege is invoked in a civil case, whether or (1992)]
not the patient is a party thereto.
Autopsical information
Physician-patient relationship need not be If the information was not acquired by the
entered into voluntarily. physician in confidence, he may be allowed to
testify thereto. But if the physician performing the
Where applicable autopsy was also the deceaseds physician, he
(1) All forms of communication, advice or cannot be permitted either directly or indirectly to
treatment disclose facts that came to his knowledge while
(2) Information acquired by the physician from his treating the living patient. [Herrera, citing US Case
personal observations and examination of the Travelers Insurance Co. v. Bergeron)]
patient
Duration of privilege
W hen not applicable The privilege continues until the death of the
(1) Communication was not given in confidence patient. It may be waived by the personal
(2) Communication was irrelevant to the representative of the decedent. [Herrera]
professional employment
(3) Communication was made for an unlawful Hospital Records during discovery
purpose procedure
PAGE 392 OF 425
To allow the disclosure during discovery children or other direct descendants (filial
procedure of the hospital records would be to privilege).
allow access to evidence that is inadmissible
without the patients consent. Disclosing them EXCEPTIONS: [Art. 215, Family Code]
would be the equivalent of compelling the Descendant may be compelled to give his
physician to testify on privileged matters he testimony in a criminal case when
gained while dealing with the patient, without the (1) [against parent or grandparent] The
latters prior consent. [Chan v. Chan, G.R. No. testimony is indispensable in a crime
179786 (2013)] committed against said descendant; or
(2) [against parent] In a crime committed by
PRIEST AND PENITENT [Sec. 24(d), Rule 130] one parent against the other.
Requisites Applicability
(1) Priest or minister must be duly ordained in the The rule is applied to both civil and criminal cases.
sect in which he belongs [Herrera]
(2) Confession was made to, or advice given by
him pursuant to a religious duty enjoined in The privilege cannot apply between stepmothers
the course of discipline of the sect or and stepchildren because the rule applies only to
denomination of the priest. direct ascendants and descendants, a family tie
(3) Confession or advice was confidential and connected by a common ancestry. A stepdaughter
penitential in character. has no common ancestry by her stepmother. [Lee
v. CA, G.R. No. 177861 (2010)]
PUBLIC OFFICERS [Sec. 24(e), Rule 130]
A child can waive the filial privilege and choose to
Requisites testify against his father. The rule refers to a
(1) Communication was made to the public officer privilege not to testify, which can be invoked or
in official confidence; and waived like other privileges. [People v. Invencion y
(2) Public interest would suffer by the disclosure Soriano, G.R. No. 131636 (2003)]
of such communication.
OTHER PRIVILEGED COMMUNICATION NOT
Elements of presidential IN THE RULES OF COURT
communications privilege
(1) Must relate to a quintessential and non- Newsmans Privilege [RA 53, as amended by
delegable presidential power; RA 1477]
(2) Must be authored or solicited and received
by a close advisor of the President or the GENERAL RULE: Publisher, editor or duly
President himself; and accredited reporter cannot be compelled to reveal
(3) Privilege may be overcome by a showing of the source of any news report or information
adequate need such that the information related in confidence
sought likely contains important evidence
and by the unavailability of the information EXCEPTION: Court/House/Committee in
elsewhere. [Neri v. Senate, G.R. No. 180643 Congress finds that such revelation is demanded
(2008)] by security of the State
Purpose of privilege: protection of public Information in Conciliation Proceedings

interest All information and statements made at
The privilege is not intended for the protection of conciliation proceedings shall be treated as
public officers but for the protection of the public privileged communications [Art. 233, Labor Code]
interest. When no public interest would be
prejudiced, this privilege cannot be invoked. Data Privacy Act
[Banco Filipino v. Monetary Board, G.R. No. 70054 Personal information controllers may invoke the
(1986)) principle of privileged communication over
privileged information that they lawfully control or
PARENTAL AND FILIAL PRIVILEGE RULE process. Subject to existing laws and regulations,
[Sec. 25, Rule 130] any evidence gathered on privileged information
is inadmissible. [Sec. 15, RA 10173]
GENERAL RULE: A person cannot be
compelled to testify against his parents Food and Drug Administration Act
(parental privilege), other direct ascendants, Prohibits the use of a person to his own advantage,
or revealing, other than to the Secretary of Health
PAGE 393 OF 425
or officers or employees of the Department of answer to the fact of his previous final
Health or to the courts when relevant in any conviction for an offense.
judicial proceeding under this Act, any
information acquired under authority Board of
Food Inspection and Board of Food and Drug, or ONE-DAY EXAMINATION OF WITNESS RULE
concerning any method or process which as a [AM 03-1-09-SC]
trade secret is entitled to protection. [Secs. 9, 11 (f) A witness has to be fully examined in one (1) day
and 12, RA 3720] only. It shall be strictly adhered to subject to the
courts' discretion during trial on whether or not to
TRIPS Agreement extend the direct and/or cross-examination for
Undisclosed information or trade secrets are justifiable reasons.
considered privileged communication.
D.2. ORDER OF EXAMINATION OF AN
It is protected information if it complies with 3
requisites: INDIVIDUAL WITNESS
(1) A secret in a sense that it is not generally
known among or readily accessible to persons DIRECT EXAMINATION [Sec. 5, Rule 132]
within the circles that normally deal with the Examination-in-chief of a witness by the party
kind of info in question, presenting him, on the facts relevant to the issue.
(2) Has commercial value because it is a secret;
(3) Has been subject to reasonable steps, under The purpose is to elicit facts about the clients
the circumstances by the person lawfully in cause of action or defense.
control of the information, to keep it a secret.
[Art. 39] CROSS-EXAMINATION [Sec. 6, Rule 132]
Examination of the witness by the adverse party
Electronic Document as Privileged after said witness has given testimony on direct
Communication examination.
The confidential character of a privileged
communication is not solely on the ground that it The purpose is to test the witnesss accuracy and
is in the form of an electronic document. [Sec. 3, truthfulness, and freedom from interest or bias, or
Rule 3, Rules on Electronic Evidence] the reverse, and to elicit all important facts
bearing upon the issue.
D. EXAMINATION OF A WITNESS
Matters covered
Any matters stated in the direct examination, or
D.1. RIGHTS AND OBLIGATIONS OF A
connected therewith
WITNESS [SEC. 3, RULE 132]
Right to cross-examination
OBLIGATION Cross-examination is the most reliable and
To answer questions, although his answer may effective way known of testing the credibility and
tend to establish a claim against him. accuracy of testimony. This is an essential
element of due process. [Herrera, citing Alford v.
RIGHTS US (1931)]
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or The right to cross-examine under the constitution
insulting demeanor is superior to technical rules on evidence. [Herrera,
(2) Not to be detained longer than the interests of citing People v. Valero (1982)]
justice require
(3) Not to be examined except only as to matters Partial cross-examination is sufficient where
pertinent to the issue the witness was cross-examined on material
(4) Not to give an answer which will tend to points, and full cross-examination was not due to
subject him to a penalty for an offense unless prosecutors fault but that of the defense who
otherwise provided by law, e.g., Sec. 8, RA repeatedly moved for postponement, direct
1379 and other immunity statutes which grant examination cannot be thrown off the case.
the witness immunity from criminal [Herrera, citing People v. Caparas, 102 SCRA 782]
prosecution for offenses admitted
(5) Not to give an answer which will tend to Effect of denial of right to cross-examine
degrade his reputation, unless it to be the very Most courts require that the testimony given on
fact at issue or to a fact from which the fact in direct examination be stricken off provided the
issue would be presumed. But a witness must
PAGE 394 OF 425
unavailability of the witness is through no fault of (2) Leading Questions These are questions
the party seeking to cross-examine. [Herrera] that suggest to the witness the answer, which
the examining party desires.
Cross-examination must be completed or finished.
When cross-examination is not and cannot be LEADING QUESTIONS
done or completed due to causes attributable to
the party offering the witness, the uncompleted GENERAL RULE: Leading questions are not
testimony is thereby rendered incompetent. allowed.
[Herrera, citing Ortigas, Jr. v. Lufthansa German
Airlines (1975)] EXCEPTIONS:
(1) On cross examination;
RE-DIRECT EXAMINATION [Sec. 7, Rule 132] (2) On preliminary matters;
Examination of a witness by the counsel who (3) When there is a difficulty is getting direct and
conducted the direct examination after the cross intelligible answers from a witness who is
examination. ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
The purpose is for the witness to explain or (4) On an unwilling or hostile witness;
supplement his answers given during the cross- (a) Adverse interest;
examination. (b) Unjustified reluctance to testify;
(c) His having misled the party into calling him
Matters covered to the witness stand.
Those stated in the cross-examination, and (5) On a witness who is an adverse party or an
matters not dealt with, if allowed by the Court officer/director or managing agent of a
public/private corporation or of a
RE-CROSS-EXAMINATION [Sec. 8, Rule 132] partnership/association which is an adverse
Examination conducted by adverse party upon party.
conclusion of the re-direct examination.
Test of leading questions: By putting the
Matters covered words or though in the witness mind to be echoed
Those stated in his re-direct examination, and back, the examiner is in effect the one testifying,
also on such other matters as may be allowed by not the witness. [Herrera, citing Escato v Pineda,
the court in its discretion. CA 53 OG 7742]
RECALLING THE WITNESS [Sec. 9, Rule 132] MISLEADING QUESTIONS

After both sides have concluded the examination Questions containing facts not in evidence.
of a witness, either party with leave of court may [Herrera]
recall a witness.
D.4. IMPEACHING A WITNESS
Why conducted
(1) Particularly identified material points were not METHODS OF IMPEACHMENT OF AN
covered in cross-examination ADVERSE PARTYS WITNESS [Sec. 11, Rule
(2) Particularly described vital documents were
not presented to the witness
132]
(1) By contradictory evidence;
(3) Cross-examination was conducted in so inept
(2) By evidence that his general reputation for
a manner as to result in a virtual absence
truth, honesty or integrity is bad;
thereof [People v. Rivera, G.R. No. 98376
(3) By evidence that he has made at other times
(1991))
statements inconsistent with his present
testimony.
D.3. LEADING AND MISLEADING
QUESTIONS [SEC. 10, RULE 132] Evidence of the good character of a
witness
QUESTIONS NOT ALLOWED Evidence of the witness good character is not
(1) Misleading Questions These are admissible until such character has been
questions that assume as true a fact not yet impeached. [Sec. 14, Rule 132]
testified to by the witness, or contrary to that
which he has previously stated. These are Because a witness is presumed to be truthful and
never allowed. of good character, the party presenting him does
not have to prove he is good because he is
presumed to be good.
PAGE 395 OF 425
This is without prejudice to the introduction of

How the witness is impeached by evidence secondary evidence in place of the original when
of inconsistent statements (laying the allowed by existing rules. [Sec. 2]
predicate)
(1) The alleged statements must be related to FORM [Sec. 3]
the witness including the circumstances of (1) Language known to the witness, or if not in
the times and places and the persons present. English or Filipino with a translation in English
If the statements are in writing they must be or Filipino
shown to him. (2) With a sworn attestation executed by the
(2) Witness may be asked whether he made such lawyer who conducted or supervised the
statements and also to explain them if he examination of the witness
admits making those statements.
CONTENTS [Sec. 3]
Purpose: To allow the witness to admit or deny (1) The name, age, residence or business address,
the prior statement and afford him an opportunity and occupation of the witness;
to explain the same. (2) The name and address of the lawyer who
conducts or supervises the examination of the
D.5. JUDICIAL AFFIDAVIT RULE [AM 12-8- witness and the place where the examination
8-SC] is being held;
(3) A statement that the witness is answering the
SCOPE questions asked of him, fully conscious that he
Applies to all actions and proceedings, and does so under oath, and that he may face
incidents requiring the reception of evidence criminal liability for false testimony or perjury;
before the courts, quasi-judicial bodies, whose (4) Questions asked of the witness and his
rules of procedure are subject to disapproval of corresponding answers, consecutively
the Supreme Court, insofar as their existing rules numbered, that:
of procedure contravene the provisions of this (a) Show the circumstances under which the
Rule, and investigating officers and bodies witness acquired the facts upon which he
authorized by the SC to receive evidence, testifies;
including the IBP [Sec. 1]. (b) Elicit from him those facts which are
relevant to the issues that the case
SUBMISSION OF JUDICIAL AFFIDAVITS AND presents; and
EXHIBITS IN LIEU OF DIRECT TESTIMONIES (c) Identify the attached documentary and
(1) The parties shall file with the court and serve object evidence and establish their
on the adverse party, personally or by licensed authenticity;
courier service, not later than five days before (5) The signature of the witness over his printed
pre-trial or preliminary conference or the name; and
scheduled hearing with respect to motions and (6) A jurat with the signature of the notary public
incidents, the following: who administers the oath or an officer who is
(a) The judicial affidavits of their witnesses, authorized by law to administer the same.
which shall take the place of such
witnesses' direct testimonies; and Sworn attestation [Sec. 4]
(b) The parties' documentary or object (1) He faithfully recorded or caused to be recorded
evidence, if any, shall be marked and the questions he asked and the corresponding
attached to the judicial affidavits answers that the witness gave; and
(2) Should a party or a witness desire to keep the (2) Neither he nor any other person then present
original document or object evidence in his or assisting him coached the witness regarding
possession, he may, after the same has been the latter's answers.
identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit A false attestation shall subject the lawyer
that the copy or reproduction attached to such mentioned to disciplinary action, including
affidavit is a faithful copy or reproduction of disbarment.
that original. In addition, the party or witness
shall bring the original document or object OFFER
evidence for comparison during the
preliminary conference with the attached copy, When made
reproduction, or pictures, failing which the Upon the termination of the testimony of his last
latter shall not be admitted witness
PAGE 396 OF 425

How made issuance of a subpoena to the witness in this case

Party shall immediately make an oral offer of shall be the same as when taking his deposition
evidence of his documentary or object exhibits, except that the taking of a judicial affidavit shall
piece by piece, in their chronological order, stating be understood to be ex parte.
the purpose or purposes for which he offers the
particular exhibit. E. ADMISSIONS AND CONFESSIONS
OBJECTION E.1. EXTRAJUDICIAL ADMISSIONS
Any statement of fact made by a party
When made against his interest or unfavorable to the
After each piece of exhibit is offered, conclusion for which he contends or is
inconsistent with the facts alleged by him.
How made
Party shall state the legal ground for his objection, A statement by the accused, direct or implied, of
if any, to its admission. facts pertinent to the issue, and tending in
connection with proof of other facts, to prove his
The court shall immediately make its ruling guilt. [People v. Lorenzo, G.R. No. 110107 (1995)]
respecting that exhibit.
RULE
NOTE: It is sufficient that the exhibits are simply
The act, declaration or omission of a party, as to a
cited by their markings during the offers, the
relevant fact may be given in evidence against him.
objections, and the rulings, dispensing with the
[Sec. 26, Rule 130]
description of each exhibit.
This rule pertains to extra-judicial admission.
EFFECT OF NON-COMPLIANCE [Sec. 10]
Non-compliant behavior Consequence
ELEMENTS
Deemed to have waived
(1) The admission is made by a party to the case
the submission of the
(2) It is against interest
same
(3) Made out of court
NOTE: Court may (4) Offered and presented in court in an
Partys failure to submit allow, only once, late admissible manner (e.g. non-hearsay)
submission, provided the (5) It is an ACT, OMISSION, or DECLARATION
delay is for a valid
reason and the REQUISITES FOR ADMISSIBILITY [Regalado]
defaulting party pays a (1) They must involve matters of fact;
fine. (2) They must be categorical and definite;
(3) They must be knowingly and voluntarily made;
Witness failure to
Affidavit shall not be and
appear at the scheduled
considered by the court (4) Is against admitters interest.
hearing
Deemed to have waived EFFECT OF AN ADMISSION
Counsels failure to his clients right to cross- It may be given in evidence against the admitter.
appear examine the witnesses [Sec. 26, Rule 130]
there present
Non-compliance with Judicial affidavit cannot Flight from justice is an admission by conduct and
requirements be admitted as evidence circumstantial evidence of consciousness of guilt.
[US v. Sarikala, G.R. No. L-12988 (1918))
ISSUANCE OF SUBPOENA [Sec. 5]
If the government employee or official, or the RATIONALE
requested witness, who is neither the witness of No man would make any declaration against
the adverse party nor a hostile witness, himself unless it is true. [Republic v. Bautista, G.R.
unjustifiably declines to execute a judicial affidavit No. 169801 (2007))
or refuses without just cause to make the relevant
books, documents, or other things under his ADMISSION MUST BE MADE IN CONTEXT
control available for copying, authentication, and It is a rule that a statement is not competent as an
eventual production in court, the requesting party admission where it does not, under reasonable
may avail himself of the issuance of a subpoena construction, appear to admit or acknowledge the
ad testificandum or duces tecum under Rule 21 of fact which is sought to be proved by it. [CMS
the Rules of Court. The rules governing the Logging, Inc. v. CA, G.R. No. L-41420 (1992))
PAGE 397 OF 425
Lacbayan v. Samoy, Jr. [G.R. No. 165427, EXCEPTIONS:

(2011)] (1) Partners or Agents Admission [Sec. 29, Rule
130]
ISSUE: WON a Partition Agreement between (2) Admission by conspirator [Sec. 30, Rule 130]
partners having an extramarital affair is an (3) Admission by privies [Sec. 31, Rule 130]
admission against interest such that a party to it
who admitted the existence of co-ownership can Basis of exception
no longer assail the agreement. A third party may be so united in interest with the
party-opponent that the other persons
HELD: No. The question on the Partition admissions may be receivable against the party
Agreement indicates a question of law to himself. The term privy is the orthodox
determine whether the parties have the right to catchword for the relation.
freely divide among themselves the subject
properties. An admission must involve matters of Exception to Res Inter Alios Acta
fact and not of law. Branch 1: Partners or Agents
Admission [Sec. 29, Rule 130]
JUDICIAL AND EXTRAJUDICIAL
ADMISSIONS Requisites for admissibility: [Herrera]
Judicial Extrajudicial (1) The act or declaration is by a partner or agent
Made in connection with Any other admission of the party;
a judicial proceeding in [Secs. 26 and 32, Rule (2) The act or declaration is within the scope of his
which it is offered [Sec. 130] authority;
4, Rule 129] (3) The act or declaration is made during the
May be conclusive [Sec. Rebuttable existence of the partnership or agency;
4, Rule 129] (4) The partnership, or agency, is shown by
May be written, oral express or implied evidence other than such act or declaration;
(5) May be given in evidence against such party.
E.2. RES INTER ALIOS ACTA RULE
Things done between strangers ought not to This rule also applies to the act or declaration of a
injure those who are not parties to them. [Blacks joint owner, joint debtor, or other persons jointly
Law Dictionary]. interested with the party. [Sec. 29, Rule 130]
TWO BRANCHES Statements made after partnership is

(1) First branch: Admission by a third party dissolved
[Sec. 28, Rule 130] As a rule, statements made after the partnership
(2) Second branch: Similar acts as has been dissolved do not fall within the
evidence [Sec. 34, Rule 130] exception, but where the admissions are made in
connection with the winding up of the
partnership affairs, said admissions are still
FIRST BRANCH: ADMISSIONS BY A THIRD
admissible as the partner is acting as an agent of
PARTY his co-partners in said winding up [Regalado].
GENERAL RULE: The rights of a party cannot Admissions by counsel
be prejudiced by an act, declaration, or omission Admissions by counsel are admissible against the
of another. client as the former acts in representation and as
an agent of the client, subject to the limitation
Admission by a third party is inadmissible as that the same should not amount to a
against another. The act, declaration or omission compromise [Sec. 23, Rule 138] or confession of
of another is generally irrelevant, and that in judgment [Acenas, et al. v. Sison, et al., G.R. No. L-
justice, a person should not be bound by the acts 17011 (1963)].
of mere unauthorized strangers.
Joint interests [Herrera]
The rule is well-settled that a party is not bound (1) The joint interest must be first made to appear
by any agreement of which he has no knowledge by evidence other than the admission itself
and to which he has not given his consent and (2) The admission must relate to the subject-
that his rights cannot be prejudiced by the matter of joint interest.
declaration, act or omission of another, except
by virtue of a particular relation between The word joint must be construed according to
them. its meaning in the common law system, that is, in
PAGE 398 OF 425
solidum for the whole [Jaucian v. Querol, G.R. No. conspiracy is shown by evidence other than such
L-11307 (1918)]. act or declaration. [People v. Cachuela, G.R. No.
191752 (2013)]
A mere community of interests between several
persons is not sufficient to make the admissions of Existence of the conspiracy may be inferred from
one admissible against all. [Herrera] acts of the accused. [People v. Belen, G.R. No. L-
13895 (1963))
Just like in partnership and agency, the interest
must be a subsisting one unless for the admission Applies only to extra-judicial statements, not to
to be admissible. [Herrera] testimony given on the stand. [People v. Serrano,
G.R. No. L-7973 (1959)]
Admission by Privies [Sec. 31, Rule 130]
As regards extrajudicial admissions after
Privies termination of conspiracy, before trial
Persons who are partakers or have an interest in
any action or thing, or any relation to another GENERAL RULE: Not admissible
[Riano, citing Blacks Law Dictionary]
EXCEPTIONS:
It denotes the idea of succession, not only be right (1) Made in the presence of the co-conspirator
of heirship and testamentary legacy, but also that who expressly/impliedly agreed (tacit
of succession by singular title, derived from acts admission)
inter vivos, and for special purposes. (example: (2) Facts in admission are confirmed in the
assignee of a credit and one subrogated to it are independent extrajudicial confessions made by
privies.) [Alpuerto v. Perez Pastor and Roa, G.R. No. the co-conspirators after apprehension
L-12794 (1918)] (interlocking admissions)
(3) As a circumstance to determine credibility of
Requisites for Admissibility witness
(1) There must be an act, declaration or an (4) Circumstantial evidence to show the
omission by a predecessor-in-interest; probability of the latters participation
(2) Act, declaration or omission must have [Regalado]
occurred while he was holding (not after) the
title to the property; and Doctrine of interlocking confessions:
(3) Act, declaration or omission must be in [People v. Molleda, G.R. No. L-34248 (1978)]
relation to the property. Extrajudicial statements of co-accused may be
taken as circumstantial evidence against
Former owner of Real Estate the person implicated to show the
It is necessary that the admission of the former probability of the latters actual
owner of a property has been made while he holds participation, provided that the statements are
title to the property in order that such admission made by several accused are:
may be binding upon the present owner. [Herrera, (1) Made without collusion
citing Gevero v. IAC, (1990)] (2) Identical with each other in their essential
details;
Exception to Res Inter Alios Acta (3) Corroborated by other evidence on record
Branch 1: Co-Conspirators Admission
[Sec. 30, Rule 130] Applicable to extrajudicial statements
The evidence adduced in court by the conspirators
Requisites for admissibility as witnesses are not declarations of conspirators,
(1) Act or declaration must relate to the but direct testimony to the acts to which they
conspiracy; testify. This is applicable only when it is sought to
(2) It must have been made during the existence introduce extrajudicial declarations and
of the conspiracy; and statements of the co-conspirators. [Herrera, citing
(3) Conspiracy must be shown by evidence other People v. Vizcarra, (1982)]
than such act/declaration.
Similar acts previously done
An exception to the res inter alios acta rule is an
admission made by a conspirator under Sec. 30, GENERAL RULE: Evidence that one did or did
Rule 130. This provision states that the act or not do a certain thing at one time is not
declaration of a conspirator relating to the admissible to prove that he did or did not do the
conspiracy, and during its existence, may be given same or similar thing at another time. (2nd Branch
in evidence against the co-conspirator after the of res inter alios acta rule) [Sec. 34, Rule 130]
PAGE 399 OF 425
(5) That the fact admitted from his silence is

EXCEPTIONS: material to the issue
Said evidence may be received to prove:
(1) specific intent or knowledge; When not applicable
(2) identity; (1) Statements adverse to the party were made in
(3) plan, system, or scheme; the course of an official investigation, neither
(4) habit; asked to reply nor comment [Sec. 2(b), RA
(5) established custom, usage and the like. [Sec. 7438]
34, Rule 130] (2) Party had justifiable reason to remain silent,
e.g. acting on advice of counsel [Regalado]
Reason for General Rule
The rule is founded upon reason, justice and Failure to file a comment
judicial convenience. The lone fact that a person Respondents failure to file a comment despite all
committed the same or similar act at some prior the opportunities afforded him constituted a
time affords, as a general rule, no logical guaranty waiver of his right to defend himself. In the
that he committed the act in question. A mans natural order of things, a man would resist an
mind and even his modes of life may change; and unfounded claim or imputation against him. It is
objectively, the conditions which he may find generally contrary to human nature to remain
himself at a given time make likewise change and silent and say nothing in the face of false
induce him to act a different way. [Herrera, citing accusations. As such, respondents silence may be
Justice Moran] construed as an implied admission and
acknowledgement of the veracity of the
Metrobank v. Custodio [G.R. No. 173780 allegations against him. [OCA v. Amor, AM No.
(2011)] RTJ-08-2140 (2014)]
FACTS: Respondent was accused of being CONFESSION

responsible for cash shortage in the banks Laoag A declaration of an accused acknowledging his
branch. Petitioner Metrobank argued that guilt of the offense charged, or of any offense
respondent Custodios prior involvement in a cash necessarily included therein [Sec. 33, Rule 130]
shortage in its Cubao branch is admissible as
evidence to prove a scheme or habit on her part. An acknowledgment in express words or terms, by
a party, in a criminal case, of the crime charged or
HELD: Respondents prior involvement in a cash some essential parts of it. [People v. Lorenzo,
shortage in the banks Cubao branch does not (1995)]
conclusively prove that she is responsible for the
loss of PhP600,000 in the Laoag City branch, Requisites
subject of the instant case. If the prior cash (1) Express and categorical acknowledgement of
shortage in Cubao showed a reasonable intent or guilt
habit on her part, then there was no reason for (2) Facts admitted constitutes a criminal offense
Metrobank to continue to employ her, considering (3) Given voluntarily
the degree of trust and confidence required of a (4) Intelligently made, realizing the importance or
bank teller. Nevertheless, Custodio continued to legal significance of the act
serve the bank even after the case in petitioner (5) No violation of Secs. 12 and 17, Art. III of the
Metrobanks Cubao branch. Constitution [Regalado]
E.3. OTHER FORMS OF ADMISSIONS If the accused admits having committed the act in
question but alleges a justification therefore, the
ADMISSION BY SILENCE [Sec. 32, Rule 130] same is merely an admission. [Ladiana v. People,
G.R. No. 144293 (2002))
Requisites for Admissibility
When silence is deemed an admission: [People v. Any confession, including a re-enactment, without
Paragsa, G.R. No. L-44060 (1978)] admonition of the right to silence and to counsel,
(1) Person heard or understood the statement; and without counsel chosen by the accused is
(2) That he was at a liberty to make a denial; inadmissible in evidence. [People v. Yip Wai Ming,
(3) That the statement was about a matter G.R. No. 120959 (1996))
affecting his rights or in which he was
interested and which naturally calls for a [T]he basic test for the validity of a confession is
response; was it voluntarily and freely made. The term
(4) That the facts were within his knowledge; and "voluntary" means that the accused speaks of his
free will and accord, without inducement of any
PAGE 400 OF 425
kind, and with a full and complete knowledge of Repeated failure to cross-examine is an implied
the nature and consequences of the confession, waiver [Savory Luncheonette v. Lakas ng
and when the speaking is so free from influences Manggagawang Pilipino, G.R. No. L-38964 (1975)]
affecting the will of the accused, at the time the
confession was made, that it renders it admissible F.2. MEANING OF HEARSAY
in evidence against him. Plainly, the admissibility It is an out-of-court statement which is offered by
of a confession in evidence hinges on its the witness in court to prove the truth of the
voluntariness.[People v. Satorre, G.R. No. 133858 matters asserted by the statement.
(2003)]
It is any evidence, whether oral or documentary, if
Effect of Extrajudicial Confession of Guilt its probative value is not based on personal
knowledge of witness but on knowledge of some
GENERAL RULE: An extrajudicial confession other person not on witness stand [Regalado]
made by an accused is not a sufficient ground for
conviction. [Sec. 3, Rule 133] ELEMENTS
(1) Declarant is out of court
EXCEPTION: When corroborated by evidence of (2) Out of court declaration is offered as proof of
the actual commission of a particular crime its contents
(corpus delicti). [Sec. 3, Rule 133] (3) Absence of opportunity for cross-examination
Corpus Delicti F.3. DOCTRINE OF INDEPENDENTLY

Substance of the crime; the fact that a crime has
RELEVANT STATEMENTS
actually been committed [People v. De Leon, G.R.
Statements or writings attributed to a person not
No. 180762 (2009)]
on the witness stand, which are being offered not
to prove the truth of the facts stated therein, but
As Distinguished from Admissions of a
only to prove that such were actually made.
Party
Admission of a Party Confession
These are not covered by the hearsay rule [People
Merely a statement of Acknowledgment of
v. Cusi, G.R. No. L-20986 (1965))
fact guilt or liability
Maybe express or tacit Must be express
These are statements which are relevant
Can be made only by the
Maybe made by 3rd independently of whether they are true or not.
party himself, and
parties, and in certain [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)]
admissible against his
cases, admissible
co-accused in some
against a party Two classes of independently relevant
instances
Acts, declarations or statements:
Declarations (1) Statements which are the very facts in issue,
omissions
May be in any and
Criminal case (2) Statements which are circumstantial evidence
proceeding
of the facts in issue. [Estrada v. Desierto, G.R.
Nos. 146710-15 (2001)] They include the
F. HEARSAY RULE following:
(a) Statement of a person showing his state of
F.1. GENERAL RULE ON HEARSAY mind, that is, his mental condition,
A witness can testify only as to those facts which knowledge, belief, intention, ill will and
he knows of his personal knowledge, or those other emotions;
derived from his own perception. [Sec. 36, Rule (b) Statements of a person which show his
130] physical condition, as illness and the like;
(c) Statements of a person from which an
The hearsay rule is not limited to oral testimony or inference may be made as to the state of
statements; it applies to written, as well as oral mind of another, that is, the knowledge,
statements. [Consunji v. CA, G.R. No. 137873 belief, motive, good or bad faith, etc. of the
(2001)) latter; d. Statements which may identify
the date, place and person in question; and
If a party does not object to hearsay evidence, the e. Statements showing the lack of
same is admissible, as a party can waive his right credibility of a witness. [Estrada v. Desierto,
to cross-examine [People v. Ola, G.R. No. L-47147 G.R. Nos. 146710-15 (2001)]
(1987))
PAGE 401 OF 425

F.4. REASON FOR EXCLUSION OF If the declarants statement is made under

HEARSAY EVIDENCE consciousness of impending death, a subsequent
The underlying rule against hearsay are serious belief in recovery before his actual death does not
concerns about the worth (trustworthiness, bar admissibility of his statement [Riano, citing
reliability) of hearsay evidence. Because such People v. Black (1979), 96 CA3d 846, 158 CR 449]
evidence:
(1) was not given under oath or solemn The foreboding may be gleaned from surrounding
affirmation; and circumstances, such as the nature of the
(2) was not subject to cross-examination by declarants injury and conduct that would justify a
opposing counsel to test the perception, conclusion that there was consciousness of
memory, veracity and articulateness of out-of- impending death. [People v. Latayada, G.R. No.
court declarant or actor upon whose reliability 146865 (2004))
on which the worth of the out-of-court
testimony depends. [Herrera] The admissibility of an ante mortem declaration is
not affected by the fact that the declarant died
F.5. EXCEPTIONS TO THE HEARSAY RULE hours or several days after making his declaration.
(1) Dying declaration It is sufficient that he believe himself in imminent
(2) Declaration against interest danger of death at the time of such declaration.
(3) Act or declaration about pedigree [Herrera, citing People v. Ericta 77 SCRA 199]
(4) Family reputation or tradition regarding
pedigree People v. Quisayas [G.R. No. 198022 (2014)]
(5) Common reputation
(6) Part of the res gestae FACTS: Victim Januario was stabbed by
(7) Entries in the course of business respondents on his way home. Policemen
(8) Entries in official records patrolling the area saw Januario lying on the
(9) Commercial lists and the like street. He was brought by the policemen to the
(10) Learned treaties hospital. While in the vehicle, the police asked him
(11) Testimony or deposition at a former trial who hurt him. He answered that it was the
respondents. He eventually died because of the
DYING DECLARATION stab wounds.
Also known as antemortem statement or
statement in articulo mortis [Sec. 37, Rule 130] ISSUE: WON the testimony of the accused was a
dying declaration.
(1) Declaration is one made by a dying person; HELD: No. It does not appear that the declarant
(2) Declaration was made under the was under the consciousness of his impending
consciousness of an impending death; death when he made the statements. No
(3) Declaration refers to cause and surrounding questions relative to the second requisite was
circumstances of such death; propounded to Januario. The rule is that, in order
(4) Declaration is offered in any case wherein his to make a dying declaration admissible, a fixed
death is the subject of inquiry; belief in inevitable and imminent death must be
(5) Declarant is competent as a witness had he entered by the declarant. It is the belief in
survived [Geraldo v People, G.R. No. 173608 impending death and not the rapid succession of
(2008)); and death in point of fact that renders a dying
(6) Declarant should have died. [People v. declaration admissible. The test is whether the
Macandog, G.R. No. 129534 and 1411691 declarant has abandoned all hopes of survival and
(2001)] looked on death as certainly impending. Thus, the
utterances made by Januario could not be
Rationale for Admissibility considered as a dying declaration.
As a general rule, when a person is at the point of
death, every motive to falsehood is silenced. However, the Court appreciated the testimony as
[People v Bacunawa, G.R. No. 136859 (2001)) part of res gestae. Conviction of accused was
sustained.
The law considers the point of death as a situation
so solemn and awful as creating an obligation Objections to the dying declaration
equal to that which is imposed by an oath May be premised on any of the requisites for its
administered by the court. [People v. Cerilla, G.R. admissibility embodied in Sec. 37, Rule 130.
No. 177147 (2007)) Counsel who wants a dying declaration excluded
must have to deal with the primary question of
PAGE 402 OF 425

whether or not the evidentiary foundations for the Can be made any time, Must have been made
introduction where met. [Riano] even during trial; ante litem motam;
Admissible only against Admissible even against
Dying declarations are admissible in favor of the the admitter; and 3rd persons; and
defendant as well as against him. [US v. Antipolo, Admissible as an
Admissible not as an
37 Phil. 726 (1918)) exception to the hearsay
exception to any rule
rule
DECLARATION AGAINST INTEREST Made against ones
Made against ones
claim or defense,
pecuniary or moral
although not moral or
Requisites for Admissibility interest
pecuniary interest
(1) Declarant is dead or unable to testify;
Primary evidence Secondary evidence
(2) Declaration relates to a fact against the
interest of the declarant;
(3) At the time he made said declaration, ACT OR DECLARATION ABOUT PEDIGREE
declarant was aware that the same was
contrary to his interest; and Requisites for Admissibility
(4) Declarant had no motive to falsify and (1) Declarant is dead or unable to testify;
believed such declaration to be true [Sec. 38, (2) The pedigree is in issue or is relevant thereto;
Rule 130] [Herrera]
(3) Declarant must be related by birth or marriage
Inability to testify means that the person is dead, to the person whose pedigree is in issue;
mentally incapacitated or physically incompetent. (4) Declaration was made before the controversy;
Mere absence from the jurisdiction does not make and
him ipso facto unavailable. [Fuentes v. CA, G.R. (5) Relationship between the declarant and the
No. 111692 (1996)] person whose pedigree is in question must be
shown by evidence other than such declaration.
Declaration against interest made by the [Sec. 39, Rule 130]
deceased, or by one unable to testify, is
admissible even against the declarants Pedigree includes
successors-in-interest or even against third (1) Relationship;
persons [Sec. 38, Rule 130] (2) Family genealogy;
(3) Birth;
Actual or real interest (4) Marriage;
It is essential that at the time of the statement, (5) Death;
the declarants interest affected thereby should be (6) Dates when these facts occurred;
actual, real or apparent, not merely contingent, (7) Places where these facts occurred;
future or, conditional; otherwise the declaration (8) Names of relatives; and
would not in reality be against interest. (example: (9) Facts of family history intimately connected
declarations regarding a declarants inheritance with pedigree. [Sec. 39, Rule 130]
are not admissible because these are future
interests) [Herrera] Proof other than declaration
Admissible against third persons GENERAL RULE: Proof of relationship must be

If all the requisites for admission of a declaration shown in evidence other than the declaration.
against interest are present, the admission is
admissible not only against the declarant but EXCEPTION: The general rule does not apply
against third persons. [Herrera, citing Viacrusis v. where the claim is sought to reach the estate of
CA, 44 SCRA 176] the declarant himself, and not merely to establish
a right through his declarations to the property of
As Distinguished from Admissions [Estrada some other member of the family. [Tison v. CA,
v. Desierto, G.R. Nos. 146710-15 (2001)] G.R. No. 121027 (1997)]
Declaration against
Admission by a party Pedigree declaration by conduct
Interest [Sec. 38, Rule
[Sec. 26, Rule 130] This rule may also consist of proof of acts or
130]
Admitter is a party Declarant is neither a conduct of relatives and the mode of treatment in
himself, or in privity with party nor in privity with a the family of one whose parentage is in question.
such party; party; [Herrera, pg. 649]
Admissible whether or Admissible only when
not admitter is available declarant is unavailable Not applicable to adoption
as a witness as a witness;
PAGE 403 OF 425

The rule allowing proof of pedigree is not COMMON REPUTATION

applicable to adoption. The absence of proof of an
order of adoption by the court, as provided by Requisites for Admissibility
statute, cannot be substituted by parol evidence (1) Reputation pertains to:
that the child has lived with a person, not his (a) facts of public or general interest
parent, and was treated as child during the more than 30 years old,
latters lifetime. [Herrera, citing Lazatin v. Campos, (b) marriage, or
G.R. No. L-43955-56 (1979)] (c) moral character
(2) Common reputation existed ante litem motam.
FAMILY REPUTATION OR TRADITION [Sec. 41, Rule 130]
REGARDING PEDIGREE
Other Admissible Evidence
Requisites for Admissibility (1) Monuments
(1) Witness must be a member, by consanguinity (2) Inscriptions in public places [Sec. 41, Rule
or affinity, of the same family as the subject; 130]
and
(2) Such reputation or tradition must have existed Pedigree may be established by reputation in the
in that family ante litem motam. [Sec. 40, Rule family, but not in the community. [Secs. 40-41,
130] Rule 130]
Other Admissible Evidence Common reputation is hearsay like any other

(1) Entries in family bibles or other family books; exception to the hearsay rule, but is admissible
(2) Charts; because of trustworthiness. [Riano, citing Reg. v.
(3) Engravings on rings; Bedforshire, 4 E & B 535, 82 ECL 535, 542]
(4) Family portraits and the like [Sec. 40, Rule
130] Reputation has been held admissible as evidence
of age, birth, race, or race-ancestry, and on the
This enumeration, by ejusdem generis, is limited to question of whether a child was born alive. [In re:
"family possessions," or those articles which Florencio Mallare, AM No. 533 (1974))
represent, in effect, a family's joint statement of
its belief as to the pedigree of a person. [Jison v. Unlike that of matters of pedigree, general
CA, G.R. No. 124853. (1998)) reputation of marriage may proceed from persons
who are not members of the family the reason
A persons statement as to his date of birth and for the distinction is the public interest that is
age, as he learned of these from his parents or taken in the question of the existence of marital
relatives, is an ante litem motam declaration of a relations. [In re: Florencio Mallare, AM No. 533
family tradition. [Gravador v. Mamigo, G.R. No. L- (1974)]
24989, (1967)]
PART OF THE RES GESTAE
Distinguished from Declaration about
Pedigree [Herrera] Res Gestae
Sec. 39 Declaration Sec. 40 Family This expression signifies merely transactions
about Pedigree Reputation or Tradition
or things done and is used in common law
There must be a The witness testifying to
declarant and a witness the family reputation as meaning the circumstances which are
The witness need not be and tradition must be a automatic and undersigned incidents of the
a relative of the person member of the family particular act in issue, and which are
whose pedigree is in member of the person admissible in evidence when illustrative and
question, it must be the whose pedigree is in explanatory of the act. [Herrera]
declarant. controversy.
The witness may testify Admissible Statements
Independent evidence is on the relationship
needed to establish between such (1) Spontaneous statem ents -
relationship between relationship himself. The Statements made by a person while a
declarant and person author of the reputation startling occurrence is taking place or
whose pedigree is in need not be established immediately prior or subsequent thereto,
issue by independent with respect to the circumstances thereof:
evidence. (a) Principal act be a startling
occurrence
PAGE 404 OF 425

(b) Statement made before declarant

had opportunity to contrive a If the entrant is available as a witness, the entries
falsehood [Talidano v. Falcon will not be admitted, but they may nevertheless
Maritime, G.R. No. 172031 (2008)] be availed of by said entrant as a memorandum to
refresh his memory while testifying on the
(c) Statement refer to occurrence in
transactions reflected therein. [Cang Yui v.
question and attending Gardner, G.R. No. L-9974 (1916)]
circumstances [Sec. 42, Rule 130]
or that the statements must Business records are exempt from the hearsay
concern the occurrence in rule. [Sec. 1, Rule 8, Rules on Electronic Evidence]
question and its immediate
attending circumstances Entries in the payroll, being entries in the course
[Talidano v. Falcon Maritime, G.R. of business, enjoy the presumption of regularity
No. 172031 (2008)] [Sapio v. Undaloc Construction, G.R. No. 155034
(2) Verbal acts - Statements, which (2008)]
accompany an equivocal act material to
Reason for rule
the issue and give it a legal significance The duty of the employees to communicate facts
(a) Principal act must be equivocal is of itself a badge of trustworthiness of the
(b) Act must be material to the issue entries [Security Bank and Trust Company v. Gan,
(c) Statement must accompany the G.R. No. 150464 (2006)]
equivocal act
(d) Statement gives legal These entries are accorded unusual reliability
significance to equivocal act because their regularity and continuity are
[Talidano v. Falcon Maritime, G.R. calculated to discipline record keepers in the habit
No. 172031 (2008)] of precision. [LBP v. Monets Export and
Manufacturing Corp., G.R. No. 184971 (2010)]
(e) Must be made at the time, not
after, the equivocal act was being
ENTRIES IN OFFICIAL RECORDS
performed
A dying declaration can be made only by the (1) Entries were made by a public officer in the
victim after the attack while a statement as performance of his duties or by a person in the
part of the res gestae may be that of the killer performance of a duty specially enjoined by
himself after or during the killing. [People v. law [Sec. 44, Rule 130];
Reyes] (2) Entrant must have personal knowledge of the
facts stated by him or such facts acquired by
A statement not admissible as dying him from reports made by persons under a
declaration because it was not made under legal duty to submit the same [Barcelon, Roxas
Securities v. CIR, 157064 (2006)]; and
consciousness of impending death, may still
(3) Entries were duly entered in a regular manner
be admissible as part of res gestae if made in the official records.
immediately after the incident. [People v.
Gueron, G.R. No. L-29365 (1983)] Entries in official records, just like entries in the
course of business, are merely prima facie
ENTRIES IN THE COURSE OF BUSINESS evidence of the facts therein stated. [Secs. 43-44,
Rule 130]
(1) Entries were made at, or near the time of the Entries in a police blotter are not conclusive proof
transactions referred to; of the truth of such entries. [People v. Cabuang,
(2) Such entries were made in the ordinary or G.R. No. 103292 (1993)]
regular course of business or duty;
(3) Entrant was in a position to know the facts Baptismal certificates or parochial records of
stated in the entries; baptism are not official records. [Fortus v. Novero,
(4) Entrant did so in his professional capacity, or G.R. No. L-22378 (1968)]
in the performance of duty and in the regular
course of business; and COMMERCIAL LISTS AND THE LIKE
(5) Entrant is now dead or unable to testify.
[Northwest Airlines v. Chiong, G.R. No. 155550 Requisites for Admissibility
(2008)]
PAGE 405 OF 425
(1) Statements of matters of interest to persons (1) Affidavit in the Rules of Summary Procedure -
engaged in an occupation; [Herrera] shall not be considered as competent evidence
(2) Such statements are contained in a list; for the party presenting the affidavit, but the
(3) Compilation is published for use by persons adverse party may utilize the same for
engaged in that occupation; and any admissible purpose [Sec. 14, Rules on
(4) It is generally used and relied upon by them. Summary Procedure]
(2) Examination of a child witness
Need of preliminary proof of
trustworthiness G. OPINION RULE
There should be requirements of preliminary proof Opinion is an inference or conclusion drawn from
of trustworthiness before such lists are rendered facts observed.
admissible. Some proof must be shown how or in
what manner it was made up, where the GENERAL RULE: The opinion of witness is not
information it contained was obtained, or whether admissible [Sec. 48, Rule 130]
the quotation of prices made were derived from
actual sales or otherwise. [Herrera] EXCEPTIONS
(1) Expert witness [Sec. 49, Rule 130]
LEARNED TREATISES (2) Ordinary witness [Sec. 50, Rule 130]
Requisites for Admissibility G.1. OPINION OF EXPERT WITNESS [SEC.

(1) Published treatise, periodical or pamphlet is 49, RULE 130]
on a subject of history, law, science, or art; and
(2) Court takes either:
The opinion of a witness on a matter
(a) judicial notice of it, or requiring special knowledge, skill, experience
(b) witness expert in the subject testifies that or training which he shown to possess, may
the writer of the statement in the treatise, be received in evidence.
periodical or pamphlet is recognized in his
profession or calling as expert in the Expert witness is one who has made the subject
subject upon which he gives his opinion a matter of
particular study, practice or observation and he
TESTIMONY OR DEPOSITION AT A FORMER must have particular and special knowledge on
TRIAL the subject. [People v. Dekingco, G.R. No. 87685
(1990)]
Requisites for Admissibility [Sec. 47, Rule
130; Manliclic v. Calaunan, G.R. No. 150157 (2007)] Expert evidence is the testimony of one
(1) Witness is dead or unable to testify; possession in regard to a particular subject or
(2) His testimony or deposition was given in a department of human activity not usually
former case or proceeding, judicial or acquired by other persons. [Herrera]
administrative, between the same parties or
those representing the same interests; ADMITTING EXPERT TESTIMONY
(3) Former case involved the same subject as
that in the present case although on different Question in admitting expert testimony
causes of action; Whether the opinion called for will aid the fact
(4) Issue testified to by the witness in the former finder in resolving an issue, or whether the jury or
trial is the same issue involved in the present the judge is as well qualified as the witness to
case; and draw its own or his own deductions from the
(5) Adverse party had the opportunity to cross- hypothetical facts. [Herrera]
examine the witness in the former case.
Court discretion to exclude or include
Inability to testify (meaning and expert evidence
standard) If men of common understanding are capable of
The inability of the witness to testify must proceed comprehending the primary facts and drawing
from a grave cause, almost amounting to death, correct conclusions from them, expert testimony
as when the witness is old and has lost the power may be excluded by the Court. [Herrera]
of speech. Mere refusal shall not suffice. [Tan v.
CA, G.R. No. L-22793 (1967)) Competency of witness is a preliminary
question before testimony is admitted
OTHER EXCEPTIONS OUTSIDE THE RULES It must be shown that the witness is really an
expert; determination of competency is a
OF COURT
preliminary question. [Herrera]
PAGE 406 OF 425
(d) Impressions of the

HYPOTHETICAL QUESTIONS (i) emotion,
(ii) behavior,
Test (iii) condition, or
Fairness is the ultimate test of hypothetical (iv) appearance of a person
questions. The Court shall reject a question which
unfairly selects parts of the facts proved or omits IDENTITY OF A PERSON ABOUT WHOM HE
material facts. If it omits facts, it may be opposed HAS ADEQUATE KNOWLEDGE
on the ground that it is misleading. [Herrera] Statements of a witness as to identity are not to
be rejected because he is unable to describe
Admissibility of hypothetical question features of the person in question. [Herrera]
Admissibility of hypothetical questions depends
on whether it furnishes the tribunal with the Identification by voice is recognized by the courts,
means of knowing upon what premises of fact the especially in a case where it was impossible to see
conclusion is based. [Herrera, citing Magiore v. the accused but the witness has known the
Sheed (195 A. 392, 173 Md 33)] accused since their childhood. [Herrera, citing US v.
Manabat]
EXAMINING AN EXPERT WITNESS
HANDWRITING WITH WHICH HE HAS
Mode of examination of expert witness SUFFICIENT FAMILIARITY
He may base his opinion either on a first-hand The ordinary witness must be acquainted with the
knowledge of the facts or on the basis of characteristics of the handwriting of a person. He
hypothetical questions where the facts are may only draw on the knowledge which he already
presented to him hypothetically, and on the has and which enables him to recognize the
assumption that they are true, formulates his handwriting.
opinion on this hypothesis. [Herrera]
Only experts are allowed to give conclusions from
How to present an expert witness the comparison of samples of handwriting of a
(1) Introduce and qualify the witness; person whose handwriting he is not familiar with.
(2) Let him give his factual testimony, if he has [Herrera]
knowledge of the facts;
(3) Begin the hypothetical question by asking him MENTAL SANITY OF A PERSON WITH
to assume certain facts as true; WHOM HE IS SUFFICIENTLY ACQUAINTED
(4) Conclude the question, by first asking the These are allowed where the witness can
expert if he has an opinion on a certain point adequately describe the actions, looks or
(5) assuming that these facts are true and symptoms of a persons sanity or insanity which is
secondly, asking him, after he has answered impossible for the court to determine. [Herrera]
affirmatively, to give his opinion on the point;
(6) After he has stated his opinion, ask him to give
IMPRESSIONS OF THE EMOTION,
his reasons.
BEHAVIOR, CONDITION OR APPEARANCE
Dela Llana v. Biong [G.R. No. 182356 (2013)] OF A PERSON
Despite the fact that petitioner is a physician and The rule recognizes instances when a witness may
even assuming that she is an expert in neurology, be permitted to state his inferences that are
she was not presented as an expert witness. As an drawn from minute facts and details which the
ordinary witness, she was not competent to testify witness cannot fully and properly describe in court.
on the nature, and the cause and effects of Such expressions are expressed to the
whiplash injury. countenance, the eye and the general manner and
bearing of the individual; appearance which are
G.2. OPINION OF ORDINARY WITNESS plainly enough recognized by a person of good
judgment, but which he cannot otherwise
[SEC. 50, RULE 130]
communicate by an expression of results in the
(1) If proper basis is given, and
shape of an opinion. [Herrera, citing US case Hardy
(2) Regarding:
v. Merill]
(a) Identity of a person about whom he has
adequate knowledge;
(b) Handwriting with which he has sufficient
familiarity;
(c) Mental sanity of a person with whom he is
sufficiently acquainted; and
PAGE 407 OF 425

H. CHARACTER EVIDENCE This is usually offered in rape cases and where the
accused invokes the defense of self-defense.
GENERAL RULE: [Sec. 51, Rule 130]
Character evidence is not admissible. In rape cases, the character of a woman may be
relevant and admissible on the question of the
EXCEPTIONS: presence or absence of her consent. While in
(1) Criminal cases [Sec. 51(a), Rule 130] homicide and assault cases, it may be used as
(2) Civil case [Sec. 51(b), Rule 130] evidence of the victims character for turbulence
(3) In the case provided for in Sec. 14, Rule 132. and violence warranting the response of the
accused. [Herrera]
CHARACTER EVIDENCE
Character evidence must be limited to the traits
The aggregate of the moral qualities which
and characteristics involved in the type of offense
belong to and distinguish an individual charged. Thus:
person; the general result of ones - on a charge of rape : character for chastity
distinguishing attributes. - on a charge of assault: character for
[Herrera citing Blacks Law Dictionary, pg. 834] peaceableness or violence
- on a charge of embezzlement : character
Character distinguished from for honesty. [CSC v. Belagan, G.R. No. 132164
reputation (2004)]
Character is what a man is and depends on
attributes he possesses. It signifies reality. H.2. CIVIL CASES
Moral character is admissible only when pertinent
Reputation is what he is supposed to be in to the issue of character involved in the case. [Sec.
51(b), Rule 130]
what people say he is, it depends on
attributes which others believe one to Evidence of the witness good character is not
possess. It signifies what is accepted to be admissible until such character has been
reality at present. [Herrera, citing Blacks Law impeached. [Sec. 14, Rule 130]
Dictionary]
I. RULE ON EXAMINATION OF A
H.1. CRIMINAL CASES
(1) Accused May prove his good moral
CHILD WITNESS [AM NO. 004-07-
character, which is pertinent to the moral trait SC]
involved in the offense charged. A statement made by a child describing any act or
(2) Prosecution May not prove the bad moral attempted act of child abuse, not otherwise
character of the accused, except in rebuttal. admissible under the hearsay rule, maybe
(3) Offended Party His/her good or bad admitted in evidence in any criminal or non-
moral character may be proved if it tends to criminal proceeding subject to the following rules:
establish in any reasonable degree the (1) Before such hearsay statement may be
probability or improbability of the offense admitted, its proponent shall make known to
charged. the adverse party the intention to offer such
statement and its particulars to provide him a
Good moral character of accused fair opportunity to object. If the child is
The purpose of presenting evidence of good moral available, the court shall, upon motion of the
character is to prove the improbability of his doing adverse party, require the child to be present
the act charged. The accused may prove his good at the presentation of the hearsay statement
moral character only if it is pertinent to the moral for cross-examination by the adverse part.
trait involved in the offense charged. [Herrera] When the child is unavailable, the fact of such
circumstance must be proved by the
Bad moral character of accused in proponent.
rebuttal (2) In ruling on the admissibility of such hearsay
Unless and until the accused gives evidence of his statement, the court shall consider the time,
good moral character the prosecution may not content and circumstances thereof which
introduce evidence of his bad character. [Herrera, provide sufficient indicia of reliability. It shall
citing People v. Rabanes, G.R. No. 93709 (1992)] consider the following factors:
(a) Whether there is a motive to lie;
Good or bad moral character of offended (b) The general character of the declarant
party child;
PAGE 408 OF 425

(c) Whether more than one person heard the I.3. COMPETENCY OF CHILD WITNESS
statement;
(d) Whether the statement was spontaneous; PRESUMPTION OF COMPETENCE
(e) The timing of the statement and the Every child is presumed qualified to be a witness.
relationship between the declarant child To rebut the presumption of competence enjoyed
and witness; by a child, the burden of proof lies on the party
(f) Cross-examination could not show the lack challenging his competence. [Sec. 6(b)]
of knowledge of the declaration child;
(g) The possibility of faulty recollection of the REQUISITES FOR COMPETENCY [People v.
declarant of child is remote; and Mendoza, G.R. No. 113791. (1996)]
(h) The circumstances surrounding the (1) Capacity of observation;
statement are such that there is no reason (2) Capacity of recollection; and
to suppose the declarant child (3) Capacity of communication.
misrepresented the involvement of the
accused. When the court finds that substantial doubt exists
(3) The child witness shall be considered regarding the ability of the child to
unavailable under the following situations: perceive/remember/communicate, distinguish
(a) Is deceased, suffers from physical infirmity, truth from falsehood, or appreciate the duty to tell
lack of memory, mental illness, or will be the truth in court, a competency exam shall be
exposed to severe psychological injury; or conducted.
(b) Is absent from the hearing and the
proponent of his statement has been The age of the child by itself is not a sufficient
unable to procure his attendance by basis for a competency examination. [Sec. 6(a)]
process or other reasonable means.
The court has the duty of continuously assessing
When the child witness is unavailable, his hearsay the competence of the child throughout his
testimony shall be admitted only if corroborated testimony. [Sec. 6(f)]
by other admissible evidence.
I.4. EXAMINATION OF A CHILD WITNESS
I.1. APPLICABILITY OF THE RULE (1) In open court [Sec. 11]
Shall apply in all criminal proceedings and non-
(2) Alternative Modes
criminal proceedings involving child witnesses.
(a) Live-Link TV Testimony, in Criminal Cases
[Sec. 1]
where Child is a Victim or a Witness [Sec.
25]
The ROC provisions on deposition, conditional
(i) If there is a substantial likelihood
examination of witnesses and evidence shall be
that the child would suffer trauma
applied suppletorily. [Sec. 32]
from testifying in the presence of the
accused, his counsel or the
I.2. MEANING OF CHILD WITNESS [SEC. prosecutor.
4(A)] (ii) Trauma must be of a kind which
(1) Any person who at the time of giving testimony would impair the completeness or
is less than 18 years; truthfulness of the childs testimony.
(2) In child abuse cases a child includes one over (b) Videotaped Deposition of a Child Witness
18 years, [Sec. 27]
(a) But is found by the court as: (i) If the court finds that the child will
(i) Unable to fully take care of himself, not be able to testify in open court at
or trial, it shall issue an order that the
(ii) Protect himself from abuse, neglect, deposition of the child be taken and
cruelty, exploitation, or preserved by videotape.
discrimination (ii) The rights of the accused during trial,
(b) Because of a physical or mental disability especially the right to counsel and to
or condition. confront and cross-examine the
child, shall not be violated during
Child witnesses may testify in a narrative form the deposition.
and leading questions may be allowed by the trial
court in all stages of the examination if the same LIVE-LINK TV TESTIMONY OF A CHILD
will further the interest of justice. [People v. Santos, WITNESS [Sec. 25]
G.R. No. 172322 (2006)] Live-link television testimony, in criminal cases
where the child is a victim or a witness
PAGE 409 OF 425
The court may order that the testimony of the shown to be the statement of the child and
child be taken by live-link television if there is a not the product of improper suggestion;
substantial likelihood that the child would suffer (c) the videotape and audiotape machine or
trauma from testifying in the presence of the device was capable of recording testimony;
accused, his counsel or the prosecutor. (d) the person operating the device was
competent to operate it;
The trauma must be of a kind which would impair (e) the videotape or audiotape is authentic and
the completeness/truthfulness of the childs correct; and
testimony. (f) it has been duly preserved.
If it is necessary for the child to identify the The individual conducting the interview of the
accused at trial, the court may allow the child to child shall be available at trial for examination by
enter the courtroom for the limited purpose of any party. Before the videotape or audiotape is
identifying the accused, or the court may allow the offered in evidence, all parties shall be afforded
child to identify the accused by observing the an opportunity to view or listen to it and shall be
image of the latter on a television monitor. furnished a copy of a written transcript of the
proceedings.
VIDEOTAPED DEPOSITION OF A CHILD
WITNESS [Sec. 27] The fact that an investigative interview is not
If the court finds that the child will not be able to videotaped or audiotaped as required by this
testify in open court at trial, it shall issue an order section shall not by itself constitute a basis to
that the deposition of the child be taken and exclude from evidence out-of-court statements or
preserved by videotape. testimony of the child. It may, however, be
considered in determining the reliability of the
The rights of the accused during trial, especially statements of the child describing abuse.
the right to counsel and to confront and cross-
examine the child, shall not be violated during the I.5. HEARSAY EXCEPTION IN CHILD ABUSE
deposition. CASES [SEC. 28]
Proponent of hearsay statement shall make
ADMISSIBILITY OF VIDEOTAPED AND known to the adverse party the intention to offer
AUDIOTAPED IN-DEPTH INVESTIGATIVE OR such statement and its particulars.
DISCLOSURE INTERVIEWS IN CHILD ABUSE
CASES [Sec. 29] If the child is available, court shall require the
child to be present at the presentation of the
Requisites for admissibility: hearsay statement for cross-examination by the
(1) The child witness is unable to testify in court adverse party.
on grounds and under conditions established
under section 28 (c) which are: If unavailable, the fact of unavailability must be
(a) Is deceased, suffers from physical infirmity, proved by the proponent and his hearsay
lack of memory, mental illness, or will be testimony must be corroborated by other
exposed to severe psychological injury; or admissible evidence.
(b) Is absent from the hearing and the
proponent of his statement has been I.6. SEXUAL ABUSE SHIELD RULE
unable to procure his attendance by
process or other reasonable means. GENERAL RULE: [Sec. 30(a)]
(2) The interview of the child was conducted by The following are inadmissible in any criminal
duly trained members of a multi-disciplinary proceeding involving alleged child sexual abuse:
team or representatives of law enforcement or (1) Evidence offered to prove that the alleged
child protective services in situations where victim engaged in other sexual behavior;
child abuse is suspected so as to determine (2) Evidence offered to prove the sexual
whether child abuse occurred. predisposition of the alleged victim.
(3) The party offering the videotape or audiotape
must prove that: EXCEPTION: [Sec. 30(b)] Evidence of specific
(a) the videotape or audiotape discloses the instances of sexual behavior by the alleged victim
identity of all individuals present and at all to prove that a person other than the accused was
times includes their images and voices; the source of semen, injury or other physical
(b) the statement was not made in response to evidence.
questioning calculated to lead the child to
make a particular statement or is clearly PROTECTIVE ORDERS
PAGE 410 OF 425

Video/audio tapes that are part of the court

record may be viewed only by parties, their VI. Offer and Objection
counsel, their expert witness and the guardian ad
litem. [Sec. 31(b)] A. OFFER OF EVIDENCE
The court may issue additional orders to protect GENERAL RULE: Court shall consider no
the childs privacy. [Sec. 31(c)] evidence which has not been formally offered.
[Sec. 34, Rule 132]
Publication (or causing it) in any format any
identifying information of a child who is or is Purpose: The purpose for which the evidence is
alleged to be a victim/accused of a crime or a offered must be specified.
witness thereof, or an immediate family of the
child, shall be liable for contempt of court. [Sec. EXCEPTION:
31(d)] Evidence not formally offered may be admissible
when two essential conditions concur:
A child has a right at any court proceeding not to (1) the same must have been duly identified by
testify regarding personal identifying information testimony duly recorded and,
that could endanger his physical safety or his (2) the same must have been incorporated in the
family. [Sec. 31(e)] records of the case. [Mato v. CA, 320 Phil. 344
(1995)]
As Distinguished from Identification of

Documentary Evidence [Interpacific Transit v.
Aviles, G.R. No. 86062 (1990)]
Identification of
Formal Offer of Exhibit
Documentary Evidence
Done in the course of the
trial and accompanied Done only when the
by the marking of the party rests his/her case
evidence
WHY FORMAL OFFER IS NECESSARY

There is a need for a formal offer of evidence
because without such offer, the court cannot
determine whether the evidence is admissible or
not. [Riano]
No evidentiary value can be given to pieces of

evidence not formally offered. [Dizon v. CTA, G.R.
No. 140944 (2008)]
However, where the absence of an offer of a

testimonial evidence was not objected to as when
the witness was cross-examined by the adverse
party despite failure to make an offer of the
testimony, the court must consider the testimony.
The provisions of the ROC on the inclusion on

appeal of documentary evidence or exhibits in the
records, cannot be stretched as to include such
pleadings or documents not offered at the hearing
of the case [Candido v. CA, G.R. No. 107493
(1996)]
WHEN FORMAL OFFER IS NOT REQUIRED

(1) In a summary proceeding because it is a
proceeding where there is no full-blown trial;
(2) Documents judicially admitted or taken
judicial notice of;
PAGE 411 OF 425

(3) Documents, affidavits, and depositions used in MANNER OF OFFER

rendering a summary judgment;
(4) Documents or affidavits used in deciding GENERAL RULE: Offer shall be done orally
quasi-judicial or administrative cases
[Bantolino v. Coca Cola Bottlers, G.R. No. EXCEPTION: Allowed by the court in writing
153660 (2003)]
(5) Lost objects previously marked, identified, While the trial court may allow the offer to be
described in the record, and testified to by done in writing, this can only be tolerated in
witness who had been subjects of cross- extreme cases where the object evidence or
examination in respect to said objects documents are large in numbersay from 100
[Tabuena v. CA, G.R. No. 85423 (1991), citing and above, and only where there is unusual
People v. Napat-a, G.R. No. 84951 (1989)] difficulty in preparing the offer.
[Riano]
Absence of an offer is a defect which is waived
The Republic offered the negotiated contracts when a party fails to object when the ground
solely to prove that the Bakunawas had been became reasonably apparent, as when the
incorporators or owners, or had held key positions witness is called to testify without any prior offer.
in the corporations that entered into the contracts. [Catuira v. CA, G.R. No. 105813 (1994)]
The Sandiganbayan correctly ruled, therefore,
that the contracts could be considered and The defect caused by the absence of formal offer
appreciated only for those stated purposes, not of exhibits can be cured by the identification of the
for the purpose of proving the irregularity of the exhibits by testimony duly recorded and the
contracts. Evidence can be considered only for the incorporation of the said exhibits in the records of
purposes it was specifically offered. [Republic v the case. [People v. Mate, G.R. No. L-34754 (1981)]
Reyes-Bakunawa, G.R. No. 180418 (2013)]
The defendant cannot offer his evidence before
WAIVER OF RIGHT TO MAKE FORMAL the plaintiff has rested. [Herrera, citing Engersail v.
OFFER Malabon Sugar Co., 53 Phil. 7450]
It is deemed waived by a party if it fails to submit
within a considerable period of time its formal C. OBJECTION [SEC. 36, RULE 132]
offer. [Heirs of Pasag v. Parocha, G.R. No. 155483
(2007)) C.1. CONCEPT
The party has a right to object to evidence which
In this case, the court did not allow the petitioners he considers not admissible under the complaint,
to present their formal offer 10 years after resting even if the questions were asked by the judge.
its case. In an earlier case of Constantino v. CA [Francisco]
[G.R. No. 116018 (1996)], the Court did not allow a
formal offer even only after three months because When a party desires the court to reject the
such would, condone an inexcusable laxity if not evidence offered, he must so state in the form of
non-compliance with a court order which, in effect, objection. Without such objection, he cannot raise
would encourage needless delays and derail the the question for the first time on appeal. [People v.
speedy administration of justice. Diaz, G.R. No. 197818 (2015))
B.WHEN TO MAKE AN OFFER [SEC. C.2. MANNER

35, RULE 132]
Kind of evidence When to offer Excluding inadmissible evidence
At the time the witness is called (1) One has to object to inadmissible evidence;
Testimonial (2) The objection must be timely made; and
to testify
Documentary and After the presentation of a (3) The grounds for the objection must be
Object partys testimonial evidence specified. [Herrera]
What to object to When to object
The party who terminated the presentation of Evidence offered orally Immediately after offer is
evidence must make an oral offer of evidence on (testimonial evidence) made
the very day the party presented the last witness. A question propounded As soon as the grounds
Otherwise, the court may consider the partys in the course of oral become reasonably
documentary or object evidence waived. [Heirs of examination apparent
Pasag v. Sps. Parocha, G.R. No. 155483 (2007)] Within 3 days after
Offer of evidence done in notice of the offer,
writing unless a different period
is allowed by the court
PAGE 412 OF 425
What to object to When to object offered, and not earlier. [Republic v.

The grounds for objection must be specified in any Sandiganbayan, G.R. No. 188881 (2014)]
case.
WAIVER OF OBJECTION
C.3. PURPOSES OF OBJECTION [RIANO] When the party should have objected but did not.
(1) Made to keep out inadmissible evidence that The failure to point out a defect, irregularity or
would cause harm to clients cause (rules of wrong in the admission or exclusion of evidence.
evidence are not self-operating) [Riano]
(2) To protect the record (for future appeal)
(3) To protect witness from being embarrassed or Effect of waiver
harassed A waiver of objection should not be construed as
(4) To expose adversarys unfair tactics an admission that the evidence is credible. The
(5) To give trial court an opportunity to correct its scope of the waiver is only either on the relevance
own errors and at the same time warn the or competence of the evidence. [Riano]
court that a ruling adverse to the objector may
supply a reason to invoke a higher courts Although hearsay evidence may be admitted
appellate jurisdiction; and because of lack of objection, it is nonetheless
(6) To avoid a waiver of inadmissibility without probative value, unless the proponent can
show that the evidence falls within the exception
Objections must be specific enough to adequately to the hearsay evidence rule. [Bayani v. People,
inform the court the rule of evidence or of G.R. No. 155619 (2007)]
substantive law that authorizes the exclusion of
evidence [Riano] REPETITION OF AN OBJECTION [Sec. 37,
Rule 132]
C.4. CLASSIFICATION OF OBJECTIONS A court may, motu proprio, treat the objection as a
continuing one. [Keller v. Ellerman & Bucknall
GENERAL OBJECTIONS Steamship, G.R. No. L-12308 (1918)]
Do not clearly indicate to the judge the ground
upon which the objections are predicated. In cases An objection must be seasonably made at the
where the incompetency of the evidence is so time it is formally offered. Objection prior to the
palpable that a mere general objection is deemed formal offer is premature and could not be
sufficient and where the portion of the evidence considered by the Court as basis for a continuing
objected to is clearly pointed out, and its illegality one. [Interpacific Transit v. Aviles, G.R. No. 86062
is apparent on its face, then the objection must be (1990)]
allowed. [Riano]
D. RULING ON THE OBJECTION [SEC.
SPECIFIC OBJECTION 38, RULE 132]
States why or how the evidence is irrelevant or
incompetent. GENERAL RULE: Parties who offer objections
to questions on whatever ground are entitled to a
FORMAL OBJECTION ruling at the time the objection is made.
Directed against the alleged defect in the
formulation of the question EXCEPTION: Unless they present a question
with regard to which the court desires to inform
SUBSTANTIVE itself before making its ruling.
Made and directed against the very nature of the
evidence In that event it is perfectly proper for the court to
take a reasonable time to study the question
C.5. WHEN TO OBJECT presented by the objection; but a ruling should
Objection to a question propounded in the course always be made during the trial. [Lopez v. Valdez,
of the oral examination of a witness shall be G.R. No. L-9113 (1915)]
made as soon as the ground therefor
becomes reasonably apparent. [Bayani v. A reasonable time must not extend beyond the
People, G.R. No. 155619 (2007)] ninety (90)-day reglementary period from the
date of submission of the formal offer of evidence
The issue of the admissibility of documentary [Beltran v. Paderanga, AM No. RTJ-03-1747
evidence arises only upon formal offer thereof. (2003)]
This is why objection to the documentary evidence
must be made at the time it is formally
PAGE 413 OF 425
The reason for sustaining or overruling an Other cases when motion to strike is
objection need not be stated. However, if the proper
objection is based on two or more grounds, a (1) When the answer of the witness is
ruling sustaining the objection on one or some of unresponsive;
them must specify the ground/s relied upon. (2) When the witness becomes unavailable for
cross-examination through no fault of the
Reservation of a ruling by the court on an cross-examining party;
objection to the admissibility of evidence, without (3) When the testimony is allowed conditionally
subsequently excluding the same, amounts to a and the condition for its admissibility was not
denial of an objection. [People v. Tavera, G.R. No. fulfilled; [Riano]
L-23172 (1925)) (4) Where evidence has been properly received,
and its effect has been destroyed by other
POR LO QUE PUEDO VALER PRINCIPLE evidence, or its admissibility has afterward
The Supreme Court encourages the admission or become apparent; [Herrera]
borderline evidence for whatever it is worth or por
lo que puedo valer. [Prats & Co. v. Phoenix Motion to strike out should specify
Insurance, 52 Phil. 807 (1930)) objection
A motion to strike out should specify the objection
NO EXPRESS RULING NEEDED as well as the portion of the evidence which is
The trial court need not make an express ruling objected to. [Herrera]
admitting the exhibits if there is no objection
interposed to their admission. [Herrera, citing Boix F. TENDER OF EXCLUDED
v. Rivera, CA Rep. 2d 104] EVIDENCE [SEC. 40, RULE 132]
The procedure in Section 40 is known as offer of
The ruling of the court is required only when there proof or tender of excluded evidence and is made
is an objection to a question or to the admission of for purposes of appeal. If an adverse judgment is
an exhibit. [Herrera] eventually rendered against the offeror, he may in
his appeal assign as error the rejection of the
The ruling on an objection must be given excluded evidence. The appellate court will better
immediately after an objection is made. However, understand and appreciate the assignment of
objections based on irrelevancy and immateriality error if the evidence involved is included in the
need no specification or explanation. Relevancy or record of the case [Cruz-Arevalo v. Querubin-
materiality of evidence is a matter of logic, since it Layosa, AM No. RTJ-06-2005 (2006)]
is determined simply by ascertaining its logical
connection to a fact in issue in the case. [Cruz- If an exhibit sought to be presented in evidence is
Arevalo v. Querubin-Layosa, AM No. RTJ-06-2005 rejected, the party producing it should ask the
(2006)] courts permission to have the exhibit attached to
the record. Any evidence that a party desires to
E. STRIKING OUT AN ANSWER [SEC. submit for the consideration of [a higher] court
39, RULE 132] must be formally offered by him otherwise it is
excluded and rejected and cannot even be taken
MOTION TO STRIKE cognizance of on appeal. [Catacutan v. People,
A motion to strike out goes to admissibility G.R. No. 175991 (2011)]
and not to weight; evidence should not be
Before tender of excluded evidence is made, the
stricken out because of its little probative evidence must have been formally offered before
value. [Herrera] the court. And before formal offer of evidence is
made, the evidence must have been identified and
(1) Court may sustain an objection and order the presented before the court [Yu v. CA, G.R. No.
answer given to be stricken off the record if: 154115 (2005)]
(a) witness answers the question before the
adverse party had the opportunity to object, Documents marked as exhibits during the hearing
and but which were not formally offered in evidence
(b) such objection is found to be meritorious. cannot be considered as evidence nor shall they
(2) The court may also, upon motion, order the have evidentiary value. [Vda. De Flores v.
striking out of answers, which are Workmens Compensation Commission, G.R. No.
(a) incompetent, L-43316 (1977)]
(b) irrelevant or
(c) otherwise improper.
PAGE 414 OF 425

HOW TO TENDER EVIDENCE

Kind of How to tender the evidence
evidence
Offeror may have the same
Documentary attached or made part of the
record
Offeror may state for the record
the name and other personal
Testimonial circumstances of the witness and
the substance of the proposed
testimony
Rationale
(1) to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the evidence
or testimony; and
(2) even if he is not convinced to reverse his earlier
ruling, the tender is made to create and
preserve a record for appeal [Riano]
Two Methods of making the Tender:

[Riano]
(1) Where the counsel tells the court what the
proposed testimony would be;
(2) By using the question and answer form
Erroneous Way of Making Tender

To make a mere general offer of proof without
producing the witness or stating the evidence
where by the fact in issue is to be proved. [Riano]
The SC had advised trial courts to allow the

rejected [documentary] evidence to be attached to
the record to enable the appellate court to
examine the same and determine whether the
exclusion of the same was proper or not. [Herrera,
citing Banez v. CA, G.R. No. L-30351 (1974)]
Harmless error rule [People v. Teehankee, G.R.

Nos. 111206-08 (1995)]
In dealing with evidence improperly admitted in
trial, we examine its damaging quality and its
impact to the substantive rights of the litigants. If
the impact is slight and insignificant, we disregard
the error as it will not overcome the weight of the
properly admitted evidence against the prejudiced
party.
PAGE 415 OF 425

REMEDIAL LAW
RULES OF
PROCEDURE FOR
ENVIRONMENTAL
CASES
PAGE 416 OF 425

UP LAW BOC RULES OF PROCEDURE FOR ENVIRONMENTAL CASES REMEDIAL LAW
I. Scope and (13) RA 7586, National Integrated

Protected Areas System Act including all
laws, decrees, orders, proclamations and
Applicability of the issuances establishing protected areas;
(14) RA 7611, Strategic Environmental
Rule Plan for Palawan Act;
(15) RA 7942, Philippine Mining Act;
These Rules shall govern the procedure in (16) RA 8371, Indigenous Peoples Rights
(1) civil, Act;
(2) criminal and (17) RA 8550, Philippine Fisheries Code;
(3) special civil actions (18) RA 8749, Clean Air Act;
(19) RA 9003, Ecological Solid Waste
Involving enforcement or violations of Management Act;
environmental and other related laws , (20) RA 9072, National Caves and Cave
rules and regulations such as but not limited Resource Management Act;
to the following: (21) RA 9147, Wildlife Conservation and
(1) Act No. 3572, Prohibition Against Cutting Protection Act;
of Tindalo, Akli, and Molave Trees; (22) RA 9175, Chainsaw Act;
(2) PD 705, Revised Forestry Code; (23) R.A. No. 9275, Clean Water Act;
(3) PD 856, Sanitation Code; (24) RA 9483, Oil Spill Compensation Act
(4) PD 979, Marine Pollution Decree; of 2007; and
(5) PD 1067, Water Code; (25) Provisions in CA No. 141, The Public
(6) PD 1151, Philippine Environmental Policy of Land Act; RA 6657, Comprehensive
1977; Agrarian Reform Law of 1988; RA 7160,
(7) PD 1433, Plant Quarantine Law of 1978; Local Government Code of 1991; RA 7161,
(8) PD 1586, Establishing an Environmental Tax Laws Incorporated in the Revised
Impact Statement System Including Other Forestry Code and Other Environmental
Environmental Management Related Laws [Amending the NIRC]; RA 7308,
Measures and for Other Purposes; Seed Industry Development Act of 1992;
(9) RA 3571, Prohibition Against the Cutting, RA 7900, High-Value Crops Development
Destroying or Injuring of Planted or (26) Rules of Procedure for Environmental
Growing Trees, Flowering Plants and Cases Act; RA 8048, Coconut Preservation
Shrubs or Plants of Scenic Value along Act; RA 8435, Agriculture and Fisheries
Public Roads, in Plazas, Parks, School Modernization Act of 1997; RA 9522, The
Premises or in any Other Public Ground; Philippine Archipelagic Baselines Law; RA
(10) RA 4850, Laguna Lake Development 9593, Renewable Energy Act of 2008; RA
Authority Act; 9637, Philippine Biofuels Act; and other
(11)RA 6969, Toxic Substances and existing laws that relate to the
Hazardous Waste Act; conservation, developm ent,
(12) RA 7076, Peoples Small-Scale preservation, protection and
Mining Act; utilization of the environment and
natural resources. [Sec. 3, Rule 1]
PAGE 417 OF 425

II. Civil Procedure agencies in enforcing environmental laws and

protecting the environment. [Annotation to
the Rules of Procedure for Environmental
WHO MAY FILE Cases, Supreme Court Sub-Committee]
Any real party in interest, including the
government and juridical entities authorized PROCEDURE
by law, may file a civil action involving the Filing of verified Complaint accompanied by
enforcement or violation of any (1) documents, affidavits, and/or objects to
environmental law. [Sec. 4, Rule 2] prove cause of action and
(2) certification against forum shopping
CITIZEN SUIT
Any Filipino citizen in representation Referral/Assignment by raffle to branch of
of others, including m inors or court
generations yet unborn, may file an
action to enforce rights or obligations under Issuance of Temporary Environmental
environmental laws. Upon the filing of a Protection Order [TEPO], when proper,
citizen suit, the court shall issue an order effective for 72 hours from receipt and,
which shall contain a brief description of the during the same period, conduct of a
cause of action and the reliefs prayed for, summary hearing for the extension of the
requiring all interested parties to manifest effectivity of the TEPO
their interest to intervene in the case within
fifteen days from notice thereof. The plaintiff Service of Summons
may publish the order once in a newspaper of

a general circulation in the Philippines or
Filing of verified Answer within 15 days from
furnish all affected barangays copies of said
receipt of summons
order.

Citizen suits filed under RA 8749 (Clean Air Issuance of Notice of Pre-trial within 2 days
Act) and RA 9003 (Ecological Solid Waste from filing of Answer
Management Act) shall be governed by their
respective provisions. [Sec. 5, Rule 2] Submission of Pre-Trial briefs 3 days before
pre-trial
A. PROHIBITION AGAINST
Referral to Mediation, Mediation and
TEMPORARY RESTRAINING ORDER Mediation Report
AND PRELIMINARY INJUNCTION
Preliminary Conference
GENERAL RULE: No court can issue a TRO
or writ of preliminary injunction against Pre-trial Conference/s
lawful actions of government agencies that
enforce environmental laws or prevent Pre-trial Order
violations thereof.

EXCEPTION: The Supreme Court [Sec. 10, Continuous Trial
Rule 2]
Judgment and Execution
Where the issuance of a TEPO is premised on
the violation of an environmental law or a B. TEMPORARY ENVIRONMENTAL
threatened damage or injury to the
environment by any person, even the PROTECTION ORDER (TEPO)
government and its agencies, the prohibition
against the issuance of a TRO or preliminary B.1. GROUND FOR ISSUANCE
injunction is premised on the presumption of It appears from the com plaint that
regularity on the government and its (1) the matter is of extreme urgency and
PAGE 418 OF 425
(2) the applicant will suffer grave injustice The judge shall exert best efforts to persuade
and irreparable injury [Sec. 8, Rule 2] the parties to arrive at a settlement of the
dispute. The judge may issue a consent
B.2. PERIOD OF EFFECTIVITY decree approving the agreement between the
Seventy-two (72) hours from date of parties in accordance with law, morals, public
receipt of the TEPO by the party or person order and public policy to protect the right of
enjoined [Sec. 8, Rule 2] the people to a balanced and healthful
ecology.
B.3. DUTY OF COURT
The court where the case is assigned shall Evidence not presented during the pre-trial,
periodically monitor the existence of acts that except newly-discovered evidence, shall be
are the subject matter of the TEPO even if deemed waived. [Sec. 5, Rule 3]
issued by the executive judge, and may lift
the same at any time as circumstances may CONSENT DECREE
warrant. [Sec. 8, Rule 2] A judicially-approved settlement between
concerned parties based on public interest
The judge shall report any action taken on a and public policy to protect and preserve the
TEPO, EPO, TRO or a preliminary injunction, environment. [Sec. 4(b), Rule 1]
including its modification and dissolution, to
the Supreme Court, through the Office of the E. PROHIBITED PLEADINGS AND
Court Administrator, within ten days from the MOTIONS
action taken. [Sec. 11, Rule 2]
B.4. GROUND TO DISSOLVE TEPO (1) Motion to dismiss the complaint;

A TEPO may be dissolved if it appears after (3) Motion for extension of time to file
hearing that its issuance or continuance pleadings, except to file answer, the
would cause irreparable dam age to the extension not to exceed fifteen days;
party or person enjoined while the (4) Motion to declare the defendant in
applicant m ay be fully com pensated default;
for such damages as he may suffer and (5) Reply and rejoinder; and
subject to the posting of a sufficient (6) Third party complaint. [Sec. 2, Rule 2]
bond by the party or person enjoined. [Sec. 9,
Rule 2]
F. PERIOD TO TRY AND DECIDE
C. DECLARATION OF DEFAULT
The court shall have a period of one year
MOTU PROPRIO from the filing of the com plaint to try
and decide the case. Before the expiration of
Should the defendant fail to answer the the one-year period, the court may petition
complaint within the period provided, the the Supreme Court for the extension of the
court shall declare defendant in default and period for justifiable cause.
upon motion of the plaintiff, shall receive
evidence ex parte and render judgment based The court shall prioritize the adjudication of
thereon and the reliefs prayed for. [Sec. 15, environmental cases. [Sec. 5, Rule 4]
Rule 2]
G. JUDGMENT AND EXECUTION;
D. PRE-TRIAL CONFERENCE; RELIEFS IN A CITIZEN SUIT
CONSENT DECREE
G.1. RELIEFS IN A CITIZEN SUIT
The judge shall put the parties and their If warranted, the court may grant to the
counsels under oath, and they shall remain plaintiff proper reliefs which shall include
under oath in all pre-trial conferences. (1) the protection, preservation or
rehabilitation of the environment and
PAGE 419 OF 425

(2) the payment of attorneys fees, costs of The court may, by itself or through the
suit and other litigation expenses appropriate government agency, monitor the
execution of the judgment and require the
The court may also require the violator party concerned to submit written reports on
(1) to submit a program of rehabilitation or a quarterly basis or sooner as may be
restoration of the environment, the costs necessary, detailing the progress of the
of which shall be borne by the violator or execution and satisfaction of the judgment.
(2) to contribute to a special trust fund for The other party may, at its option, submit its
that purpose subject to the control of the comments or observations on the execution
court [Sec. 1, Rule 5] of the judgment. [Sec. 3, Rule 5]
G.2. NO DAMAGES CAN BE AWARDED IN A NOTE: A continuing mandamus was issued

CITIZEN SUIT in the case of MMDA v. Concerned Residents
This measure is in line with the policy that a of Manila Bay, G.R. No. 171947-48 (2008)]
citizen suit is filed in the public interest, and
in effect, it is the environment which is I. STRATEGIC LAWSUIT AGAINST
vindicated in the action. The only recourse of PUBLIC PARTICIPATION (SLAPP)
a party or person who wishes to recover
damages for injury suffered is to file a SLAPP
separate action under Sec. 4, Rule 2. A legal action filed to harass, vex, exert
[Annotation to the Rules of Procedure for undue pressure or stifle any legal
Environmental Cases, Supreme Court Sub- recourse that any person, institution or the
Committee] government has taken or may take in the
enforcement of environmental laws,
G.3. JUDGMENT NOT STAYED BY APPEAL protection of the environment or assertion of
Any judgment directing the performance of environmental rights. [Sec. 1, Rule 6]
acts for the protection, preservation or
rehabilitation of the environment shall be The SLAPP provisions apply not only to suits
executory pending appeal unless that have been filed in the form of a
restrained by the appellate court. [Sec. 2, countersuit, but also to suits that are about to
Rule 5] be filed with the intention of discouraging the
aggrieved person from bringing a valid
H. PERMANENT ENVIRONMENTAL environmental complaint before the court.
PROTECTION ORDER; WRIT OF
Illustrations:
CONTINUING MANDAMUS (1) X files a complaint in an environmental
case against A [violator of environmental
In the judgment, the court may laws] and the A retaliates by filing a
a) convert the TEPO to a permanent EPO complaint for damages against X;
OR (2) X is a witness in a pending environmental
b) issue a writ of continuing mandamus case against A and A retaliates by filing a
directing the performance of acts which complaint for damages or libel against X;
shall be effective until the judgment is or
fully satisfied [Sec. 3, Rule 5] (3) X is an environmental advocate who rallies
for the protection of environmental rights
CONTINUING MANDAMUS and a complaint for damages is filed
A writ issued by a court in an environmental against him by A. [Annotation to the Rules
case directing any agency or instrumentality of Procedure for Environmental Cases,
of the government or officer thereof to Supreme Court Sub-Committee]
perform an act or series of acts decreed
by final judgment which shall remain I.1. SLAPP AS A DEFENSE
effective until judgment is fully satisfied [Sec. If the suit is a SLAPP, such may be raised as
4(c), Rule 1] an affirm ative defense in the Answer
along with other defenses.
PAGE 420 OF 425
If SLAPP is interposed as a defense, it is III. Special Civil Actions

mandatory for adverse party to file an
Opposition [Sec. 2, Rule 6] A. WRIT OF KALIKASAN
The hearing on the defense of a SLAPP shall
A.1. WHO MAY FILE
be summary in nature and shall be resolved
within 30 days after the summary hearing (1) natural or juridical person,
[Secs. 3-4, Rule 6] (2) entity authorized by law,
(3) peoples organization, non-governmental
I.2. QUANTUM OF EVIDENCE organization, or any public interest group
accredited by or registered with any
Party asserting that claim is a SLAPP must
government agency, on behalf of persons
prove such with substantial evidence.
whose constitutional right to a balanced
and healthful ecology is
If the court finds a SLAPP defense valid, the
violatedinvolving environmental
plaintiff is required to prove the following:
damage of such magnitude as to prejudice
(1) that the case is not a SLAPP; and
the life, health or property of inhabitants
(2) the merits of the case
in two or more cities or provinces.
with preponderance of evidence. [Sec. 3,
Rule 6]
A.2. ACTS COVERED BY THE WRIT
I.3. RESOLUTION OF THE DEFENSE OF A Unlawful act or omission of a public official or
employee, or private individual or entity,
SLAPP
involving environmental damage of such
(1) If action is dismissed, dismissal is with magnitude as to prejudice the life, health or
prejudice property of inhabitants in two or more cities
(2) If defense is rejected, action will proceed or provinces. [Sec. 1, Rule 7]
and evidence adduced during the
summary hearing shall be treated as A.3. WHERE TO FILE
evidence of the parties on the merits of the
The petition shall be filed with the Supreme
case [Sec. 4, Rule 6]
Court or with any of the stations of the Court
of Appeals. [Sec. 3, Rule 7]
A.4. PROCEDURE
Filing of verified Petition with Certificate
Against Forum Shopping

Issuance of Writ of Kalikasan within 3 days
from filing of petition

Service of the Writ

Filing of a verified Return within a non-
extendible period of ten [10] days after
service of the writ

Hearing [Court may call for preliminary
conference]

Judgment
PAGE 421 OF 425

B. PROHIBITED PLEADINGS AND reconsideration, any party may appeal to the

Supreme Court under Rule 45 of the Rules of
MOTIONS Court. The appeal may raise questions of fact.
[Sec. 16, Rule 7]
(1) Motion to dismiss;
(2) Motion for extension of time to file return; E. WRIT OF CONTINUING
(3) Motion for postponement;
(4) Motion for a bill of particulars; MANDAMUS
(5) Counterclaim or cross-claim;
(6) Third-party complaint; E.1. WHEN AVAILABLE
(7) Reply; and (1) An agency or instrumentality of the
(8) Motion to declare respondent in default. government or officer thereof either:
[Sec. 9, Rule 7] a) unlawfully neglects the performance of
an act which the law specifically
C. DISCOVERY MEASURES enjoins as a duty resulting from an
office, trust or station in connection
The following discovery measures are with the enforcement or violation of an
available to all parties to the writ: environmental law rule or regulation or
(1) Ocular Inspection a right therein or
(2) Production or inspection of documents b) unlawfully excludes another from the
and things [Sec. 12, Rule 7] use or enjoyment of such right
(2) there is no other plain, speedy and
The motion must show that a production adequate remedy in the ordinary course of
order is necessary to establish the magnitude law [Sec. 1, Rule 8]
of the violation or the threat as to prejudice
the life, health or property of inhabitants in E.2. WHERE TO FILE
two or more cities or provinces. (1) Regional Trial Court exercising jurisdiction
over the territory where the actionable
C.1. OCULAR INSPECTION neglect or omission occurred
(2) Court of Appeals
Purpose: To order any person in possession (3) Supreme Court [Sec. 2, Rule 8]
or control of a designated land or other
property to permit entry for the purpose of E.3. PROCEDURE
inspecting or photographing the property or File a verified Petition with prayer that
any relevant object or operation thereon. respondent be ordered to do an act or series
of acts until the judgment is fully satisfied,
C.2. PRODUCTION OR INSPECTION OF and to pay damages + Certification Against
DOCUMENTS Forum Shopping

Purpose: to order any person in possession, Issuance of Writ of Continuing Mandamus
custody or control of any designated and Order to Comment
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or Filing of Comment within 10 days after
objects in digitized or electronic form, which receipt of Order
constitute or contain evidence relevant to the
petition or the return, to produce and permit Summary Hearing
their inspection, copying or photographing by
or on behalf of the movant. Judgment

D. APPEAL Return of the Writ
Within fifteen days from the date of notice of

the adverse judgment or denial of motion for
PAGE 422 OF 425

E.4. DISTINCTIONS BETWEEN WRIT OF

KALIKASAN AND WRIT OF CONTINUING
MANDAMUS
IV. Criminal Procedure
Kalikasan Continuing Mandamus
Subject Matter A. WHO MAY FILE
Directed
against [a] the (1) Offended party;
Available against
unlawful neglect in the (2) Peace officer;
an unlawful
performance of an (3) Public officer charged with the
act or omission of a
act specifically
public official or enforcement of an environmental law [Sec.
enjoined by law in 1, Rule 9]
employee, or
connection with the
private individual
enforcement/ violation
or entity, involving
of an envtl rule or [b] B. INSTITUTION OF CRIMINAL AND
environmental
the unlawfully CIVIL ACTION
damage of such
exclusion of another
magnitude as to
from the use or When a criminal action is instituted, the civil
prejudice the life,
enjoyment of such right action for the recovery of civil liability arising
health or property
and in both instances, from the offense charged, shall be deemed
of inhabitants in
there is no other plain, instituted with the criminal action unless
two or more cities
speedy and adequate the complainant waives the civil action,
or provinces.
remedy in the ordinary reserves the right to institute it separately or
course of law. institutes the civil action prior to the criminal
W ho May File action.
(1) natural and
juridical persons, Unless the civil action has been instituted
(2) entities prior to the criminal action, the reservation of
authorized by law, the right to institute separately the civil
(3) POs, NGOs, PIG, action shall be made during arraignment.
Person personally
on behalf of
aggrieved by the
persons whose In case civil liability is imposed or damages
unlawful act or
right to a balanced are awarded, the filing and other legal fees
omission
and healthful shall be imposed on said award in
ecology accordance with Rule 141 of the Rules of
is violated or Court, and the fees shall constitute a first lien
threatened to be on the judgment award. The damages
violated awarded in cases where there is no private
Respondent offended party, less the filing fees, shall
May be public or accrue to the funds of the agency charged
Government or its
private individual with the implementation of the
officers
or entity environmental law violated. The award shall
Docket Fees be used for the restoration and rehabilitation
Exempted Exempted of the environment adversely affected. [Sec. 1,
Venue Rule 10]
1] RTC exercising
SC or CA territorial jurisdiction, C. ARREST WITHOUT WARRANT,
2] CA, 3] SC
WHEN VALID
Discovery Measures
Ocular Inspection
and Production or None (1) When, in his presence, the person to be
Inspection Order arrested has committed, is actually
Damages committing or is attempting to commit an
None Allowed offense; or
PAGE 423 OF 425

(2) When an offense has just been committed, the search warrant within five days from
and he has probable cause to believe date of seizure or in case of warrantless
based on personal knowledge of facts or arrest, submit within five days from date of
circumstances that the person to be seizure, the inventory report, compliance
arrested has committed it. report, photographs, representative
samples and other pertinent documents to
Individuals deputized by the proper the public prosecutor for appropriate
government agency who are enforcing action.
environmental laws shall enjoy the (3) Sale Upon Motion. Upon motion by any
presumption of regularity under Sec. 3(m), interested party, the court may direct the
Rule 131 of the Rules of Court when effecting auction sale of seized items, equipment,
arrests for violations of environmental laws. paraphernalia, tools or instruments of the
[Sec. 1, Rule 11] crime. The court shall, after hearing, fix
the minimum bid price based on the
D. STRATEGIC LAWSUIT AGAINST recommendation of the concerned
government agency. The sheriff shall
PUBLIC PARTICIPATION [SLAPP] conduct the auction. The auction sale
shall be with notice to the accused, the
The manner by which to allege that a criminal person from whom the items were seized,
action is a SLAPP is through a motion to or the owner thereof and the concerned
dismiss rather than a motion to quash. A government agency. The notice of auction
motion to dismiss allows the action to be shall be posted in three conspicuous
challenged as a SLAPP, while a motion to places in the city or municipality where the
quash is directed at the Information. items, equipment, paraphernalia, tools or
instruments of the crime were seized.
Moreover, granting a motion to dismiss bars (4) Disposition of Proceeds. The
the refiling of a SLAPP in accordance with the proceeds shall be held in trust and
law of the case. In contrast, the grant of a deposited with the government depository
motion to quash does not bar the filing of a bank for disposition according to the
subsequent Information. [Annotation to the judgment. [Sec. 2, Rule 12]
Rules of Procedure for Environmental Cases,
Supreme Court Sub-Committee] F. BAIL
E. PROCEDURE IN THE CUSTODY WRITTEN UNDERTAKING BY ACCUSED
AND DISPOSITION OF SEIZED (1) To appear before the court that issued the
ITEMS warrant of arrest for arraignment
purposes on the date scheduled, and if the
accused fails to appear without
The applicable rules and regulations of the justification on the date of arraignment,
concerned government agency shall be accused waives the reading of the
followed. information and authorizes the court to
enter a plea of not guilty on behalf of the
In the absence of such rules and regulations, accused and to set the case for trial;
the following procedure shall be observed: (2) To appear whenever required by the court
(1) Inventory. The apprehending officer where the case is pending; and
having initial custody and control of the (3) To waive the right of the accused to be
seized items, equipment, paraphernalia, present at the trial, and upon failure of the
conveyances and instruments shall accused to appear without justification
physically inventory and whenever and despite due notice, the trial may
practicable, photograph the same in the proceed in absentia. [Sec. 2, Rule 13]
presence of the person from whom such
items were seized. If the court grants bail, the court may issue a
(2) Return. The apprehending officer shall hold-departure order in appropriate cases.
submit to the issuing court the return of [Sec. 1, Rule 13]
PAGE 424 OF 425
G. ARRAIGNMENT AND PLEA V. Evidence

G.1. WHEN
The court shall set the arraignment of the A. PRECAUTIONARY PRINCIPLE
accused within fifteen [15] days from the
time it acquires jurisdiction over the accused, When human activities may lead to threats of
with notice to the public prosecutor and serious and irreversible damage to the
offended party or concerned government environment that is scientifically plausible
agency that it will entertain plea-bargaining but uncertain, actions shall be taken to avoid
on the date of the arraignment. [Sec. 1, Rule or diminish that threat. [Sec. 4(b), Rule 1]
15]
When there is a lack of full scientific certainty
G.2. PLEA-BARGAINING in establishing a causal link between human
On the scheduled date of arraignment, the activity and environmental effect, the court
court shall consider plea-bargaining shall apply the precautionary principle in
arrangements. resolving the case before it.
Where the prosecution and offended party or The constitutional right of the people to a
concerned government agency agree to the balanced and healthful ecology shall be
plea offered by the accused, the court shall: given the benefit of the doubt. [Sec. 1, Rule
(1) Issue an order which contains the plea- 20]
bargaining arrived at; STANDARDS FOR APPLICATION
(2) Proceed to receive evidence on the civil (1) Threats to human life or health;
aspect of the case, if any; and (2) Inequity to present or future generations;
(3) Render and promulgate judgment of (3) Prejudice to the environment without
conviction, including the civil liability for legal consideration of the environmental
damages. [Sec. 2, Rule 15] rights of those affected. [Sec. 2, Rule 20]
H. PRE-TRIAL B. DOCUMENTARY EVIDENCE

After the arraignment, the court shall set the
pre-trial conference within thirty (30) days. It B.1. PHOTOGRAPHIC, VIDEO AND SIMILAR
may refer the case to the branch clerk of court, EVIDENCE MUST BE AUTHENTICATED
if warranted, for a preliminary conference to Photographs, videos and similar evidence of
be set at least three days prior to the pre-trial. events, acts, transactions of wildlife, wildlife
[Sec. 1, Rule 16] by-products or derivatives, forest products or
mineral resources subject of a case shall be
Parties are required to be under oath in pre- admissible when authenticated by
trial in order to obviate the use of false or (1) the person who took the same
misleading statements at this stage. (2) some other person present when said
[Annotation to the Rules of Procedure for evidence was taken, or
Environmental Cases, Supreme Court Sub- (3) any other person competent to testify on
Committee] the accuracy thereof. [Sec. 1, Rule 21]
I. SUBSIDIARY LIABILITIES B.2. ENTRIES IN OFFICIAL RECORDS AS

In case of conviction of the accused and PRIMA FACIE EVIDENCE
subsidiary liability is allowed by law, the court Entries in official records made in the
may, by motion of the person entitled to performance of his duty by a public officer of
recover under judgment, enforce such the Philippines, or by a person in
subsidiary liability against a person or performance of a duty specially enjoined by
corporation subsidiary liable under Art. 102 law, are prima facie evidence of the facts
and 103 of the Revised Penal Code. [Sec. 1, therein stated. [Sec. 2, Rule 21]
Rule 18]
PAGE 425 OF 425

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2016 University of the Philippines

Dean Overall Head

Associate Dean Subject Heads

Academics Committee Heads

UP Law Bar Operations Commission 2016

E.8 AMENDMENT AND SUPPLEMENTAL L. PRE-TRIAL ................................. 70

O.6. CONSEQUENCES OF REFUSAL TO POST-JUDGMENT REMEDIES WITHIN

C.1. NATURE ............................................. 162 F.8. RIGHTS OF A PERSON ADJUDGED

J.3. DISTINGUISHED FROM ACCION D.4. ANNEXES SERVED ON ADVERSE

A. DISTINGUISHED FROM D. WHEN NOT PROPER OR

RA 9048, AS AMENDED BY RA 10172 B. WHO MAY FILE; CRIMES THAT

F.4. AMENDMENT AND SUBSTITUTION COVERED BY THE RULE ON

D. HEARING OF APPLICATION FOR J. RIGHTS OF PERSONS UNDER

B.4. OFFICER WHO FILED THE D. FINALITY .................................. 337

C. ISSUANCE AND FORM OF SEARCH E. FACTUM PROBANS VERSUS

E.1. WHEN AVAILABLE ........................... 422

I. General Concepts A.3 PROSPECTIVITY/ RETROACTIVITY

GENERAL RULE: Rules of procedure may

C. RULE MAKING POWER OF THE

D.4 DOCTRINE OF NON-INTERFERENCE

EXCEPTION: The doctrine of judicial A. ASPECTS OF JURISDICTION

Jurisdiction over the subject matter of a case

iii. How Conferred and Determ ined

iv. Doctrine of Prim ary Jurisdiction v. Doctrine of Adherence of

vi. Effect of Estoppel on Objections to

A.4 JURISDICTION OVER THE RES OR Estrada v. Desierto, G. R. No. 156160

issued on 4 December 2007 assessments, refunds of internal revenue

state universities or educational corresponding to Salary Grade 27 or higher,

Deed of Assignment and Conveyance

B.6 FAMILY COURTS [RA 8369] B.7 METROPOLITAN TRIAL COURTS/

Special Jurisdiction over petition for writ

Delegated Jurisdiction to hear and Concurrent Jurisdiction of Sharia

B.8 SHARIA COURTS Exclusive Original Jurisdiction of

D. CASES COVERED BY RULES ON EXCEPT:

parties to barangay conciliation

NOTE: It is a condition precedent under Rule A.1 KINDS OF ACTIONS

Kinds of Ordinary Civil Actions Special

A.4 LOCAL AND TRANSITORY ACTIONS ACTION QUASI IN REM

If action is founded on privity of contract In actions in personam, courts must

Table: Actions in rem, in personam, A.6 INDEPENDENT CIVIL ACTIONS [SEC. 3,

A cause of action must exist at the time of the

Exploration v. Harris, G.R. No. L-45543

supposed exception ultimately points to For a single cause of action or violation of a

B.4 JOINDER AND MISJOINDER OF

(a) A corporation by estoppel is precluded

A minor or a person alleged to be A person is not an indispensable party if his

thereof, without prejudice to such other C.4 ALTERNATIVE DEFENDANTS

who actually instituted it [Lim v. Lim Yu, G.R.

DEATH OR SEPARATION OF A PARTY WHO TRANSFER OF INTEREST DURING

(2) objects of distinct transactions separate

venue. [Briones v. CA and Cash Asia, G.R. No.

COMPLAINT Kinds of Defenses [Sec. 5, Rule 6]

While it is a denial in form, its substance

COUNTERCLAIM (3) It must be cognizable by the regular

Effect on Cross-claim when Com plaint counterclaim)

has or may have to the plaintiffs claim. W hen Allowed

Prohibited Pleadings, Motions, or The defendant may also elect to file a

to be dismissed. [Cosco Philippines Shipping, E.4 ALLEGATIONS IN A PLEADING

Failure to comply with a condition precedent

NOTE: Under CB Circular No. 905, the Usury

Partial Default DEFAULT IN ORDINARY

Extent of Relief to be Awarded

E.7 FILING AND SERVICE OF PLEADINGS prescribed filing fee, BUT

PERIODS OF FILING PLEADINGS Extension of Time to Plead