Remedial Law

REMEDIAL LAW REVIEWER
CRIMINAL
PROCEDURE
REMEDIAL LAW 2010
CIVIL
PROCEDURE
SPECIAL
PROCEEDINGS
Copyright and all other relevant rights over this material are
owned jointly by the University of the Philippines College of
EVIDENCE
Law, the Faculty Editor and the Student Editorial Team.
The ownership of the work belongs to the University of the

Philippines College of Law. No part of this book shall be
reproduced or distributed without the consent of the UP
College of Law.
All rights are reserved.

CRIMINAL PROCEDURE
Table of Contents
Chapter 1: Jurisdiction ....................................7 2. Probable cause justifying warrantless

A. Definition ...............................................7 arrest and warrantless search................. 20
How Determined........................................8 D. Remedies of Party Subject of Search
Estoppel and Laches to Deny Jurisdiction 8 Warrant ........................................................ 20
Jurisdiction of Courts .................................9 1. Who may avail of remedies ............ 20
Military Courts............................................8 2. Remedies........................................ 20
3. Effect of failure to quash warrant.... 21
Chapter 2: Rights of the Accused ................10 4. Effects of illegal search................... 21
To be presumed innocent; ...........................10 5. Waiver of immunity against
To be informed of the nature and cause of unreasonable searches and seizure ....... 21
accusation;...................................................10 E. Criminal and Civil Liability of an Illegal
To be present and defend in person OR by Search Warrant............................................ 22
counsel;........................................................10
Right to be present at every stage of the Chapter 4: Arrest............................................ 23
proceedings: ................................................10 A. Concept............................................... 23
Right to counsel: ..........................................10 B. Procedure ........................................... 23
Right to defend in person:............................10 1. Constitutional requirements on arrest
To testify as witness in his behalf; ...............10 23
Right against self-incrimination;...................10 2. Arrest with warrant.......................... 23
Right to confrontation;..................................11 3. Arrest without warrant..................... 24
Right to compulsory process; ......................11 4. Illegal arrest .................................... 25
Right to speedy, impartial and public trial;...11 5. Right of attorney or relative to visit
Right to appeal.............................................11 arrested person ....................................... 26
C. Other Forms of Arrest Warrants ......... 26
Chapter 3: Search and Seizure .....................12 1. Human Security Act, RA No. 9372 . 26
A. Concept ...............................................12 2. Bureau of Immigration and
1. Definition .........................................12 Deportation arrest by virtue of an order of
2. Nature of a Search Warrant............12 deportation .............................................. 26
3. Constitutional Safeguard Against D. Custodial Investigation........................ 26
Unreasonable Search and Seizures........12 1. What is embraced in custodial
4. Constitutional Protection is Against investigations; what is not ....................... 26
Public Officers’ Acts, Not Private Persons 2. Custodial rights of the accused ...... 27
13 3. Consequences of violation of
B. Procedure............................................13 custodial rights ........................................ 27
1. Application ......................................13
2. Exception: .......................................13 Chapter 5: Prosecution of Offenses ............ 28
3. Search guidelines under Circular No. A. Institution of Criminal Actions............. 28
19, s. 1987...............................................13 1. In general ............................................ 28
4. Substance of application.................14 a. Institution and Commencement of
5. Generally.........................................14 actions ..................................................... 28
6. Issuance and form of search warrant b. Effect of the Institution of criminal
16 action on the prescriptive period ............. 28
7. Personal Property to be Seized ......16 2. Prosecution ......................................... 28
8. Validity of search warrant ...............17 a. By whom prosecuted ...................... 28
9. Service of search warrant ...............17 b. Extent of the prosecutor’s control ... 29
10. Search of house, room, or c. Effects of the lack of intervention by
premise, to be made in presence of two the fiscal in the trial.................................. 29
witnesses.................................................17 d. Cases that cannot be prosecuted de
11. Time of making search ...............17 oficio29
12. Post-service................................17 Offended parties who can file complaint . 29
13. Delivery of property and inventory Effect of - ................................................. 29
thereof to court ........................................17 a. Death of offended party .................. 29
C. Warrantless Searches.........................18 b. Desistance by offended party............ 30
1. When allowed .................................18 c. Pardon by offended party ................. 30
3. Complaint or Information.....................30 4. Hearing ........................................... 40

a. Complaint defined...........................30 5. Resolution....................................... 40
b. Information defined .........................30 6. Review ............................................ 41
c. Form & Substance ..........................31 7. Filing of information/complaint in
d. Amendment or substitution .............33 court 41
4. Place where action is to be instituted..33 E. Rights of Respondent in a PI.................... 41
a. Venue of criminal actions shall be: .33 F. Duties of Investigating Fiscal or
b. How venue or jurisdiction determined Prosecutor ...................................................... 41
33 1. Determine WON there is probable
c. Where crime is continuing ..............33 cause ....................................................... 41
d. Libel cases ......................................33 2. Must include all persons guilty of
e. Offense committed on railroad........34 offense..................................................... 41
f. Offense committed on a vessel ......34 3. Prosecutor cannot file information
g. Offense committed outside the without prior approval of superior............ 42
Philippines ...............................................34 4. Appeal to Secretary of Justice........ 42
5. Intervention of the offended party .......34 G. When Warrant of Arrest May Issue...... 42
B. Prosecution of Civil Action ..................34 H. When Accused Lawfully Arrested
1. In general ............................................34 Without Warrant ............................................. 42
a. How instituted .................................34 I. Record of PI ........................................... 43
b. When to make a reservation to file J. Cases Not Requiring Preliminary
civil action; exception...............................35 Investigation Nor Covered by Rule on
2. Civil liability..........................................35 Summary Procedure...................................... 43
a. Under the RPC [Art. 100-103].........35
b. Under the Civil Code [Art. 32, 33, 34, Chapter 7: Preliminary Remedies ................ 44
2176]........................................................35 A. Bail .......................................................... 44
c. Civil action deemed instituted in 1. Definition ............................................. 44
criminal action..........................................35 2. Purpose............................................... 44
d. Filing fees of civil action deemed 3. Conditions of Bail ................................ 44
instituted in criminal action ......................36 4. Availability of bail ................................ 45
e. Civil liability determined in criminal a. Admittance to Bail as a Matter of
action .......................................................36 Right45
f. Accused cannot interpose b. Admittance to bail as discretionary. 45
counterclaims ..........................................36 c. When right to bail not available ...... 46
3. Suspension of civil action....................36 d. Right to bail is not available in the
a. Civil actions which are suspended or military ..................................................... 46
joined in the criminal action .....................36 e. After a judgment of conviction has
b. Effect of acquittal of accused..........36 become final. ........................................... 46
c. Effect of affidavit of desistance .......36 f. After the accused has commenced to
d. Suspension due to prejudicial serve his sentence .................................. 46
question ...................................................36 [Rule 114, Sec. 24].................................. 46
4. Effect of death of accused on civil 5. Amount of bail ..................................... 46
action .......................................................37 a. Guidelines....................................... 46
5. Effect of judgment in civil case on b. Increase or reduction of amount of
criminal action..........................................37 bail 47
6. Kinds of bail ........................................ 47
Chapter 6: Preliminary Investigation ...........38 a. Corporate Surety ............................ 47
A. General Principles .................................38 b. Property Bond................................. 47
1. Preliminary investigation, defined: ..38 c. Cash Bond ...................................... 47
2. When required ................................39 d. Recognizance ................................. 48
B. Right to Preliminary Investigation .......39 e. When bail not required ................... 48
C. Who May Conduct PI.............................39 7. Procedural Matters in Bail................... 48
1. Generally.........................................39 a. Where filed...................................... 48
2. COMELEC, when vested................39 b. Hearing on the application for bail .. 49
3. Ombudsman ...................................40 c. Remedy when bail is denied........... 49
D. Procedure to be observed by d. Release on bail ............................... 49
Prosecutors in PI............................................40 e. Forfeiture of bail.............................. 49
1. Filing of the complaint.....................40 f. Cancellation of bail ......................... 50
2. Action of the investigating officer ....40 8. Arrest of Accused out on Bail.............. 50
3. Defendant’s counter-affidavit ..........40 B. Motion to Quash .................................... 50
1. Definition .............................................50 Chapter 9: Arraignment................................. 64

2. Time to file MTQ..................................50 A. Arraignment ........................................... 64
3. Form and Contents .............................51 1. In General ........................................... 64
4. Grounds ..............................................51 a. Definition......................................... 64
a. Facts Charged do not Constitute an b. Purpose: Procedural due process .. 64
Offense ....................................................51 c. Four-fold duty of the TC before
b. Court has No Jurisdiction over the arraignment ............................................. 64
Offense Charged .....................................52 d. Issues that may be raised before
c. Court has no Jurisdiction over the arraignment ............................................. 64
Person of the Accused ............................52 2. Procedure ........................................... 64
d. Officer who Filed Information had no How arraignment made ........................... 64
Authority to Do So ...................................52 a. In general:....................................... 64
e. Complaint/Information does not b. If the accused is under preventive
Conform Substantially to the Prescribed suspension .............................................. 65
Form53 B. Plea ......................................................... 65
f. More than One Offense is Charged 53 1. Possible Pleas .................................... 65
g. Criminal Action or Liability has been a. Admission – Guilty.......................... 65
Extinguished ............................................53 b. Denial – Not Guilty.......................... 66
h. Contains Averments Which, if True, 2. Plea Bargaining................................... 66
Would Constitute a Legal Excuse or a. When Plea is Made Without Consent
Justification..............................................55 of the Offended Party .............................. 66
i. Double Jeopardy.............................56 b. When Plea is Made after the
5. Procedure upon filing ..........................58 Prosecution has Rested Its Case............ 66
a. Hearing on the motion ....................58 3. Withdrawal of Plea .............................. 66
b. When motion is denied ...................58 a. When allowed ................................. 66
c. When amendment is available as a b. Reasons to grant change ............... 66
cure 58 c. Procedural and substantial
6. Effect of order granting MTQ ..............59 requirements in the grant of a change of
a. Court order sustaining motion ........59 plea 66
b. Effect...............................................59 4. Suspension of arraignment upon motion
c. Remedies of the prosecution ..........59 by the proper party ...................................... 67
7. Failure to assert grounds ....................59 a. Grounds .......................................... 67
8. Provisional dismissal...........................60 b. Factors for granting continuance
a. When dismissal becomes permanent under Rule 119, Sec. 3(f) ........................ 67
60 c. Time limit following an order for new
b. Requisite procedure........................60 trial 67
C. Provisional Remedies in Criminal Cases d. Extended period for arraignment.... 68
60
1. Availability ...........................................60 Chapter 10: Trial............................................. 69
2. Attachment ..........................................60 A. General Procedure for Trial.................. 69
a. When proper ...................................60 1. Nature and commencement................ 69
b. Issuance and implementation of the 2. Time to prepare for trial....................... 69
writ 61 3. Trial proper.......................................... 69
a. Continuous trial............................... 69
Chapter 8: Pre-Trial........................................62 b. Time limitation................................. 69
A. Pre-Trial Conference...........................62 c. Excluded periods of delay .............. 70
1. Coverage ........................................62 d. Effect of delay ................................. 70
2. Period..............................................62 4. Order of trial ........................................ 71
3. Purposes.........................................62 a. Importance of adhering to order ..... 71
B. Pre-Trial Agreements and Submissions b. When court may modify the order .. 71
63 c. “Cold neutrality of the impartial judge”
1. Form................................................63 71
2. Effect...............................................63 d. Prosecution evidence ..................... 72
C. Pre-trial order ......................................63 e. Demurrer to evidence ..................... 72
1. When issued ...................................63 f. How initiated: .................................. 72
2. Contents..........................................63 g. Motion for leave to file demurrer..... 72
3. Effect...............................................63 h. Effect of granting motion for leave to
D. Non-Appearance .................................63 file demurrer ............................................ 72
i. Effect of denial of motion for leave to 2. Conviction ........................................... 83

file demurrer ............................................73 a. The judgment of conviction shall
j. Right of the accused to present state:........................................................ 83
evidence after demurrer is denied...........73 b. Judgment for two or more offenses 83
k. Distinctions between Demurrers to c. Judgment in case of variance
Evidence in Criminal and Civil Cases......73 between allegation and proof .................. 83
l. Defense evidence ...........................73 d. When an offense includes or is
m. Negligence of defense counsel ......73 included in another .................................. 84
n. When publicity is prejudicial to the 3. Acquittal .............................................. 84
rights of the accused ...............................73 B. Promulgation of Judgment .................. 85
o. Rebuttal evidence ...........................73 1. Promulgation where judge is absent... 85
p. Sur-rebuttal evidence......................74 2. Presence of accused required;
q. Submission of case.........................74 exception ..................................................... 85
B. Special Procedures ...............................74 C. Modification of Judgment .................... 86
1. Trial of several accused jointly charged 1. When judgment on conviction becomes
74 final 86
2. Consolidation of trials of related 2. When judgment of acquittal becomes
offenses .......................................................75 final 86
3. Discharge of an accused to be a state D. Entry of Judgment................................. 86
witness .........................................................75 1. Manner ................................................ 86
a. Discharge of a co-accused .............75 1. Formalities required ............................ 87
b. Requisites .......................................75 2. Existing provisions governing
c. Procedure .......................................75 suspension of sentence............................... 87
d. Co-accused who cannot be a. Rules on probation ......................... 87
discharged under Rule 119, Sec. 17 .......76 b. Statutes governing suspension,
e. Witness immunity from suit.............76 prohibition or parole................................. 87
4. Other modes of discharge of the
accused to be a state witness......................76 Chapter 12: Post-Judgment Remedies........ 88
a. Witness Protection Program ...........76 A. Motion for Reconsideration or New
5. The Ombudsman’s power to grant Trial (MFR/MNT) ............................................. 88
immunity [Sec. 17, RA 6770] .......................78 1. Definition ............................................. 88
a. Immunity under PD 749 ..................78 2. Grounds for MNT ................................ 88
b. Immunity under Sec. 5, EO 14-A ....78 3. The only ground for MFR .................... 89
c. Immunity under Sec. 28, RA 6646..78 4. Procedure ........................................... 89
6. Effect of discharge ..............................78 a. When to file MNT/MFR ................... 89
7. Re-opening of trial...............................78 b. Who may initiate MNT/MFR ........... 89
C. Other Procedural Rules ........................79 c. Granting of motion .......................... 89
1. When proper offense is not charged...79 d. Effect on period to appeal............... 89
a. When applicable .............................79 e. Form of motion................................ 89
b. Procedure .......................................79 f. Hearing on motion .......................... 90
2. Duties of counsels and prosecutors....79 5. Effect of granting MNT/MFR ............... 90
a. Duty of PAO knowing that the B. Ordinary Appeal .................................... 90
accused he is assigned to defend is under 1. Definition ............................................. 90
preventive detention ................................79 2. Final Judgment or Order ..................... 90
b. Sanctions on counsels....................79 3. Appellate Jurisdiction of the CA .......... 91
3. Appointment of acting prosecutor .......80 4. Procedure ........................................... 91
4. Exclusion of the public from the a. When ordinary appeal should be
courtroom.....................................................80 taken........................................................ 91
5. Archiving criminal cases......................80 b. How period is counted .................... 91
6. Inhibition of judges ..............................80 c. Who May Appeal ............................ 91
a. Kinds: ..............................................80 d. Where to appeal ............................. 93
7. Desistance by the offended party .......81 e. Service of notice of appeal ............. 93
f. Transcribing and filing of
Chapter 11: Judgment ...................................82 stenographic notes .................................. 93
A. In General ...............................................82 g. Transmission of papers to appellate
1. Requisites ...........................................82 court 94
a. Form................................................82 h. Procedure of appeal to the RTC..... 94
b. Judge who penned the decision need i. Transmission of records in case of
not be the one who heard the case .........83 death penalty........................................... 94
5. Jurisdiction of the TC prior to expiration Appendix 2: Modes of Review .................... 105

of period to appeal .......................................95
a. Effect of appeal by any of several
accused ...................................................95
b. Withdrawal of appeal from MTC/RTC
judgment..................................................95
c. Effect of escape by accused pending
appeal ......................................................95
d. Withdrawal of appeal in case of
automatic review......................................95
e. Appointment of counsel de oficio for
accused on appeal ..................................96
C. Procedure in the Different Courts........96
1. Procedure in the MTC .........................96
a. Uniform procedure ..........................96
b. When procedures are different .......96
c. The Revised Rules on Summary
Procedure ................................................96
2. Procedure in the CA............................98
a. Parties and title ...............................98
b. Appointment of counsel de oficio....98
c. Brief for appellant............................98
d. Brief for appellee.............................98
e. Reply to appelle’s brief ...................98
f. Extension of time for filing briefs.....98
g. Form of briefs..................................98
h. Contents of brief .............................99
i. Dismissal of appeal for abandonment
or failure to prosecute..............................99
j. Prompt disposition of appeal ........100
k. Reversal / modification of judgment
on appeal...............................................100
l. Scope of CA’s judgment ...............100
m. CA’s power to receive evidence ...100
n. Quorum in the CA .........................101
o. Certification or appeal of cases to the
SC 101
p. Judgment transmitted and filed in TC
101
q. MNT during the pendency of appeal
in the CA................................................101
r. MFR of CA judgment ....................101
s. Applicable civil procedure rules ....102
3. Procedure In The SC ........................102
a. Uniform procedure ........................102
b. What the SC may do on review ....102
c. Ways by which a case may reach the
SC 102
d. Failure to specify appellate court..103
e. Erroneous choice / mode of appeal
103
f. Review of CA decisions ................103
g. Decisions if opinion is equally divided
103
h. Constitutional provisions on SC
composition ...........................................103
Appendix 1: Availability of Bail ..................104

CIVIL PROCEDURE
Table of Contents
Part 1: Jurisdiction.......................................110 A. Amendment....................................... 133

I. Definition ..............................................110 B. Supplemental Pleadings ................... 134
II. Prescribed Jurisdiction ......................110 C. Bill of Particulars ............................... 134
III. Specific Jurisdiction ...........................111 D. Intervention ....................................... 135
A. Supreme Court..................................111 E. Summons .......................................... 136
SC’S POWERS .....................................111 F. Motions.............................................. 139
B. Constitutional Commissions..............112 VI. Terminating the Action Before Trial .. 140
C. Court of Appeals ...............................112 A. Motion to Dismiss.............................. 140
D. Regional Trial Courts ........................113 B. Dismissal of Actions.......................... 144
E. Metropolitan, Municipal and Municipal C. Dismissal of Counterclaims/ Cross-
Circuit Trial Court .......................................114 Claims/ 3rd-Party Complaints.................... 145
F. Katarungang Pambarangay ..............114 D. Defaults ............................................. 145
E. Remedies of a Party Declared In Default
Part 2: Ordinary Civil Action .......................117 147
I. Preliminaries ........................................117 F. Judgment on the Pleadings .............. 147
A. Actions, In General............................117 G. Summary Judgments ........................ 148
B. Cause of Action.................................118 H. Partial Summary Judgment............... 148
C. Requirements for a Person to be a Party VII. Modes of Discovery ........................ 149
to a Civil Action ..........................................119 A. Depositions Under Rule 23 ............... 149
D. Parties to a Civil Action .....................120 B. Depositions Before Action Under Rule
E. Venue of Actions ...............................123 24 151
II. Pleadings..............................................125 C. Depositions Pending Appeal Under Rule
A. Definition ...........................................125 24 151
B. Pleadings Allowed.............................125 D. Rule 23 Applies on the Manner or
C. Parts of a Pleading............................125 Conduct of the Deposition ......................... 151
D. Disciplinary Action on Counsel E. Request for Admission Under Rule 26
Regarding Pleadings .................................125 152
E. Verification ........................................125 F. Production or Inspection of Documents
F. How a Pleading is Verified ................125 or Things.................................................... 153
G. Certification of Non-Forum Shopping G. Physical and Mental Examination of a
(CNFS).......................................................125 Party Under Rule 28 .................................. 153
H. Test to Determine WON there is Forum H. Consequences of Refusal Under Rule
Shopping....................................................126 29 154
I. Effect of Submission of False CNFS or VIII. Pre-Trial............................................ 154
Non-Submission of CNFS..........................126 A. Notice of Pre-Trial ............................. 154
J. Effect of Willful and Deliberate Forum B. Appearance of Parties ...................... 154
Shopping....................................................126 C. Pre-Trial Brief .................................... 155
K. Different Pleadings............................126 D. Record of Pre-Trial............................ 155
III. Manner of Making Allegations .......130 E. Calendar of Cases ............................ 155
A. In General .........................................130 IX. Trial ....................................................... 155
B. Facts that may be Averred Generally130 A. Notice of Trial.................................... 156
C. Facts that must be Averred Particularly B. Adjournments and Postponement .... 156
130 C. Subpoena.......................................... 156
D. Three Ways of Making a Specific Denial D. Conduct of Trial................................. 157
130 E. General Order of Trial ....................... 157
IV. Acquisition of Jurisdiction .................131 F. Agreed Statement of Facts ............... 158
A. Filing and Service..............................131 G. Statement of the Judge..................... 158
B. Papers Required to be Filed and Served H. Suspension of Actions ...................... 158
131 I. Reception of Evidence ...................... 158
C. Proof of Filing ....................................131 J. Trial by Commissioner ...................... 158
D. Mode of Service ................................131 K. Consolidation and Severance........... 158
E. Service...................................................131 L. Demurrer to Evidence ....................... 159
V. Amendment and Supplemental X. Judgments, Final Orders and Entry of
Pleadings ......................................................133 Judgment ...................................................... 159
A. Parts of a Judgment ..........................159 V. Rules..................................................... 186

B. Distinction Between Judgment and A. General Rule ..................................... 186
Opinion of the Court...................................160 1. Procedure in the Court of Appeals186
C. Requisites of a Valid Judgment ........160 2. Procedure in the Supreme Court
D. Interpretation of the Judgment ..........160 (Appealed Cases).................................. 194
E. Kinds of Judgment ............................160 B. Questions of Fact vs. Questions of Law
F. Amendments to Judgment ................161 196
G. Entry of Judgments and Final Orders162 C. Notice of Appeal................................ 197
XI. Execution of Judgments.....................162 D. Record on Appeal ............................. 197
A. Execution as a Matter of Right..........162 E. Perfection of Appeal.......................... 197
B. Discretionary Execution ....................164 F. Period to Appeal ............................... 197
C. Execution of Judgments for Money...165 VI. Special Topic: Remedies from a Void
D. Execution of Judgments for Specific Judgment ...................................................... 199
Acts 166
E. Execution of Special Judgments.......167 Part 4: Provisional Remedies ..................... 200
F. General Rules Governing Execution.167 I. Definition .............................................. 200
G. Remedies of Judgment Creditor in Aid of II. Preliminary Attachment ...................... 200
Execution ...................................................172 A. Definition ........................................... 200
H. Entry of Satisfaction ..........................172 B. Purposes ........................................... 200
I. Effects of Judgments or Final Orders172 C. Grounds ............................................ 200
XII. Summary Procedure ......................174 D. Stages in the Grant of Preliminary
A. Scope ................................................174 Attachment................................................. 201
B. Determination of Applicability............174 E. Issuance and Contents of Order of
C. The Only Pleadings Allowed .............174 Attachment................................................. 201
D. Court Duty .........................................174 F. Contents of Affidavit of Applicant...... 201
E. Answer ..............................................174 G. Condition of Applicant's Bond ........... 201
F. Effect of Failure to Answer ................174 H. Manner of Attaching Property ........... 201
G. Preliminary Conference.....................174 I. Effects of Attachment........................ 202
H. Record of Preliminary Conference....175 J. Sale of Attached Property ................. 203
I. Submission of Affidavits and Position K. Discharge of Attachment................... 203
Papers........................................................175 L. Proceedings Where Attached Property
J. Rendition of Judgment ......................175 Claimed By Third Person........................... 203
K. Referral to Lupon ..............................175 M. Recovery Upon the Counter-Bond;
L. Prohibited Pleadings and Motions ....175 Disposition of Deposit/ Attached Property
M. Affidavits............................................175 After Judgment .......................................... 203
N. Appeal ...............................................176 N. Improper, Irregular or Excessive
O. Applicability of the Regular Rules .....176 Attachment................................................. 203
III. Preliminary Injunction......................... 204
Part 3: Remedies and Appeals ...................177 A. Definition ........................................... 204
I. Kinds.....................................................177 B. Classes ............................................. 204
A. Before Finality ...................................177 1. Preliminary preventive injunction.. 204
B. After Finality ......................................177 2. Preliminary mandatory injunction . 204
II. Reconsideration and New Trial..........178 C. Purpose............................................. 205
A. Rules .................................................178 D. Grounds ............................................ 205
B. Motion for Reconsideration ...............179 E. Requirements.................................... 205
C. Motion for New Trial ..........................180 F. Rule 58 Provides for both a Main Action
III. Appeal...................................................181 for Injunction and an Ancillary Writ of
IV. Modes of Appeal..................................182 Preliminary Injunction ................................ 206
A. MTC to RTC ......................................182 IV. Temporary Restraining Order (TRO) . 206
B. MTC to RTC to CA ............................182 A. Status Quo Order vs. Injunction........ 206
C. MTC to RTC to CA to SC ..................182 B. Objection to/Motion for Dissolution of
D. MTC to SC ........................................184 Injunction/ Restraining Order..................... 206
E. RTC to CA .........................................184 C. Global Injunction of a Foreign Court . 207
F. RTC to CA to SC...............................185 V. Receivership ........................................ 207
G. RTC to SC .........................................185 A. Nature ............................................... 207
H. CA to SC ...........................................185 B. Appointment of Receiver................... 207
I. QJA to CA .........................................185 C. Termination of Receivership ............. 208
J. QJA to CA to SC ...............................186 VI. Replevin ............................................... 209
K. QJA to SC .........................................186 A. Nature ............................................... 209
B. Requirements....................................209 C. When to File ...................................... 226

C. Order of Replevin ..............................209 D. Order of Partition................................... 226
D. Disposition of Property by Sheriff......210 E. Partition by Agreement ..................... 226
E. Where Property Claimed by Third F. Partition by Commissioners .............. 226
Person........................................................210 G. Judgment ...................................... 227
VII. Support Pendente Lite....................210 IX. Forcible Entry and Unlawful Detainer227
A. Nature................................................210 A. Actions for the Recovery of Possession
B. Requirements....................................210 of Real Property......................................... 227
C. Verified Comment .............................210 1. Accion Interdictal .......................... 227
D. Hearing..............................................210 2. Accion Publiciana ......................... 228
E. Order of Support ...............................210 3. Accion Reivindicatoria .................. 228
F. Remedies of a Party Who Was B. Forcible Entry.................................... 228
Erroneously Compelled to Give Support ...211 C. Unlawful Detainer.............................. 228
D. Pleadings .......................................... 229
Part 5: Special Civil Actions........................212 E. Procedure ......................................... 229
I. Interpleader ..........................................212 F. Preliminary Injunction........................ 231
A. Definition ...........................................212 G. Matters Not Constituting Prejudicial
B. Purpose .............................................212 Question to Ejectment .............................. 231
C. When Proper .....................................212 X. Contempt.............................................. 232
D. Procedure..........................................212 A. Definition ........................................... 232
II. Declaratory Relief ................................213
A. Requisites .........................................213 APPENDIX 1: Service of Summons upon
B. Who May File ....................................213 Different Entities .......................................... 235
C. Parties ...............................................213
D. Where Filed .......................................214 APPENDIX 2: Subpoena Duces Tecum and
E. When Court May Refuse to Declare Order for the Production or Inspection ..... 236
Rights/Construe Instruments .....................214
F. Similar Remedies Covered by Rule 63 APPENDIX 3: Consequences of Refusal
214 under Rule 29 ............................................... 237
III. Review of Judgments and Final Orders
or Resolutions of the COMELEC and COA214 APPENDIX 4: Procedure for Expropriation239
A. Scope ................................................214
B. Procedure..........................................214
IV. Certiorari, Prohibition, and Mandamus
215
A. Procedure..........................................217
V. Quo Warranto.......................................218
A. How Commenced..............................218
B. By Whom/Against Whom ..................219
C. Contents of Petition...........................219
D. Venue ................................................219
E. When Filed ........................................219
F. Judgment ..........................................219
VI. Expropriation .......................................220
A. Concept and Basis of Expropriation..220
B. Two Stages in Expropriation
Proceedings: ..............................................220
C. Procedure..........................................220
VII. Foreclosure of Real Estate Mortgage
223
A. Complaint’s Contents ........................223
B. Judgment ..........................................223
C. Disposition of the Proceeds of the Sale
223
D. Deficiency Judgment........................224
E. Registration .......................................224
VIII. Partition............................................225
A. Complaint ..........................................225
B. Venue ................................................226
SPECIAL PROCEEDINGS
Table of Contents
Preliminary Matters......................................242 II. Duty of court; when petition sufficient281

A. Special proceedings..........................242 III. Court shall adjudge that the estate shall
B. Applicable Rules ...............................242 escheat ...................................................... 281
C. Venues and Jurisdictions for Special IV. Period to appeal and claim the estate
Proceedings ...............................................243 281
V. Other actions for escheat.................. 281
Chapter 1: General Provisions ...................244
I. Subject Matter and Applicability of Chapter 4: Special Rules Implementing the
General Rules ............................................244 Family Courts ............................................... 282
II. Difference Between Action and Special I. Guardianship ....................................... 282
Proceeding.................................................244 II. Adoption............................................... 291
III. Rules on Custody of Children (Rule 99,
Chapter 2: Settlement of Estate of Deceased Secs. 6 and 7) ............................................... 299
Persons .........................................................245 IV. Custody of Minors and Writ of Habeas
I. Venue and Process .............................245 Corpus in Relation to Custody of Minors
II. Summary Settlement of Estate ..........246 (A.M. No. 03-04-04-SC)................................. 300
III. Production of Will. Allowance of Will V. Commitment of Children (A.M. No. 02-1-
Necessary .....................................................249 19-SC)............................................................ 304
IV. Allowance or Disallowance of Will ....250
V. Allowance of Will Proved Outside of Chapter 5: Other Special Proceedings ...... 310
Philippines and Administration of Estate I. Hospitalization of Insane Persons (Rule
Thereunder....................................................253 101) 310
VI. Letters Testamentary and of II. Declaration of Absence (RULE 107) and
Administration, When and to Whom Issued of Presumptive Death (ARTS. 390-392, CC)
254 310
VII. Opposing Issuance Of Letters III. Change of Name and Cancellation or
Testamentary, Petition and Contest For Correction of Entries in the Civil Registry 312
Letters Of Administration............................255 IV. Voluntary Dissolution of Corporations
VIII. Rule 80 – Special Administrator (SA) 317
256 V. Naturalization....................................... 317
IX. Bond of Executors and Administrators
257 Chapter 6: Appeals in Special Proceedings
X. Revocation of Administration, Death, ....................................................................... 320
Resignation, and Removal of Executors or
Administrators..............................................258 Chapter 7: The Writs.................................... 321
XI. Inventory and Appraisal. Provision for I. Writ of Habeas Corpus........................ 321
Support of Family.........................................259 II. Writ of Amparo .................................... 326
XII. General Powers and Duties of III. Writ of Habeas Data ........................ 331
Executors and Administrators....................259 IV. Writ Matrix ....................................... 334
XIII. Accountability and Compensation of
Executors and Administrators....................260 Chapter 8: Corporate Rehabilitation .......... 340
XIV. Claims Against Estate ....................262
XV. Actions By and Against Executors
and Administrators ......................................266
XVI. Payment of the Debts of the Estate
269
XVII. Sales, Mortgages, and Other
Encumbrances of Property of Decedent ...271
XVIII. Distribution and Partition of the
estate 274
XIX. Trustees ...........................................276
Chapter 3: Escheats.....................................280
I. When Allowed ...................................280
EVIDENCE
Table of Contents
Chapter I. General Provisions.....................346

A. Definition ...........................................346
B. Scope ................................................346
C. Classification .....................................346
D. Admissibility vs. Relevancy ...............346
E. Competence......................................347
Chapter II. Which of the facts do not need

proof? ............................................................346
A. Judicial Notice ...................................346
B. Judicial Admissions...........................346
Chapter III. Who must prove these facts that

need to be proven? ......................................347
A. Burden of Proof .................................347
B. Presumptions ....................................347
Chapter IV. What degree of proof is needed?

.......................................................................349
A. Weight and Sufficiency of Evidence..349
B. Quantum of Evidence........................350
Chapter V. What available evidence is

needed to prove these facts? .....................351
A. Testimonial ........................................351
B. Documentary.....................................358
C. Object ................................................361
D. Circumstantial Evidence....................361
E. Extrajudicial Admissions ...................361
F. Electronic Evidence...........................363
Chapter VI. How do I present and offer the

evidence at trial?..........................................366
A. Order of Proof ...................................366
B. Form of Questions.............................367
C. Offer of Evidence ..............................367
D. Objections .........................................368
E. Tender of Excluded Evidence (R132,
s40) 368
F. Electronic Examination of Witness (R10,
s1, REE).....................................................369
G. Examination of a Child Witness ........369
Chapter VII. A.M. No. 06-11-5-SC (2007): Rule

on DNA Evidence .........................................372
REMEDIAL LAW REVIEWER TABLE of CONTENTS
CRIMINAL PROCEDURE 2
Table of Contents
CRIMINAL PROCEDURE
Chapter 1: Jurisdiction ....................................7 2. Probable cause justifying warrantless
A. Definition ...............................................7 arrest and warrantless search................. 20
How Determined........................................8 D. Remedies of Party Subject of Search
Estoppel and Laches to Deny Jurisdiction 8 Warrant ........................................................ 20
Jurisdiction of Courts .................................9 1. Who may avail of remedies ............ 20
Military Courts............................................8 2. Remedies........................................ 20
3. Effect of failure to quash warrant.... 21
Chapter 2: Rights of the Accused ................10 4. Effects of illegal search................... 21
To be presumed innocent; ...........................10 5. Waiver of immunity against
To be informed of the nature and cause of unreasonable searches and seizure ....... 21
accusation;...................................................10 E. Criminal and Civil Liability of an Illegal
To be present and defend in person OR by Search Warrant............................................ 22
counsel;........................................................10
Right to be present at every stage of the Chapter 4: Arrest............................................ 23
proceedings: ................................................10 A. Concept............................................... 23
Right to counsel: ..........................................10 B. Procedure ........................................... 23
Right to defend in person:............................10 1. Constitutional requirements on arrest
To testify as witness in his behalf; ...............10 23
Right against self-incrimination;...................10 2. Arrest with warrant.......................... 23
Right to confrontation;..................................11 3. Arrest without warrant..................... 24
Right to compulsory process; ......................11 4. Illegal arrest .................................... 25
Right to speedy, impartial and public trial;...11 5. Right of attorney or relative to visit
Right to appeal.............................................11 arrested person ....................................... 26
C. Other Forms of Arrest Warrants ......... 26
Chapter 3: Search and Seizure .....................12 1. Human Security Act, RA No. 9372 . 26
A. Concept ...............................................12 2. Bureau of Immigration and
1. Definition .........................................12 Deportation arrest by virtue of an order of
2. Nature of a Search Warrant............12 deportation .............................................. 26
3. Constitutional Safeguard Against D. Custodial Investigation........................ 26
Unreasonable Search and Seizures........12 1. What is embraced in custodial
4. Constitutional Protection is Against investigations; what is not ....................... 26
Public Officers’ Acts, Not Private Persons 2. Custodial rights of the accused ...... 27
13 3. Consequences of violation of
B. Procedure............................................13 custodial rights ........................................ 27
1. Application ......................................13
2. Exception: .......................................13 Chapter 5: Prosecution of Offenses ............ 28
3. Search guidelines under Circular No. A. Institution of Criminal Actions............. 28
19, s. 1987...............................................13 1. In general ............................................ 28
4. Substance of application.................14 a. Institution and Commencement of
5. Generally.........................................14 actions ..................................................... 28
6. Issuance and form of search warrant b. Effect of the Institution of criminal
16 action on the prescriptive period ............. 28
7. Personal Property to be Seized ......16 2. Prosecution ......................................... 28
8. Validity of search warrant ...............17 a. By whom prosecuted ...................... 28
9. Service of search warrant ...............17 b. Extent of the prosecutor’s control ... 29
10. Search of house, room, or c. Effects of the lack of intervention by
premise, to be made in presence of two the fiscal in the trial.................................. 29
witnesses.................................................17 d. Cases that cannot be prosecuted de
11. Time of making search ...............17 oficio29
12. Post-service................................17 Offended parties who can file complaint . 29
13. Delivery of property and inventory Effect of - ................................................. 29
thereof to court ........................................17 a. Death of offended party .................. 29
C. Warrantless Searches.........................18 b. Desistance by offended party............ 30
1. When allowed .................................18 c. Pardon by offended party ................. 30
3. Complaint or Information.....................30 4. Hearing ........................................... 40

a. Complaint defined...........................30 5. Resolution....................................... 40
b. Information defined .........................30 6. Review ............................................ 41 3
c. Form & Substance ..........................31 7. Filing of information/complaint in
CRIMINAL PROCEDURE
d. Amendment or substitution .............33 court 41
4. Place where action is to be instituted..33 E. Rights of Respondent in a PI.................... 41
a. Venue of criminal actions shall be: .33 F. Duties of Investigating Fiscal or
b. How venue or jurisdiction determined Prosecutor ...................................................... 41
33 1. Determine WON there is probable
c. Where crime is continuing ..............33 cause ....................................................... 41
d. Libel cases ......................................33 2. Must include all persons guilty of
e. Offense committed on railroad........34 offense..................................................... 41
f. Offense committed on a vessel ......34 3. Prosecutor cannot file information
g. Offense committed outside the without prior approval of superior............ 42
Philippines ...............................................34 4. Appeal to Secretary of Justice........ 42
5. Intervention of the offended party .......34 G. When Warrant of Arrest May Issue...... 42
B. Prosecution of Civil Action ..................34 H. When Accused Lawfully Arrested
1. In general ............................................34 Without Warrant ............................................. 42
a. How instituted .................................34 I. Record of PI ........................................... 43
b. When to make a reservation to file J. Cases Not Requiring Preliminary
civil action; exception...............................35 Investigation Nor Covered by Rule on
2. Civil liability..........................................35 Summary Procedure...................................... 43
a. Under the RPC [Art. 100-103].........35
b. Under the Civil Code [Art. 32, 33, 34, Chapter 7: Preliminary Remedies ................ 44
2176]........................................................35 A. Bail .......................................................... 44
c. Civil action deemed instituted in 1. Definition ............................................. 44
criminal action..........................................35 2. Purpose............................................... 44
d. Filing fees of civil action deemed 3. Conditions of Bail ................................ 44
instituted in criminal action ......................36 4. Availability of bail ................................ 45
e. Civil liability determined in criminal a. Admittance to Bail as a Matter of
action .......................................................36 Right45
f. Accused cannot interpose b. Admittance to bail as discretionary. 45
counterclaims ..........................................36 c. When right to bail not available ...... 46
3. Suspension of civil action....................36 d. Right to bail is not available in the
a. Civil actions which are suspended or military ..................................................... 46
joined in the criminal action .....................36 e. After a judgment of conviction has
b. Effect of acquittal of accused..........36 become final. ........................................... 46
c. Effect of affidavit of desistance .......36 f. After the accused has commenced to
d. Suspension due to prejudicial serve his sentence .................................. 46
question ...................................................36 [Rule 114, Sec. 24].................................. 46
4. Effect of death of accused on civil 5. Amount of bail ..................................... 46
action .......................................................37 a. Guidelines....................................... 46
5. Effect of judgment in civil case on b. Increase or reduction of amount of
criminal action..........................................37 bail 47
6. Kinds of bail ........................................ 47
Chapter 6: Preliminary Investigation ...........38 a. Corporate Surety ............................ 47
A. General Principles .................................38 b. Property Bond................................. 47
1. Preliminary investigation, defined: ..38 c. Cash Bond ...................................... 47
2. When required ................................39 d. Recognizance ................................. 48
B. Right to Preliminary Investigation .......39 e. When bail not required ................... 48
C. Who May Conduct PI.............................39 7. Procedural Matters in Bail................... 48
1. Generally.........................................39 a. Where filed...................................... 48
2. COMELEC, when vested................39 b. Hearing on the application for bail .. 49
3. Ombudsman ...................................40 c. Remedy when bail is denied........... 49
D. Procedure to be observed by d. Release on bail ............................... 49
Prosecutors in PI............................................40 e. Forfeiture of bail.............................. 49
1. Filing of the complaint.....................40 f. Cancellation of bail ......................... 50
2. Action of the investigating officer ....40 8. Arrest of Accused out on Bail.............. 50
3. Defendant’s counter-affidavit ..........40 B. Motion to Quash .................................... 50
1. Definition .............................................50 Chapter 9: Arraignment................................. 64

2. Time to file MTQ..................................50 A. Arraignment ........................................... 64
3. Form and Contents .............................51 1. In General ........................................... 64 4
4. Grounds ..............................................51 a. Definition......................................... 64
CRIMINAL PROCEDURE
a. Facts Charged do not Constitute an b. Purpose: Procedural due process .. 64
Offense ....................................................51 c. Four-fold duty of the TC before
b. Court has No Jurisdiction over the arraignment ............................................. 64
Offense Charged .....................................52 d. Issues that may be raised before
c. Court has no Jurisdiction over the arraignment ............................................. 64
Person of the Accused ............................52 2. Procedure ........................................... 64
d. Officer who Filed Information had no How arraignment made ........................... 64
Authority to Do So ...................................52 a. In general:....................................... 64
e. Complaint/Information does not b. If the accused is under preventive
Conform Substantially to the Prescribed suspension .............................................. 65
Form53 B. Plea ......................................................... 65
f. More than One Offense is Charged 53 1. Possible Pleas .................................... 65
g. Criminal Action or Liability has been a. Admission – Guilty.......................... 65
Extinguished ............................................53 b. Denial – Not Guilty.......................... 66
h. Contains Averments Which, if True, 2. Plea Bargaining................................... 66
Would Constitute a Legal Excuse or a. When Plea is Made Without Consent
Justification..............................................55 of the Offended Party .............................. 66
i. Double Jeopardy.............................56 b. When Plea is Made after the
5. Procedure upon filing ..........................58 Prosecution has Rested Its Case............ 66
a. Hearing on the motion ....................58 3. Withdrawal of Plea .............................. 66
b. When motion is denied ...................58 a. When allowed ................................. 66
c. When amendment is available as a b. Reasons to grant change ............... 66
cure 58 c. Procedural and substantial
6. Effect of order granting MTQ ..............59 requirements in the grant of a change of
a. Court order sustaining motion ........59 plea 66
b. Effect...............................................59 4. Suspension of arraignment upon motion
c. Remedies of the prosecution ..........59 by the proper party ...................................... 67
7. Failure to assert grounds ....................59 a. Grounds .......................................... 67
8. Provisional dismissal...........................60 b. Factors for granting continuance
a. When dismissal becomes permanent under Rule 119, Sec. 3(f) ........................ 67
60 c. Time limit following an order for new
b. Requisite procedure........................60 trial 67
C. Provisional Remedies in Criminal Cases d. Extended period for arraignment.... 68
60
1. Availability ...........................................60 Chapter 10: Trial............................................. 69
2. Attachment ..........................................60 A. General Procedure for Trial.................. 69
a. When proper ...................................60 1. Nature and commencement................ 69
b. Issuance and implementation of the 2. Time to prepare for trial....................... 69
writ 61 3. Trial proper.......................................... 69
a. Continuous trial............................... 69
Chapter 8: Pre-Trial........................................62 b. Time limitation................................. 69
A. Pre-Trial Conference...........................62 c. Excluded periods of delay .............. 70
1. Coverage ........................................62 d. Effect of delay ................................. 70
2. Period..............................................62 4. Order of trial ........................................ 71
3. Purposes.........................................62 a. Importance of adhering to order ..... 71
B. Pre-Trial Agreements and Submissions b. When court may modify the order .. 71
63 c. “Cold neutrality of the impartial judge”
1. Form................................................63 71
2. Effect...............................................63 d. Prosecution evidence ..................... 72
C. Pre-trial order ......................................63 e. Demurrer to evidence ..................... 72
1. When issued ...................................63 f. How initiated: .................................. 72
2. Contents..........................................63 g. Motion for leave to file demurrer..... 72
3. Effect...............................................63 h. Effect of granting motion for leave to
D. Non-Appearance .................................63 file demurrer ............................................ 72
i. Effect of denial of motion for leave to 2. Conviction ........................................... 83

file demurrer ............................................73 a. The judgment of conviction shall
j. Right of the accused to present state:........................................................ 83 5
evidence after demurrer is denied...........73 b. Judgment for two or more offenses 83
CRIMINAL PROCEDURE
k. Distinctions between Demurrers to c. Judgment in case of variance
Evidence in Criminal and Civil Cases......73 between allegation and proof .................. 83
l. Defense evidence ...........................73 d. When an offense includes or is
m. Negligence of defense counsel ......73 included in another .................................. 84
n. When publicity is prejudicial to the 3. Acquittal .............................................. 84
rights of the accused ...............................73 B. Promulgation of Judgment .................. 85
o. Rebuttal evidence ...........................73 1. Promulgation where judge is absent... 85
p. Sur-rebuttal evidence......................74 2. Presence of accused required;
q. Submission of case.........................74 exception ..................................................... 85
B. Special Procedures ...............................74 C. Modification of Judgment .................... 86
1. Trial of several accused jointly charged 1. When judgment on conviction becomes
74 final 86
2. Consolidation of trials of related 2. When judgment of acquittal becomes
offenses .......................................................75 final 86
3. Discharge of an accused to be a state D. Entry of Judgment................................. 86
witness .........................................................75 1. Manner ................................................ 86
a. Discharge of a co-accused .............75 1. Formalities required ............................ 87
b. Requisites .......................................75 2. Existing provisions governing
c. Procedure .......................................75 suspension of sentence............................... 87
d. Co-accused who cannot be a. Rules on probation ......................... 87
discharged under Rule 119, Sec. 17 .......76 b. Statutes governing suspension,
e. Witness immunity from suit.............76 prohibition or parole................................. 87
4. Other modes of discharge of the
accused to be a state witness......................76 Chapter 12: Post-Judgment Remedies........ 88
a. Witness Protection Program ...........76 A. Motion for Reconsideration or New
5. The Ombudsman’s power to grant Trial (MFR/MNT) ............................................. 88
immunity [Sec. 17, RA 6770] .......................78 1. Definition ............................................. 88
a. Immunity under PD 749 ..................78 2. Grounds for MNT ................................ 88
b. Immunity under Sec. 5, EO 14-A ....78 3. The only ground for MFR .................... 89
c. Immunity under Sec. 28, RA 6646..78 4. Procedure ........................................... 89
6. Effect of discharge ..............................78 a. When to file MNT/MFR ................... 89
7. Re-opening of trial...............................78 b. Who may initiate MNT/MFR ........... 89
C. Other Procedural Rules ........................79 c. Granting of motion .......................... 89
1. When proper offense is not charged...79 d. Effect on period to appeal............... 89
a. When applicable .............................79 e. Form of motion................................ 89
b. Procedure .......................................79 f. Hearing on motion .......................... 90
2. Duties of counsels and prosecutors....79 5. Effect of granting MNT/MFR ............... 90
a. Duty of PAO knowing that the B. Ordinary Appeal .................................... 90
accused he is assigned to defend is under 1. Definition ............................................. 90
preventive detention ................................79 2. Final Judgment or Order ..................... 90
b. Sanctions on counsels....................79 3. Appellate Jurisdiction of the CA .......... 91
3. Appointment of acting prosecutor .......80 4. Procedure ........................................... 91
4. Exclusion of the public from the a. When ordinary appeal should be
courtroom.....................................................80 taken........................................................ 91
5. Archiving criminal cases......................80 b. How period is counted .................... 91
6. Inhibition of judges ..............................80 c. Who May Appeal ............................ 91
a. Kinds: ..............................................80 d. Where to appeal ............................. 93
7. Desistance by the offended party .......81 e. Service of notice of appeal ............. 93
f. Transcribing and filing of
Chapter 11: Judgment ...................................82 stenographic notes .................................. 93
A. In General ...............................................82 g. Transmission of papers to appellate
1. Requisites ...........................................82 court 94
a. Form................................................82 h. Procedure of appeal to the RTC..... 94
b. Judge who penned the decision need i. Transmission of records in case of
not be the one who heard the case .........83 death penalty........................................... 94
5. Jurisdiction of the TC prior to expiration Appendix 2: Modes of Review .................... 105

of period to appeal .......................................95
a. Effect of appeal by any of several 6
accused ...................................................95
CRIMINAL PROCEDURE
b. Withdrawal of appeal from MTC/RTC
judgment..................................................95
c. Effect of escape by accused pending
appeal ......................................................95
automatic review......................................95
accused on appeal ..................................96
C. Procedure in the Different Courts........96
1. Procedure in the MTC .........................96
a. Uniform procedure ..........................96
b. When procedures are different .......96
c. The Revised Rules on Summary
Procedure ................................................96
2. Procedure in the CA............................98
a. Parties and title ...............................98
b. Appointment of counsel de oficio....98
c. Brief for appellant............................98
d. Brief for appellee.............................98
e. Reply to appelle’s brief ...................98
f. Extension of time for filing briefs.....98
g. Form of briefs..................................98
h. Contents of brief .............................99
i. Dismissal of appeal for abandonment
or failure to prosecute..............................99
j. Prompt disposition of appeal ........100
k. Reversal / modification of judgment
on appeal...............................................100
l. Scope of CA’s judgment ...............100
m. CA’s power to receive evidence ...100
n. Quorum in the CA .........................101
o. Certification or appeal of cases to the
SC 101
p. Judgment transmitted and filed in TC
101
in the CA................................................101
r. MFR of CA judgment ....................101
s. Applicable civil procedure rules ....102
3. Procedure In The SC ........................102
a. Uniform procedure ........................102
b. What the SC may do on review ....102
SC 102
d. Failure to specify appellate court..103
e. Erroneous choice / mode of appeal
103
f. Review of CA decisions ................103
g. Decisions if opinion is equally divided
103
h. Constitutional provisions on SC
composition ...........................................103
Appendix 1: Availability of Bail ..................104

REMEDIAL LAW REVIEWER Chapter 1: JURISDICTION
Chapter 1: Jurisdiction
CRIMINAL PROCEDURE TEAM
CRIMINAL PROCEDURE
Prof Theodore O Te A. DEFINITION
7
Faculty Editor
B. HOW DETERMINED
CRIMINAL PROCEDURE
Celeni Kristine G. Guinto C. ESTOPPEL AND LACHES TO DENY
Lead Writer JURISDICTION
Viferlyn D. Villar D. JURISDICTION OF COURTS
Dianne Margaret C. Lauron 1. Municipal Trial Courts
Marc Titus D. Cebreros 2. Regional Trial Courts
Sopfia R. Guira a. Regular courts
Writers b. Family courts
c. Katarungang Pambarangay
REMEDIAL LAW 3. Sandiganbayan
Jo Blanca P.B. Labay 4. Military Courts
Subject Editor
ACADEMICS COMMITTEE A. Definition

Kristine Bongcaron  Authority of the court to hear and try a
Michelle Dy particular offense and to impose the
Patrich Leccio punishment provided by law.
Editors-in-Chief  Jurisdiction is vested in the court, not in the
PRINTING & DISTRIBUTION judges. [People v. Gorospe (1984)]
 Inquiries into a court’s jurisdiction:
Kae Guerrero  WON the court has jurisdiction over the
DESIGN & LAYOUT offense by virtue of the imposable
penalty and its nature;
Pat Hernandez
 It is defined by law; determined by the
Viktor Fontanilla
Romualdo Menzon Jr. extent of the penalty which law imposes
Rania Joya based on the facts as recited in the
complaint/information constitutive of the
LECTURES COMMITTEE offense charged.
Michelle Arias  WON the action has been filed within
Camille Maranan the territorial jurisdiction of the court.
Angela Sandalo o Refers to venue or the place where
Heads the case is to be tried. The action
Katz Manzano Mary Rose Beley should be instituted and tried in the
Sam Nuñez Krizel Malabanan municipality or territory where
Arianne Cerezo Marcrese Banaag
Volunteers offense has been committed or
where any one of the essential
MOCK BAR COMMITTEE ingredients thereof took place.
 General rule: The court’s jurisdiction to try a
Lilibeth Perez
criminal action is to be determined by the
BAR CANDIDATES WELFARE law at the time of the institution of the action.
Succeeding legislation placing jurisdiction in
Dahlia Salamat
another tribunal will not affect jurisdiction
LOGISTICS already obtained by a court.
 Exception: Where the succeeding
Charisse Mendoza statute expressly provides, or is
SECRETARIAT COMMITTEE construed that it is intended to operate
to actions pending before its enactment,
Jill Hernandez o in which case the court where the
Head
criminal action is pending is ousted
Loraine Mendoza Faye Celso of jurisdiction and the pending
Mary Mendoza Joie Bajo action will have to be transferred to
Members
the other tribunal, which will
continue the proceeding.
How Determined
In Tijam v. Sibonghanoy, the party
 Determined by the allegations of the invoked lack of jurisdiction for the first 8
complaint or information. time on appeal, by a motion to dismiss,
CRIMINAL PROCEDURE
 By examination of the complaint/information 15 years after the questioned ruling had
to ascertain that the facts set out and been rendered, and for purposes of
punishment fall under jurisdiction of court. annulling everything done in the case in
[People v. Ocaya (1978)] which the party actively participated in.
 Jurisdiction over Complex Crimes (2003
Bar): lodged with the court having
jurisdiction to impose the maximum and Military Courts
most serious penalty imposable on an
 General rule: Ordinary courts will have
offense forming part of the complex crime.
jurisdiction over cases involving members of
[Cuyos v. Hon. Garcia (1988)]
the armed forces, and other persons subject
to military law, including members of the
Estoppel and Laches to Deny Jurisdiction Citizens Armed Forces Geographical Units
who commits crimes under the RPC or
 General rule: The issue of jurisdiction may special laws, regardless of who the co-
be raised at any stage of the proceedings, accused or victims are.
even on appeal, and is not lost by waiver or  Exception: When, as determined by the
by estoppel (J. Nachura in Figueroa vs.
ordinary court during arraignment, the
People, July 14, 2008)
offense is service-oriented, then it will be
 Exception: Estoppel by laches, to bar a tried by the court martial. Provided: the
litigant from asserting the court’s President may, in the interest of justice,
absence or lack of jurisdiction, only order/direct at any time before arraignment
supervenes in exceptional cases similar that any such crimes/offenses be tried by
to the factual milieu of Tijam v. the proper civil courts.
Sibonghanoy. Estoppel being in the
nature of forefeiture is not favored by
law. (Figueroa vs. People)
Jurisdiction of Courts
MTC RTC SANDIGANBAYAN 9
 Exclusive original jurisdiction 1. Exclusive original jurisdiction 1. Exclusive original jurisdiction
CRIMINAL PROCEDURE
over all violations of all criminal cases not within in those cases expressly
city/municipal ordinances the exclusive jurisdiction of enumerated in PD 1606, as
committed within their any court/tribunal/body. amended by RA 8249 -
respective territorial jurisdiction. [Sec. 20, BP 129] Violations of RA 3019 –
[Sec. 32 BP 129]  Exception: Those now Anti-Graft and Corrupt
 Exclusive original jurisdiction falling under the Practices Act, RA 1379,
over all offenses punishable exclusive and concurrent Chapter II, Section 2, Title
with imprisonment not jurisdiction of the VII, Book II of the RPC
exceeding 6 years irrespective Sandiganbayan, which Officials enumerated are the
of the amount of fine, and shall hereafter be following:
regardless of other imposable exclusively taken o Officials of the
accessory or other penalties, cognizance of by the executive branch
including the civil liability arising latter. [Sec. 20, BP 129] occupying the positions
from such offenses or 2. Criminal cases where one or of regional director and
predicated thereon, irrespective more of the accused is below higher, otherwise
of kind, nature, value, or amount eighteen (18) years of age classified as Grade '27'
thereof. but not less than fifteen (15) and higher, of the
 Provided, however, that in years, or where one or more Compensation and
offenses involving damage to of the victims is a minor at the Position Classification
property through criminal time of the commission of the Act of 1989 (RA 6758)
negligence they shall have offense [RA 9344] o Members of Congress
exclusive original jurisdiction 3. Cases against minors and officials thereof
thereof. [Sec. 32, BP 129] cognizable under the classified as
 Exception: Cases falling Dangerous Drugs Act, as Grade'27'and up under
within the exclusive original amended. the Compensation and
jurisdiction of RTCs and of 4. Violations of Republic Act No. Position Classification
the Sandiganbayan. [Sec. 7610, the Child Abuse Act. Act of 1989
32, BP 129] 5. Cases of domestic violence o Members of the
 Cases classified under the against women and children. judiciary without
Revised Rules on Summary If an act committed against prejudice to the
Proceedings: [SC Resolution, women and children likewise provisions of the
October 15, 1991] constitute a criminal offense, Constitution
 Violations of traffic the accused or batterer shall o Chairmen and members
laws/rules/ regulations; be subject to criminal of Constitutional
 Violations of rental law; proceedings and the Commissions, without
 Cases where the penalty corresponding penalties. (Rep. prejudice to the
prescribed by law for the Act No. 8369, Family Courts provisions of the
offense charged is Act of 1997) Constitution
imprisonment not 2. Other offenses or felonies
exceeding 6 months, or a whether simple or
fine not exceeding P1,000, complexed with other crimes
or both, irrespective of committed by public
other imposable penalties, officials and employees in
accessory or otherwise, or relation to their office
of the civil liability arising Requisites:
therefrom: Provided, o accused is any one of
however, that in offenses the public officials
involving damage to enumerated in subsec.
property through criminal (a) of Sec. 4 of Ra
negligence, this Rule shall 8249, grade 27 or
govern where the higher
imposable fine does not o Accused commits any
exceed P10,000. other offense or felony,
o Exception: a criminal than those specified in
case falling under the subsec. (a) whether
aforementioned list simple or complexed
where the offense with other crimes; and
charged is necessarily offender commits such
related to another other offense or felony
criminal case subject to in relation to his office
the ordinary procedure.
REMEDIAL LAW REVIEWER Chapter 2: RIGHTS of the ACCUSED
Chapter 2: Rights of the Accused Right to be present at every stage of the

proceedings:
10
[RULE 115; SEE COMPARATIVE TABLE FOR  This right may be waived.
CRIMINAL PROCEDURE
RELEVANT PROVISIONS FROM THE 1987 a. Absence without just cause at the trial;
CONSTITUTION, RA 7438, AND THE ROC] b. Accused under custody escapes.
 However, presence is mandatory:
A. TO BE PRESUMED INNOCENT a. For purposes of identification;
B. TO BE INFORMED OF THE NATURE AND b. At arraignment; [Rule 116, Sec. 1(b)]
CAUSE OF ACCUSATION AGAINST HIM c. At the promulgation of judgment;
C. TO BE PRESENT AND DEFEND IN PERSON  Exception: If the conviction is for a light
AND BY COUNSEL AT EVERY STAGE OF THE offense. [Rule 120, Sec. 6]
PROCEEDINGS  Trial in absentia (1998 Bar):
D. TO TESTIFY IN HIS OWN BEHALF;
Requisites: [Parada v. Veneracion (1997)]
E. TO BE EXEMPT FROM BEING COMPELLED
TO BE A WITNESS AGAINST HIMSELF (2005 a. Prior arraignment;
BAR); b. Proper notice of the trial;
F. TO CONFRONT AND CROSS-EXAMINE c. Failure to appear is unjustifiable.
WITNESSES AGAINST HIM AT THE TRIAL;  Effects: Waiver of right to be present,
G. TO HAVE COMPULSORY PROCESS ISSUED right to present evidence and right to
TO SECURE ATTENDANCE OF WITNESSES cross-examine witnesses. [Gimenez v.
AND PRODUCTION OF OTHER EVIDENCE IN Nazareno (1988)]
HIS BEHALF.
H. TO HAVE A SPEEDY, IMPARTIAL AND
PUBLIC TRIAL; Right to counsel:
I. TO HAVE THE RIGHT OF APPEAL IN ALL  It means reasonably effective legal
CASES ALLOWED AND IN THE MANNER assistance. [Gideon v. Wainright (1963)]
PRESCRIBED BY LAW.
 It is absolute and may be invoked at all
times, even on appeal. [Telan v. CA (1991)]
To be presumed innocent;  Duty to appoint counsel de oficio is
 Until contrary is proved beyond reasonable mandatory only at the time of arraignment.
doubt [Sayson v. People (1988)]
 Accusation is not synonymous with guilt.  Violation of this right entitles the accused to
[People v. Dramayo (1971)] new trial. [People v. Serzo (1997)]
 It may be waived, so long as not contrary to
To be informed of the nature and cause law, public order, public policy, morals or
good customs.
of accusation;
 The waiver must be unequivocally,
 Offense must be clearly charged in the knowingly and intelligently made [People v.
information. [People v. Ortega (1997)] Nicandro (1968)]
 Charge must be set forth with sufficient
particularity which will enable him to
Right to defend in person:
intelligently prepare his defense. [Balitaan v.
CFI of Batangas (1982)] Only when it sufficiently appears that he can
 The purpose is served by arraignment. protect his rights without the assistance of
[Borja v. Mendoza (1977)] counsel
 The title of the complaint, nor the designation of
the offense charged or the particular law violated To testify as witness in his behalf;
is not controlling. No information for a crime will
be sufficient if it does not accurately and clearly  But subject to cross-examination on any
allege the elements of the crime charged. The matter cited in his direct examination.
requirement of alleging the elements of a crime in  Silence will not in any manner prejudice him.
the information is to inform the accused of the
nature of the accusation against him so as to Right against self-incrimination;
enable him to suitably prepare his defense.
[People v. Dimaano (2005)] (2005 Bar)
 Compulsion includes not only violence but
also moral coercion. [Chavez v. CA (1968)]
To be present and defend in person OR
 Covers only testimonial compulsion and
by counsel; production of incriminating documents.
REMEDIAL LAW REVIEWER Chapter 2: RIGHTS of the ACCUSED
 It does not include examination of his body b. If accused escapes from confinement,
as evidence when it may be material. [US v. appeal is not allowed unless he voluntarily
Tan Teng (1912)] surrenders within period for appeal. [People 11
 An accused “occupies a different tier of v. Omar (1991)]
CRIMINAL PROCEDURE
protection from an ordinary witness.” He is
entitled 1) to be exempt from being a
witness against himself, and 2) to testify as
witness in his own behalf; but if he offers
himself as a witness he may be cross-
examined as any other witness; however,
his neglect or refusal to be a witness shall
not in any manner prejudice or be used
against him. [People v. Ayson (1989)]
 The questions on cross examination should
be on matters related to his direct
examination. [People v. Judge Ayson
(1989)]
Right to confrontation;
 Applies to any witness against the accused
at the trial
 Includes testimony of a deceased or
absentee witness
 This right is waived by non-appearance.
[Carredo v. People (1990)]
 Identification by a witness of the accused is
inadmissible if the accused had no
opportunity to confront witness. [People v.
Lavarias (1968)]
Right to compulsory process;

 Trial court should not delegate to the
accused the responsibility of getting his
witnesses.
 If a subpoena is issued and the witness
failed to appear, the court should order the
arrest of the witness if necessary. [People v.
Montejo (1967)]
Right to speedy, impartial and public

trial;
 In all criminal prosecutions, the accused
shall enjoy the right to have a speedy,
impartial and public trial. [1987 Constitution,
Article III Sec. 14 (2)]
 Remedy against denial of right:
a) MTD;
b) Dismissal subject to rules on double
jeopardy. [SC Circular 38-98]
c) Mandamus. [Vide Abadia v. CA (1994)]
Right to appeal.
a. Right to appeal is a statutory right and the
requirements must be complied with;
otherwise, the right is lost. [People v.
Sabellano (1991)]
REMEDIAL LAW REVIEWER Chapter 3: SEARCH and SEIZURE
2. Nature of a Search Warrant

Chapter 3: Search and Seizure
 A search warrant is in the nature of a 12
A. CONCEPT criminal process akin to a writ of discovery
CRIMINAL PROCEDURE
1. DEFINITION [Malaloan v. CA (1994)]
2. NATURE OF A SEARCH WARRANT
3. CONSTITUTIONAL SAFEGUARD AGAINST 3. Constitutional Safeguard Against
UNREASONABLE SEARCH AND Unreasonable Search and Seizures
SEIZURES
 Rule 126 is an implementation of Art. 3, Sec.
4. CONSTITUTIONAL PROTECTION IS
AGAINST PUBLIC OFFICERS’ ACTS, NOT
2 of the Constitution.
PRIVATE PERSONS  The right of the people to be secure in
B. PROCEDURE their persons/houses/papers/effects
1. APPLICATION against unreasonable searches and
2. EXCEPTION: MALALOAN V. CA (1994) seizures of whatever nature or for any
SUBJECT TO R126, SEC. 1 purpose shall not be violated.
3. SEARCH GUIDELINES UNDER CIRCULAR  No search warrant or warrant of arrest
NO. 19, S. 1987
shall issue except upon probable
4. SUBSTANCE OF APPLICATION
5. GENERALLY cause to be determined personally by
6. ISSUANCE AND FORM OF SEARCH the judge after the examination under
WARRANT oath/affirmation of the complaint and the
7. PERSONAL PROPERTY TO BE SEIZED witness he may produce, and
8. VALIDITY OF SEARCH WARRANT particularly describing the place to be
9. SERVICE OF SEARCH WARRANT searched, and the things/persons to be
10. SEARCH OF HOUSE, ROOM, OR seized. [Art. 3, Sec. 2, Consti]
PREMISE, TO BE MADE, IN PRESENCE  The privacy of communication and
OF TWO WITNESSES
11. TIME OF MAKING SEARCH
correspondence shall be inviolable
12. POST-SERVICE except upon lawful order of the court, or
13. DELIVERY OF PROPERTY AND when public safety/order requires
INVENTORY THEREOF TO COURT otherwise, as prescribed by law. [Art. 3,
C. WARRANTLESS SEARCHES Sec. 3, Consti]
1. WHEN ALLOWED  Rationale:
2. PROBABLE CAUSE JUSTIFYING  What is sought to be guarded is man’s
WARRANTLESS ARREST AND prerogative to choose who is allowed
WARRANTLESS SEARCH
entry to his residence. His privacy must
D. REMEDIES OF PARTY SUBJECT OF SEARCH
WARRANT not be disturbed by the government
1. WHO MAY AVAIL OF REMEDIES except in cases of overriding social
2. REMEDIES need, and then only under the stringent
3. EFFECT OF FAILURE TO QUASH procedural safeguards. [Villanueva v.
WARRANT Querubin (1972)]
4. EFFECTS OF ILLEGAL SEARCH  A man’s house is his castle. However,
5. WAIVER OF IMMUNITY AGAINST he may not use his castle as a citadel
UNREASONABLE SEARCHES AND
for aggression against his neighbors,
SEIZURE [PASION V. LOCSIN (1938)]
E. CRIMINAL AND CIVIL LIABILITY nor can he within its walls create such
disorders as to affect their peace. [US v.
Vallejo (1908)]
A. Concept  This constitutional guarantee is NOT a
1. Definition blanket prohibition against ALL searches
and seizures. It operates only against
 It is an order in writing; issued in the name “unreasonable” searches and seizures.
of the People of the Philippines; signed by a  What constitutes a reasonable or
judge; and directed to a peace officer, unreasonable search or seizure in any
commanding him to search for personal particular case is purely a judicial question,
property described in the warrant and bring determinable from a consideration of the
it before the court. [Rule 126, Sec. 1] circumstances involved, including the
 If it is without the judge’s signature: it is purpose of the search, the presence or
fatally defective. absence of probable cause, the manner in
which the search and seizure was made,
the place or thing searched, and the
character of the articles procured 2. Exception:

[Rodriguez v. Villamiel (1937)]
Malaloan v. CA (1994) subject to R126, 13
4. Constitutional Protection is Against Sec. 1
CRIMINAL PROCEDURE
Public Officers’ Acts, Not Private  Malaloan Ruling: if a case has not yet been
Persons filed, it may be filed in a court with a
territorial jurisdiction other than that where
 People v. Marti (1991); also People v.
the illegal articles sought to be seized are
Bangcarawan (2002): Search and seizure
located.
clauses are restraints upon the government
 This is aside from the consideration that a
and its agents, not upon private individuals.
criminal action may be filed in different
 The Fourth amendment and the case law
venues under the rules for continuing
applying it do not require exclusion of
crimes, or where different trial courts have
evidence obtained through a search by a
concurrent original jurisdiction over the
private person. Rather, the amendment only
same criminal offense.
proscribes government actions. In the case
 Malaloan ruling may be applicable:
at bar, the evidence was primarily
 when the crime is found to have been
discovered by a private person, acting in a
committed in a particular place WITHIN
private capacity and without the intervention
the judicial region
and participation of state authorities.
 The private person made an inspection as  where a particular court, by reason of its
part of a reasonable standard operating territorial area, has jurisdiction
procedure/a precautionary measure before  and where prosecutor, who filed the
delivery of packages to the Bureau of complaint or information in said court,
Customs. The mere presence of the NBI has territorial jurisdiction different from
agents did not convert the reasonable the court within the same judicial region
search into a warrantless search and which actually issued the warrant
seizure proscribed by the constitution. 3. Search guidelines under Circular No.
 However, if the private person is acting upon 19, s. 1987
orders of government officials, the principle
of agency applies, because in fact such  All applications for search warrants relating
private person is acting in the interest of to violations of:
government, and is therefore subject to the  Anti-Subversion Act;
prohibition against unreasonable searches  Crimes against public order as defined
and seizures. in the RPC;
 Illegal possession of firearms and/or
 General rule: Search of property is ammunition; and
unreasonable unless it has been authorized  Violations of the Dangerous Drugs Act
by a valid search warrant. of 1972, as amended,
 Exceptions: Valid warrantless searches.) shall no longer be raffled and shall
immediately be taken cognizance of and
B. Procedure acted upon by the Executive Judge of the
Regional Trial Court, Metropolitan Trial
1. Application Court, and Municipal Trial Court under
 Where filed whose jurisdiction the place to be searched
• Any court within whose territorial is located.
jurisdiction a crime was committed.  In the absence of the Executive Judge, the
• For compelling reasons stated in the Vice-Executive Judge shall take cognizance
application: of and personally act on the same. In the
o If the place of the commission of the absence of the Executive Judge or Vice-
crime is known, any court within the Executive Judge, the application may be
judicial region where the crime was taken cognizance of and acted upon by any
committed. judge of the Court where the application is
o Any court within the judicial region filed.
where the warrant shall be enforced.  Applications filed after office hours, during
 However, if the criminal action has already Saturdays, Sundays and holidays, shall
been filed, the application shall only be likewise be taken cognizance of and acted
made in the court where the criminal action upon by any judge of the court having
is pending jurisdiction of the place to be searched, but
in such cases the applicant shall certify and
state the facts under oath, to the satisfaction the offense are in the place sought to be
of the judge, and its issuance is urgent. searched.
 Any judge acting on such application shall  This probable cause must be shown to 14
immediately and without delay personally be within the personal knowledge of
CRIMINAL PROCEDURE
conduct the examination of the applicant the complainant or the witnesses he
and his witnesses to prevent the possible may produce and not based on mere
leakage of information. He shall observe the hearsay.
procedures, safeguards, and guidelines for
the issuance of search warrants provided for  Determined by judge himself
in this Court's Administrative Circular No. In the form of searching questions and
13, dated October 1, 1985. answers, in writing and under oath, the
complainant and the witnesses he may
4. Substance of application
produce on facts personally known to them
 Requisites for issuing search warrant and attach to the record their sworn
A SW shall not issue except statements, together with the affidavits
a. Upon probable cause in connection with submitted. [Rule 126, Sec. 5]
one specific offense
b. To be determined personally by the SEARCHING QUESTIONS AND ANSWERS:
judge o Such questions as have the tendency to
c. after examination under oath or show the commission of a crime and
affirmation of the complainant and the perpetrator thereof. [Luna v. Plaza (1968)]
witness he may produce o In search cases, the application must be
d. particularly describing the place to be supported by substantial evidence: that the
searched and the things to be seized items sought are in fact seizable by virtue of
which may be anywhere in the being connected with criminal activity and
Philippines. [Rule 126, Sec. 4] the items will be found in the place to be
 Absence of requisites will cause nullification searched.
of SW o A search warrant issued by a judge who did
 If the judge is satisfied of the existence of not ask searching questions but only leading
facts upon which the application is based or ones and in a general manner is invalid.
that there is probable cause (PC) to believe
that they exist, he shall issue the SW. [Rule  Judge must examine under oath or
126, Sec. 6] affirmation of the complainant and the
 In issuing or not issuing SWs, judges act witness he may produce
according to the evidence presented to In the form of searching questions and
them, and orders of the judge on the matter answers, in writing and under oath, the
are not final and do not constitute res complainant and the witnesses he may
judicata. produce on facts personally known to them
 Denial of SW on ground of insufficiency of and attach to the record their sworn
deposition is not a bar to further statements, together with the affidavits
proceedings. submitted. [Rule 126, Sec. 5]
 Issuance of SW is not res judicata as to the A warrant not based on personal knowledge
right to the SW. [Cruz v. Dinglasan (1949)] is void.
 Courts have declared invalid SW that did not
comply with these requisites. [Lim v. de Examination under oath:
Leon (1975)] o OATH — Includes any form of
 A court’s disregard for the requirements attestation by which a party signifies that
constitutes grave abuse of discretion which he is bound in conscience to perform an
may be remedied by certiorari under Rule act faithfully and truthfully.
65. o The oath required must refer to the truth
of facts within the personal knowledge
5. Generally of the petitioner/witness, because the
 Issued upon probable cause purpose thereof is to convince the
Probable cause – such facts and committing magistrate of the existence
circumstances which would lead a of PC. [Alvarez v. CFI (1937)]
reasonably discreet and prudent man to o Mere affidavits of the
believe that an offense has been committed, complainant/witnesses are not sufficient.
and that objects sought in connection with The law requires depositions. [Prudente
v. Judge Dayrit (1989)]
 INSTANCES OF INVALID EXAMINATION address. [Burgos v. Chief of Staff

The complainant’s application for SW and (1984)]
the witness’ printed-form deposition were 15
subscribed and sworn to before the judge,  TEST OF PARTICULARITY
CRIMINAL PROCEDURE
but the latter did not ask either of the two o That the executing officer’s prior
any questions, the answer to which could knowledge as to the place intended in
possibly be the basis for determining WON the SW is relevant.
there was PC. It cannot be said that the o This would seem especially true where
judge personally conducted the personal the executing officer is the affiant on
examination required. [Bache v. Ruiz (1971)] whose affidavit the SW had issued, and
o In reading of the transcribed notes of the when he knows that the judge who
deposition of the applicant and his issued the SW intended the building
witnesses taken by the clerk of court, described in the affidavit.
the judge was not able to observe the o And it has also been said that the
deponent’s demeanor nor to propound executing officer may look to the
initial and follow-up questions. [Bache v. affidavit in the official court file to resolve
Ruiz (1971)] an ambiguity in the SW as to the place
o Where judge issuing the SW acted to be searched. [Burgos v. Chief of Staff
solely on the basis of the affidavits of (1984)]
the complainant and his witnesses,
which were sworn to before another  Particularly
judge, without personally asking the Search warrant must be for only one specific
witnesses questions. [Doce v. CFI offense
(1968)] o General rule: The offense alleged must
be specific as to enable the judge to find
 INSTANCES OF VALID EXAMINATION the existence of a probable cause.
The validity of the SW and the affidavits is o Definite provisions of the allegedly
not impaired by the fact that they are pre- violated laws must be referred to.
typewritten by law enforcement agents, as o No SW shall issue for more than one
long as they are subscribed and sworn to specific offense. [RPC] Otherwise,
before the judge. warrant is void.
o In Luna v. Plaza (1974) (regarding o The fact that the SW does not specify
warrants of arrests, but applicable by the specific offense does not render it a
analogy), the SC said that the law is general warrant. What is important is the
complied with where the judge adopts application for SW states the specific
as his own personal examination the offense deemed to have been violated
questions asked by the police by the person against whom the search
investigator, as appearing in the written warrant is addressed.
sworn statements, which the judge read o Scatter-shot warrant – one which
again to the witnesses, whether said allows search for more than one specific
answers were his, and whether said offense and is null and void, violative of
answers were true, to which the the Constitution.
witnesses replied in the affirmative, o A SW issued for an “illegal traffic of
there being no prohibition to the narcotics and contraband” is fatally
contrary. defective. The latter is a generic term
covering all goods exported from or
 Warrant issued must particularly imported in the country contrary to
describe the place to be searched and applicable statutes. Necessarily then,
the persons to be seized more than one offense could arise from
the activity designated as illegal traffic of
 DESCRIPTION OF PLACE narcotics and contraband. [Castro v.
Description of place to be searched is Pabalan (1976)]
sufficient if the officer with the SW can, with o Exception: In [People v. Marcos
reasonable efforts, ascertain and identify the (1990)], the SW was declared valid
place intended. [People v. Veloso (1925)] despite lack of mention of specific
o An apparent typographical error will not offense because the application stated
necessarily invalidate the SW, as long that the owner of the grocery store
as the application contains the correct against whom warrant was directed, had
in his possession unadulterated stocks
in violation of the provisions Art. 188 o But where, by the nature of the
and 199, RPC, which are closely allied goods to be seized, their description
articles as the punishable acts defined must be rather general, it is not 16
in one of them can be considered as required that a technical description
CRIMINAL PROCEDURE
including or is necessarily included in be given, for this would mean that
the other. no SW could issue. [People v. Rubio
(1932)]
 Things to be seized must be particularly o The general description of the
described documents listed in the SW does
 The SW must not suffer from generality. not render the SW void if the SW is
Otherwise, the search and seizure of the severable, and those items not
items in the implementation of such SW particularly described may be cut off
is illegal and the items seized are without destroying the whole SW.
inadmissible in evidence. (Section 2 [Uy v. BIR (2001)]
Article 3 sets the constitutional
6. Issuance and form of search warrant
requirement.)
 Personal property only. SW does not  It is an order in writing; issued in the name
issue for seizure of immovable of the People of the Philippines; signed by a
properties. judge; and directed to a peace officer,
 Ownership of the property seized is commanding him to search for personal
immaterial. It is sufficient that the person property described in the warrant and bring
against whom SW is directed has it before the court. [Rule 126, Sec. 1]
control/possession of the property.  A search warrant shall not issue except
[Burgos v. Chief of Staff (1984)] upon probable cause in connection with one
 Purpose: To limit the things to be specific offense to be determined personally
seized to those (and only those) by the judge after examination under oath or
particularly described in the SW, leaving affirmation of the complainant and the
the officers no discretion regarding what witness he may produce, and particularly
articles they shall seize, to the end that describing the place to be searched and the
unreasonable searches and seizures things to be seized which may be anywhere
may not be made and that abuses may in the Philippines. [Rule 126, Sec. 4]
not be committed. [Uy Kheytin v.  If the judge is satisfied of the existence of
Villareal (1920)] facts upon which the application is based or
 General rule: Things to be seized must that there is probable cause to believe that
be described particularly. General they exist, he shall issue the warrant, which
search warrants are not allowed. must be substantially in the form prescribed
 SWs authorizing the seizure of books of by these Rules.[Rule 126, Sec. 6]
accounts and records “showing all the  SW must be in writing and contain:
business transactions” of certain  Name of person against whom it is
persons, regardless of whether the directed;
transactions were legal or illegal, are  Offense for which it was issued;
general warrants prohibited by law.  The place to be searched and
[Stonehill v. Diokno (1967)]  The description of the specific things to
 Likewise, a description of things to be be seized;
seized as “subversive documents,  A directive to law enforcement officers to
propaganda materials, FAs, printing search and seize;
paraphernalia and all other subversive  And for them to bring in court the things
materials” hardly provided a definite seized;
guideline to the executing officers.  Signature of the judge issuing it.
[Dizon v. Hon. Castro]
 And where the language used is too all- 7. Personal Property to be Seized
embracing as to include all the  WHAT MAY BE SEIZED [Rule 126, Sec. 3]
paraphernalia of petitioner in the  Personal property subject of the offense.
operation of its business, the SW is  Personal property stolen/embezzled and
constitutionally objectionable [Columbia other proceeds/fruits of the offense.
Pictures v. Flores (1993)]  Personal property used or intended to
 Exceptions: be used as the means of committing an
offense.
8. Validity of search warrant a receipt in the place in which he found the

seized property. [Rule 126, Sec. 11]
 Period of validity – 10 days from its date. 17
Thereafter, it shall be void. [Rule 126, Sec. How receipt is given
CRIMINAL PROCEDURE
10] If lawful The officer seizing the property under
9. Service of search warrant occupant the SW must give a detailed receipt for
was the same to the lawful occupant of the
 Right to break door or window to effect present premises in whose presence the search
search and seizure were made
 The officer, if refused admittance to the If he was The officer seizing the property under
place of directed search after giving notice not the SW must, in the presence of at least
present 2 witnesses of sufficient age and
of his purpose and authority, may break
discretion residing in the same locality,
open any outer or inner door or window of a leave a receipt in the place in which he
house or any part of a house or anything found the seized property
therein to execute the warrant to liberate
himself or any person lawfully aiding him 13. Delivery of property and inventory
when unlawfully detained therein. [Rule 126, thereof to court
Sec. 7]
 The officer must forthwith deliver the
10. Search of house, room, or premise, to property seized to the judge who issued the
be made in presence of two witnesses warrant, together with a true inventory
thereof duly verified under oath [Rule 126,
 No search of a house, room, or any other Sec. 12].
premises shall be made except in the  Ten (10) days after issuance of the search
presence of the lawful occupant thereof or warrant, the issuing judge shall ascertain if
any member of his family or in the absence the return has been made, and if none, shall
of the latter, two witnesses of sufficient age summon the person to whom the warrant
and discretion residing in the same locality. was issued and require him to explain why
[Rule 126, Sec. 8] no return was made.
11. Time of making search  If the return has been made, the judge shall
ascertain whether section 11 of this Rule
 The warrant must direct that it be served in has been complied with and shall require
the day time, unless the affidavit asserts that that the property seized be delivered to him.
the property is on the person or in the place The judge shall see to it that subsection (a)
ordered to be searched, in which case a hereof has been complied with.
direction may be inserted that it be served at  The return on the search warrant shall be
any time of the day or night. [Rule 126, Sec. filed and kept by the custodian of the log
9] book on search warrants who shall enter
 A SW violates Rule 126, Sec. 9 if the time therein the date of the return, the result, and
for making the search is left blank, thus other actions of the judge.
enabling the officers to conduct the search  A violation of this section shall constitute
in the evening of the appointed search. contempt of court.
[Asian Surety v. Herrera]  Goods seized remain under the court’s
 Where a search is to be made during the custody until institution of the appropriate
night time, the authority for executing the criminal action with the proper court.
same at that time should appear in the [Tenorio v. CA]
directive on the face of the SW. [Asian
Surety v. Herrera] RE: REQUEST OF POLICE DIRECTOR
12. Post-service GENERALAVELINO I. RAZON FOR
AUTHORITY TO DELEGATE THE
 Receipt of property seized ENDORSEMENT OF APPLICATION FOR
The officer seizing the property under the SEARCH WARRANT.
warrant must give a detailed receipt for the
same to the lawful occupant of the premises A.M. No. 08-4-4-SC
in whose presence the search and seizure
were made, or in the absence of such The request of P/Dir. Gen. Jesus A. Verzosa
occupant, must, in the presence of at least for leave to delegate to the Director [for
two witnesses of sufficient age and Investigation and Detective Management],
discretion residing in the same locality, leave PNP, the authority to endorse applications
for search warrants to be filed before the
RTCs of Manila and Quezon City, is C. Warrantless Searches

hereby GRANTED in accordance with Sec. 12,
Chapter V of A.M. No. 03-8-02-SC, as it is 1. When allowed 18
hereinafter amended; and 
CRIMINAL PROCEDURE
Warrantless searches allowed as incident of
lawful arrest
(2) Sec. 12, Chapter V of the Guidelines on the  Generally, Rule 126, Sec. 13, as
Selection and Appointment of Executive illustrated by jurisprudence
Judges and Defining their Powers, Prerogatives  A person lawfully arrested may be
and Duties, as embodied in A.M. No. 03-8-02- searched for dangerous weapons or
SC, as approved by the Court in its Resolution anything which may have been used or
of 27 January 2004, is hereby AMENDED to constitute proof in the commission of an
read as follows: offense without a search warrant. [Rule
126, Sec. 13]
SEC. 12. Issuance of search warrants in special
criminal cases by the Regional Trial Courts  The rule assumes that the arrest is
of Manila and Quezon City. – The Executive Judges legal. If the arrest is illegal, then the
and, whenever they are on official leave of absence search is illegal and as a result, the
or are not physically present in the station, the Vice- things seized are inadmissible as
Executive Judges of the RTCs of Manila and evidence.
Quezon City shall have authority to act on  The search is confined to his person,
applications filed by the National Bureau of but as an incident of an arrest, the place
Investigation (NBI), the Philippine National Police or premises where the arrest was made
(PNP) and the Anti-Crime Task Force (ACTAF), for
search warrants involving heinous crimes, illegal
can also be searched without a search
gambling, illegal possession of firearms and warrant. The extent and reasonableness
ammunitions as well as violations of the of the search must be decided on its
Comprehensive Dangerous Drugs Act of 2002, the own facts and circumstances. [Nolasco
Intellectual Property Code, the Anti-Money v. Paño (1985); note: the MR was
Laundering Act of 2001, the Tariff and Customs partially granted in 1987 and held that
Code, as amended, and other relevant laws that may the arrest was unlawful, thus the search
hereafter be enacted by Congress, and included was likewise unlawful.]
herein by the Supreme Court. o An officer making an arrest may take
from the person arrested any money
The applications shall be endorsed by the heads of
or property found upon his person
such agencies or their respective duly authorized
officials and shall particularly describe therein the which was used in the commission of
places to be searched and/or the property or things the crime or was the fruit of the crime
to be seized as prescribed in the Rules of Court. The or which might furnish the prisoner
Executive Judges and Vice-Executive Judges with the means of committing violence
concerned shall issue the warrants, if justified, which or of escaping or which may be used
may be served outside the territorial jurisdiction of as evidence in the trial of the cause.
the said courts. [People v. Musa (1997)]
o In People v. Leangsiri (1996), the
The Executive Judges and the authorized Judges accused were lawfully arrested in Rm
shall keep a special docket book listing names of 504 of a hotel and a warrantless
Judges to whom the applications are assigned, the search was conducted in Rm 413.
details of the applications and the results of the The search was held to be illegal.
searches and seizures made pursuant to the o In Chimel v. California (1969), the US
warrants issued. SC said that there is no justification
for searching through all of the desks
This Section shall be an exception to Section 2 of drawers or other closed and
Rule 126 of the Rules of Court. (Emphasis supplied.)
concealed areas in the room where
arrest was made. SW was needed.
This amendment shall apply to all current, as
o When one is legally arrested for an
well as succeeding heads of the PNP, NBI, and offense, whatever is found in his
ACTAF of the AFP. It shall take effect on 20 possession/control may be seized and
July 2009 and shall be published in a used in evidence against him. [Alvero
newspaper of general circulation in v. Dizon (1946)]
the Philippines not later than 5 July 2009. o Where the arrest was illegal, then
search and seizure incidental thereto
are also illegal. [People v. Aruta
(1998)]
o Where a search is first undertaken,  However, these searches would be

and an arrest was effected based on limited to visual inspection and the
evidence produced by such search, vehicles or their occupants cannot be 19
both search and arrest are illegal. [Lui subjected to physical or body searches,
CRIMINAL PROCEDURE
v. Matillano (2004)] except where there is probable cause to
believe that the occupant is a law
 Plain view doctrine (2008 Bar) offender or the contents of the vehicles
 Rationale: Authorities do not consider a are instruments or proceeds of some
mere observation of what is in plain view,
criminal offense.
a search.
Thus, objects falling in the plain view of a  Search and seizure without warrant of
police officer who has a right to be in the vessel and aircrafts for violation of
position to have that view are not products customs laws has been a traditional
of a search, may be seized and may be exception to the requirement of SW.
introduced in evidence. [Harris v. US [Roldan v. Hon. Arca (1975)]
(1968)]  Nonetheless, in all cases falling under
 Requisites: [People v. Valdez (1999), this category, there must be a showing
People v. Salanguit (2001)] of a PC of a violation of the law. [Caroll
o A prior valid intrusion i.e., based on v. US (1924)]
the valid warrantless arrest in which  Where a vehicle is stopped and
the police are legally present in the subjected to an extensive search, the
pursuit of their official duties; warrantless search is valid only as long
o Evidence was inadvertently as the officers conducting the search
discovered by the police who have a have reasonable or probable cause to
right to be where they are; believe before the search that they will
o Evidence must be immediately find the instrumentality/evidence
apparently illegal (i.e., drug
pertaining to a crime, in the vehicle to be
paraphernalia);
searched. [People v. CFI (1980)]
o Plain view justified mere seizure of
evidence without further search.
 Searches conducted in checkpoints [People v.
 Limitations: [People v. Musa (1993)]
Vinecario (2004)]
o It may not be used to launch unbridled
searches and indiscriminate seizures.  They are valid as long as they are
o Does not extend to a general warranted by the exigencies of public
exploratory search made solely to find order and conducted in a way least
evidence of defendant’s guilt. intrusive to motorists.
 The doctrine is usually applied where a  The vehicle is neither searched nor its
police officer is not searching for evidence occupants subjected to a body search
against the accused, but nonetheless (i.e. inspection of the vehicle is limited to
inadvertently comes across an a visual search).
incriminating object.
 Even if an object is in plain view, before it  Consented warrantless search
can be seized without a SW, its  Rationale: Right of privacy may be
incriminating nature must first be waived.
apparent.  When one voluntarily submits to a search
 Where police officers are on the premises or consents to have it made of his
pursuant to a valid consent to a search, an person/premises, he is precluded from
item falling into their plain view may later complaining thereof.[People v. Kagui
properly be seized even if the item is not Malasugui (1936)]
connected with their purpose in entering.  When is consented search reasonable:
Only if kept within the bounds of the actual
 Search of moving vehicle consent.
 Rationale: Peace officers may lawfully o A person’s consent may limit the
conduct searches of moving vehicles extent/scope of a warrantless search
without need of a warrant as it is in the same way that the
impracticable to secure a judicial specifications of a warrant limit the
warrant before searching a vehicle since search pursuant thereto.
it can be quickly moved out of the o Officers may not use a person’s
locality or jurisdiction in which the limited consent to get inside his home
warrant may be sought. and conduct a general search.
o The US SC said that a search for a
stolen TV set cannot extend to search
of an individual’s other papers and surrounding condition, to warrant the

documents. belief that the person has weapons
 On the other hand, where there is a nexus concealed about him. 20
between the crime for which the evidence
CRIMINAL PROCEDURE
is sought and the item that is seized, there  Exigent and emergency circumstances
is no abuse of the consent to a search.  Example: There was a prevailing general
chaos and disorder because of an ongoing
 Customs search coup, and the raid of the office/building
 For the enforcement of customs duties was precipitated by intelligence report that
and tariff laws, the Collector of Customs is said office was being used as HQ by the
authorized to effect searches and seizure. RAM. Also, the surveillance team before
[General Travel Services v. David (1966)] the raid was fired upon by the people
 The Tariff Code authorizes customs inside.
officers to:  The raiding team had no opportunity to
o Enter, pass through or search any apply for warrant as the court then was
land, enclosure, warehouse; closed. There was urgency and exigency
o Inspect / search / examine any that warrant was lawfully dispensed with.
vessel/aircraft and any trunk / [People v. de Gracia (1994)]
package / box / envelope or any
person on board, or stop and examine 2. Probable cause justifying warrantless
any vehicle/beast/person suspected of arrest and warrantless search
holding/conveying any  Probable cause justifying warrantless arrest
dutiable/prohibited article introduced and warrantless search
into the Philippines contrary to law. Definition: Such facts and circumstances
 General rule: The Tariff and Customs which could lead a reasonable, discreet and
Code does not require a warrant for such prudent man to believe that an offense has
searches. been committed and that the objects sought in
 Exception: In the search of a dwelling connection with the offense are in the place
house, SW is required. sought to be searched.
 This implies probability of guilt and
 Stop and frisk requires more than bare suspicion but
STOP AND FRISK — A limited protective less than evidence which would justify
search of outer clothing for weapon. [Malacat conviction. It is not determined by a fixed
v. CA (1997)] formula but is resolved according to the
 Where a police officer observes facts of each case.
unusual conduct, which leads him
reasonably to conclude in the light of his
D. Remedies of Party Subject of Search
experience that criminal activity may be
afoot, and that a person with whom he is Warrant
dealing may be armed and presently 1. Who may avail of remedies
dangerous,
 where in the course of investigating this  SW’s illegality may be contested only by the
party whose rights have been impaired
behavior he identifies himself as a
thereby. It cannot be availed by 3rd parties.
policeman and makes reasonable
[Lim v. Ponce de Leon (1975)]
inquiry, and where nothing in the initial  Hence, when a corporation’s documents were
stage of the encounter serves to dispel seized, the corporate officers cannot question
his reasonable fear for his own or the legality of the search as their personalities
others’ safety, he is entitled for the are separate and distinct from that of the
protection of himself and others in the corporation. [Stonehill v. Diokno (1967)]
area to conduct a carefully limited
search of outer clothing of such persons 2. Remedies
in an attempt to discover weapons which a. Employ any means to prevent the search.
might be used to assault him. [Terry v.  Without a SW, the officer cannot insist on
Ohio (1968)] entering a citizen’s premises. If he does so, he
 Under this theory, PC is not required to becomes an ordinary intruder.
conduct a “stop and frisk” but,  The person to be searched may resist the
nevertheless, mere suspicion/hunch will search and employ any means necessary to
not validate a “stop and frisk”. prevent it, without incurring any criminal
 A genuine reason must exist, in light of liability. [People v. Chan Fook (1921)]
the police officer’s experience and
b. File criminal action against officer.
 A public officer/employee who procures a SW 3. Effect of failure to quash warrant

without just cause is criminally liable under Art.
129, RPC.  Where no MTQ the search warrant was filed in 21
or resolved by the issuing court, the interested
CRIMINAL PROCEDURE
c. File a Motion to Quash the illegal SW. party may move in the court where the criminal
 This remedy is employed if search is not yet case is pending for the suppression of the
conducted. personal property seized IF the same is
 General rule: The motion must be filed before offered therein as evidence (REGALADO).
the sala of the judge who issued it. Only the  The MTQ a search warrant and Motion to
court that issued the SW may order revocation Suppress Evidence are alternative, not
of SW or release of things seized. cumulative remedies.
[Pagkalinawan v. Gomez (1967)] 4. Effects of illegal search
 Exception: Where the SW is issued by one
court and the criminal action based on the  Illegally seized evidence may not be admitted
results of the search is afterwards filed in in evidence in any proceeding. [Art. 3, Sec. 2,
another court, the motion may be filed in either 1987 Consti]
court. [People v. CA (1999)]
 What may be raised in the MTQ:  DISPOSITION OF ILLEGALLY SEIZED
 Existence or non-existence of probable PROPERTY
cause at the time of issuance of the SW;  General rule: Goods seized by virtue of
 Compliance with procedural and an illegal warrant must be returned [Castro
substantial requisites. v. Pabalan (1976)]
Matters of defense are to be raised in the  Exception: If possession of the things
criminal action. [DOH v. Sy Chi Siong (1989)] seized is prohibited by law, they shouldn’t
be returned.
d. File a motion to return seized things.  However, where the accused obtained
 This is the remedy used if the search was goods from another through payment of
already conducted and goods were seized as bouncing checks and thereafter sold said
a consequence thereof. goods to a buyer in good faith, but said
 Where the motion will be filed follows the same goods were taken from the purchaser with
rules as 2(c) above. the use of a SW although the criminal
case for estafa against the accused was
e. Motion to quash a search warrant or to still pending, the goods should be returned
suppress evidence (2005, 2007 Bar) to the buyer. The buyer is entitled to
possession of goods until restitution is
Rule 126, Sec. 14 Where to file ordered by the court in the criminal case.
If criminal action has Court where the action [Yu v. Honrado (1980)]
been filed has been instituted
If no criminal action has Court that issued SW 5. Waiver of immunity against
been instituted unreasonable searches and seizure
If no criminal action is Court where the [Pasion v. Locsin (1938)]
filed and motion is first subsequent criminal
 The constitutional immunity against
filed with the court that action has been instituted
unreasonable searches and seizure is a
issued the SW, but it
failed to resolve the personal right that may be waived
motion and a criminal expressly/impliedly.
case is subsequently  Waiver cannot be made just by anyone, except
filed in another court the person whose right is being invaded or one
who is expressly authorized to do so in his
 Grounds for a Motion to Quash [Bache & behalf.
Co. v. Ruiz (1971)]  Requisites of a valid waiver:
o No personal examination by the judge o It must appear that the right exists;
o More than one specific offense o That the person involved had knowledge,
o No particular description (actual or constructive) of the existence of
 Who may file such right;
o Person injured o That the person had an actual intention to
o Person searched relinquish the right.
o Owner of the property
 An accused may file a Motion to Suppress
Evidence if he is not among the persons who
can file a Motion to Quash.
E. Criminal and Civil Liability of an

Illegal Search Warrant
22
 Criminal Liability
CRIMINAL PROCEDURE
 Violation of the following:
o Violation of domicile (RPC Art. 128)
o SW maliciously obtained (Art. 129)
o Searching domicile without witnesses
(Art. 130)
o Unjust interlocutory order (Art. 206)
 Grounds:
Against public officer or employer:
o Entering without authority; against the
will; refuses to leave
o SW procured without just cause or if
with just cause, exceeds is authority
or use of unnecessary severity
o Without required witnesses
Against judge
o For knowingly rendering an unjust
interlocutory order
o Inexcusable negligence or ignorance
 Civil Liabilities
 Violation of the following:
o Violation of rights and liberties (Art.
32, CC)
o Malicious prosecution and acts
referred to Art. 32. (Art. 2218, CC)
 Malice or bad faith is not required
 Not only official actions, but makes all
persons who are responsible for the
violation liable for damages [MHP
Garments v. CA (1994)]
REMEDIAL LAW REVIEWER Chapter 4: ARREST
 Diplomatic Immunity - Ambassadors

Chapter 4: Arrest and ministers of foreign countries. [RA
75] 23
A. CONCEPT
CRIMINAL PROCEDURE
B. PROCEDURE
1. CONSTITUTIONAL REQUIREMENTS ON B. Procedure
ARREST 1. Constitutional requirements on arrest
2. ARREST WITH WARRANT
3. ARREST WITHOUT WARRANT  The right of the people to be secure in
4. ILLEGAL ARREST their persons, houses, papers, and
5. RIGHT OF ATTORNEY OR RELATIVE effects against unreasonable searches
TO VISIT ARRESTED PERSON
and seizures of whatever nature and for
C. OTHER FORMS OF ARREST WARRANTS
1. HUMAN SECURITY ACT, RA NO. 9372 any purpose shall be inviolable, and no
2. BID ARREST BY VIRTUE OF AN ORDER search warrant or warrant of arrest shall
OF DEPORTATION issue except upon probable cause to be
D. CUSTODIAL INVESTIGATION determined personally by the judge after
1. WHAT IS EMBRACED IN CUSTODIAL examination under oath or affirmation of
INVESTIGATIONS; WHAT IS NOT the complainant and the witnesses he may
2. CUSTODIAL RIGHTS OF THE ACCUSED produce, and particularly describing the
3. CONSEQUENCES OF VIOLATION OF place to be searched and the persons or
CUSTODIAL RIGHTS
things to be seized. [Art. 3, Sec. 2, Consti]
A. Concept
2. Arrest with warrant
ARREST – Taking of a person into custody (2008 Bar)
in order that he may be bound to answer
for the commission of an offense. [Rule  Issuance
113, Sec. 1] Essential Requisites of a Valid Arrest
Warrant [Art. 3, Sec. 2, Consti]
 Ordinarily, an invitation to attend a hearing o It must be issued upon probable
and answer some questions, which the cause which must be determined
person invited may heed or refuse at his personally by a judge after
pleasure, is not illegal or constitutionally examination under oath or affirmation
objectionable. of the complainant and the witnesses
 However, where the invitation comes from he may produce.
a powerful group composed predominantly o The warrant must particularly describe
of ranking military officers issued at a time the person to be seized.
when the country has just emerged from
martial rule and when the suspension of  Instances When Judge Issues Warrant of
the privilege of the writ of habeas corpus Arrest
has not entirely been lifted, and the  Upon the filing of the information by
designated interrogation site is a military the public prosecutor and after
camp, the same can be easily taken, not personal evaluation by the judge of
as a strictly voluntary invitation which it the prosecutor’s resolution and
purports to be, but as an authoritative supporting evidence. [Rule 112,
command which one can only defy at his Sec. 6(a)]
peril. Although in the guise of a request, it o The judge does not have to
was obviously a command or an order of personally examine the
arrest that a person could hardly be complainant and his witnesses.
expected to defy. [(Sanchez v. Demetriou The prosecutor can perform the
(1993)] same functions. [Soliven v.
 Immunity from arrest Makasiar (1988)]
 Parliamentary Immunity - Senators o Bare certification by the fiscal is
and Members of the House of not enough. It should be
Representatives, while Congress is in supported by a report and
session and for offenses punishable necessary documents. [Lim v.
by not more than 6 years Felix (1991)]
imprisonment. [Art. 6, Sec. 11, Consti]
o Examples of Evidence To Be delivered shall cause the warrant

Examined: complaint, affidavits to be executed within ten (10)
and counter-affidavits. days from its receipt 24
 Upon application of a peace officer  To make a report to the judge who
CRIMINAL PROCEDURE
and after personal examination by the issued the warrant within 10 days after
judge of the applicant and the expiration of the period to execute.
witnesses he may produce. [Rule 112, o In case of his failure to execute,
Sec. 6(b)] he shall state the reasons
o Rationale: There is yet no therefore
evidence on record upon which  To arrest the accused and deliver him
judge may determine the to the nearest police station or jail
existence of PC. without unnecessary delay. [Rule 113,
o Conditions: Sec. 3]
 The investigating judge must
have examined in writing and  Rights of the arresting officer
under oath the complainant  To summon assistance. [Rule 113,
and his witnesses by Sec. 10]
searching questions and o He may orally summon as many
answers. persons as he deems necessary
 He must be satisfied that PC to assist him in effecting the
exists; arrest.
 There is a need to place the o Persons summoned shall assist in
respondent under immediate effecting the arrest when he can
custody in order not to do so without detriment to himself.
frustrate the ends of justice.  To break into any building/enclosure
[Samulde v. Salvani (1988)] where the person to be arrested is or
 A warrant of arrest has no expiry is reasonably believed to be. [Rule
date. It is only subject to the 113, Sec. 11]
requirements found in Section 4, Rule o If he is refused admittance after
113. announcing his authority and
purpose.
 How arrest is made o Also applicable where there is a
 No violence or unnecessary force shall valid arrest without a warrant.
be used in making an arrest. Person o Rationale: Person to be arrested
arrested shall not be subject to a cannot use his
greater restraint than necessary. [Rule house/building/enclosure as a
113, Sec. 2, par. 2] shelter for crime. The inviolability
 Application of actual force, manual of domicile cannot be used to
touching of the body, physical restraint shield arrest.
or a formal declaration of arrest is not  To break out from the
required. building/enclosure when necessary to
 It is enough that there be an intent on liberate himself. [Rule 113, Sec. 12]
the part of one of the parties to arrest o Also applicable where there is a
the other and an intent on the part of valid arrest without a warrant.
the other to submit, under the belief  To search the person arrested for
and impression that submission is dangerous weapons or anything which
necessary. [Sanchez v. Demetriou may have been used or constitute
(1993)] proof in the commission of an offense.
[Rule 126, Sec. 13]
 Time to make arrest o Without need of a search warrant
Arrest may be made on any day and at if it is incidental to a lawful arrest.
any time of the day or night [Rule 113,
Sec. 6]
3. Arrest without warrant
 Duties of the arresting officer (1997, 2000, 2003, 2004 Bar)
 Execution of warrant (section 4, Rule
113)  IN FLAGRANTE DELICTO – Literally,
o The head of the office to whom caught in the act of committing a crime.
the warrant of arrest was When the person to be arrested has
committed, is actually committing or is  Meaning of “offense has in fact just

attempting to commit an offense in the been committed”: implies immediacy in
presence of the peace officer or private point of time 25
person who arrested him. [Rule 113, Sec.
CRIMINAL PROCEDURE
5(a)]  ARREST OF ESCAPED PRISONER
 “In his presence” means: [People v.  When the person to be arrested is a
Evaristo (1992)] prisoner who has escaped: [Rule 113,
o He sees the offense, even though at Sec. 5(c)]
a distance; o From a penal establishment or
o He hears the disturbances created place where he is:
by the offense and proceeds at  Serving final judgment;
once to the scene;  Temporarily confined while his
o Offense is continuing or has been case is pending.
consummated at the time arrest is o While being transferred from one
made. confinement to another.
 Entrapment  Escapee may be immediately pursued
o An arrest made after an entrapment or re-arrested without a warrant at any
does not require a warrant time and in any place within the
inasmuch as it is considered a valid Philippines. [Rule 113, Sec. 13]
warrantless arrest pursuant to Rule  Rationale: At the time of arrest, the
113, Sec. 5(a) of the Rules of Court. escapee is in continuous commission of
[Teodicio v Court of Appeals (2004)] a crime (i.e. evasion of service of
 Buy-bust operation sentence).
o When the appellant is caught in
flagrante as a result of the buy-bust  Duties of arresting officer without warrant
operation, the policemen are not  The officer shall inform the person to
only authorized but are also under be arrested of his authority and the
obligation to apprehend the drug cause of the arrest. [Rule 113, Sec. 8]
pusher even without a warrant of  Exceptions:
arrest. [People v de Lara (1994)] o The person to be arrested is
engaged in the commission of the
 HOT PURSUIT ARREST - When an offense offense;
has just been committed and the officer or o He is pursued immediately after its
private person has probable cause to commission;
believe, based on personal knowledge of o He escapes, flees or forcibly resists
facts or circumstances, that the person to be before the officer has the
arrested has committed it [Rule 113, Sec. opportunity to so inform him;
5(b)] o Giving such information will imperil
 Officer/private person must have the arrest.
personal knowledge of offense just
committed  Duties of private person effecting an arrest
o Personal knowledge must be based  The private person shall inform the
on “probable cause” which means
person to be arrested of the intention
an actual belief or reasonable
to arrest him and the cause of the
grounds of suspicion.
o The grounds of suspicion are arrest. [Rule 113, Sec. 9]
reasonable when, in the absence of  Exceptions (same as those for arrest
actual belief of the arresting officer, by an officer)
the suspicion that the person to be  The private person must deliver the
arrested is probably guilty of arrested person to the nearest police
committing the offense is based on station or jail, and he shall be
actual facts, i.e., supported by proceeded against in accordance with
circumstances sufficiently strong in Rule 112, Sec. 7.
themselves to create the probable  Otherwise, the private person may be
cause of guilt of the person to be held liable for illegal detention.
arrested.
o A reasonable suspicion therefore
must be founded on probable 4. Illegal arrest
cause, coupled with good faith on
 If the arrest of a person is without a warrant
the part of the peace officers
and not justified by any of the instances of a
making the arrest.. [Posadas v.
warrantless arrest under Rule 113, Sec. 5.
Ombudsman (2000)]
 The fact that the person arrested did not C. Other Forms of Arrest Warrants
actually commit the crime does not render
the arrest illegal. 1. Human Security Act, RA No. 9372 26

CRIMINAL PROCEDURE
Suspected “terrorists” may be detained
 Consequences of illegal arrest
without judicial warrant or arrest for up to 3
 The documents/things/articles seized days, without the police or law enforcement
following the illegal arrest are not personnel incurring any criminal liability [Sec
admissible in evidence. They are 18, RA 9372]
considered fruits of the poisonous
tree. 2. Bureau of Immigration and
 The arresting person/officer may be Deportation arrest by virtue of an
held criminally liable for illegal arrest. order of deportation
o Unlawful arrest; [Art. 269, RPC]  Aliens shall be arrested upon the warrant of
o Arbitrary detention. [Art. 124, RPC] the Commissioner of Immigration or of any
 The arresting officer may be held other officer designated by him for the
civilly liable for damages. [Art. 32, CC] purpose and deported upon the warrant of
 It is not necessary that there should the Commissioner of Immigration after a
be bad faith or malice. Such requisite determination by the Board of
would defeat the main purpose of the Commissioners of the existence of the
provision which is the effective ground for deportation as charged against
protection of individual rights. the alien. [Sec. 37, CA No. 613 (The
 The fact that the arrest was illegal Philippine Immigration Act of 1940)]
does not render the subsequent
proceedings void and deprive the D. Custodial Investigation
State of its right to convict when all the  Occurs when:
facts point to the culpability of the (1) A person has been taken in custody;
accused and the accused has (2) Is being singled out as a suspect for an
recognized the jurisdiction of the court offence;
over his/her person. (3) Law enforcers question such person;
(4) In order to elicit information.
 Waiver of illegal arrest  Custodial investigation begins where the
 The accused may waive the illegality investigation is no longer a general inquiry
of his arrest either expressly or into an unsolved crime but has began to
impliedly. focus on a particular suspect, the suspect
 The objection to illegality of arrest has been taken into police custody, and the
must be made before arraignment in a police carry out a process of interrogation
motion to quash; otherwise it is that lends itself to eliciting incriminating
deemed waived. [Rule 117, Sec. 9] statements. [People v. Rodriguez]
 Application for or admission to bail
does not amount to waiver. [Rule 114, 1. What is embraced in custodial
Sec. 26] investigations; what is not
 Included in custodial investigation
5. Right of attorney or relative to visit  The practice of issuing an "invitation"
arrested person to a person who is investigated in
[Rule 113, sec. 14] connection with an offense he is
suspected to have committed. [Sec.
 At the request of the arrested person
2, last par., RA 7438]
or of another acting in his behalf, any
member of the Philippine Bar shall  RE-ENACTMENT – A demonstration
have the right to visit and confer by the accused of how he committed
privately with such person in the jail or the crime. It is a police contrivance
any other place of custody at any hour designed to test the truthfulness of the
of the day or night. statements of the witness who had
confessed to the commission of the
 A relative of the person can also
crime.
exercise this right, subject to
reasonable regulations.  One-on-one confrontation. This
method is as tainted as confession
without the presence of counsel.
[People v. Teves (2001)]
 Statements or admissions not covered by  Signing of the waiver to the provisions of

custodial investigation Art. 125, RPC.
 POLICE LINE-UP – conducted before 27
the custodial investigation, the  To be informed, in a language known to and
CRIMINAL PROCEDURE
purpose of which is to identify the understood by him, of his rights to remain
suspect among many persons lined silent and to have competent and
up. independent counsel, preferably of his own
 The stage of the investigation wherein choice, who shall at all times be allowed to
a person is asked to stand in a police confer privately with the person arrested,
detained or under custodial investigation.
line-up is outside the mantle of
 If he cannot afford to have his own
protection of the right to counsel
counsel, he must be provided with a
because it involves a general inquiry
competent and independent counsel by
into an unsolved crime and is purely the investigating officer.
investigatory in nature. [People v.  Assisting counsel may be any lawyer,
Pavillare (2000)] except those:
 TOTALITY OF CIRCUMSTANCES o Directly affected by the case;
TEST – test employed in resolving the o Charged with conducting
admissibility of out-of-court preliminary investigation;
identification of suspects; requires the o Charged with the prosecution of
following factors to be considered: crimes; [Sec. 3, RA 7438]
[People v. Teehankee (1995)]
o The witness’ opportunity to view the  To be allowed visits by or conferences with:
criminal at the time of the crime;  Any member of his immediate family
o The witness’ degree of attention at ("Immediate family" includes his or her
that time; spouse, fiancé or fiancée, parent or
o The accuracy of any prior child, brother or sister, grandparent or
description given by the witness; grandchild, uncle or aunt, nephew or
o The level of certainty demonstrated niece, and guardian or ward), or
by the witness at the time of
 Any medical doctor or
identification;
o The length of time between the  Priest or religious minister
crime and the identification;  chosen by him or by any member of his
o The suggestiveness of the immediate family or by his counsel, or
procedure. by
 ULTRAVIOLET RAY EXAMINATION  Any national NGO duly accredited by
– its purpose is to determine the the Commission on Human Rights or
presence of ultraviolet powder and by any international NGO duly
does not require presence of counsel. accredited by the Office of the
President.
2. Custodial rights of the accused

3. Consequences of violation of
[Sec. 2, RA 7438] custodial rights
 To be assisted by counsel at all times.  Failure to inform.
 Waiver of the right to counsel must be o Any arresting public officer or employee, or
made with the assistance of counsel. any investigating officer, shall suffer a fine of
P6,000.00 or a penalty of imprisonment of
[Art. 3, Sec. 12(1), Consti] not less than 8 years but not more than 10
 Specifically in the following instances: years, or both.
o Signing of the written custodial o The investigating officer who has been
report; previously convicted of a similar offense shall
o Signing of the written extra-judicial suffer the penalty of perpetual absolute
confession (2008 Bar) disqualification.
o In the absence of counsel and upon  Obstruction, prevention or prohibition of
valid waiver, it may be made in the right to visits or conferences
presence of any his parents, elder o Any person guilty thereof shall suffer the
brothers and sisters, spouse, the penalty of imprisonment of not less than 4
municipal mayor, the municipal years nor more than 6 years and a fine of
P4,000.00
judge, district school supervisor, or
priest/minister of the gospel as  Inadmissibility of evidence does not
chosen by him. preclude conviction on other evidence
REMEDIAL LAW REVIEWER Chapter 5: PROSECUTION of OFFENSES
otherwise provided in special laws. [Rule

Chapter 5: Prosecution of Offenses 110, Sec. 1]
 Prescription is interrupted with the filing of 28
A. INSTITUTION OF CRIMINAL ACTIONS the case even if the filing of the case even
CRIMINAL PROCEDURE
1. IN GENERAL if the court is without jurisdiction
2. PROSECUTION (Francisco vs. CA, 122 SCRA 538)
3. COMPLAINT OR INFORMATION
4. EFFECTS
5. COMPLAINT OR INFORMATION Exception:
6. PLACE WHERE ACTION IS TO BE The Court held that the interruption of the
INSTITUTED prescriptive period upon the institution of the
7. INTERVENTION OF OFFENDED PARTY complaint under Sec.1 of Rule 110 does not
B. PROSECUTION OF CIVIL ACTION apply to cases for violation of special acts and
1. IN GENERAL municipal ordinances. This is governed by Act
2. CIVIL LIABILITY No. 3326 and is interrupted only by the
3. SUSPENSION OF CIVIL ACTION
institution of judicial proceedings for its
4. EFFECT OF DEATH OF ACCUSED ON
CIVIL ACTION
investigation and punishment [Zaldivia vs.
5. EFFECT OF JUDGMENT IN CIVIL CASE Reyes, 211 SCRA 277]
ON CRIMINAL ACTION
2. Prosecution
A. Institution of Criminal Actions
General rule: The prosecution of a criminal
case may not be enjoined by prohibition/
1. In general injunction.
A criminal action is commenced in this
jurisdiction by the filing of a complaint or Rationale: Public interest requires that
information. The complaint may be filed either criminal acts be immediately investigated and
with the MTC or with a public prosecutor or prosecuted for the protection of society.
purposes of conducting a preliminary
investigation. Exceptions (1999 Bar):
 To afford protection to the constitutional
rights of the accused;
a. Institution and Commencement of  Necessary for the orderly administration
actions for justice or to avoid multiplicity of
For offenses which require a preliminary actions;
investigation pursuant to section 1 of Rule 112  There is a prejudicial question which is
(where the penalty prescribed by law is at sub judice;
least four (4) years, two (2) months and one  The acts of the officer are without or in
(1) day without regard to the fine), the criminal excess of authority;
action is instituted by filing the complaint with  The prosecutions is under an invalid
the appropriate officer for PI. In offenses law/ordinance/regulation;
cognizable by inferior courts the complaint or  When double jeopardy is clearly apparent;
information is filed directly with said courts or  The court has no jurisdiction over the
the complaint is filed with the fiscal. In offense;
Metropolitan Manila and other chartered cities,  A case of persecution rather than
the complaint may be filed with the office of prosecution;
the public prosecutor unless otherwise  The charges are manifestly false and
provided in their charters. [Rule 110, Sec. 1] motivated by the lust for vengeance;
 There is clearly no prima facie case
The criminal action is commenced when the against the accused and MTQ on that
complaint or information is filed in court. ground has been denied;
 Preliminary injunction has been issued by
the SC to prevent the threatened unlawful
b. Effect of the Institution of criminal arrest of petitioners.
action on the prescriptive period
General Rule: a. By whom prosecuted
 The institution of a criminal action shall
interrupt the running of the period of General Rule:
prescription of the offense charged unless  All criminal actions either commenced by
complaint or by information shall be
prosecuted under the direction and control prosecution may file after the Secretary of
of a public prosecutor [Rule 110, Sec. 5] Justice reverses an appealed decision
 The public prosecutor is a quasi-judicial [Roberts Jr. vs. CA, GR 113930] 29
officer and a representative of sovereignty
CRIMINAL PROCEDURE
whose obligation to govern impartially is The trial court is not bound to adopt the
as compelling as its obligation to govern at resolution of the Secretary of Justice since it is
all. mandated to the independently evaluate or
assess the merits of the case and it may either
Exception: agree or disagree with the recommendation of
 In case of (1) heavy work schedule of the the Secretary of Justice.
public prosecutor or (2) in the event of lack
of public prosecutors, the private
prosecutor may be authorized in writing by
c. Effects of the lack of intervention by
the Chief of the Prosecution Office or the the fiscal in the trial
Regional State Prosecution to prosecute  Although the private prosecutor had
the case subject to the court’s approval. previously been authorized by the special
The authority will continue until revoked or counsel to present the evidence for the
withdrawn. prosecution, in view of the absence of the
 The private prosecutor is the attorney City Fiscal at the hearing, it can’t be said
representing the offended where the civil that the prosecution of the case was under
action for recovery of civil liability is the control of the City Fiscal. It follows
instituted with the criminal case. that the evidence presented by the
private prosecutor at said hearing
b. Extent of the prosecutor’s control could not be considered as evidence
for the plaintiff [People vs. Beriales, 70
1. Prior to the filing of the case SCRA 361].
 The prosecutor has the discretion to
file or not to file a criminal action.
d. Cases that cannot be prosecuted de
 The prosecutor is vested with
discretion as to who is to prosecute oficio
and for what; he can’t be compelled to  Those which cannot be prosecuted except
file particular information. However, if upon complaint filed by the
the evidence presented at the PI aggrieved/offended party.
leaves no doubt as to what crime was 1. Adultery/concubinage
committed and by whom, then 2. Seduction, abduction, acts of
mandamus is available to compel the lasciviousness
prosecuting officer to file the 3. Defamation which consists of
corresponding complaint or imputation of any of the foregoing
information in accordance with the offenses.
evidence [Bernabe vs. Bolinas, 18  Rationale: The aggrieved party might
SCRA 812]. prefer to suffer the outrage in silence
rather than go through the scandal of
2. After a case is filed public trial.
 Once a criminal case has been filed in
court, it is the prosecutor’s duty,
regardless of his personal convictions Offended parties who can file complaint
or opinions, to proceed with the  In adultery and concubinage – The
presentation of his evidence to enable offended spouse. Both guilty parties
the court to arrive at its own judgment should be included if both are alive.
of the accused’s culpability.  In oral defamation – can only be brought
 After an action has been filed in court, upon instance and upon complaint of the
the prosecutor has no power to offended party.
dismiss the action without the court’s
consent.
Effect of -
While the Secretary of Justice has the a. Death of offended party
authority to review the acts of his subordinates
in criminal cases, the court has always the  Once a complaint is filed, the will of the
discretion to try a motion to dismiss which the offended party is ascertained and the
action proceeds. Death after filing the extinguished in the same manner as other
complaint would not deprive the court of obligations.
the jurisdiction to try the case. 30
 The State shall initiate the action on behalf 3. Complaint or Information
CRIMINAL PROCEDURE
of the offended party, in case of his
death/incapacity and he has no known a. Complaint defined
parents/grandparents/guardians.  Definition: A sworn written statement
 In adultery/concubinage, such death does charging a person with an offense,
not extinguish the criminal liability of subscribed by the offended party, any
accused. peace officer or other public officer
b. Desistance by offended party charged with the enforcement of the law
violated. [Rule 110, Sec. 3]
 It does not bar the People of the  Persons authorized to file the complaint:
Philippines from prosecuting the criminal  offended party
action, but it operates as a waiver of the  any peace officer
right to pursue civil indemnity.
 other public officer charged with the
 An affidavit of desistance cannot justify
enforcement of the law violated
dismissal of the complaint if made after
 Complaint refers to private crimes
(and not before) the institution of the
 Criminal cases under the Revised Rules
criminal action.
on Summary Procedure shall be either by
c. Pardon by offended party complaint or by information; provided that
in MM and in chartered cities the criminal
 In rape, seduction, abduction and acts of action may only be commenced by the
lasciviousness of a minor – The pardon filing of information (which means by the
will be effective if given by both parents prosecutor), except when the offense
and the offended party. cannot be prosecuted de oficio.
 In seduction, abduction and acts of  The complaint must be under oath. But
lasciviousness - Express pardon by the lack of oath is not a formal defect and will
offended party, parents, grandparents or not invalidate a judgment.
guardian will prevent prosecution. [Rule
110, Sec. 5]
 The parents/grandparents/guardian of the b. Information defined
offended minor (in that order) cannot
 Definition: An accusation in writing,
extend a valid pardon without conformity
charging a person with an offense,
of the offended party, even if the latter is a
subscribed by the prosecutor and filed
minor. [US v. Luna (1902)]
with the court. [Rule 110, Sec. 4]
 If the offended woman is of age and not
 It is filed by the prosecutor and need not
incapacitated, only she can extend a valid
be under oath. But it must be signed and
pardon which would absolve the offender.
subscribed by the by the fiscal/prosecutor.
 What the prosecutor signs under oath is
 General rule:
certification that he has conducted the
Pardon must be made before the filing of
required preliminary investigation (PI).
the criminal complaint in court. (except in
Lack of certification does not invalidate
rape where marriage between the
judgment. [People v. Bulaong (1981)]
offender and the offended party would be
 Information is valid when signed by
effective as pardon even when the
prosecutor who has authority to conduct
offender has already commenced serving
PI of the offense committed within his
his sentence)
jurisdiction.
 Information refers to public crimes.
 If there are more than one accused, the
 The "complaint" referred to in Rule 110
pardon must be extended to all offenders.
contemplates one filed in court, not with
 Marriage between offender and offended
the fiscal. In that case, the proceeding
party.
must be started by the aggrieved party
 Pardon or desistance extinguished civil
himself.
liability
 For as a general rule, a criminal action is
 Pardon or express condonation has the
commenced by complaint or information,
effect of waiving the civil liability with
both of which are filed in court. In case of
regard to the interest of the injured party.
a complaint, it must be filed by the
For liability arising from an offense is
offended party; with respect to an o To enable the court to pronounce

information, it is the fiscal who files it. proper judgment.
 But a "complaint" filed with the fiscal prior Allegations required to safeguard right to 31
to a judicial action may be filed by any be informed
CRIMINAL PROCEDURE
competent person. [Ebarle v. Sucaldito o Allegations must be in ordinary or
(1987)] concise language, sufficient to enable
a person of common understanding to
know what offense is being charged.
c. Form & Substance o This must be done both for the
 Sufficiency of complaint or information offense charged and the
A complaint or information is sufficient if it circumstances involved in its
states the name of the accused; the commission. [Rule 110, Sec. 9]
designation of the offense given by the o The prosecutor’s characterization of
statute, the acts or omissions complained the crime is immaterial and
of as constituting the offense; the name of purposeless. The facts stated in the
the offended party; the approximate date body of the complaint/information
of the commission of the offense; and the determine the crime of which the
place where the offense was committed. accused stands charged and for which
[Rule 110, Sec. 6] he must be tried.
 Name of the accused  Qualifying and aggravating

 It must include the name and surname circumstances must be alleged
of the accused, as well as any Under the 2000 Rules of Criminal
appellation or nickname by which he Procedure [Rule 110, Sec. 8], aggravating
has been or is known. circumstances must be specified in the
 If the name cannot be ascertained, he information, otherwise they are not to be
must be described under a fictitious considered even if proven during the trial.
name with a statement that his true
name is unknown. His true name will  What to allege
be inserted if eventually disclosed or Where law prescribes exceptions
appears in some manner to the court. o General rule: Where the law alleged
[Rule 110, Sec. 7] to have been violated prohibits
 If there are more than 1 accused, generally acts therein defined and is
name all of them. [Rule 110, Sec. 6] intended to apply to all persons
indiscriminately, but prescribes certain
 Designation of the offense limitations/exceptions from its
 Aver the acts and omissions violation, the indictment/information is
constituting the offense. Specify the sufficient if it alleges facts which the
qualifying and aggravating offender did as constituting a violation
circumstances. [Rule 110, Sec. 8] of law, without explicitly negating the
 This is a procedural requirement to exception, as the exception is a matter
safeguard the right of the accused to of defense which the accused has to
be informed of the nature and cause prove.
of the accusation against him. o Exception: Where the statute alleged
Information is legally viable as long as to have been violated applies only to
it distinctly states the statutory specific classes of persons and
designation of the offense and the special conditions and the exemptions
acts or omissions thereof. from its violation are so incorporated
in the language defining the crime that
 In case of conflict between the
the ingredients of the offense cannot
designation of the crime and the
be accurately and clearly set forth if
recital of facts constituting the offense,
the exemption is omitted, then the
the latter prevails over the former.
indictment must show that the
 Cause of accusation accused does not fall within the
Purpose exemptions.
o To enable a person of common
 Where exceptions form as ingredients
understanding to know what offense is
of offense
intended to be charged;
If the exception is needed for defining the sufficient definiteness is a motion

offense, then the information should for a bill of particulars under Rule
negate the exception. [US v. Chan Toco 116, Sec. 6. 32
(1908)]  The accused may also file a MTQ
CRIMINAL PROCEDURE
on the ground that allegations are
 Where complex crime is charged so vague and the time of
o Where what is alleged in the commission of the offense so
information is a complex crime and remote that he is denied due
the evidence fails to support the process and the right to be
charge as to one of the component informed of the accusation against
offenses, the defendant can only be him. But defect in the date is not a
convicted of the offense proven. ground for MTQ under Rule 116.
 Place of commission of offense  Name of the offended party [Rule 110,

o General rule: It is sufficient if it can be Sec. 12]
understood that the offense (or some  If an offense against person: Name
of its essential ingredients) was and surname; nickname/appellation;
committed within jurisdiction of the fictitious name, if real name is
court. unknown.
o Exception: If the particular place  If an offense against property:
where it was committed: o If name is unknown, particularly
 Constitutes an essential element describe the property to identify
of the offenses charged; the offense;
 Is necessary for its identification. o If the name is later known, insert
it;
 Time of commission of the offense o If a juridical person, name or
 General rule: The precise date is not known name; without need to aver
necessary. that it is juridical.
 Exception: When the date is a  Where the name of the injured party is
material ingredient of the offense. necessary as matter of essential
 The determinative factor in the description of the crime charged, the
resolution of the question involving a complaint must invest such person
variance between allegation and proof with individuality by either naming him
in respect of the date of the crime is or alleging that his name is unknown.
the element of surprise on the part of  It is elementary that in crimes against
the accused and his inability to defend property, ownership must be alleged
himself properly. as matter essential to the proper
o Need not be exact description of the offense. [US v.
 As long as the alleged date is not Lahoylahoy (1918)]
so remote or far removed from the
actual date so as to surprise and  Duplicity of offenses [Rule 110, Sec. 13]
prejudice the accused, then the  General rule:
information is valid. The information must charge only one
o When date is so remote: defective offense.
 The allegation in the information  Exception:
of “on or about the year 1992” is When the law prescribes a single
defective as it violates Rule 110, punishment for various offenses.
Sec. 11 and the accused’s right to  Purpose:
be informed of the nature and To give the accused the necessary
cause of the accusation against knowledge of the charge to enable
him, because the phrase not only him to prepare his defense. Hence,
includes 12 months of the year when an information charges more
1992 but also years prior and than one offense, the accused may
subsequent to 1992. file a MTQ on the ground of duplicity
o Remedy in case of defect in of offenses.
averment of time
 The remedy against an indictment  Several modes of committing offense not
that fails to allege the time of duplicitous
commission of the offense with
 In case of crimes susceptible of being would be available after the

committed in various modes, the amendment is made, and
allegations in the information of the o WON any evidence defendant 33
various ways of committing the might have would be equally
CRIMINAL PROCEDURE
offense would be regarded as a applicable to the information in the
description of only one offense and one form as in the other. [People
information is not rendered defective. v. Casey (1981)]
 Exception
 Complex crimes AMENDMENT SUBSTITUTION
 Special complex crimes Formal or Substantial Substantial change form
 Continuous crimes changes original
 Crimes susceptible of being Can be effected without Must be with leave of
leave of court court
committed in various modes
Only as to form, there is Another PI is entailed
 Crimes which another offense is no need for another PI and accused has to
an ingredient [People v. Camerino and retaking of plea plead anew
(1960)] Amended information Involves a different
refers to the same offense which does not
offense charged in the include those provided
d. Amendment or substitution original information or to in the original charge;
[Rule 110, Sec. 14] (2001 Bar) an offense which is cannot invoke double
included in the original jeopardy
charge; can invoke
 Amendments in form and substance double jeopardy
before plea
 General rule:
It must be made before the accused 4. Place where action is to be
enters his plea. instituted
 Exception: a. Venue of criminal actions shall be:
If the amendment downgrades the
nature of the offense charged in, or  in the court of the municipality or territory;
excludes any accused from, the  where the offense was committed; or
complaint/information, it can be made  where any of its essential ingredients
only upon motion of the prosecutor, occurred. [Rule 110, Sec. 15(a)]
with notice to the offended party and
with leave of court. b. How venue or jurisdiction determined
 Substantial amendments after plea  Venue in criminal cases is jurisdictional,
proscribed being an essential element of jurisdiction.
 Unlike formal amendments,  One cannot be held to answer for any
substantial amendments cannot be crime committed by him except in the
introduced after plea. [People v. jurisdiction where it was committed or
Zulueta (1951)] where an essential ingredient thereof took
 Substantial matter in a complaint is place. The place where the accused was
the recital of facts constituting the arrested is of no moment. [People v.
offense charged and determinative of Enriquez]
the jurisdiction of the court. All other
matters are merely of form. [Almeda v. c. Where crime is continuing
Villaluz (1975)]
 A person charged with a transitory crime
 Formal amendments after plea may be validly tried in any municipality or
 It may be made after plea and during province where the offense was in part
trial; but it should not scause prejudice committed. [People v. Gorospe (1984)]
to the rights of the accused.
 The test as to WON a defendant is d. Libel cases
prejudiced by the amendment of
information is –  Action to be instituted and filed in the court
o WON a defense under the of the province or city where the libelous
information as it originally stood article is printed and first published.
 If a private individual, action may also be
filed in the province where he actually
resided at the time of the commission of should not be dismissed. [Republic v.

the offense. If a public officer, action may Sunga (1988)]
be filed in the court of the province or city  When private prosecutor is allowed to 34
where he held office. [Art 360, RPC] intervene: [A.M. No. 02-2-07-SC]
CRIMINAL PROCEDURE
 All criminal actions either commenced
by complaint or by information shall be
e. Offense committed on railroad
prosecuted under the direction and
 Action to be instituted and filed in the court control of a public prosecutor.
of any municipality or territory where said  In case of heavy work schedule of the
train, aircraft or vehicle passed thru, public prosecutor or in the event of
including place of departure or arrival. lack of public prosecutors, the private
[Rule 110, Sec. 15(b)] prosecutor may be authorized in
 Rule applies only when the crime was writing by the Chief of the Prosecution
committed in the COURSE of the trip Office or the Regional State
Prosecutor to prosecute the case
subject to the approval of the court.
f. Offense committed on a vessel
 Action may be instituted and tried in the
court of the first port of entry or any
B. Prosecution of Civil Action
municipality or territory where the vessel
passed during such voyage, subject to 1. In general
generally accepted principles of
international law [Rule 110, Sec. 15(c)]
a. How instituted
g. Offense committed outside the  General rule: When a criminal action is
Philippines instituted, the civil action for the recovery
of damages is deemed instituted with the
 Cognizable by the court where the criminal criminal action. [Rule 111, Sec. 1]
action is first filed [Rule 110, Sec. 15(d)]  Exception: If the offended party:
 Waives the civil action;
 Institutes the civil action prior to the
5. Intervention of the offended party criminal action.
[Rule 110, Sec. 16]  Reserves the right to institute it
separately;
 General rule: An offended party has the o Exception to this exception:
right to intervene in the prosecution of a  Claims arising out of a dishonored
crime. check under BP 22 where “no
 Exception: reservation to file such civil action
1) Where, from the nature of the crime separately shall be allowed”.
and the law defining and punishing it, (2001 Bar)
no civil liability arises in favor of a  Claims arising from an offense
private offended party. which is cognizable by the
2) Where, from the nature of the offense, Sandiganbayan. [Sec. 4, PD
the private offended party is entitled to 1606, as amended by RA 8249]
civil indemnity arising therefrom but he
has waived the same or has expressly  An offended party loses his right to
reserved his right to institute a intervene in the prosecution of a criminal
separate civil action or he has already case, not only when he has waived the
instituted such action. civil action or expressly reserved his right
3) Offended party has already instituted to institute, but also when he has actually
action instituted the civil action. For by either of
 Any move on the part of the complainant such actions his interest in the criminal
or offended party to dismiss the criminal case has disappeared. [Garcia v. Florido
case, even if without objection of the (1973)]
accused, should first be referred to the
prosecuting fiscal for his own view on the
matter. He controls the prosecution of the
case and may have reasons why the case
b. When to make a reservation to file  Shall furthermore have followed the

civil action; exception directions which such innkeeper or his
representative may have given them 35
 The reservation of the right to institute
with respect to the care and vigilance
CRIMINAL PROCEDURE
separately the civil action shall be made
over such goods;
before the prosecution starts presenting its
 No liability shall attach in case of
evidence and under circumstances
robbery with violence against or
affording the offended party a reasonable
intimidation of persons unless
opportunity to make such reservation.
committed by the innkeeper's
 Procedure for making the reservation:
employees. [Art. 102, RPC]
 Filing a manifestation in the criminal  The subsidiary liability established in the
case that the offended party is
next preceding article shall also apply to
reserving his right to file a separate
employers, teachers, persons, and
civil action;
corporations engaged in any kind of
 Filing the separate civil action and industry for felonies committed by their
informing the court trying the criminal servants, pupils, workmen, apprentices, or
case that the offended party has filed employees in the discharge of their duties.
a separate civil action. [Art 103, RPC]
 The rule requiring reservation does not
apply to Art. 32-34 and 2176, CC. These
civil actions can be filed and prosecuted b. Under the Civil Code [Art. 32, 33, 34,
independently of the criminal action. 2176]
 No counterclaim, cross-claim or 3rd-party
 Civil liabilities arising from other sources of
complaint may be filed by the accused in
obligations [Art. 32-34, 2176] are not
the criminal case, but any cause of action
deemed instituted and may be prosecuted
which could have been the subject thereof
even without reservation.
may be litigated in a separate civil action.
 In the cases provided in Articles 32
[Rule 111, Sec. 1]
(violation or obstruction of a person’s
rights and liberties), 33 (defamation, fraud,
physical injuries), 34 (failure of police to
2. Civil liability render aid or protection) and 2176 (quasi-
a. Under the RPC [Art. 100-103] delicts) of the Civil Code of the
Philippines, the independent civil action
 Every person criminally liable for a felony may be brought by the offended party.
is also civilly liable. [Art. 100, RPC]  It shall proceed independently of the
 The exemption from criminal liability under criminal action and shall require only a
Article 12 and 11, RPC does not include preponderance of evidence. In no case,
exemption from civil liability. [Art. 101, however, may the offended party recover
RPC] damages twice for the same act or
 In default of the persons criminally liable, omission charged in the criminal action.
innkeepers, tavernkeepers, and any other [Rule 111, sec 3]
persons or corporations shall be civilly  Damages must be specified in the
liable for crimes committed in their complaint or information, otherwise the
establishments, in all cases where a court will not acquire jurisdiction over such
violation of municipal ordinances or some other damages.
general or special police regulation shall
have been committed by them or their
employees. c. Civil action deemed instituted in
 Innkeepers are also subsidiarily liable for: criminal action
 The restitution of goods taken by  Only civil liability arising from the crime
robbery or theft within their houses charged as a felony is deemed instituted
from guests lodging therein, or with the criminal action.
 For the payment of the value thereof,  Does not include civil liability that the
 provided that such guests shall have offended party waives, reserves or those
notified in advance the innkeeper instituted prior to the criminal action.
himself, or the person representing
him, of the deposit of such goods
within the inn; and
d. Filing fees of civil action deemed 3. Suspension of civil action

instituted in criminal action
a. Civil actions which are suspended or 36
 General Rule: the actual damages joined in the criminal action
CRIMINAL PROCEDURE
claimed or recovered by the offended
party are not included in the computation  The civil action which should be
of the filing fees. [Rule 111, Sec. 1] suspended after the institution of the
 When the amount of damages, other than criminal action is that arising from delict or
actual, is specified in the complaint or crime.
information filed in court, then the  Civil actions mentioned in Sec. 3 Rule 111
corresponding filing fees shall be paid by under Arts. 32-34 and 2176 of the Civil
the offended party upon the filing thereof Code are exempted from the rule that after
in court for trial; and a criminal action has been commenced,
 In any other case—i.e., when the amount the civil action which has been reserved
of damages is not so alleged in the cannot be instituted until final judgment
complaint or information filed in court, the has been rendered in the criminal action.
corresponding filing fees need not be paid
and shall simply constitute a first lien on b. Effect of acquittal of accused
the judgment, except on an award for
actual damages. [General v. Claravall (2002 Bar)
(1991)]  Law recognizes two kinds of acquittal:
 Except: in criminal actions for violation of  Acquittal on the ground that the
BP22, the amount of the check involved accused is not the author of the act or
shall be considered as the actual omission complained of.
damages for which no separate civil action o EFFECT: closes the door to civil
is allowed. liability
 Acquittal based on reasonable doubt
on the guilt of accused.
e. Civil liability determined in criminal o EFFECT: Not exempt from liability
action which may be proved by
 Where the trial court awards indemnity in preponderance of evidence
the criminal case to an offended party who
has made a reservation to institute a  Civil action based on delict shall be
separate civil action to recover such deemed extinguished if there is a finding
indemnity, such portion of the decision is in a final judgment in the criminal action
in excess of the TC’s jurisdiction and that the act or omission from which the
cannot constitute res judicata to a civil civil liability may arise did not exist
action thereafter filed by the offended
party for civil damages arising from the c. Effect of affidavit of desistance
criminal act. [Tactaquin v. Palileo (1967)]
 It does not bar the people from
prosecuting the criminal action but it
f. Accused cannot interpose operates as a waiver of the right to pursue
counterclaims civil indemnity
 Expressly prohibited is the filing of
counterclaims, cross-claims, or third-party d. Suspension due to prejudicial
complaints by the accused even if the civil question
action is included in the criminal action
since that does not detract from the fact (1999 Bar)
that the proceeding is criminal in nature.  Elements of prejudicial question
 The said claims must be litigated in a  General Rule: a prejudicial question is
separate action. [Rule 111, Sec. 1; that which arises in a case the
Casupanan, et al. v. Laroya (2002)] resolution of which is a logical
antecedent of the issue involved
therein, and the cognizance of which
pertains to another tribunal.
 The prejudicial question must be
determinative of the case before the
court but the jurisdiction to try and
resolve the question must be lodged

in another court or tribunal.
 It is a question based on a fact distinct 37
and separate from the crime but so
CRIMINAL PROCEDURE
intimately connected with it that it
determines the guilt or innocence of
the accused. [Ras v. Rasul (1980)]
 Effect
 General rule: Where both a civil and
a criminal case arising from the same
facts are filed in court, the criminal
case takes precedence.
 Exception: If there exists a prejudicial
question which should be resolved
first before an action could be taken in
the criminal case.
 Requisites [Rule 111, Sec. 7]
1. Previously initiated civil action
involves an issue similar or intimately
related to the issue raised in the
subsequent criminal action;
2. The resolution of such issue
determines WON the criminal action
may proceed.
 Where to file petition:

 Office of the prosecutor;
 Court conducting the PI.
4. Effect of death of accused on civil

action
[Rule 111, Sec. 4]
 If death is before arraignment – Dismissal
of case without prejudice to filing of civil
action against estate of the deceased.
 If death is after arraignment and during
pendency of criminal action – Extinguishes
civil liability.
 Exception: if civil liability is predicated on
other sources of obligations, as with
independent civil actions, recovery may
still be made against the estate of the
deceased or legal representative after
proper substitution.
 If death is while appeal is pending –
extinguishes criminal liability and civil
liability based thereon.
5. Effect of judgment in civil case on

criminal action
[Rule 111, Sec. 5]
 If the civil action judgment absolves the
defendant, it does not bar criminal action
against the defendant for the same act or
omission.
REMEDIAL LAW REVIEWER Chapter 6: PRELIMINARY INVESTIGATION
 To protect the accused from the

Chapter 6: Preliminary Investigation inconvenience, expense and burden
[Rule 112, as amended by AM 05-8-26-SC of defending himself in a formal trial 38
(effective October 3, 2005)]  To secure the innocent against hasty,
CRIMINAL PROCEDURE
malicious and oppressive prosecution,
A. GENERAL PRINCIPLES and to protect him from an open and
1. DEFINITION public accusation of a crime, from the
2. WHEN REQUIRED
trouble, expense, anxiety of a public
B. RIGHT TO PRELIMINARY INVESTIGATION
C. WHO MAY CONDUCT PI trial, and also protect the state from
1. GENERALLY useless and expensive trials. [Tandoc
2. COMELEC, WHEN VESTED v. Resultan (1989)]
3. OMBUDSMAN
D. PROCEDURE TO BE OBSERVED BY b. Scope of PI
PROSECUTORS IN PI  A PI is “merely inquisitorial, and it is
1. FILING OF THE COMPLAINT often the only means of discovering
2. ACTION OF THE INVESTIGATING the persons who may reasonably be
OFFICER charged with a crime, to enable the
3. DEFENDANT’S COUNTER-AFFIDAVIT
4. HEARING
prosecutor to prepare his complaint or
5. RESOLUTION information. It is not a trial of the case
6. REVIEW on the merits” and does not place the
7. FILING OF INFORMATION/COMPLAINT persons against whom it is taken in
IN COURT jeopardy.
E. RIGHTS OF RESPONDENT IN A PI  It “is not the occasion for the full and
F. DUTIES OF INVESTIGATING FISCAL OR exhaustive display of the parties’
PROSECUTOR evidence, it is for the presentation of
1. DETERMINE WON THERE IS
such evidence as may engender a
PROBABLE CAUSE
2. MUST INCLUDE ALL PERSONS GUILTY
well-grounded belief that an offense
OF OFFENSE has been committed and that the
3. PROSECUTOR CANNOT FILE accused is probably guilty thereof.”
INFORMATION WITHOUT PRIOR [Raro v. Sandiganbayan, et al. (2000)]
APPROVAL OF SUPERIOR  A PI takes on an adversarial quality,
4. APPEAL TO SECRETARY OF JUSTICE because a previous inquiry of some
G. WHEN WARRANT OF ARREST MAY ISSUE kind, before an accused person is
H. WHEN ACCUSED LAWFULLY ARRESTED placed on trial. [Raro v. SB, et al.
WITHOUT WARRANT
(2000)]
I. RECORD OF PI
J. CASES NOT REQUIRING PRELIMINARY
INVESTIGATION NOR COVERED BY RULE c. Nature of the Right to PI
ON SUMMARY PROCEDURE  It is a statutory right in those instances
where it is required, and to withhold it
A. General Principles would violate the constitutional right to
due process. [People v. Oandasa
1. Preliminary investigation, defined: (1968)]
 It is an inquiry or proceeding to determine  It is part of the guarantees of freedom
whether there is sufficient ground to and fair play. [La Chemise Lacoste,
engender a well-founded belief that a S.A. v. Fernandez (1984)]
crime has been committed and the  The right to have a PI conducted
respondent is probably guilty thereof, and before being bound over to trial for a
should be held for trial. [Rule 112, Sec. 1] criminal offense and hence formally at
 The conduct of a PI is the initial step risk of incarceration or some other
towards the criminal prosecution of a penalty is not a mere formal or
person. technical right but a substantial
right.
a. Purpose:
 To determine whether or not a crime d. Effect of denial of right to PI
has been committed and whether or  While PI is a statutory and substantive
not there is probable cause to believe right and a component part of due
that the accused is guilty. [Raro v. SB process, the absence of PI (1) does
(2000)] not impair the validity of the
information or otherwise render it
defective; (2) neither does it affect the time he learns of its filing, ask for a PI
jurisdiction of the court (3) nor with the same right to adduce
constitute a ground for quashing the evidence in his defense as provided in 39
information. Rule 112. [Rule 112, Sec. 6]
CRIMINAL PROCEDURE
 The trial court, instead of dismissing
the information, should hold in
abeyance the proceedings and order B. Right to Preliminary Investigation
the public prosecutor to conduct a PI.
(Villaflor vs. Vivar, 349 SCRA 194)  The right to preliminary investigation is a
personal right which the accused may
waive either expressly or by implication.
2. When required  When the accused waives his right to
Whether or not there is a need for PI depends preliminary investigation, the fiscal may
upon the imposable penalty for the crime forthwith file the corresponding information
charged in the complaint filed with the with the proper court. [People v. Perez
prosecutor’s office and not upon the (1960)]
imposable penalty for the crime found to have  The right is deemed waived by:
been committed by the respondent after PI. 1. the failure to claim it before the
accused pleaded [People v. Magpale
 General rule: (1940)]
PI is required to be conducted before a 2. silence of the accused [People v.
complaint/ information is filed for an Mijares (1951)]
offense where the penalty prescribed by 3. failure to request it within 5 days from
law is at least 4 years, 2 months and 1 time he learns of the filing of the
day, without regard to the fine. [Rule 112, complaint/information
Sec. 1] 4. when accused already posted bond
for his release and subsequently went
 Exception: to trial without claiming his right to PI
 When a person is lawfully arrested [People v. Selfaison (1961)]
without a warrant involving an offense 5. a fortiori absence of the accused [Rule
that requires a PI, a 112, Sec. 3(d); de Guzman v. People
complaint/information may be filed and Sandiganbayan (1982)]
without conducting the PI if the  An application for or admission to bail
necessary inquest is conducted. shall not bar the accused from assailing
o INQUEST – a summary inquiry the regularity or questioning the absence
conducted by the prosecutor for of a preliminary investigation of the charge
the purpose of determining against him provided that he raises the
whether the warrantless arrest of challenge before entering his plea [Rule
a person is based on probable 114, sec. 26].
cause
 In the absence or unavailability of an C. Who May Conduct PI
inquest prosecutor, the complaint may
be filed by the offended party or by a 1. Generally
peace officer directly with the proper
court on the basis of the affidavit of [Rule 112, Sec. 2 as amended by A.M. No. 05-
the offended party or arresting officer 8-26-SC]
or person. 1. Provincial/city prosecutors and their
 However, before the complaint or assistants;
information is filed, the person 2. National and regional state prosecutors;
arrested may ask for a PI, but he must 3. Other officers as may be authorized by
sign a waiver of the provisions of Art. law.
125, RPC in the presence of his
counsel. Notwithstanding the waiver, 2. COMELEC, when vested
he may apply for bail and the
investigation must be terminated COMELEC may conduct investigation as
within 15 days from its inception. regards election offenses. [Art. 9-C, Sec. 2(6),
 After the filing of the complaint/ Consti; Sec. 265, Omnibus Election Code]
information in court without a PI, the
accused may within 5 days from the
3. Ombudsman 2. Action of the investigating officer

o The Ombudsman and his Deputies, as [Rule 112, Sec. 3(b)] 40
protectors of the people, shall act promptly
CRIMINAL PROCEDURE
on complaints filed in any form or manner  Investigating officer must act within 10
against public officials or employees of the days after the filing of the complaint. He
Government, or any subdivision, agency will either:
or instrumentality thereof, including  Dismiss - If he finds no ground to continue
GOCCs and shall, in appropriate cases, investigation;
notify the complainants of the action taken  Issue a subpoena to the respondent,
and the result thereof. [Art. 11, Sec. 12, attaching the complaint and other
Consti] documents.
o The Ombudsman is authorized to conduct o If subpoena is not possible, the
preliminary investigation and to prosecute investigating officer shall decide
all criminal cases involving public officers based on what complainant
and employees, not only those within the presented.
jurisdiction of the Sandiganbayan, but also  Respondent has the right to examine the
those within the jurisdiction of regular evidence submitted by complainant, and
courts as well. copy evidence at his expense.
o If the offense comes within the jurisdiction
of regular courts, the Ombudsman may
endorse the same to, and deputize the
3. Defendant’s counter-affidavit
provincial/ city prosecutor who has  Must be made within 10 days from receipt
jurisdiction over the case for proper of complaint, and must comply with the
preliminary investigation. same requirements as a complaint. [Rule
o If the offense is cognizable by the 112, Sec. 3(c)]
Sandiganbayan, the preliminary  If not made within 10 days, the
investigation has to be conducted investigating officer shall resolve the
pursuant to Rule 11 of the Rules of complaint based on the evidence
Procedure of the Office of the presented by the complainant [Rule 112,
Ombudsman requiring that the complaint Sec. 3(d)]
must be under oath.
4. Hearing
Note: RTC judges have NO power to conduct
PI; and MTC judges cannot conduct PI [Rule 112, Sec. 3(e)]
anymore after A.M. No. 05-8-26-SC eliminated  The investigator must conduct a hearing
judges of the MTC and MCTC from those within 10 days from receipt of the counter-
authorized to conduct a PI effective October 3, affidavit. The hearing must be finished in 5
2005. days.
 Hearing is conducted only if there are
such facts and issues to be clarified from a
D. Procedure to be observed by party or a witness.
Prosecutors in PI  Parties may be present evidence, but they
have no right to examine or cross-
examine. Questions of parties shall be
1. Filing of the complaint
submitted to the investigating officer.
[Rule 112, Sec. 3(a)]  Within 10 days, the officer shall determine
 The complaint must state the respondent’s WON there is sufficient ground to hold
address. It must include the affidavits of respondent for trial.
complainant and the witnesses, and other
documents to establish probable cause.
 It must be in 2 copies, and subscribed and
5. Resolution
sworn to before a prosecutor or [Rule 112, Sec. 4]
government official authorized to  If the investigating officer finds no
administer oath or notary public. probable cause, he will dismiss the case.
Otherwise, he will prepare an information
and resolution.
 He certifies in the information that he is an
authorized officer; that he personally
examined the complainant and witnesses; F. Duties of Investigating Fiscal or

that there is reasonable ground to believe Prosecutor
that a crime has been committed and that 41
the accused is probably guilty thereof; that 1. Determine WON there is probable
CRIMINAL PROCEDURE
the accused was informed of the cause
complaint and of the evidence submitted
 PROBABLE CAUSE – For purposes of
against him; and that he was given an
filing information by the prosecutor, it is
opportunity to submit controverting
the existence of such facts and
evidence.
circumstances as would excite the belief,
in a reasonable mind, that a crime has
6. Review been committed and the respondent is
probably guilty of the crime. [Raro vs SB
[Rule 112, Sec. 4]
(2000); De Ocampo v. Sec. of Justice
 Within 5 days from resolution, the
(2006)]
investigating officer will forward the case
 Probable cause is based neither on
to the prosecutor or the ombudsman.
clear and convincing evidence of guilt
 Within 10 days from receipt of the
nor evidence establishing absolute
resolution, the prosecutor/ombudsman will
certainty of guilt; it is merely based on
act on the case.
opinion and reasonable belief, and so
 The prosecutor/ombudsman has to
it is enough that there exists such
authorize/approve the filing of an
state of facts as would lead a person
information by the investigating officer.
of ordinary caution and prudence to
 In case of dismissal by investigating
believe, or entertain an honest or
officer, the prosecutor/ombudsman, if he
strong suspicion, that a thing is so.
disagrees, may file the information himself
[Pimentel, Jr., v. Commission on
or any deputy or order any prosecutor to
Elections (1988)]
do so without conducting a new PI.
 Probable cause and prima facie
 The DOJ Secretary may file the
evidence are different
information or dismiss the information filed
 Prima facie evidence denotes
by the prosecutor.
evidence which, if unexplained /
uncontradicted, is sufficient to
7. Filing of information/complaint in sustain a proposition that would
court counterbalance the presumption
of innocence and warrant the
[Rule 112, Sec. 5] conviction of the accused.
 Within 10 days from the filing of
complaint/information, the judge may:
 Dismiss the case, if he thinks there is no 2. Must include all persons guilty of
PC. offense
 Otherwise, issue a warrant of arrest (if
 Generally, prosecutor cannot be
RTC).
compelled to file information; however, in
 Warrant of arrest is not necessary when
case of grave abuse of discretion,
respondent is already detained or if the
offended party may file an action for
offense is punishable by fine only.
mandamus to compel the prosecutor to file
 Order presentation of additional evidence
information.
within 5 days from notice and issue, if he
 The offended party may institute
has doubt regarding the existence of PC.
administrative charges against the erring
He must resolve it within 30 days from
prosecutor, or a criminal complaint under
filing of complaint/ information.
Article 208 of the Revised Penal Code, or
a civil action for damages under Article 27
E. Rights of Respondent in a PI of the Civil Code
 The offended party may lodge a new
1. To submit counter-affidavit complaint against the offenders and have
2. To examine the evidence submitted by the a new examination conducted as required
complainant by law.
3. To be present in the clarificatory hearing  The offended party may secure the
4. The respondent need not be present in appointment of another prosecutor
the PI
 The offended party may institute another G. When Warrant of Arrest May Issue
criminal action if no double jeopardy is
involved  If the judge finds probable cause, he shall
42
 The offended party may appeal the ruling issue a warrant of arrest, or a commitment
CRIMINAL PROCEDURE
of the prosecutor to the Secretary of order if the accused has already been
Justice arrested, and hold him for trial.
 Judges of RTC and inferior courts need
3. Prosecutor cannot file information not personally examine the
without prior approval of superior complainant and his witnesses in the
determination of PC. But he must
 GENERAL RULE: personally evaluate the prosecutor’s
o No complaint or information may be report and other sufficient supporting
filed or dismissed by an investigating evidence, and on the basis thereof either
prosecutor without the prior written dismiss the case, issue a warrant, or
authority or approval of the provincial require further affidavits.
or city prosecutor or chief state  Warrant that is simply based on report and
prosecutor. recommendation of prosecution invalid;
o Absent any convincing evidence to the judge must make an independent
contrary, the certification that the filing judgment of whether or not there is
of the information is with prior probable cause. This is because the
authority and approval of the city probable cause for the prosecutor and
prosecutor is presumed regular and judge are different:
should be upheld.  PC for PROSECUTOR: whether or
not there is reasonable ground to
4. Appeal to Secretary of Justice believe that the accused is guilty of
the offense charged and should be
 Applicable regulations are DOJ Order No. held for trial for which information is to
70 (2000), otherwise known as the NPS be filed.
Rule on Appeal, Department Circular No.  PC for JUDGE: whether or not a
70-A (2000; Delegation of Authority to warrant of arrest should be issued so
Regional State Prosecutors to Resolve that the accused may be held in
Appeals in Certain Cases) and DOJ Order custody in order not to frustrate the
No. 223 (1993) insofar as it is not ends of justice.
inconsistent with the first.  Judge may dismiss the case if the
 Under DOJ Order No. 70, appeal must be evidence on record clearly fails to
taken to the DOJ Secretary 15 days from establish a probable cause
receipt of the resolution or the decision on  Judge may order the prosecutor to present
the motion for reconsideration. The filing evidence within 5 days from notice and the
of an appeal will not stay the filing of issue may be resolved by the court within
information on the basis of the finding of 30 days from filing of
probable cause in the assailed decision, complaint/information.
but the appellant and prosecutor have the
duty to ensure that court proceedings are
held in abeyance during the pendency of H. When Accused Lawfully Arrested
the appeal. Without Warrant
 DOJ Circular No. 70-A now authorizes
Regional State Prosecutors to recognize  When a person is lawfully arrested w/o
and resolve with finality all petitions for warrant, a complaint/information may be
review of resolutions of Provincial/City filed without need of PI, provided, that an
Prosecutors in cases cognizable by the inquest has been conducted.
MTC. The Regional State Prosecutor  After the filing of a complaint / information
shall also exercise immediate in court without a PI, the accused may,
administrative supervision and control within 5 days from the time he learns of its
over all Provincial/City Prosecutors and filing, ask for a PI with the same right to
their respective staff within his Region. adduce evidence in his defense. [Rule
112, Sec. 6; RA 7438 Sec. 2]
I. Record of PI
 General rule:
43
PI record does not form part of the case
CRIMINAL PROCEDURE
record.
 Exception:
The court may order the production of the
PI record (or part thereof):
1. When necessary in the resolution of
the case or any incident therein;
2. When it is to be introduced as
evidence in the case by the requesting
party. [Rule 112, Sec. 7]
J. Cases Not Requiring Preliminary

Investigation Nor Covered by Rule
on Summary Procedure
[Rule 112, Sec. 8]
 For cases punishable by imprisonment of

less than 4 years, 2 months and 1 day,
filed with the prosecutor or MTC/MCTC,
 Within 10 days after the filing of the
complaint/information, if the judge finds no
PC after personally evaluating the
evidence or after personally examining in
writing and under oath the complainant
and his witnesses in the form of searching
questions and answers, he shall dismiss
the same.
 However, the judge may require the
submission of additional evidence within
10 days from notice, to determine further
the existence of PC.
 If the judge still finds no PC despite the
additional evidence, he shall dismiss the
case within 10 days from its submission or
expiration of said period.
 If the judge finds PC, he shall issue a
warrant of arrest or a commitment order (if
the accused had already been arrested)
and hold him for trial.
 However, if the judge is satisfied that there
is no need to place the accused under
custody, he may issue summons instead.
REMEDIAL LAW REVIEWER Chapter 7: PRELIMINARY REMEDIES
invoke his right under the Constitution.

Chapter 7: Preliminary Remedies From the moment he is placed under
arrest, detention or restrain by officers of 44
A. BAIL the law, he can claim his constitutional
CRIMINAL PROCEDURE
1. DEFINITION right [Feliciano vs Pasicolan (1965)].
2. PURPOSE
3. CONDITIONS OF BAIL
4. AVAILABILITY OF BAIL  Upon assumption of the obligation of bail,
5. AMOUNT OF BAIL the sureties become in law the jailers of
6. KINDS OF BAIL their principal.
7. PROCEDURAL MATTERS IN BAIL
8. ARREST OF ACCUSED OUT ON BAIL  It shall not constitute as a waiver of his
9. BAIL REQUIRED OF WITNESSES right to challenge the legality of his arrest
B. MOTION TO QUASH or the absence of PI [Rule 114, Sec. 26].
1. DEFNITION
2. TIME TO FILE MTQ
3. FORM AND CONTENTS  Prosecution witnesses may also be
4. GROUNDS required to post bail to ensure their
5. PROCEDURE UPON FILING appearance at the trial of the case where:
6. EFFECT OF ORDER GRANTING MTQ 1. There is substitution of information
7. FAILURE TO ASSERT GROUNDS [Rule 110, Sec. 4].
8. PROVISIONAL DISMISSAL 2. Where the court believes that a
C. PROVISIONAL REMEDIES IN CRIMINAL
CASES
material witness may not appear at
1. AVAILABILITY the trial [Rule 119, Sec. 14].
2. ATTACHMENT
A. Bail 3. Conditions of Bail

(2002 BAR)
1. Unless the court directs otherwise, the
1. Definition undertaking is effective upon approval and
 Bail is the security given for the release of shall remain in force at all stages of the
a person in custody of the law, furnished case until promulgation of the RTC
by him or a bondsman, to guarantee his judgment.
appearance before any court as required 2. The accused shall appear before the
under conditions hereinafter specified. proper court whenever required by the
[Rule 114, Sec. 1] Court or the Rules.
 This condition operates as a valid
Note: This does not refer to the bondsman or restriction of his right to travel
surety who furnishes the bail. [Manotoc Sr. vs CA (1986)].
3. Failure of the accused to appear at the
trial without justification and despite due
2. Purpose
notice shall be deemed a waiver of his
1. To honor the presumption of innocence right to be present. Trial may thereby
until his guilt is proven beyond reasonable proceed in absentia.
doubt [Art. III, Sec. 14, Consti; Paderanga 4. The bondsman shall surrender the
vs CA (1995)]. accused to the court for execution of the
2. To implement his right to bail as provided final judgment [Rule 114, Sec. 2].
for by the Constitution [Art III, Sec. 13,  The conditions must be stated in the
Consti]. original papers, along with the full
3. To allow the accused unhampered name and address of the accused,
preparation of his defense and prevent and the amount of the undertaking.
infliction of punishment prior to conviction.
Note:
Note:  The court may impose other conditions
 The purpose of bail only accrues when a when the accused is highly susceptible to
person is arrested or deprived of his jump bail or to commit other harm to the
liberty. It is incongruous to grant bail to citizenry. It may validly
one who is free. Hence, only those who 1. Increase the amount of the bond.
have either been arrested, detained or
otherwise deprived of their liberty can
2. Require the accused to report 2. Before conviction by RTC of all offenses

periodically and make an punishable by penalty lower than reclusion
accounting of his movements. perpetua. 45
3. Accused may be warned that trial
CRIMINAL PROCEDURE
may proceed in absentia Note:
(provided that there is due notice  A formal complaint or information is not
and his failure to appear is required [Herras Teehankee vs Rovira
unjustified) [Almeda vs Villaluz (1945)].
(1975)].  The Court should not even allow a motion
for bail to be set for hearing unless it has
 Requiring arraignment before grant of bail acquired jurisdiction over the person of the
is not required: accused and the case by its filing in court
1. Accused will be placed in a position [Guillermo vs Judge Reyes (1995)].
where he has to choose between a)
filing a motion to quash and thus delay How is custody acquired?
his release on bail and b) foregoing 1. By virtue of a warrant or a warrantless
the filing of a motion to quash so he arrest.
can be arraigned at once and 2. Voluntary submission to the Court’s
thereafter be released on bail [Lavides jurisdiction [Santiago vs Vasquez (1993)].
vs CA (2000)].
2. Trial Court can ensure the presence of
the accused by granting bail and b. Admittance to bail as discretionary
ordering his presence at any stage of WHEN BAIL IS A MATTER OF DISCRETION
the proceedings such as arraignment [Rule 114, Sec. 5]
[Rule 114, Sec. 2(b)].
1. Before conviction, in offenses punishable
 Aside from its obligation to deliver the by death, reclusion perpetua or life
accused before the court, the court cannot imprisonment.
impose additional conditions upon the 2. Upon conviction by the RTC of an offense
bondsmen [Bandoy vs Judge of CFI not punishable by death, reclusion
(1909)]. perpetua or life imprisonment.
 It may be filed in and acted upon by
 Bail is no longer a waiver of his objections the RTC despite the filing of notice of
[Rule 114, Sec. 26; Yusop vs appeal, provided that it has not
Sandiganbayan (2001)]. Provided that the transmitted the original record to the
proper objections are timely raised (i.e., appellate court.
before accused enters a plea), an  If RTC changed nature of the offense
application or an admission to bail shall from bailable to non-bailable, it can be
NOT bar the accused from challenging or resolved only by the appellate court.
questioning the:
1. Validity of his arrest. Note:
2. Legality of the arrest warrant.  In hearing the petition for bail, the
3. Regularity of PI. prosecution has the burden of showing
4. Absence of PI. that the evidence of guilt is strong [Rule
114, Sec. 8]. The prosecution must be
The court shall resolve the objections as given ample opportunity to show that the
early as practicable but not later than the evidence of guilt is indeed strong. While
start of the trial of the case. the proceeding is conduced as a regular
trial, it must be limited to the determination
4. Availability of bail of the bailability of the accused. It should
be brief and speedy, lest its purpose be
(1999, 2006, 2008 Bar) rendered nugatory [People vs Singh
(2001)].
a. Admittance to Bail as a Matter of  If bail is granted, provisional liberty
Right continues under the same bail subject to
the consent of the bondsman [Rule 114,
WHEN BAIL IS A MATTER OF RIGHT Sec. 5].
[Rule114, Sec. 4]
1. Before or after conviction by the MTC.
 If bail is denied by the RTC, the accused- violated bail conditions without valid
appellant may challenge it by filing a justification.
motion (and not a a special civil action or a 3. Commission of offense while under 46
special proceeding) in the appellate court probation, parole or conditional
CRIMINAL PROCEDURE
after it has acquired jurisdiction over the pardon.
case. It shall be treated as an incident in 4. Probability of flight.
the appeal. 5. Undue risk that he may commit
 In deportation proceedings, it is the CID’s another crime during pendency of
discretion. [Harvey v. Defensor-Santiago appeal.
(1990)].
d. Right to bail is not available in the
c. When right to bail not available military
1. When evidence of guilt is strong in capital [Comendador v. de Villa (1991)].
offenses or offenses punishable by
reclusion perpetua or life imprisonment.
e. After a judgment of conviction has
 Exception: When accused charged
become final.
with a capital offense is a minor, he is
entitled to bail regardless of whether  If he applied for probation before finality,
the evidence of guilt is strong. he may be allowed temporary liberty under
 Capital Offense: An offense which his bail [Rule 114, Sec. 24].
under the law existing at the time of
commission and of the application for
admission to bail is punishable by f. After the accused has commenced to
death [Rule 114, Sec. 6]. serve his sentence
 The capital nature of the offense is [Rule 114, Sec. 24].
determined by the penalty prescribed
by law and not the one actually Note: See Appendix 1 for summary on the
imposed. Availability of Bail
2. Bail in extradition proceedings
 The right to bail is available only in
criminal proceedings. It does not apply 5. Amount of bail
to extradition proceedings because
a. Guidelines
extradition courts do not render
judgments of conviction or acquittal. [Rule 114, Sec. 9].
Bail is not a matter of right in 1. Financial ability of the accused
extradition cases. However, bail may 2. Nature and circumstances of the offense
be applied for and granted as an 3. Penalty for the offense charged
exception, only upon a clear and 4. Character and reputation of the accused
convincing evidence that once 5. Age and health of the accused
granted, the applicant will not be flight 6. Probability of the accused appearing at
risk or will not pose danger to the the trial
community, and that there exists 7. Forfeiture of other bail
special humanitarian and compelling 8. Fact that accused was a fugitive from
circumstances [Gov of USA vs justice when arrested
Purganan & Jimenez (2002)]. 9. Forfeiture of other bail
10. Pendency of other cases where the
Note: accused is on bail.
 If the penalty imposed by the trial court is
imprisonment exceeding 6 yrs, the Note:
accused shall be denied bail or his bail DOJ Department Circular No. 89 (2000 Bail
shall be cancelled upon showing by the Bond Guide) provides standards and criteria
prosecution of the following: for recommendation of amount of bail to be
1. Recidivism, quasi-recidivism, or granted, if possible, and the rules for the
habitual delinquency or commission of computation of bail.
a crime aggravated by reiteration.
2. Previously escaped from legal
confinement, evaded sentence or
b. Increase or reduction of amount of authority from the court or before the

bail cancellation of the bond [Art. 316.6,
Revised Penal Code] 47
 Court may either increase or reduce the
CRIMINAL PROCEDURE
amount of bail.  Qualifications of Sureties: [Rule 114,
1. After the accused is admitted to bail Sec. 12]
2. Upon good cause 1. Each must be a resident owner of real
property within the Philippines
INCREASED bail: Accused may be o Court may require that he is a
committed to custody if he does not give bail resident of the province.
in the increased amount within a reasonable [Villaseñor v. Abaño (1967)]
period of time. [Rule 114, Sec. 20] 2. Where there is only one surety, his
real estate must be worth at least the
REDUCED bail: Person in custody for a amount of the undertaking.
period equal to or more than the minimum of 3. If there are 2 or more sureties, each
the principal penalty prescribed for the offense may justify in an amount less than that
charged may be released on a reduced bond. expressed in the undertaking but the
[Rule 114, Sec. 16] aggregate of the justified sums be
equivalent to the whole amount of the
bail demanded.
6. Kinds of bail 4. Every surety must be worth the
(1999 Bar) amount specified in his own
undertaking over and above all just
a. Corporate Surety debts, obligations and properties
[Rule 114, Sec. 10] exempt from execution.
 It may be provided by any domestic or
foreign corporation licensed as a surety  Justification of sureties: [Rule 114, Sec.
and currently authorized to act as such. 13]
 The Court may not refuse corporate surety  Before accepting a surety or bail
bond and require cash bond [Almeda vs bond, the following requisites must be
Villaluz (1975)]. complied with:
1. An affidavit taken before the judge
However, the SC also held that the ROC left to that he possesses the prescribed
the trial judge’s discretion the question of qualification.
whether bail should be posted in form of a 2. A description of the property given
corporate surety or a cash deposit or a as security, stating the nature of
personal recognizance [Re: Judge Silverio his title, its encumbrances, the
Tayao, Makati RTC Branch 143 (1994)]. number and amount of other bails
entered into by him and still
undischarged, and his other
b. Property Bond liabilities.
[Rule 114, Sec. 11]
 The court may examine the sureties
 An undertaking constituted as a lien on
upon oath concerning their sufficiency
the real property given as security for the
in such manner as it may deem
amount of the bail
proper.
 Within 10 days after the approval of the
bond, the accused must cause the c. Cash Bond
annotation of the lien on the TCT (if
registered), or in the Registration Books (If [Rule 114, Sec. 14]
unregistered), and on the corresponding  This is the amount in cash corresponding
real property tax declaration. Non- to the amount of bail fixed by the court or
compliance will lead to the cancellation of recommended by the prosecutor who
the bond and the re-arrest of the accused. investigated or filed the case.
 This is deposited with the nearest internal

 The surety shall be liable for estafa if s/he
revenue collector or provincial / city /
sells, mortgages, or otherwise encumbers
municipal treasurer.
the property bond without express
The judge has no authority to receive a Recognizance Bail Bond

deposit of cash bail. The cash should not Obligation of record An obligation under
be kept in the judge’s office, much less his entered into before seal given by the 48
own residence [Naui vs Mauricio (2003)]. some court or accused with one or
CRIMINAL PROCEDURE
magistrate duly more sureties, and
authorized to take it, made payable to the
 Upon submission of a proper certificate of with condition to do proper officer with the
deposit and a written undertaking showing some particular act condition to be void
compliance with the requirements, the upon performance by
accused shall be discharged from custody. the accused of such
acts as he may legally
 The money deposited shall be applied to required to perform.
the payment of fine and costs. Any excess
shall be returned to the accused or to e. When bail not required
whoever made the deposit.
 When a person who has been in custody
for a period equal to or more than the
d. Recognizance possible maximum prescribed
[Rule 114, Sec. 15] imprisonment for the offense charged shall
 It is an obligation of record entered into be released without need for bail
before some court or magistrate duly  If the maximum penalty is destierro, he
authorized to take it, with the condition to shall be released after 30 days of
do some particular act, the most usual preventive imprisonment.
condition in criminal cases being the
appearance of the accused for trial. Note:
[People v. Abner (1950)]  The release of the is without prejudice to
the continuation of the trial or of the
 Effect: transfer custody of the accused proceedings on appeal.
from public officials who have him in their  No bail shall be required in prosecution of
charge to keepers of his own selection. offenses covered by the Rule on Summary
Procedure, except:
 Release on recognizance allowed by law 1. When a warrant of arrest was issued
or by the ROC in the ff cases: for failure of the accused to appear
1. When the offense charged is for when so required
violation of municipality/city 2. When the accused is
ordinances, or light felonies, or o A Recidivist
criminal offenses where the penalty is o A Fugitive from justice
not higher than arresto mayor and/or o Charged with physical injuries
fine of P2,000 or both. [RA 6036] o Has no known residence [RSP,
2. Where a youthful offender held for Sec 10, 12]
physical mental examination, on trial
or appeal. If unable to furnish bail and
upon recommendation of DSWD or 7. Procedural Matters in Bail
other agencies authorized by court.
(2002 Bar)
[PD 603]
3. Where the accused has applied for
probation, pending resolution of the a. Where filed
case but no bail was filed or the
accused is incapable of filing one [Rule 114, Sec. 17]
[Rule 114, Sec. 24; also PD 968] 1. It may be filed where the case is pending.
4. Where the person is in custody for a 2. With any RTC or MTC judge in the
period equal to or more than the province, city or municipality where the
minimum of the principal penalty case is pending if the judge is absent or
prescribed for the offense charged, unavailable.
without application of the 3. In the a) RTC of said place or b) if no
Indeterminate Sentence Law or any judge is available with any inferior court
modifying circumstance. [Rule 114, judge therein if the accused is arrested in
Sec. 16] a province, city or municipality other than
the place where the case is pending.
4. It may be filed only in the court where the  The court’s order of granting or refusing
case is pending if the grant of bail is a bail must contain a summary of the
matter of discretion or bail is in the form of evidence for the prosecution which 49
recognizance. contains the judge’s evaluation of the
CRIMINAL PROCEDURE
5. In any court in the province, city or evidence may be considered as an aspect
municipality where he is held if there is no of procedural due process for both the
formal charge yet [Rule 114, Sec. 17]. prosecution and the defense.
b. Hearing on the application for bail c. Remedy when bail is denied

 Hearing on the application for bail is (1998 Bar)
mandatory [Aurillo Jr. vs Francisco  It should be by a special civil action in the
(1994)]. Court of Appeals, and not in the Supreme
Court [Vide at Aleria Sr. v. Velez (1998)]
 Duties of the trial judge in case and it must be filed within 60 days from
application for bail is filed [Cortes vs denial [Rule 65, Sec. 4].
Catral (1997)]:
1. In all cases, whether bail is a matter of  However, in cases where the bail was filed
right or discretion, to notify the in and denied by the RTC acting with
prosecutor of the hearing of the residual jurisdiction, the accused-appellant
application for bail or to require him to may challenge it by filing a motion (and
submit his recommendation. not a a special civil action or a special
2. Where bail is a matter of discretion, proceeding) in the appellate court after the
conduct a hearing of the application latter has acquired jurisdiction over the
for bail regardless of whether or not case. The motion shall then be treated as
prosecution refuses to present an incident in the appeal.
evidence to show that the guilt is
strong in order to enable the court to
exercise its judicial discretion. d. Release on bail
3. Decide whether the guilt is strong  Accused must be discharged upon
based on the summary evidence of approval of the bail by the judge with
the prosecution. whom it was filed.
4. If the evidence of guilt is not strong, to  If bail is filed with a court other than where
discharge the accused upon the the case is pending, the judge who
approval of the bailbond. accepted the bail should forward it to the
court where the case is pending [Rule
 Where the prosecution agrees with the 114, Sec. 19].
accused’s application for bail or forgoes  If the accused attempts to depart from the
the introduction of evidence, the court Philippines without permission of the
must nonetheless set the application for court, he may be re-arrested without the
hearing. It is mandatory for the judge to need for a warrant [Rule 114, Sec. 23].
conduct a hearing and ask searching and
clarificatory questions for determining the
existence of strong evidence. e. Forfeiture of bail
[Rule 114, Sec. 21]
 A judge who grants bail to an accused  If the accused failed to appear in person
charged with a capital offense without the as required by the court, bondsmen are
requisite notice and hearing shall be given 30 days within which to:
administratively liable [Aguirre vs 1. Produce the body of the principal or
Belmonte (1994)]. give reason for the non-production.
Bondsmen may:
 Despite the summary nature of the o Arrest the accused;
proceeding, the prosecution must be o Cause him to be arrested by a
accorded an opportunity to introduce all police officer or any other person
evidence for its opposition to the grant of of suitable age or discretion upon
bail. Otherwise, the order granting bail will written authority endorsed on a
be null and void and can be set aside by certified copy of the undertaking.
certiorari [People vs Sola (1981)].
2. Explain why the accused failed to  Since a MTQ is a hypothetical admission

appear. of the facts alleged in the information, the
o If the bondsmen fail to do these, court cannot consider facts contrary to 50
judgment is rendered against those alleged, or which do not appear on
CRIMINAL PROCEDURE
them, jointly and severally, for the the face of the information, except those
amount of the bail. admitted by the prosecution [People v.
o Bondsmen’s liability cannot be Dela Rosa, et al. (1980)].
mitigated or reduced, unless the
accused has been surrendered or Nolle prosequi Quashal of Information
is acquitted. Initiated by prosecutor Initiated by accused
Dismissal of criminal
case by the government Court has no authority to
f. Cancellation of bail before accused is initiate MTQ. Filing is
[Rule 114, Sec. 22] placed on trial and made before accused
before he is called to enters plea, subject to
1. Upon application of the bondsmen with
plead, with approval of exceptions
due notice to the prosecutor, bail may be court
cancelled upon a) surrender of the
accused and b) proof of his death. Discontinuance in a civil
2. Upon acquittal of the accused suit, leaves the matter
in the same condition it
3. Upon dismissal of the case was before
---
4. Upon execution of judgment of conviction. commencement of the
prosecution
Acquittal is a ground for
8. Arrest of Accused out on Bail Not an acquittal
quashal
 Bondsmen can prevent accused from Not a final disposition of
Rule 117, Sec. 6
leaving country by arresting him or asking the case
for him to be re-arrested by a police officer Does not bar
upon written authority [Rule 114, Sec. 23]. subsequent prosecution Rule 117, Sec. 6
 The accused may be prohibited from for the same offense
leaving the country during the pendency of
his case [PP v. Uy Tuising (1935);
2. Time to file MTQ
Manotoc v. CA (1986)]. If the accused
released on bail attempts to depart from  General Rule: A motion to quash may be
the Philippines without the permission of filed at any time before the accused enters
the court where his case is pending, he his plea [Rule 117, Sec. 1]. It can be filed
may be re-arrested without warrant [Rule even before jurisdiction over his person
113, Sec. 23]. has been acquired and during PI because
 Hold-Departure Orders: This may be the investigating officer or judge has the
issued only by the RTCs in criminal cases power to bind the accused over for trial
within their exclusive jurisdiction [SC [(Delos Reyes v. Espiritu, et al. (1982)].
Circular No. 39-97 (June 19, 1997)].
 Exceptions: [Rule 117, Sec 1; Marcos
vs Sandiganbayan (2000)].
B. Motion to Quash 1. The accusatory pleadings do not
(2000, 2005 Bar) charge an offense
2. The court has no jurisdiction over his
1. Definition person
3. Offense or penalty has been
 Motion to Quash (MTQ) - Formerly called extinguished
a demurrer, it is a special pleading, filed 4. Doctrine of double jeopardy precludes
by the accused, which hypothetically the filing of the information.
admits the truth of the facts spelled out in
the complaint/information and sets up a MTQ Demurrer to Evidence
matter, which, if duly proved, would Filed before entering Filed after the
preclude further proceedings. plea prosecution has rested
 It cannot be initiated by the judge; its case
otherwise it would amount to pre-judging
the case [People v. Nitafan (1999)].
MTQ Demurrer to Evidence 4. Officer who filed the information had

Does not go into the Based upon the no authority to do so.
merits of the case inadequacy of the 5. That it does not conform substantially 51
evidence adduced by the to the prescribed form.
CRIMINAL PROCEDURE
prosecution 6. More than one offense is charged
 Exception: When a single
 Failure to file before entering plea will be punishment for various offenses is
deemed a waiver of all objections which prescribed by law
are grounds for a MTQ [Rule 117, Sec. 9; 7. Criminal action or liability has been
Gamboa v. Cruz (1988)]. extinguished.
 Failure to move for specifications or 8. Averments which, if true, would
quashal of information on the grounds constitute a legal excuse or
provided for by the Rules deprives the justification.
accused of the right to object to evidence 9. Accused has been previously
which can be lawfully introduced and convicted or acquitted of the offense
admitted under an information of more or charged, or the case against him was
less general terms but which sufficiently dismissed or otherwise terminated
charges the accused with a definite crime without his express consent (Double
[People vs Marquez (2000)]. Jeopardy Rule)
Note:
3. Form and Contents Absence of Preliminary investigation, lack of
[Rule 117, Sec. 2] probable cause, and non-inclusion of an
1. It should be in writing. accused are not valid grounds.
2. It should be signed by the accused or his
counsel. a. Facts Charged do not Constitute an
3. It should distinctly specify factual and legal Offense
grounds.
 Facts outside the information are  In all criminal cases, the accused should
allowed to be introduced to prove any be informed of the nature and the cause of
of the grounds. the accusation against him.
 Inquiry into outside facts may also be  An information which does not charge an
allowed even when the ground offense or does not allege essential
invoked is that the allegations in the elements of a crime is void.
information do not constitute the
offense charged [Garcia vs CA TEST: WON the facts alleged, if hypothetically
(1997)]. admitted, would meet the essential
elements of the offense, as defined by law
Note: [People vs Abad (1997)].
 Generally, the courts cannot consider any
other ground other than those specifically  That a) the missing element may be
stated in the motion to quash. proved during the trial or that b) the
 Exception: When the ground for quashal prosecution has presented evidence to
is lack of jurisdiction over the offense establish the same cannot have the effect
charged. [Garcia v. CA (1997)] of validating the void information or of
proving an offense which does not exist
[People vs Asuncion (1988)].
4. Grounds
 Instead of dismissing the court should give
[Rule 117, Sec. 3] (1998 Bar) prosecution an opportunity to amend the
 The ff. grounds for MTQ are EXCLUSIVE: information [Rule 117, Sec. 4].
1. Facts charged do not constitute an a. Should the prosecutor fail to make the
offense amendment or should the information
2. Court trying the case has no suffer from the same defect despite
jurisdiction over the offense charged. amendment, MTQ shall be granted
3. Court trying the case has no [Rule 117, Sec. 4].
jurisdiction over the person of the b. When the prosecutor dismisses the
accused. case, the prosecutor should file a valid
information, not a petition for review  In private crimes, complaint of the

for certiorari. offended party is necessary to confer
authority to the court. 52
 The defect is not cured by failure to move
CRIMINAL PROCEDURE
to quash or by plea of guilty. The failure  If the case was tried and decided upon the
does not imply a waiver of the defects that theory that it had jurisdiction, the parties
go to the jurisdiction of the offense or to are not barred from assailing such
lack in some of the essential elements of jurisdiction on appeal.
the offense charged [Suy Sui v. People
(1953)].  The court had jurisdiction over the case
since, for as long as he continues to
 General Rule: In the MTQ, facts other evade the service of his sentence, he is
than those alleged may NOT be deemed to continue committing the crime,
considered by the court. and may be arrested without warrant at
any place where he may be found
 Exceptions: [Parulan vs Director of Prisons (1968)].
1. Facts already admitted by the
prosecution [People vs Navarro]. c. Court has no Jurisdiction over the
2. Undisputed facts apparent from the Person of the Accused
records of the PI and not denied or
admitted by the prosecutor [Salonga  How jurisdiction is acquired:
v. Pano (1985)]. 1. By arrest of the accused or his
3. Undisputed or undeniable facts that voluntary appearance in court.
destroy the prima facie truth accorded 2. By allowing himself to be arraigned
to allegations of the information without questioning the legality of his
[People v. de la Rosa (1988)]. arrest
4. ROC expressly permits the
investigation of facts alleged [People  It is waivable expressly or by implication,
v. Alagao (1966)] [Rule 117, Sec. unlike jurisdiction over the territory and the
2(f)(h), 4 & 5]. subject matter.
 Rationale: It would be pure technicality for  When the accused files a MTQ based on
the court to close its eyes to said facts, this ground, he must do so only on this
refuse to quash the information, and ground. If he raises other grounds, he is
require trial. deemed to have submitted his person to
the jurisdiction of the court [Sanchez v.
Demetriou (1993)].
b. Court has No Jurisdiction over the
Offense Charged
 If the accused believes his arrest to be
 Jurisdiction over the subject matter: illegal, he should move to quash the
The power to adjudge concerning the information on such ground. However,
general question involved. illegality of the arrest is waivable as it
affects only the jurisdiction of the court
Note: over the person of the accused [People vs
 Law defines the offenses and penalties Meris (2000)].
under the jurisdiction of a court. In criminal
prosecution, place where the offense was
 When the objection is raised, court should
committed not only determines venue, but
resolve it before conducting trial to avoid
is an essential element of jurisdiction [Rule
unnecessary expenditure of time and
110, Sec. 15; Lopez v. City Judge (1966)].
money [Mead vs Argel (1982)].
 The court cannot take jurisdiction over a
person charged with an offense committed d. Officer who Filed Information had no
outside its territory. If the evidence Authority to Do So
adduced show that offense was committed
somewhere else, court should dismiss the  Authority to file and prosecute criminal
action for want of jurisdiction [Uy vs CA cases is vested in:
(1997)]. 1. Provincial fiscals and their assistants.
2. City fiscals and their assistants.
3. Chief State Prosecutor and his f. More than One Offense is Charged
deputies.
 General Rule: The complaint or 53
Note: information must charge only one offense
CRIMINAL PROCEDURE
 A lawyer appointed by the DOJ Secretary [Rule 110, Sec. 13].
may also file an information.
 Exception: Those cases in which existing
 The prosecutor who signed the laws prescribe a single punishment for
information must have territorial various offenses.
jurisdiction to conduct preliminary 1. Complex and compound crimes,
investigation of the offense [Cudia vs CA except where one offense was
(1998)]. Otherwise, the information filed by committed to conceal another.
him would be invalid and can be quashed 2. An offense incidental to the gravamen
on that ground. of the offense charged.
3. A specific crime set forth in various
counts, each of which may constitute
 Information filed in the Sandiganbayan a distinct offense. The narration of the
must be signed by a graft investigating specific of the specific acts is
officer with prior approval of the considered a bill of particular of facts
Ombudsman. Authority to sign may be upon which the inference of guilt of
challenged if the prosecutor files the the accused may be based [People vs
information without the approval of the Yap (1968)]/
Ombudsman.
Note:
The Ombudsman cannot sign when  It is waivable. The accused may be
information is filed in the regular courts convicted of all the offenses alleged and
[Uy vs Sandiganbayan (1999)]. proved if accused goes to trial without
objecting to the inclusion of 2 or more
 Election Offenses: Must be signed by separate offenses in the same information
duly deputized prosecutors and the legal [People vs Villamor (1998)].
officers of the COMELEC.
 It is not tantamount to duplicity of
 Lack of authority of the officer to is not offenses. An offense is committed in
cured by silence, acquiescence, express different modes and is alleged to have
consent or even by amendment. been committed in the 2 or more modes
specified [Ku Bo Lin vs CA (1992)].
e. Complaint/Information does not
Conform Substantially to the  If the criminal acts are committed on
different occasions, each constitutes a
Prescribed Form
separate offense.
 The formal and substantial requirements
are provided for in Rule 110, Sec. 6-12.
g. Criminal Action or Liability has been
Extinguished
 General Rule: Lack of substantial
compliance renders the accusatory How criminal liability is extinguished:
pleading nugatory. 1. Death of the accused
 Liability for pecuniary penalties is
 Exception: Mere defects in matter of form extinguished only if death occurs
may be cured by amendment. before final judgment.
o Objections not raised are deemed 2. Service of Sentence
waived, and the accused cannot seek  Execution must be by virtue of a final
affirmative relief on such ground nor judgment and in the form prescribed
raise it for the first time on appeal by law.
[People v. Garcia (1997)]. 3. Amnesty
4. Absolute pardon
 Vague or broad allegations are generally 5. Prescription of the crime
not grounds for a MTQ. The correct 6. Prescription of the penalty
remedy is to file for a bill of particulars 7. Pardon in private offenses
[Rule 116, Sec. 9].
Note: o Commences to run again: When

 Enjoyment of an accrued right cannot proceedings terminate without the
forever be left on a precarious balance accused being convicted or 54
[People vs Reyes (1989)]. acquitted, or are unjustifiably
CRIMINAL PROCEDURE
 Protection from prosecution under a stopped for any reason not
statute of limitation is a substantive right imputable to him.
[People vs Sandiganbayan (1992)].
 Prescription shall not run when the
Absolute pardon Conditional pardon offender is absent from the
Only upon the acceptance Philippines.
Complete upon its since accused may view
delivery liability less onerous than the  Manner of computing time:
terms o 1 yr = 365 days
o 1 month = 30 days, unless
Pardon Amnesty
specified
Grant by the President with
Grant of the o 1 day = 24 hours
concurrence of majority of
executive o Nights = sunrise to sunset
Congress
Private though o First day shall be excluded, while
Public act last day included
official act
Court must take judicial o The rule that if the last day falls on
Must be pleaded
notice [People v. Vera a Sunday or a holiday, the act can
and proved
(1990)] still be done the following day
Usually for those subject to does NOT apply to the
trial but have not yet been computation of the period of
Granted after convicted, but can also be prescription of a crime.
conviction available even after
Information concerning said felony
institution of the criminal
action and sometimes after cannot be filed anymore on the
conviction next working day as the offense
Looks forward – Looks backward – abolishes has by then already prescribed.
releases from offense itself; completely
consequences of extinguishes the penalty and  Prescription of a continuing crime:
conviction all its effects [People v. Vera It is counted from the latest or last act
(1990)] constituting the series of acts
Granted to all persons guilty continuing the single crime [People vs
Extended to of a crime (generally, political
Castaneda (1990)].
pardoned cases like rebellion, sedition,
defendant alone treason), and often
and to no other conditioned upon their return  Prescription Periods: [Art 90, RPC]
to obedience and duty within o 20 yrs – Death and Reclusion
a prescribed time Perpetua
o 15 yrs – Other afflictive penalties
 Prescription of the Crime o 10 yrs. – Correctional penalties;
except Arresto Mayor, which
 Definition: It is the loss or waiver by prescribes in 5 yrs.
the state of its right to prosecute a o 1 yr. – Libel and similar offenses;
crime [People vs Castor (1954)]. o 6 mos. – Oral defamation and
slander by deed
 Computation of Period [Art 9, RPC] o 2 mos. – Light offenses
1. Commencement: From the day o When the penalty fixed is a
on which the crime is discovered compound one, the highest
by the offended party, the penalty shall be made the basis of
authorities or their agents. the application of letters a-c
2. Interruption: Upon the filing of
the complaint or information  Prescription Of The Penalty
o General Rule: Includes complaint
filed with the proper officer for PI.  Definition: It is the loss or waiver by
o Exception: Period for offenses the State of its right to demand service
penalized by special laws and of the penalty imposed.
ordinances is interrupted only by
filing in court.
 When and penalties prescribe: [Art h. Contains Averments Which, if True,

92, RPC] Would Constitute a Legal Excuse or
o 20 yrs – Death and Reclusion Justification 55
Perpetua
CRIMINAL PROCEDURE
o 15 yrs – Other afflictive penalties 1. Justifying Circumstances [Art 11, RPC]
o 10 yrs – Correctional penalties, a) Acts in defense of his person or
except Arresto Mayor which rights
prescribes in 5 yrs  Requisites:
o 1 yr – light penalties o Unlawful aggression;
o Reasonable necessity of
 Act # 3326 governs period of means employed;
prescription for violation of special o Lack of sufficient provocation.
laws.
b) Acts in defense of the person or
 Where the accused is found to have rights of his
committed a lesser offense included  Spouse;
in the offense charged, he cannot  Ascendants;
be convicted of the lesser offense if  Descendants;
it has already prescribed [Magat vs  Legitimate/natural/adopted
People (1991)]. brothers or sisters;
 Relatives by affinity in the same
 Computation of period: [Art 91, degrees;
RPC]  Relatives by consanguinity within
1. Commencement: From the the 4th civil degree.
date when the culprit should o Provided: That unlawful
evade the service of his aggression and reasonable
sentence. necessity of means employed
2. Interruption: If the defendant are present. In case
should give himself up, be provocation was given by the
captured, should go to some person attacked, that the one
foreign country with which this making the defense had no
Government has no extradition part.
treaty, or should commit another
crime before the expiration of c) Acts in defense of the person or
the period. rights of a stranger:
 Provided: 1) That unlawful
 Pardon In Private Offenses (seduction,
aggression and reasonable
abduction, acts of lasciviousness, rape) necessity of means employed are
 It extinguishes the criminal action or present and that 2) the person
remits the penalty already imposed. defending should not be induced
by revenge or resentment or other
 General Rule: Pardon should be evil motive.
given before the filing of the
information d) Act which causes damage to avoid
 Exception: Marriage between the evil or injury
offended woman and the offender [Art  Requisites:
344, RPC; People vs Lualhati (1989)]. o Evil sought to be avoided
actually exists;
 Applicable to co-principals, o Injury feared greater than that
accomplices and accessories. done to avoid;
o If the victim is a minor: Pardon o No other practical and less
of offended party and of both harmful means.
parents is required [People vs de
la Cruz (1993)]. e) Fulfillment of a duty or lawful
exercise of a right or office
f) Obedience to an order issued by a

superior for some lawful purpose
2. Exempting Circumstances [Art 12, RPC]  Same Act:

o An offense penalized by ordinance is,
a) Imbecile or Insane
by definition, different from an offense 56
 Exception: Insane acting during a
penalized under a statute. Hence,
CRIMINAL PROCEDURE
lucid interval
they would never constitute double
b) Person under 9 yrs old
jeopardy. However, the second
c) Person over 9 yrs and under 15 yrs
sentence of the constitutional
 Exception: If he acted with protection was precisely intended to
discernment extend to situations not covered by
d) Causes injury by mere accident, the first sentence. Although the prior
without fault or intention, while offense charged under an ordinance
performing a lawful act with due
be different from the offense charged
care
under a national statute, the
e) Under compulsion of irresistible constitutional protection is available
force provided that both arise from the
f) Under impulse of uncontrollable same act or set of acts [People vs
fear or greater injury Relova (1987)].
g) Fails to perform an act required by
law when prevented by some lawful o Liability is produced both under an
insuperable cause ordinance and a national statute.
i. Double Jeopardy Note:

a) Where there are two different laws
(2002, 2004 Bar) or articles of the same code that
define two crimes, prior jeopardy
 Rule of Double Jeopardy: When a as to one is NOT an obstacle to a
person is charged with an offense and the prosecution of the other when
case is terminated either by acquittal or each crime involves some
conviction or in any other manner without important act which is not an
the express consent of the accused, the essential element of the other
latter cannot again be charged with the [Loney vs People (2006); People
same or identical offense [Rule 117, Sec. vs Doriquez (1968)].
3(i)].
 Requisites for 1st Jeopardy to Attach:
 Kinds of Double Jeopardy [Art III, Sec. 1. A valid complaint or information
21, Consti] o Sufficient in form and substance
1. No person shall be put twice in to sustain a conviction
jeopardy for the SAME OFFENSE. 2. The court had jurisdiction
2. When an act punished by a law and 3. A valid arraignment
an ordinance, conviction or acquittal 4. A valid plea
under either shall be a bar to another 5. Conviction, acquittal of the accused
prosecution to another prosecution for OR case was dismissed without his
the SAME ACT. express consent
 Same Offense: Note:

o The offenses are penalized either by o Exception: A dictated, coerced and
different sections of the same law or scripted verdict of acquittal is a void
by different statutes. judgment. It neither binds nor bars anyone
o Must examine the essential elements [Galman v. Sandiganbayan (1986)].
of each: o “Without express consent”: It refers
a. Test: WON evidence that proves only to dismissal or termination of the
one offense would likewise prove case. It does NOT refer to the conviction
the other [People vs Ramos or acquittal [People v. Labatete (1960)].
(1961)]. o If consent is not express, dismissal will be
o It is not necessary to have absolute regarded as final – i.e. with prejudice to
identity [People vs Relova (1987)]. refiling [Caes v. IAC (1989)].
o Exception: Dismissal has the effect of
acquittal even with the consent of the
accused when predicated on (1)
insufficiency of the prosecution’s evidence 2. The facts constituting the graver

or (2) denial of the right to a speedy trial charge became known or were
[Alamario v. CA (2001)]. discovered only after a plea was 57
o Dismissal = Acquittal entered in the former complaint or
CRIMINAL PROCEDURE
a) Demurrer to evidence information.
b) Dismissal due to violation of right to 3. The plea of guilty to the lesser
speedy trial (even if dismissal was offense was made without the
upon motion of the accused or with consent of the prosecutor and of
his express consent) the offended party EXCEPT when
o Dismissal vs Acquittal offended party failed to appear
during such arraignment.
Dismissal Acquittal
Does not decide Always based on the merits.  When there is NO double jeopardy
the case on the Defendant is acquitted 1. Private offended party appeals the
merits. Does not because his guilt wasn’t civil aspect of the case [Manantan vs
determine proven beyond reasonable
CA (2001)].
innocence or guilt doubt.
2. Conviction of a crime under a special
Double jeopardy
will not always
Double jeopardy always law (malum prohibitum) which also
attaches constitutes an offense under the RPC
attach
is not a bar to the prosecution under
the RPC (malum in se) [People vs
 Requisites to Raise Double Jeopardy:
Sanchez (1998)].
1. First jeopardy must have attached.
3. Two informations are filed charging
2. First jeopardy must have been
the accused with two different
terminated.
offenses having different elements
3. Second jeopardy must be a) for the
though arising from the act (eg. estafa
same offense or b) the second offense
and BP 22) [Ching vs CA (1990)].
necessarily includes or is necessarily
4. Prosecutor may revive and reinstate
included in the offense charged in the
case without filing a new information
first information or c) is an attempt or
when the information is provisionally
frustration thereof.
dismissed with the conformity of the
accused after arraignment and initial
Note:
presentation prosecution evidence
 The discharge of a defendant on a
has started since the order of
preliminary investigation is NOT such
provisional dismissal has not yet
an adjudication in his favour as will
become final [Lauchengco vs CA
bar a subsequent prosecution for the
(1979)].
offense. This is because a preliminary
5. Dismissal of the case was declared
investigation is not a trial and does not
null and void [People vs Mogol
have for its object that of determining
(1984)].
definitely the guilt of the accused.
 Where an order dismissing a case
Furthermore, the accused has not yet
is not on the merits, it cannot bar
been arraigned.
as res judicata a subsequent case
based on the same offense. The
 Tests for determining whether the
dismissal being null and void, the
two offenses are identical: There is
proceeding before the TC may not
IDENTITY between the two offense
be said to have been lawfully
not only when the second offense is
terminated [People vs Gorospe
exactly the same as the first, but also
(1984)].
when the second offense is an
6. Petition for certiorari filed by the
attempt to or frustration of or is
prosecutor to correct the penalty
necessarily included in the offense
which should be lower than that
charged in the first information
imposed by the TC – it is favorable to
the accused [People vs Lee Jr
 Exception to the Identity Rule: (1984)].
1. The graver offense developed due nd
7. Filing of the 2 information where a
to supervening facts arising from new fact supervened (eg. the injured
the same act or omission party dies from the injuries after
constituting the former charge. conviction). [1997, 2005 Bar]
o Where there is no supervening  Exceptions:

event after arraignment and 1. If information is patently defective
conviction: [People vs Ramos (1989)]. 58
 If the 1st charge was based 2. If offense charge has already
CRIMINAL PROCEDURE
on findings of a physician, and prescribed [People vs Ramos
a 2nd information was filed (1989)].
charging a more serious crime 3. If lower court acted with grave
based on the findings of abuse of discretion [Reyes vs
another physician [People v. Camilon (1990)].
Buling (1960)]. 4. If any of the ff instances occur:
 If the victim died 2 days prior [Paredes vs Sandiganbayan
to arraignment of the accused (1996)].
who pleaded guilty to an a) To afford protection to
information for serious constitutional rights
physical injuries thru reckless b) For orderly administration of
imprudence – he can no justice
c) Prejudicial question which is sub-
longer be charged with
judice
homicide thru reckless d) Prosecution under invalid law,
imprudence [People v. City ordinance or regulation
Court of Manila (1983)]. e) Persecution rather than
8. In a continuing offense, only one prosecution
crime is committed. Where 2 f) Charges manifestly false and
informations arose from the same motivated by vengeance
nd g) No prima facie case against
transaction, the 2 case CANNOT
prosper [Mallari vs People (1988)]. accused
h) To avoid multiplicity of suits
9. General Rule: Prosecution cannot file
an appeal or a motion for
reconsideration after jeopardy has c. When amendment is available as a
attached to increase the imposed cure
penalty [US vs Kepner (1904)].
 The court shall order that an amendment
 Exception: If the purpose is to be made if the motion is based on an
decrease the penalty wrongfully alleged defect which can be cured by
imposed, it is beneficial to the amendment [Rule 117, Sec. 4].
accused and there is no reason to
 Court shall give an opportunity to the
complain.
prosecution to correct a defect if based on
the ground that the facts charged do not
constitute an offense. MTQ shall be grated
5. Procedure upon filing if: [Rule 117, Sec. 4]
a. Hearing on the motion 1. Prosecution fails to make the
amendment
 No automatic conversion of a hearing on a 2. Complaint or information still suffers
MTQ to a hearing on the merits without from the same defect despite the
clear waiver by the accused of his right to amendment.
a regular trial [Dayawon vs Garfin (2002)].  In a dismissal for the purpose of an
amendment, the defendant is not placed
b. When motion is denied in jeopardy and the dismissal is not a bar
to the filing of an amended information.
[Bulaong vs. CA (1990)]  Though a material amendment is based
 Defendant should go to trial without on the ground that the facts alleged do not
prejudice on his part to present special constitute an offense, the same could be
defenses he invoked in his motion. He done because the accused has not been
may appeal if an adverse decision is arraigned nor can a dismissal on such
rendered after trial on the merits and then ground put the accused twice in jeopardy.
assign as error the denial of the MTQ.  It is a good tactical move for the accused
to first plead to the information and
 General Rule: Certiorari and Prohibition thereafter file a MTQ either before or after
are not the correct remedies against an the prosecution has presented evidence
order denying a MTQ. [Cruz vs CA (1991)].
6. Effect of order granting MTQ would bar another prosecution for the
same offense.
a. Court order sustaining motion 59
  Prosecution may appeal from the order of
CRIMINAL PROCEDURE
General Rule: Court may order that
another complaint or information be filed quashal to the appellate court.
[Rule 117, Sec. 5].  If the information was quashed because it
o Exception: If MTQ was based on the did not allege the elements of the offense,
ff: but the facts so alleged constitute another
1. Criminal action or liability has offense under a specific statute, the
been extinguished prosecution may file a complaint for such
2. Double jeopardy specific offense where dismissal is made
prior to arraignment and on MTQ [People
 General Rule: If in custody, the accused vs Purisima (1978)].
shall not be discharged unless admitted to
bail [Rule 117, Sec. 5]. The order must Order denying MTQ Order granting MTQ
state either release of the accused or Interlocutory Final order
cancellation of his bond. Not appealable absent
a showing of GAD Immediately appealable
o Exception: When there is no order
but subject to rules on
sustaining the motion is made OR if double jeopardy
there is one, no new information is
filed within the time specified in the
order or within such further time as the Does not dispose of the Disposes of the case
case upon its merits upon its merits
court may allow for good cause.
 Exception to the exception: If he Proper remedy: appeal Proper remedy: appeal
is also in custody for another after the trial the order
charge.
 Better approach if the ground was that the 7. Failure to assert grounds
court has no jurisdiction over the subject [Rule 117, Sec. 9]
matter: The court should not quash the
complaint or information. Instead, it should  Assertion of MTQ ground should be made
remand or forward the case to the proper before pleading to the complaint or
court. information.
 General Rule: Failure to assert grounds is

b. Effect
deemed a waiver of his objections.
 General Rule: It will not be a bar to
another prosecution for the same offense  Exception: Objections based on the ff
[Rule 117, Sec. 6] grounds: [Rule 117, Sec. 3]
 Exception: If the ground for the quashal is 1. Information charges no offense
either: o Hence, the entire proceeding is an
1. The criminal action or liability has exercise in futility [Cruz vs CA
been extinguished. (1991)].
2. The accused has been previously 2. Lack of jurisdiction over the offense
convicted, or in jeopardy of being o General Rule: Jurisdictional
convicted, or acquitted of the offense defects cannot be waived
charged. o Exception: Jurisdiction over the
person of the defendant is
waivable expressly or impliedly.
c. Remedies of the prosecution
3. Criminal action or liability has been
 General Rule: To amend the information extinguished.
to correct the defects if the TC makes the 4. Double jeopardy.
order, and thereafter prosecute on the
basis of the amended information [Rule
117, Sec. 4]
o Exception: Prosecution is precluded
where the ground for the quashal
8. Provisional dismissal  Requisites for Provisional Dismissal:

1. Consent of the prosecutor
(2002, 2003 Bar)
2. Consent of the accused 60
3. Notice to the offended party

CRIMINAL PROCEDURE
Definition: A case is dismissed without
prejudice to its being refilled or revived.
 General Rule: Cases are provisionally C. Provisional Remedies in Criminal
dismissed where there has already been Cases
arraignment and accused consented to a
provisional dismissal.
 Exception: If dismissal was due to a 1. Availability
demurrer to evidence.
 Provisional remedies in civil actions,
insofar as they are applicable, may be
a. When dismissal becomes permanent availed of in connection with the civil
 1 year after issuance of the order without action deemed instituted with the criminal
the case having been revived or offenses action [Rule 127, Sec. 1]
punishable: [Rule 117, Sec. 8]
1. By imprisonment not exceeding 6 yrs  Where the civil action has actually been
2. By fine of any amount instituted, or proceeded independently if
3. By both the criminal action, these provisional
remedies cannot be availed of in the
 2 yrs after issuance of the order without criminal action but may be applied for in
the case having been revived for offense the separate civil action (Regalado).
punishable by imprisonment of more than
6 yrs.  If the civil action is suspended on
account of filing of the criminal action:
Note: The court with which the civil case is filed
 How to revive a case: is not thereby deprived of its authority to
1. Refiling of the information issue auxiliary writs that do not go into the
2. Filing of a new information for the merits of the case [Ramcar Inc vs de
same offense or one necessarily Leon].
included in the original offense
charged.  Not available when:
1. Criminal action carries with it no civil
 Periods for reinstatement or revival liability
1. 1 yr for offenses punishable by 2. Offended party has reserved the civil
imprisonment not exceeding 6 yrs claim
2. 2 yrs for offenses punishable by 3. Offended party has waived the civil
imprisonment exceeding 6 yrs claim
4. Offended party has already instituted
 The State may revive beyond the periods a separate civil action
provided there is a justifiable necessity for
the delay.
 The Court is not mandated to apply Sec. 8 2. Attachment
retroactively simply because it is favorable
to the accused. The time-bar under the a. When proper
new rule was fixed for the benefit of the [Rule 127, Sec. 2]
State and the accused, and not for the
 When the civil action is properly instituted
accused only [People vs Lacson (2003)].
in the criminal action, the offended party
may have the property of the accused
b. Requisite procedure attached as security for the satisfaction of
any judgment that may be recovered from
[Rule 117, Sec. 8] the accused in the following cases:
 Motion can be made: 1. When the accused is about to
1. By the prosecution, with the express abscond from the Philippines
conformity of the accused 2. When the criminal action is based on
2. By the accused a claim for money or property
3. By both
embezzled or fraudulently misapplied

or converted to the use of the accused
who is a public/corporate officer, 61
attorney, factor, broker, agent or clerk,
CRIMINAL PROCEDURE
in the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful
violation of duty
3. When the accused has concealed,
removed or disposed of his property,
or is about to do so
4. When the accused resides outside the
Philippines
b. Issuance and implementation of the

writ
[Gonzalez v. State Properties (2001)]
When
Issuance of writ May be done before
acquisition of jurisdiction
over the accused; may
be ex-parte
Enforcement of writ Only after acquisition of

jurisdiction
REMEDIAL LAW REVIEWER Chapter 8: PRE-TRIAL
35 (June 31, 1990), as amended by

Chapter 8: Pre-Trial Circular No. 55 for the guidelines on
plea bargaining as well as note on 62
A. PRE-TRIAL CONFERENCE Rule 116].
CRIMINAL PROCEDURE
1. COVERAGE
2. PERIOD
 It usually involves the defendant’s
3. PURPOSES
B. PRE-TRAIL AGREEMENTS AND pleading guilty to a lesser offense or
SUBMISSIONS to one or some of the counts of a
1. FORM multi-count indictment in return for a
2. EFFECT lighter sentence than that for the
C. PRE-TRIAL ORDER graver charge [People vs Villarama
1. WHEN ISSUED (1989)].
2. CONTENTS
3. EFFECTS
 The conviction of the accused of the
D. NON-APPEARANCE
lesser offense precludes the filing and
prosecution of the offense originally
A. Pre-Trial Conference charged in the information, except
1. Coverage when the plea of guilty to a lesser
offense is without the consent of the
[Rule 118, Sec. 1] offended party and the prosecutor
 The court shall order pre-trial in ALL [People vs De Luna (1989)].
criminal cases cognizable by the
Sandiganbayan, RTC and MTC or MTCC  When not allowed: Section 23 of
or MCTC or MeTC RA9165 (Comprehensive Dangerous
Drugs Act of 2002) says that “any
2. Period person charged under any provision of
this Act regardless of imposable
[Rule 118, Sec. 1] penalty shall not be allowed to avail of
 General Rule: After arraignment and the provision on plea-bargaining.”
within 30 days from the time the court
acquires jurisdiction over the person of the o Stipulation of facts
accused.  This is no longer prohibited in criminal
 Exception: If a shorter period is provided cases [People vs Hernandez (1996)].
by special or SC circulars.  However, in a case of rape with the
allegation that victim is below 12 yrs of
3. Purposes age which qualifies said crime and
increases its penalty to death, nothing
[Rule 118, Sec. 1] short of proof beyond reasonable
a) Plea bargaining doubt of every fact necessary to
b) Stipulation of facts constitute the elements of the crime
c) Marking for identification of evidence must be established. Said facts and
d) Waiver of objections to admissibility of circumstances cannot be subject of
evidence stipulation [People vs Sitao (2002)].
e) Modification of the order of trial if accused
admits the charge but interposes a lawful o Marking for identification of the
defense evidence of parties
f) Other matters that will promote a fair and  Proffer of exhibits is not allowed. It
expeditious trial of the civil and criminal ought to be done at the time a party
aspects of the case closes the presentation of evidence.
Note:
o Plea bargaining
 Definition: It is the process in criminal
process whereby the 1) accused, 2)
offended party, and the 3) prosecution
work out a mutually satisfactory
disposition of the case subject to court
approval [See also DOJ Circular No.
REMEDIAL LAW REVIEWER Chapter 8: PRE-TRIAL
B. Pre-Trial Agreements and fact amounts to grave error and renders

Submissions the judgment void [People vs Santiago
(1989)]. 63
[RULE 118, SEC. 2] (2004 BAR)
CRIMINAL PROCEDURE
1. Form 2. Contents
 General Rule: Court approval is required. a) Actions taken;
 Exception: Agreements not covering b) Facts stipulated;
matters referred to in Rule 118, Sec. 1 [SC c) Evidence marked
A.M. No. 03-1-09-SC 2004].
 Required form of pre-trial agreement: 3. Effect

1. Must be in writing a) Binds the Parties
2. Signed by the accused  The accused must move to correct
3. Signed by the counsel any mistake or modify the pre-trial
order. Otherwise, it will be deemed to
 It must be reduced into writing and signed have waived and be barred from
by the accused and counsel. Otherwise, it questioning
cannot be used against the accused(i.e.  The procedure is substantially the
inadmissible in evidence). The same in civil cases, except that any
constitutional right to present evidence is modification of the pre-trial order in
waived expressly. civil cases must be made before the
trial. No such limitation is provided for
 Purpose for signature requirement: in criminal cases (1997 Bar).
[People vs Uy (2000)] b) Limits the trial to those matters not
1. To safeguard the rights of the accused disposed of
against improvident or unauthorized c) Control the course of the action during trial
agreements or admissions which his  Exception: If modified by the court to
counsel may have entered into without prevent manifest injustice.
his knowledge.
2. To eliminate any doubt on the
conformity of the accused to the facts
agreed upon. D. Non-Appearance
[RULE 118, SEC. 3]
2. Effect  If counsel for the accused or the
 Once the stipulations are reduced into prosecutor 1) does not appear at the pre-
writing and signed by the parties and their trial conference and 2) does not offer an
counsels, they become binding on the acceptable excuse, the court may impose
parties who made them. They become proper sanctions or penalties (reprimand,
judicial admissions of the fact or facts fine or imprisonment).
stipulated (2008 Bar)
 Even if placed at a disadvantageous  Rationale: to enforce the mandatory
position, a party may not be allowed to requirement of pre-trial in criminal cases
rescind them unilaterally; it must assume [Rule 118, Sec. 1].
the consequences of the disadvantage
[Bayas vs Sandiganbayan (2002)]. Note:
Accused is not included because his
constitutional right to remain silent may be
C. Pre-trial order violated. The accused is not required to
attend (unless required by the court) and
[RULE 118, SEC. 4] is merely required to sign the written
agreement arrived at in the pre-trial
1. When issued conference if he agrees to the contents of
such.
 Issued by the court after the pre-trial
conference.
 Judgment of acquittal based on pre-trial
despite disputed documents and issues of
REMEDIAL LAW REVIEWER Chapter 9: ARRAIGNMENT
Exceptions:
Chapter 9: Arraignment  The accused is allowed to defend himself
in person or has employed a counsel of 64
A. ARRAIGNMENT his choice.
CRIMINAL PROCEDURE
1. IN GENERAL  The accused expressly and formally
2. PROCEDURE renounced such right.
B. PLEA
1. POSSIBLE PLEAS
2. PLEA BARGAINING d. Issues that may be raised before
3. WITHDRAWAL OF PLEA arraignment
4. SUSPENSION OF PLEA
 WON arrest was legal, with or without
A. Arraignment warrant: Can either move to quash or
recall warrant. Failure to question will
1. In General amount to waiver.
 WON accused was accorded the right to a
a. Definition PI: If none or incomplete, ask court for PI.
 ARRAIGNMENT is the stage where the [Romualdez v. Sandiganbayan (1995)]
accused is formally informed of the charge  WON information or complaint vaguely
against him by reading before him the worded: File a BOP; otherwise, the
information/complaint and asking him defects are deemed to have been waived.
whether he pleads guilty or not guilty. [Rule 116, Sec. 10]
[Rule 116, Sec. 1(a)]  WON complaint/information is
 It is the stage where the issues are joined “quashable”: File a MTQ; otherwise,
and without which the proceedings cannot grounds are deemed waived. [Rule 117]
advance further or, if held, will otherwise
be void. [Borja v. Mendoza (1977)]
2. Procedure
b. Purpose: Procedural due process [RULE 116, SEC. 1]
 To fix the identity of the accused;

 To inform him of the charge and the penal How arraignment made
offense he has to face; a. In general:
 To obtain from the accused his answer or
his plea to the information;  The accused must be arraigned before the
 To be convicted only on a showing that court where the complaint or information
guilt is proved beyond reasonable doubt was filed or assigned for trial;
with full opportunity to disprove the  It shall be made in open court by the judge
evidence against him. [Borja v. Mendoza or clerk by furnishing the accused with a
(1977)] copy of the complaint/information;
 The complaint/information shall be read in
the language or dialect known to him
c. Four-fold duty of the TC before [People v. Alicando (1995)], and he shall
arraignment be asked whether he pleads guilty or not
[Rule 116, Sec. 6] guilty.
(1) Inform the accused that he has the right to  Unless a shorter period is provided by
have his own counsel before being special law or SC circular, the arraignment
arraigned; shall be held within 30 days from the date
(2) Ask whether or not he desires the aid of the court acquires jurisdiction over the
counsel; person of the accused
(3) If he so desires to procure services of The accused must be present at the
counsel, must grant him reasonable time arraignment and must personally enter his
to do so. plea.
(4) The court must assign a counsel de oficio  NO ARRAIGNMENT IN ABSENTIA
to defend him. [Rule 119, Sec. 7] [Nolasco v. Enrile (1985)]- The presence
of the accused is not only a personal right
but also a public duty, irrespective of the
gravity of the offense and the rank of the
court.
 No trial in absentia without first shall require the prosecution to

arraigning the accused; otherwise, prove his guilt and the precise
judgment is null and void since (1) the degree of his culpability and the 65
issues are not joined and (2) the right accused may present evidence in
CRIMINAL PROCEDURE
to be informed of the nature and his behalf; such procedure is
cause of accusation is violated. mandatory. Failure to observe
 The private offended party shall be the duties of the trial judge
required to attend at the arraignment amounts to grave abuse of
for purposes of (1) plea-bargaining, discretion. [People v. Devico
(2) determination of civil liability and (1997)]
(3) other matters requiring his  The plea must be clear,
presence. definite and unconditional.
 In case the offended party failed to There must be well-
appear despite due notice, the court informed understanding
may allow the accused to enter a plea and full realization of the
of guilty to a lesser offense which is
consequences.
charged with the conformity of the trial  It must be based on a free
prosecutor alone. and informed judgment.
Mere warning of facing the
supreme penalty of death is
b. If the accused is under preventive
insufficient.
suspension
 The judge must ask
 The case shall be raffled and its records whether the accused was
transmitted to the judge to whom the case assisted by counsel during
was raffled within 3 days from the filing of CI and PI; ask questions on
the information or complaint.
age, educational attainment
 The accused shall be arraigned within 10
days from the date of the raffle.
and socio-economic status;
and ask the defense
counsel WON he conferred
B. Plea with the accused. [People
v. Nadera (2000)]
1. Possible Pleas  Rationale: To proceed with more
care where the possible
a. Admission – Guilty punishment is in its severest form;
i. Plea of guilty to a NON-CAPITAL to avoid improvident pleas of guilt.
OFFENSE [People v. Samontanez (2000)]
 The court may receive evidence  Improvident plea of guilty to a
from the parties to determine the capital offense
penalty to be imposed. [Rule 116,  IMPROVIDENT PLEA - Plea
Sec. 4] without proper information as
 It is sufficient to sustain a to all the circumstances
conviction when formally and affecting it; based upon a
knowingly and voluntarily entered mistaken assumption or
into. [People v. Acosta (1956)] misleading information/advice.
 It is a judicial confession of guilt [Black’s Law Dictionary]
so there is no need for additional  General rule: Improvident
evidence. [People v. Flores plea should not be accepted.
(2000)] If accepted, it should not be
held to be sufficient to sustain
ii. Plea of guilty to a CAPITAL a conviction. [People v. De
OFFENSE [Rule 116, Sec. 5] Ocampo Gonzaga (1984)].
 The court shall conduct a Case is remanded to the
searching inquiry into the lower court for further
voluntariness and full proceedings.
comprehension of the  Exception: If the accused
consequences of his plea and appears guilty beyond
reasonable doubt from
evidence adduced by the b. When Plea is Made after the

prosecution and defense Prosecution has Rested Its Case
 It is a settled rule that where 66
 The judge cannot on his own grant the
TC receives evidence to
CRIMINAL PROCEDURE
change. He may grant only with the
determine whether the
approval of the prosecutor and the
accused has erred in
offended party and only when the
admitting his guilt, the manner
in which the plea is made prosecution does not have sufficient
evidence to establish guilt.
loses legal significance since
the conviction is based on the
evidence proving the
commission by the accused of 3. Withdrawal of Plea
the offense charged. [People a. When allowed
v. Alborida (2001)]
[Rule 116, Sec. 2 and 5]
 Substitution by plea of not guilty may be
b. Denial – Not Guilty permitted anytime before the judgment of
 Plea of not guilty to be entered for the conviction becomes final.
accused when he either: [Rule 116, Sec.  The substitution is not a matter of a strict
1(c)] right. It is discretion justified by some
 Refuses to plead; compelling reason such has error, fraud,
 Makes a qualified plea of guilty. illegality or manifest injustice. [People v.
 Plea of guilt, but accused presents Mendoza (1982)]
exculpatory evidence
b. Reasons to grant change
 The accused is ignorant of the law and
2. Plea Bargaining
has had no education and pleaded guilty
[Rule 116, Sec. 2] – without full knowledge of its
 Definition: The process where the consequences.
accused, the offended party and the  The accused did not thoroughly
prosecution work out a mutually understand the complaint.
satisfactory disposition of the case,  The accused was not advised as to the
subject to court approval meaning and effect of the technical
 Plea of guilty to a lesser offense language.
charged
 Pleading guilty to a lesser offense or c. Procedural and substantial
to only one/some of the counts of a requirements in the grant of a change
multi-count indictment in return for a of plea
lighter sentence [People v. Mendoza (1982)]
.  Withdrawal need not be verified, but it
a. When Plea is Made Without Consent should have a rational basis.
of the Offended Party  Motion for change of plea should be set
for hearing.
[Rule 116, Sec. 10]  Prosecution should be heard on the
 If he fails to appear notwithstanding motion.
notice, the court may, with conformity of  The court should state the reasons for
the prosecutor, allow the accused to plead setting aside (or not setting aside) the
guilty to a lesser offense which is judgment of conviction and for permitting
necessarily included in the offense (or not permitting) the accused to
charged. substitute a plea of not guilty for his plea
 When plea is made without the consent of of guilty.
the prosecutor and the offended party, the
conviction shall not be a bar to another
prosecution for an offense which
necessarily includes the offense charged
in the former information.
4. Suspension of arraignment upon  It may be raised during PI. If the

motion by the proper party information is filed in court, it may be
raised as ground to suspend the 67
a. Grounds arraignment. [Rule 11, Sec. 5]
CRIMINAL PROCEDURE
[Rule 116, Sec. 11]
iii. Pending petition for review of the
i. Unsound mental condition of the resolution of the prosecutor with
accused at the time of the arraignment. the DOJ or Office of the President.
 Degree of unsoundness of mind required:  The accused should file motion to
The accused can neither comprehend the suspend and to secure a ruling on his
full import of the charge nor can he give petition for review within 60 days from the
an intelligent plea. filing of the petition.
 The court shall order his mental  Rationale: Need to observe judicial
examination and, if necessary, his courtesy and to avoid legal complications
confinement. in case the resolution would be different
 The need for suspension may be from the offense for which the accused
determined from physical and outward was arraigned, especially if it would
manifestations at the time of arraignment upgrade the offense.
indicative of a mental disorder which the
court had observed and defense counsel b. Factors for granting continuance
had called attention to. [People v. Alcalde under Rule 119, Sec. 3(f)
(2002)]
 An insane person within the meaning of [Rule 119, Sec. 4]
Art. 12, RPC must be deprived completely  WON the failure to grant would likely:
of reason or discernment and freedom of make a continuation impossible; or
the will at the time of committing the crime. result in a miscarriage of justice.
Mere abnormality of mental faculties does  WON the case taken as a whole is novel,
not exclude imputability. [People v. unusual and complex due to:
Catanyag (1933)] 1. The number of accused;
 3 major criteria to determine insanity: 2. The nature of the prosecution; or
[People v. Dungo (1991)] 3. It is unreasonable to expect adequate
 DELUSION TEST – Insanity is preparation within the periods of time
manifested by a false belief for which established.
there is no reasonable basis and  There should be no continuance because
which would be incredible under the of:
given circumstances. 1. Congestion of the court’s calendar;
 IRRESISTIBLE IMPULSE TEST – 2. Lack of diligent preparation;
The accused has lost the power to 3. Failure to obtain available witnesses
choose between right and wrong, to on the part of the prosecutor. [Sec. 10,
avoid the act in question, his free Circular No. 38-98]
agency being at that time destroyed.
 RIGHT AND WRONG TEST – A c. Time limit following an order for new
perverted condition of mental and trial
mortal faculties as to render him
incapable of distinguishing between [Rule 119, Sec. 5]
right and wrong  General rule: Trial shall commence within
 Tests to determine insanity: [People v. 30 days from notice of the order.
Pascual (1993)]  Provided: The court may extend, but
 TEST OF COGNITION – Complete extension shall not exceed 180 days, if the
deprivation of intelligence in period becomes impractical due to
committing the criminal act. It is the unavailability of witnesses and other
test adopted in this jurisdiction. factors.
nd
 TEST OF VOLITION – A total o For the 2 12-month period, time limit
deprivation of free will. shall be 180 days from notice of the
order for new trial. [Sec. 11, Circular
ii. Prejudicial question exists No. 38-98]
 It prescinds from the idea that it would be
determinative of guilt or innocence.
d. Extended period for arraignment

[Rule 119, Sec. 6] 68
 General rule: Arraignment is to be held
CRIMINAL PROCEDURE
within 30 days from the date court
acquires jurisdiction over the person of the
accused. [Rule 116, Sec. 1(g)]
o Exception: If a shorter period is
provided by special law or SC circular.
o The accused shall have at least 15
days to prepare for trial, after a plea of
not guilty is entered. [Rule 119, Sec.
1; Sec. 6, Circular No. 38-98]
 Trial shall commence within 30 days from
receipt of pre-trial order. [Rule 119, Sec. 1;
Sec. 6, Circular No. 38-98]
st
o For the 1 12-calendar-month period
following the effectivity of SC Circular
No. 38-98 on September 15, 1998, the
time limit shall be 180 days. [Sec. 7,
Circular No. 38-98]
nd
o For the 2 12-mo nth period, 120
days.
rd
o For the 3 12-month period, 80 days.
o The law did not give the time limit after
80 days – arraignment can be thus be
made any time after 80 days.
o See Rules 21, 23-25 and 27-29 vis-à-
vis Rule 1, Sec. 3.
REMEDIAL LAW REVIEWER Chapter 10: TRIAL
accused. Within the same 30 day period,

Chapter 10: Trial the court shall set the pre-trial conference.
 The accused shall have at least 15 days, 69
A. GENERAL PROCEDURE FOR TRIAL after a plea of not guilty is entered [Rule
CRIMINAL PROCEDURE
1. NATURE AND COMMENCEMENT 119, Sec. 1] to prepare for trial (including
2. TIME TO PREPARE FOR TRIAL pre-trial).
3. TRIAL PROPER
4. ORDER OF TRIAL  Purpose: To insure speedy trial.
B. SPECIAL PROCEDURES  Note that the Constitutional provision
1. TRIAL OF SEVERAL ACCUSED JOINTLY on speedy trial [Art. 3, Sec. 14(2),
CHARGED 1987 Consti] prevails in case of
2. CONSOLIDATION OF TRIALS OF conflict [Rule 119, Sec. 10]
RELATED OFFENSES  Mandatory pre-trial is set, then the judge
3. DISCHARGE OF AN ACCUSED TO BE A issues a pre-trial order.
STATE WITNESS
4. OTHER MODES OF DISCHARGE OF
 Trial shall commence within 30 days
THE ACCUSED TO BE A STATE from receipt of pre-trial order. [Rule
WITNESS 119, Sec. 1; Sec. 6, Circular No. 38-
5. THE OMBUDSMAN’S POWER TO 98]
GRANT IMMUNITY. [SEC. 17, RA 6770]
6. EFFECT OF DISCHARGE
7. RE-OPENING OF TRIAL
C. OTHER PROCEDURAL RULES
3. Trial proper
1. WHEN PROPER OFFENSE IS NOT a. Continuous trial
CHARGED
2. DUTIES OF COUNSELS AND  General rule: Trial, once commenced,
PROSECUTORS shall continue from day to day as far as
3. APPOINTMENT OF ACTING practicable until terminated. [Rule 119,
PROSECUTOR Sec. 2]
4. EXCLUSION OF THE PUBLIC FROM  Exception: It may be postponed for a
THE COURTROOM
5. ARCHIVING OF CRIMINAL CASES
reasonable period of time for good
6. INHIBITION OF JUDGES cause (eg., absence of a material
7. DESISTANCE BY THE OFFENDED witness [Rule 119, Sec. 3(f)])
PARTY  Granting or refusal of an application
for continuance or postponement lies
A. General Procedure for Trial within the sound discretion of the
court. This discretion will not be
1. Nature and commencement interfered with by mandamus or by
appeal, unless grave abuse of
discretion is shown.
 TRIAL - Examination before a competent
 The court shall set the case for continuous
tribunal of the facts put in issue in a case,
trial on a weekly or other short-term trial
for the purpose of determining such issue.
calendar at the earliest possible time so as
 As used in Constitution, it includes
to ensure speedy trial, after consultation
hearing, reception of evidence and other
with the prosecutor and defense counsel.
processes (i.e. decision in the first
[Rule 119, Sec. 2]
instance, appeal, and final and executory
decision in last instance).
 Period of commencement: b. Time limitation
 15 days after arraignment
 General rule: In no case shall the entire
 30 days from receipt of pre-trial order
trial period exceed 180 days from the 1st
day of trial. [Rule 119, Sec. 2]
 Exceptions:
2. Time to prepare for trial
1. When otherwise authorized by the
SC; [Sec. 8, Circular 38-98]
 Notice to the parties required - The 2. When special laws or circulars
clerk notifies parties of the date of provide for a shorter period of trial.
arraignment, which should be 30 days [Rule 119, Sec. 2]
from the date the court acquires  While failure of trial judge to observe this
jurisdiction over the person of the does not result in loss of jurisdiction, it
may subject him to disciplinary sanctions.
Hence, he should request the SC for  Proceeding concerning the accused is

additional trial dates to terminate the actually under advisement – delay not
hearing. to exceed 30 days. 70
CRIMINAL PROCEDURE
GUIDELINES IN THE CONDUCT OF (2) Absence or unavailability of an essential
MANDATORY CONTINUOUS TRIAL witness.
[SC Circular 1-89]  “Absent” means that his whereabouts
are unknown or cannot be determined
1) Not more than 3 cases scheduled for daily trial.
by due diligence.
2) Presiding judge shall make arrangements so
that a relief prosecutor and Citizens Legal  “Unavailable” means that his
Assistance Office [now PAO] attorney are whereabouts are known but presence
always available in case the regular prosecutor for trial cannot be obtained by due
and CLAO attorney are absent. diligence.
3) Contingency measures must be taken for any
unexpected absence of the stenographer and (3) Mental incompetence or physical inability
other support staff. to stand trial.
4) Strict policy on postponements shall be
observed.
(4) If information is dismissed upon motion of
5) The judge shall conduct the trial with utmost
dispatch, with judicious exercise of the court’s the prosecution and thereafter a charge is
power to control the trial to avoid delay. filed against the accused for the same
6) Trial shall be terminated within 180 days from offense, the period of delay from the date
initial hearing and appropriate disciplinary the charge was dismissed to the date the
sanctions may be imposed on the judge and time limitation would commence to run as
the lawyers for failure to comply due to causes to the subsequent charge had there been
attributable to them. no previous charge.
7) Each party is bound to complete the
presentation of evidence within the trial dates
(5) Reasonable period of delay when accused
assigned. After the lapse of said dates, party is
deemed to have completed his evidence is joined for trial with a co-accused:
presentation.  Over whom the court has not acquired
 However, upon verified motion based on jurisdiction;
serious reasons, the judge may allow  As to whom the time for trial has not
additional trial dates in the afternoon, provided run and no motion for separate trial
that said extension will not go beyond the time has been granted.
limit computed from the 1st trial date.
 Copies of all judgments are furnished the OCA (6) Continuance granted on the basis of
within 5 days from rendition.
findings set forth in the order that the ends
of justice served by taking such action
c. Excluded periods of delay outweigh the best interest of the public
and the accused in a speedy trial. [Sec. 9,
 Periods of delay are excluded in Circular 38-98; Sec. 3, Rule 119]
computing the time within which trial must  By any court motu proprio, or on
commence. [Rule 119, Sec. 3] motion of either the accused or his
counsel, or the prosecution. The
(1) Other proceedings concerning the motion should be based on any of the
accused, including but not limited to: grounds specified in Rule 119, Sec. 3-
 Examination of physical and mental 4.
condition.
 Other criminal charges.
 Extraordinary remedies against d. Effect of delay
interlocutory orders. [Rule 119, Sec. 9]
 Pre-trial proceedings – delay must not  On motion of the accused, information
exceed 30 days. may be dismissed on the ground of denial
 Orders of inhibition, or proceedings of his right to speedy trial (2007 Bar).
relating to change of venue of cases  Must be raised prior to trial otherwise
or transfer from other courts. (Art. 8, considered a waiver of the right to dismiss
Sec. 5(4), Consti expressly empowers under this section.
the SC to order a change of venue.)  Subject to the rules on double jeopardy.
 Existence of a prejudicial question. Hence, if with prejudice, the case cannot
be revived anymore.
 Burden of Proof 4. Order of trial

 The accused has the burden of
proving the ground of denial of right to a. Importance of adhering to order 71
speedy trial for the motion. 
CRIMINAL PROCEDURE
Trial procedure as outlined ordinarily
 The prosecution has the burden of followed to ensure orderly conduct of
going forward with the evidence to litigations to protect substantive rights.
establish the exclusion of time under  Deviation from the regular course should
Rule 119, Sec. 3. always take into consideration the rights of
all parties.
Dismissal without Dismissal with  To safeguard the right of the accused to
prejudice prejudice be presumed innocent until the contrary is
Adjudication on the proved.
merits, and final  Deviation by the judge which denies the
Allows new suit for the disposition, barring the accused of his day in court or the
same cause of action right to bring or maintain
an action on the same
prosecution of due process renders the
claim or cause judgment invalid. [Alonte v. Savellano
Imports contemplation (1998)]
of further proceedings,  The form of trial is a matter of public order
and when they appear and interest. [Alejandro v. Pepito (1980)]
Is res judicata as to
in an order or decree, it
every matter litigated
shows that the judicial
act is not intended to be b. When court may modify the order
res judicata of the merits
(2007 Bar)
Terminates the case
reserving, however, to
 If the accused admits the act/omission
the plaintiff the right to charged in the complaint/information but
file a new complaint interposes a lawful defense, the order of
which, if filed, is entirely trial may be modified. [Rule 119, Sec.
new and different from 11(e)]
the case which was  The court may allow the accused to
dismissed present his defense first, and after give the
prosecution the opportunity to present its
Trial in absentia (1998 Bar) rebuttal evidence (reverse trial).
 Requisites:  Strict observance depends upon the
1. Accused has been arraigned; circumstances obtaining in each case at
2. He was duly notified of trial; the discretion of the trial judge. [People v.
3. His failure to appear is unjustified. Januario (1997)]
 Purpose: To speed up disposition of  If the accused timely objects to reverse
cases. procedure, court should follow the order of
 General rule: The right to be present at trial as provided for in ROC. [Alejandro v
one’s trial may be waived. Pepito (1980)]
 Exceptions: At certain stages:
[Lavides v. CA (2000)]
o Arraignment and plea c. “Cold neutrality of the impartial
o Promulgation of sentence, unless judge”
for light offense  He must not only be impartial, but must
o During trial whenever necessary also appear to be so.
for ID purposes  He must remain silent or passive. But he
 Exception to the exception: If the may properly intervene in the presentation
accused unqualifiedly admits in of evidence to prevent unnecessary waste
open court after arraignment that of time. [Cosep v. People (1998)]
he is the person named as the  General rule: It is within the court’s
defendant in the case on trial. prerogative and duty to ask
clarificatory questions.
o Exception: Questions to witnesses
which will have the effect of building
the case for one of the parties
amounts to undue interference.
[People v. Gallerno (1998)]
d. Prosecution evidence  Purpose: to prevent the filing of demurrer

based on frivolous and flimsy grounds.
 The prosecution shall present evidence to  The new rule recognizes criminal cases in 72
prove: [Rule 119, Sec. 11(a)]
which presentation of defense evidence
CRIMINAL PROCEDURE
 The charge; will only entail a waste of time.
 The civil liability, in proper cases.
 PRESENTATION OF THE EVIDENCE-IN-
CHIEF f. How initiated:
 The matter of presenting witnesses for [Rule 119, Sec. 23]
the prosecution is not for the accused  Court motu proprio, after giving the
or TC to control – discretion belongs prosecution the opportunity to be heard;
to the prosecuting officer. [People v.  Upon demurrer to evidence filed by the
Jamero (1997)] accused:
 Prosecution may call witnesses other  With leave of court;
than those named in the  Without leave of court.
complaint/information.
 It is given the discretion as to WON to
use the offended party as a witness. g. Motion for leave to file demurrer
 Their failure to present such number [Rule 119, Sec. 23]
of witnesses as stated in the  It must specifically state its grounds.
information cannot be assigned as an  It must be filed within a non-extendible
error. period of 5 days after the prosecution
 The accused has the right to demand rests. Prosecution may then oppose within
the list of prosecution witnesses. a non-extendible period of 5 days from
 Evidence presented by one party may receipt.
be utilized by the adverse party as  If leave of court granted, demurrer must
evidence for his own cause of action. be filed within a non-extendible period of
 WHEN PROSECUTION IS DENIED DUE 10 days from notice. Prosecution may
PROCESS oppose within a similar period from its
 Capricious dismissal of information is receipt.
void as it deprives the State of a fair
opportunity to prosecute and convict.
 It will not constitute proper basis for h. Effect of granting motion for leave to
the claim of double jeopardy. [Saldana file demurrer
v. CA (1990)]  The court may dismiss the action on the
ground of insufficiency of evidence. [Rule
e. Demurrer to evidence 119, Sec. 23]
 Sufficient evidence for frustrating a
(1998, 2001, 2004 Bar) demurrer is evidence that proves: [Gutib v.
 Definition: Objection by one of the parties CA (1999)]
to the effect that the evidence which his  Commission;
adversary produced is insufficient in point  Precise degree of participation.
of law, whether true or not, to make out a o E.g. Proof of the possession of
case or sustain the issue. [Gutib v. CA recently stolen goods taken
(1999)] together with proof of the
 Purpose: In light of the constitutional right commission of the theft, may be
to be presumed innocent and of the and generally will be sufficient to
privilege against self-incrimination establish the guilt of the accused,
[Goldstein, 1960] for the accused to test if there is nothing in the record to
the sufficiency of prosecution’s evidence raise a doubt as to the guilty
before presenting defence. character of the possession,
 There is no material difference between though there is no presumption to
the Motion to Acquit of the accused before that effect. [U.S. v. Catimbang
the TC and the demurrer to evidence. The (1916)]
only difference: If the MTD is ordered, it is
tantamount to an acquittal, but the order of
denial of the demurrer to evidence is not
reviewable by appeal or certiorari before
judgment.
i. Effect of denial of motion for leave to Demurrer to Evidence Demurrer to Evidence

file demurrer in Criminal Cases in Civil Cases
If sustained, plaintiff If sustained, plaintiff can 73
 Order denying the motion for leave or cannot appeal dismissal appeal from the
CRIMINAL PROCEDURE
order denying the demurrer itself, is not because it will place the judgment of dismissal
reviewable by appeal or by certiorari accused in double
before judgment. [Rule 119, Sec. 23] jeopardy
 It is interlocutory, but it may be assigned
as error and reviewed in the appeal that l. Defense evidence
may be taken from the decision on the
merits [Cruz v. People (1999)]  The accused may present evidence to
prove: [Rule 119, Sec. 11(b)]
1. His defense;
j. Right of the accused to present 2. Damages, if any, arising from the
evidence after demurrer is denied issuance of a provisional remedy in
[Rule 119, Sec. 23] the case.
 That it rests with the accused to rebut the
Filed w/ leave of Filed w/out inference of fact as to his guilt is not to
court leave of court compel him to give evidence against
May adduce himself. It is merely to give him the
Waives the right to present
evidence in his
evidence
opportunity to submit evidence after the
defense prosecution has introduced evidence
Purpose of sufficient to sustain a conviction, unless
obtaining leave of rebutted or satisfactorily explained. [US v.
Submits the case for
court: To Catimbang (1916)]
judgment on the basis of the
determine WON
evidence for the prosecution
demurrer was filed
merely to stall the m. Negligence of defense counsel
proceedings
If there are 2 or more  General rule: That the negligence of
accused and only one counsel binds the client is based on the
presents a demurrer without principle that any act performed by a
Implied leave of leave of court. lawyer within the scope of his authority is
court is no longer regarded as an act of the client.
sufficient and General rule: The court may
 Exception: Where reckless or gross
prevents accused defer resolution until decision
from presenting is rendered on the other negligence deprives the client of due
evidence [e.g. accused process of law, or when the application of
accused files the rule results in the outright deprivation
motion with Exception: If it can be shown of one’s property through a technicality.
reservation to from the decision that the [Salonga v. CA (1997)]
present evidence resolution on the demurrer
in case motion is was rendered not only on the
denied] basis of the prosecution’s n. When publicity is prejudicial to the
evidence but also on the rights of the accused
evidence adduced by his co-
accused [Larranaga v. CA (1998)]
 There must be allegation and proof that
the judge has been unduly influenced, not
k. Distinctions between Demurrers to simply that he might be.
Evidence in Criminal and Civil Cases  The right to a fair trial is not incompatible
(2003, 2007 Bar) with a free press.
 The press guards against the miscarriage
Demurrer to Evidence Demurrer to Evidence of justice by subjecting the process to
in Criminal Cases in Civil Cases extensive public scrutiny and criticism.
Filing of a demurrer to Defendant can always
the evidence without present evidence in the
leave of court is an event his demurrer is
o. Rebuttal evidence
unqualified waiver of the denied, even if no  Definition: Any evidence to explain,
right to present reservation was made repeal, counteract or disprove the
evidence for the therefor
adversary’s proof.
accused
Receivable only where new matters B. Special Procedures

have been developed by the evidence of
one of the parties. 74
Generally limited to a reply on new
1. Trial of several accused jointly
CRIMINAL PROCEDURE
points. charged
 It is permissible as long as the accused
was not taken by surprise and was not  General rule: They shall be tried jointly.
prevented from introducing evidence in [Rule 119, Sec. 16]
sur-rebuttal.  Exception: If the court orders
 General rule: Prosecution and defense separate trial for one or more
may, in that order, present rebuttal and accused, upon motion of the
sur-rebuttal evidence. [Rule 119, Sec. prosecutor or any accused.
11(c)]  The grant of a separate trial rests in
 Exception: The court, in furtherance of the sound discretion of the court and
justice, may permit them to present is not a matter of right to the accused.
additional evidence bearing upon the main [Talino v. Sandiganbayan (1987)]
issue.  Purpose: To preclude wasteful
expenditure of judicial resources. It is also
in consonance with the right of the
p. Sur-rebuttal evidence
accused to a speedy trial.
 Definition: Proof to meet or refute those  Accused are jointly charged if the
new matters taken up by the adverse party charges are founded on the same
during the rebuttal stage, or to clarify facts or form part of a series of
matters that were beclouded or made offenses of the same character.
ambiguous. o E.g. Adulteress or her lover may
move for separate trials. Although
it is required that the husband
q. Submission of case
must include both in the
 General rule: case shall be deemed complaint, the statute does not so
submitted for decision upon admission of require that they be tried together.
evidence of the parties. [Rule 119, Sec.  MOTION FOR SEPARATE TRIAL: must
11(d)] be raised before trial has commenced,
 Exception: If the court directs them to before the prosecution commences
argue orally or to submit written presenting its evidence. [Talino v.
memoranda. Sandiganbayan (1987)]
 Mere filing of motion to reopen must not Exceptions:
automatically vacate a joint agreement o In the interests of justice.
and order submitting the case for decision. o If there appears to be an antagonism
[Cruz v. People (1999)] in the respective defenses of the
 The matter of reopening for reception of accused. [Talino v. Sandiganbayan
further evidence after either the (1987)]
prosecution or the defense has rested, is  Evidence in chief of the prosecution shall
within the discretion of the court. [People remain on record against all the accused,
v. Concepcion (1949)] with right of rebuttal on the part of the
 SUBMISSION OF ARGUMENTS – ORAL fiscal in the separate trial of the other
AND WRITTEN accused.
 It may not be claimed by the parties  EFFECT OF SEPARATE TRIALS:
as a matter of right. General rule: If separate trial is granted, it
 As a matter of practice: Courts usually is the duty of the prosecutor to repeat and
allow parties to crystallize their produce all its evidence at each and every
respective positions through the trial.
submission of arguments or Exceptions:
memoranda. o It had been agreed by the parties that
it would not have to be repeated at the
2nd/etc. trial;
o All the accused were present during
the presentation of evidence by the
prosecution;
o Their attorneys had the opportunity to b. Requisites

cross-examine the witnesses.
 It is permissible to render only one
[Rule 119, Sec. 17] 75
decision on all cases despite their (1) Two or more persons are jointly charged
CRIMINAL PROCEDURE
separate trials. with the commission of any offense.
(2) Petition for discharge is filed before the
defense has offered its evidence. [People
v. Aniňon (1988)]
2. Consolidation of trials of related (3) Hearing in support of the discharge.
offenses o Prosecution to present evidence.
o Sworn statement of each proposed
 Charges for offenses founded on the state witness.
same facts or forming part of a series of (4) The court is satisfied of the ff:
offenses of similar character, may be tried (a) Absolute necessity for the testimony;
jointly at the discretion of the court. [Rule  He alone has the knowledge of
119, Sec. 22] the crime, and not when his
 Purpose: Attainment of justice with the testimony would simply
least expense and vexation to the party corroborate or strengthen the
litigants. evidence in the hands of the
 General rule: Consolidation is addressed prosecution. [Flores v.
to the sound discretion of the court. Sandiganbayan (1983)]
Exceptions: Joint hearing is a matter of  E.g. When there is a conspiracy
duty: and the crime is committed
o If 2 or more cases are tried before the clandestinely, the discharge of a
same judge; conspirator is necessary to testify
o Even filed with the different branches against the other conspirator.
of the same court, if one of such [Chua v. CA (1996)]
cases has not been partially tried. (b) There is no other direct evidence
 The several actions lose their separate available for the proper prosecution
identities and become a single action in of the offense, except the testimony;
which a single judgment is rendered. (c) The testimony can be substantially
 Limitations on consolidation: corroborated in its material points;
 The court cannot convict an accused (d) Accused does not appear to be the
of a complex crime constitutive of the most guilty;
various crimes alleged in the  Gravity or nature of acts he
consolidated cases committed are compared to
 It is reversible error where the court those of his co-accused.
convicted an accused for 2 offenses in  Not merely the fact that in law the
one of two cases in the absence of a same penalty is imposable on all.
consolidation and on the basis of (e) Accused has not, at any time, been
evidence adduced in one case, convicted of any offense involving
because the accused is entitled to a moral turpitude
trial in each case. [US v. Tanjuatco
(1993)] c. Procedure
[Rule 119, Sec. 17]
3. Discharge of an accused to be a (1) Motion of the prosecution before resting its
state witness case, with consent of private offended
party.
a. Discharge of a co-accused (2) Hearing in support of the discharge:
o Prosecution to present evidence.
 General rule: It is the duty of the
o Sworn statement of each proposed
prosecutor to include all the accused in
state witness.
the complaint/information.
(3) Court may either:
 Exception: Prosecutor may ask the o Direct one or more of the accused to
court to discharge one of them after be discharged with their consent so
complying with the conditions that they may be witnesses for the
prescribed by law. [Rule 119, Sec. 17] State.
 This applies only when the information
has already been filed in court.
 Evidence adduced in support of under the RPC or its equivalent under

the discharge shall automatically special laws;
form part of the trial. (2) His testimony can be substantially 76
 Question against the order to corroborated in its material points;
CRIMINAL PROCEDURE
discharge must be raised in the (3) He or any member of his family within
TC; it cannot be raised on appeal. the 2nd civil degree of
o Deny the motion for discharge; consanguinity/affinity is subjected to
 The sworn statement of the threats to his life or bodily injury or
accused shall be inadmissible in there is a likelihood that he will be
evidence. killed/forced/intimidated/harassed/
corrupted to prevent him from
testifying, or to testify falsely or
d. Co-accused who cannot be evasively, because or on account of
discharged under Rule 119, Sec. 17 his testimony; and
 If he was tried separately and has already (4) He is not a law enforcement officer,
testified as witness without having been even if he would be testifying against
previously discharged. the other law enforcement officers.
 In such a case, only the immediate
members of his family may avail
e. Witness immunity from suit themselves of the protection provided
 Justification for the grant of immunity: The for under this Act.
need of the State to obtain the conviction  If the DOJ, after examination of said
of the more guilty criminals who will applicant and other relevant facts, is
probably elude the long arm of the law. convinced that the requirements of
this Act and its IRR have been
Transactional Use and derivative use complied with, it shall admit said
immunity immunity applicant to the Program, require said
Can no longer be Only assured that witness to execute a sworn statement
prosecuted for any testimony and evidence detailing his knowledge/information on
offense arising out of will not be used against the commission of the crime, and
the act him in a subsequent thereafter issue the proper
prosecution certification.
 Witness in legislative investigations
4. Other modes of discharge of the [Sec. 4, RA 6981] — In case of legislative
accused to be a state witness investigations in aid of legislation, a
witness, with his express consent, may be
a. Witness Protection Program admitted into the Program upon the
[RA 6981] recommendation of the legislative
 RA 6981 vesting in the DOJ the power to committee where his testimony is needed
determine who can qualify as a witness when in its judgment there is pressing
and who shall be granted immunity from necessity therefor: Provided, That such
prosecution is not unconstitutional. recommendation is approved by the
 The power to choose who shall be a state President of the Senate or the Speaker of
witness is not an inherent judicial the House of Representatives, as the case
prerogative. Under Rule 119, the court is may be.
given the power to discharge a state  State witness [Sec. 10, RA 6981] — Any
witness only because it has already person who has participated in the
acquired jurisdiction over the crime and commission of a crime and desires to be a
the accused. [Webb v. De Leon (1995)] witness for the State, can apply and, if
 Admission into the Program [Sec. 3, RA qualified as determined in this Act and by
6981] — Any person who has witnessed the DOJ, shall be admitted into the
or has knowledge/information on the Program whenever the following
commission of a crime and has testified or circumstances are present:
is testifying or about to testify before any (1) The offense in which his testimony will
judicial or quasi-judicial body or any be used is a grave felony as defined
investigating authority, may be admitted under the RPC or its equivalent under
into the Program. Provided, that: special laws;
(1) The offense in which his testimony will (2) There is absolute necessity for his
be used is a grave felony as defined testimony;
(3) There is no other direct evidence books/documents/records/ writings

available for the proper prosecution of produced.
the offense committed; o In case of refusal of said Witness 77
(4) His testimony can be substantially to testify or give evidence or
CRIMINAL PROCEDURE
corroborated on its material points; produce books/documents/
(5) He does not appear to be most guilty; records/ writings, on the ground of
and the right against self-incrimination,
(6) He has not at any time been convicted and the state prosecutor or
of any crime involving moral investigator believes that such
turpitude. evidence is absolutely necessary
 An accused discharged from an for a successful prosecution of the
information or criminal complaint by offense/s charged or under
the court in order that he may be a investigation, he, with the prior
State Witness pursuant to Rule 119, approval of the DOJ, shall file a
Sec. 9-10 may upon his petition be petition with the appropriate court
admitted to the Program if he for the issuance of an order
complies with the other requirements requiring said Witness to testify,
of this Act. Nothing in this Act shall give evidence or produce the
prevent the discharge of an accused, books/ documents/ records/
so that he can be used as a State writings described, and the court
Witness under Rule 119. shall issue the proper order.
 Effect of admission of a State Witness into  The court, upon motion of the state
the Program [Sec. 12, RA 6981] — prosecutor or investigator, shall order
 The certification of admission into the the arrest and detention of the
Program by the DOJ shall be given full Witness in any jail contiguous to the
faith and credit by the provincial/city place of trial/investigation until such
prosecutor who is required not to time that the Witness is willing to give
include the Witness in the criminal such testimony or produce such
complaint or information and if documentary evidence.
included therein, to petition the court
for his discharge in order that he can RA 6981 Rule 119, Sec. 17
utilized as a State Witness. The court Limited only to grave
shall order the discharge and felonies under the RPC
Applies to all felonies
or its equivalent under a
exclusion of the said accused from the
special law
information.
It would suffice that
 Admission into the Program shall there is no other direct
entitle such State Witness to immunity evidence for the proper
from criminal prosecution for the Absolute necessity for
prosecution of the
testimony
offense/s in which his testimony will offense committed
be given or used and all the rights and except the testimony of
benefits provided under Section 8 the accused
hereof. Witness is automatically Witness must still apply
 Compelled testimony [Sec. 14, RA entitled to certain rights for the employment of
and benefits said rights
6981]—
Any member of the
 Any Witness admitted into the family of the person
Program pursuant to Sections 3 and applying for admission
10 of this Act cannot refuse to testify within the 2nd civil
or give evidence or produce degree of consanguinity
No requisite threats
books/documents/records/writings or affinity is subjected to
necessary for the prosecution of the threat to his life or
offense/s for which he has been injury, as to prevent him
from testifying falsely or
admitted into the Program on the
evasively
ground of the constitutional right
Witness applying is not
against self-incrimination, a law enforcement No limitation
 but he shall enjoy immunity from officer
criminal prosecution and cannot be Witness is charged in
Witness need not be
subjected to any penalty or forfeiture court as one of the
charged elsewhere
for any transaction/matter/thing accused
concerning his compelled testimony or
Immunity is granted by Immunity is granted by b. Immunity under Sec. 5, EO 14-A

the DOJ the court
 PCGG is authorized to grant immunity to 78
any person who provides information or
5. The Ombudsman’s power to grant
CRIMINAL PROCEDURE
testifies in any investigation conducted by
immunity [Sec. 17, RA 6770] it to establish the unlawful manner in
which the property/ies were acquired or
 Ombudsman is given authority to grant accumulated where such
immunity to any person whose testimony information/testimony is necessary to
is necessary to determine the truth. ascertain/prove guilt or civil liability.
 In all hearings/inquiries/proceedings of the  The immunity granted shall be continued
Ombudsman, including PI, no person to protect the witness who repeats such
subpoenaed to testify as a witness shall testimony before the Sandiganbayan
be excused from attending and testifying when required to do so.
or from producing books/ papers/
correspondence/ memoranda/ records on
the ground that the testimony or evidence,
c. Immunity under Sec. 28, RA 6646
documentary or otherwise, required of  The COMELEC may grant immunity from
him, may tend to incriminate him or prosecution to any acceptor of bribed
subject him to prosecution: money to vote for or against a candidate
 Provided, That no person shall be to be used as witness in the prosecution
prosecuted criminally for or on account of of election offense of vote-buying.
any matter concerning which he is
compelled, after having claimed the
privilege against self-incrimination, to 6. Effect of discharge
testify and produce evidence,
documentary or otherwise.
 Under such terms and conditions as it  General rule: The order of discharge shall:
[Rule 119, Sec. 18]
may determine taking into account the
pertinent ROC provisions, the  Amount to an acquittal of the
Ombudsman may grant immunity from discharged accused;
criminal prosecution to any person  Bar future prosecutions for the same
 whose possession and production of offense.
documents/evidence may be o Exception: If the accused
necessary to determine the truth in fails/refuses to testify against his
any hearing/inquiry/proceeding being co-accused in accordance with his
conducted by the Ombudsman or sworn statement constituting the
under its authority, in the performance basis for his discharge.
or in the furtherance of its  Any error in asking for and in granting the
constitutional functions and statutory discharge cannot deprive the discharged
objectives. of the acquittal and the constitutional
guaranty against double jeopardy. [People
 The immunity granted under this and
v. Verceles (2002)]
the immediately preceding paragraph
shall not except the witness from  Subsequent amendment of the
criminal prosecution for perjury or information does not affect discharge.
false testimony nor shall he be exempt [People v. Taruc (1962)]
from demotion or removal from office.
 Any refusal to appear or testify
pursuant to the aforecited provisions 7. Re-opening of trial
shall be subject to punishment for
prompt contempt and removal of the  At any time before finality of the judgment
immunity from criminal prosecution. of conviction, the judge may reopen the
proceedings motu proprio or upon motion
– with hearing in either case. [Rule119,
a. Immunity under PD 749
Sec. 24]
 It grants immunity from prosecution to  Ground: To avoid a miscarriage of justice.
givers of bribes and other gifts and to their  An order re-opening the case to give the
accomplices in bribing public officials. prosecution opportunity to submit
additional evidence without giving the
accused the opportunity to rebut the  Right of the PAO to have access to
evidence, is invalid. [Santiago v. confer with him and prepare him for
Sandiganbayan (1999)] trial. 79
 The right of the prosecutor does not
CRIMINAL PROCEDURE
extend to the filing of the motion for
new trial and also in the modification
a. Duty of PAO knowing that the
of the judgment - only the accused is accused he is assigned to defend is
allowed to do so. under preventive detention
 Proceedings shall be terminated [Rule 119, Sec. 7; Sec. 12, Circular No. 38-98]
within 30 days from the order granting  Reasons for preventive detention of the
it. accused:
1) Charge of a bailable offense but he
has no means to post bail;
C. Other Procedural Rules
2) Charged of a non-bailable offense;
3) Service of a term of imprisonment in
1. When proper offense is not charged any penal institution.
 PAO’s duty to perform the following:
a. When applicable
 Promptly undertake:
[Rule 119, Sec. 19] o To obtain the presence of the
 If there is mistake in charging the proper prisoner for trial;
offense and the accused cannot be o To cause a notice to be served on
convicted of the offense charged or any the person having custody of the
other offense necessarily included therein, prisoner, requiring such person to
and the mistake becomes manifest at any so advise the prisoner of his right
time before judgment. to demand trial.
 Upon receipt, the custodian
shall promptly advise the
b. Procedure prisoner of the charge and of
[Rule 119, Sec. 19] his right to demand trial.
 The accused shall not be discharged if  If at anytime the prisoner
there appears good cause to detain him. informs his custodian that he
 The court shall: demands such trial, the latter
 Commit the accused to answer for the shall cause notice to be sent
proper offense; and promptly to the PAO.
 Upon receipt of notice from the
 Dismiss the original case upon the
custodian, the PAO shall promptly
filing of the proper information. seek to obtain the presence of the
 Rationale: The accused has a right to prisoner for trial.
be informed of the nature and the  When the custodian receives from the
cause of the accusation against him. PAO a properly supported request,
 Purpose: It is primarily directed to the TC the prisoner shall be made available
to invest it with authority to direct by itself accordingly.
dismissal and refiling, provided that the
accused would not be placed in double b. Sanctions on counsels
jeopardy.
[Rule 119, Sec. 8]
 Sanctions may be imposed on the private
2. Duties of counsels and prosecutors counsel for the accused, the PAO or the
prosecutor
 Kinds of sanctions:
 The DOJ Public Attorney’s Office (PAO)  Criminal;
has the duty of assisting an accused who
 Administrative;
is not financially capable to have his own
 Contempt of court.
counsel.
 Punishable acts/omissions:
 Purpose: [Rule 119, Sec. 7]
 Knowingly allowing the case to be set
 To inform the detained accused of his
for trial without disclosing that a
right to trial;
necessary witness would be
unavailable.
 Filing a motion solely for delay which (2) The DOJ Secretary appoints an acting
he knows is totally frivolous and prosecutor.
without merit. 80
 Making a statement for the purpose of
CRIMINAL PROCEDURE
obtaining continuance which he knows 4. Exclusion of the public from the
to be false and which is material to the courtroom
granting of a continuance;
 General rule: The accused has the right to
 Willfully failing to proceed to trial
a public trial.
without justification.
 Exception: If the judge excludes public
 Applicable sanctions: [Sec. 13, Circular
from the trial. [Rule 119, Sec. 21]
38-98]
 On private defense counsel: Fine not Motu proprio On motion of the
exceeding P20K; accused
 On counsel de oficio, PAO or public Evidence to be Court may also exclude
prosecutor: Fine not exceeding P5K; produced during the trial the public from the trial,
 Denial to any defense counsel or is offensive to decency except court personnel
prosecutor the right to practice before or public morals and counsels of parties
the court trying the case for a period
not exceeding 30 days;  A party to the action cannot be excluded
 Any punishment is without prejudice to though he himself is a witness.
any appropriate criminal action or  The public may be excluded when the
other sanctions authorized under the offended party in cases involving private
ROC. crimes testifies.
 Purpose:
 To speed up the trial and disposition
of the case; 5. Archiving criminal cases
 To force counsels to go to court ready
for trial and not merely ready for [SC Circular 7-A-82]
postponement.  Done whenever an accused remains at
large for 6 months from delivery of the
warrant to the proper peace officer.
3. Appointment of acting prosecutor  Judges who fail to comply may be held
administratively liable.
 An acting prosecutor is appointed when
the prosecutor and his assistant/deputy
are disqualified to act. [Rule 119, Sec. 20] 6. Inhibition of judges
 Grounds for disqualification of a
prosecutor: [Rule 137, Sec. 1] [Rule 137]
 He/she, or his/her spouse/child, is
pecuniarily interested as heir/ legatee/ a. Kinds:
creditor or otherwise;  COMPULSORY—the law conclusively
 He is related to either party within the presumes that judges cannot actively and
6th degree of consanguinity or to impartially sit in the following instances:
counsel within the 4th degree,  where the judge or judicial officer, or
computed according to the rules of his wife or child, is pecuniarily
civil law. interested or
 He has been executor/ administrator/  where the judge or judicial officer is
guardian/ trustee or counsel; related to either party within the sixth
 He has presided in any inferior court degree of consanguinity or affinity
when his ruling/decision is the subject  where the judge or judicial officer is
of review, without the written consent related to counsel within the fourth
of all the parties interest, signed by degree
them and entered upon record.  VOLUNTARY—based on reasons that the
 For any other reason. [Rule 119, Sec. judge, in his sound discretion, thinks are
20] just or valid to disqualify himself.
 PROCEDURE [Rule 119, Sec. 20]  Rule 137 does not give judges the
(1) The judge or the prosecutor shall unfettered discretion to decide whether to
communicate with the DOJ Secretary.
desist from hearing a case. The inhibition  He is, after all, in control of the
must be for just and valid causes. prosecution of the case and he may
 The mere imputation of bias or partiality is have his own reasons why the case 81
not enough ground for them to inhibit, should not be dismissed. It is only
CRIMINAL PROCEDURE
especially when the charge is without after hearing the prosecuting fiscal's
basis. This Court has to be shown acts or view that the Court should exercise its
conduct clearly indicative of arbitrariness exclusive authority to continue or
or prejudice before it can brand them with dismiss the case. (People v. Hon.
the stigma of bias or partiality. Sunga [1988])
 If those concerned are not
disqualified, it is their official duty to
proceed with the case or else risk
being called upon to account for their
dereliction.
 To allow judges to inhibit for just about
any cause would open the floodgates
to a form of forum-shopping, in which
litigants would be allowed to shop for
a judge more sympathetic to their
cause. Such action would be
antithetical to the speedy and fair
administration of justice. [Pagoda
Phils. v. Universal Canning (2005)]
7. Desistance by the offended party
 DESISTANCE is when the offended party

states that s/he is no longer interested in
testifying or prosecuting. By itself, it is not
a ground for the dismissal of an action
once it has been instituted in court.
[People v. Dimaano [2005])
 General rule: Desistance is not one of the
accepted modes of extinguishing criminal
liability. If at all, such desistance will have
the effect of “voluntary releasing” the
accused from the civil liability arising
therefrom. [Padua v. Molina (2000)]
 It is a ground for dismissing the case
only if the prosecution can no longer
prove the guilt of the accused
beyond reasonable doubt
without the testimony of the offended
party.
 Once a complaint or information is filed in
Court any disposition of the case as its
dismissal or the conviction or acquittal of
the accused rests in the sound discretion
of the Court.
 Any move on the part of the
complainant or offended party to
dismiss the criminal case, even if
without objection of the accused,
should first be referred to the
prosecuting fiscal for his own view on
the matter.
REMEDIAL LAW REVIEWER Chapter 11: JUDGMENT
Chapter 11: Judgment 1. Requisites

a. Form 82
A. IN GENERAL
[Rule 120, Sec. 1]
CRIMINAL PROCEDURE
1. REQUISITES
2. CONVICTION  Written in official language.
3. ACQUITTAL  If given verbally, it is incomplete. It
B. PROMULGATION OF JUDGMENT does not have an effect before it was
1. PROMULGATION WHERE JUDGE IS actually reduced to writing and signed
ABSENT by the judge. [People v. Catolico
2. PRESENCE OF ACCUSED REQUIRED; (1972)]
EXCEPTION
 A verbal order dismissing the case can
C. MODIFICATION OF JUDGMENT
1. WHEN JUDGMENT ON CONVICTION be rescinded without prejudicing the
BECOMES FINAL rights of the accused – No double
2. WHEN JUDGMENT OF ACQUITTAL jeopardy arises. [Abaya v. Garcia
BECOMES FINAL (1988)]
D. ENTRY OF JUDGMENT  The remedy for a verbal judgment is to
1. MANNER appeal or file a petition for mandamus
2. FORMALITIES REQUIRED to compel the court to put the decision
3. EXISTING PROVISIONS GOVERNING
in writing.
SUSPENSION OF SENTENCE
A. In General  Personally and directly prepared by the

judge.
 JUDGMENT – The adjudication by the  Every decision must state distinctly and
court that the accused is guilty or not guilty clearly the factual and legal basis
of the offense charged and the imposition therefore. [Art. 8, Sec. 6, Consti]
on him of the proper penalty and civil  Judges must nonetheless be allowed
liability, if any. [Rule 120, Sec. 1] to synthesize and simplify their
 CONTENTS OF A JUDGMENT decisions considering the heavy load
(1) Legal qualification of the offence of trial judges for as long as there is
 Acts/omissions that constituted compliance with minimum essence of
the offence; factual and legal bases.
 Aggravating/mitigating o He may quote from narration of
circumstances if any. facts by the OSG in his brief or
(2) Participation memoranda of both parties and
(3) Penalty adopt the same as his own.
(4) Civil liability, if any [Hernandez v. CA (1993)]
 ELEMENTS OF A JUDGMENT [Gonzalo o Common sense dictates that he
Puyat and Sons v. Auditor General (1969)] be given complete liberty to
1) Controversy presented; express his opinion, unrestrained
2) Authority to decide; by any fear that a higher court
3) Decision. might call down. [People v.
Meneses (1998)]
Judgment Opinion Ratio
decidendi  Signed by the judge.
Informal Provides for  The judge who presided over the entire
Pronounces trial would be in a better position to
expression of the basic
the disposition ascertain the truth or falsity of the
the views of the reason for the
of the case
court judgment testimonies.
Filed with Cannot prevail  But the judge who only took over can
clerk of court against its final render a valid decision by relying on the
order or decision transcript. It does not violate due
Forms no part of process. [People v. Badon (1999)]
the judgment,
 Contains clearly and distinctly a statement
though they may
be combined in of facts proved and the law upon which
one instrument judgment is based.
 There is sufficient compliance if the
decision summarizes the evidence of
both parties, synthesizes the findings
and concisely narrates how the  The penalty imposed upon the
offense was committed. accused.
 Failure on the part of the TC to make (3) Penalty should not be imposed in the 83
a finding of facts is a revocable error. alternative. There should be no doubt as
CRIMINAL PROCEDURE
 There is no law that requires a specific to the offense committed and the penalty
finding of facts with respect to the for it.
evidence for the defense. [Reyes v. (4) The civil liability or damages caused by his
People (2006)] wrongful act/omission to be recovered
from the accused by the offended party, if
there is any, unless the enforcement of the
b. Judge who penned the decision need civil liability by a separate civil action has
not be the one who heard the case been reserved/waived.
 The fact alone that the judge who heard
the evidence was not the one who  PROOF BEYOND REASONABLE DOUBT
rendered the judgment but merely relied – Degree of proof which produces
on the record of the case does not render conviction in an unprejudiced mind.
his judgment erroneous or irregular. [People v. Bacalzo (1991)]
 The Court generally will not find any
misapprehension of facts as it can be fairly b. Judgment for two or more offenses
assumed under the principle of regularity
of performance of duties of public officers  General rule: Complaint/information must
that the transcript of stenographic notes charge only one offense.
were thoroughly scrutinized and evaluated  Exception: Cases in which existing laws
by the judge himself. [Concepcion v. Court prescribe a single punishment for various
of Appeals (2000)] offenses.
 General rule: Duplicitous information is
subject to a motion to quash.
2. Conviction  Exception: Defect is waived when accused
fails to move for quashal.
a. The judgment of conviction shall  THUS, where the accused fails to object to
state: 2 or more offenses charged in a single
information / complain before trial [Rule
(1) The legal qualification of the offense
120, Sec. 3], the court may:
constituted by the acts committed by the
 Convict him of as many offenses as
accused and the aggravating/mitigating
are charged and proved; and
circumstances which attended its
o Exception: One of the offenses
commission.
has been a necessary means for
 If a decision does not contain a
committing the other offense and
dispositive portion but the last two
where both have been the result
paragraphs embody the court’s
of a single act.
conclusions, then the decision is valid.
 Impose on him the penalty for each
[People v. Valeriano (1993)]
offense, setting out separately the
 TC should express not only its
findings of fact and law in each
conclusion but also the provision of
offense.
the law violated for the purpose of
o Exception: Maximum duration of
informing the accused of the nature of
offense: Follow the three-fold rule
the crime and the law penalizing the
on the service of penalty.
same.
 No need to state the particular
paragraph and article in the RPC, so c. Judgment in case of variance
long as the offense is clearly between allegation and proof
understood from the facts.
 General rule: The defendant can be
 Mere failure to specify the particular
convicted only of the crime with which he
provision of law does not invalidate
is charged.
the decision, if it did actually apply the
 Rationale: He has the right to be informed
proper provision.
of the nature of the offense with which he
(2) The participation of the accused in the
is charged before he is put on trial.
offense, whether as principal, accomplice
[People v. Guevarra]
or accessory after the fact.
 However, minor variance between the to one of the component offenses, the
information and the evidence: accused can be convicted of the one
o Does not alter the nature of the which is proven. 84
offense;
CRIMINAL PROCEDURE
o Does not determine or qualify the State liability for unjust conviction
crime or penalty;  The DOJ Board of Claims is authorized to
o Cannot be ground for acquittal. receive/evaluate/process/investigate
 Exception: He can be convicted of an claims of victims of unjust
offense proved provided it is included imprisonment/detention and victims of
in the charge, or of an offense violent crimes. [RA 7309]
charged which is included in that  Requirements for compensation:
which is proved. [Rule 120, Sec. 4] 1) Unjust accusation;
o The accused can be convicted of 2) Unjust conviction; and
an offense only when it is both o It is the same as knowingly
charged and proven. rendering an unjust judgment - It is
o The mere fact that the evidence contrary to law or is not supported
presented would indicate that a by the evidence and the same is
lesser offense outside the court’s made with conscious and deliberate
jurisdiction was committed does intent to do an injustice. [Art. 204,
RPC]
not deprive the court of its
3) Unjust imprisonment.
jurisdiction, which had vested in it
under the allegations in the
information.
 Exception to the exception: 3. Acquittal
Where there are facts that
supervened after the filing of  Definition: A finding of not guilty based on
the information which change the merits, either:
the nature of the offense.  The evidence does not show that his
guilt is beyond reasonable doubt; or
d. When an offense includes or is  A dismissal of the case after the
included in another prosecution has rested its case and
upon motion of the accused on the
[Rule 120, Sec. 5] ground that the evidence fails to show
 The offense charged necessarily includes beyond doubt that accused is guilty.
the offense proved when some of the  REASONABLE DOUBT – Doubt
essential elements/ingredients of the engendered by an investigation of the
former, as alleged in the whole proof and an inability, after such
complaint/information, constitute the latter. investigation, to let the mind rest upon the
 An offense charged is necessarily certainty of guilt.
included in the offense proved when the  Rationale: It is always better to err in
essential ingredients of the former acquitting than in punishing. [People
constitute or form part of those constituting v. Lizada (1993)]
the latter.  Distinction between acquittal and
dismissal of case
Effect
 The accused shall be convicted of: [Rule
Acquittal Dismissal
120, Sec. 4] [Rule 120] [Rule 117]
1) The offense proved which is included
Terminates the case
in the offense charged; or
Decision on the merits Not on the merits and
2) The offense charged which is included
based on a finding that no finding of guilt is
in the offense proved the accused is not guilty made
 The right to be informed of the charges
has not been violated because where an  The judgment shall state whether:
accused is charged with a specific crime, 1) The evidence of the prosecution
he is duly informed also of lesser absolutely failed to prove the guilt of
crimes/offenses included therein. [People the accused; or
v. Villamar (1998)] 2) It merely failed to prove his guilt
 Where a complex crime is charged and beyond reasonable doubt.
the evidence fails to support the charge as
o #2 does not extinguish the civil liability  Where there is no promulgation of

arising from his acts, since the civil judgment, no right to appeal accrues.
liability arose not from a crime but  Notice for Promulgation: 85
from the damage caused by such o Clerk of Court gives notice to accused
CRIMINAL PROCEDURE
acts, which can be proven by a lower personally or through bondsman or
quantum of evidence. warden and counsel.
 General rule: The court has authority to o If the accused jumps bail or escapes
express disapproval of certain acts even if from prison and was tried in absentia,
judgment is for acquittal. notice will be served in last known
 Exception: The court is not permitted address. [Rule 120, Sec. 6]
to censure the accused in a judgment  SIN PERJUICO JUDGMENT – Judgment
for acquittal – no matter how light, a without a statement of facts. [Dizon v.
censure is still a punishment. Lopez (1997)]
 No court has the power to mete out  Merely reading the dispositive portion
punishment. A finding of guilt must of the decision is not sufficient.
precede the punishment.  Judgment must state the facts and the
 This reprehension, however, must be law on which it is based.
relevant to the issue in the case. If  While SC has expressed approval of
irrelevant/impertinent, they should be the practice of some judges
stricken out or expunged from the withholding the dispositive portion
record like any other extraneous from their opinions until the very last
matters. [People v. Meneses (1998)] moment of promulgation in order to
 Acquittal based on reasonable ground prevent leakage, such refers to the
does not bar a separate civil action based preparation of the decision and not to
on quasi-delict. [Lontoc v. MD Transit promulgation.
(1988)]  There is no more reason to keep it a
 Court may hold accused civilly liable even secret at the stage of promulgation.
when it acquits him. Acquittal
extinguishes civil liability only when the
judgment includes a declaration that the 1. Promulgation where judge is absent
facts from which the civil liability might
arise did not exist.
 The court may nonetheless hold the [Rule 120, Sec. 6]
accused civilly liable in favor of the  The judgment may be promulgated by the
offended party, or it may deny the clerk of court when the judge is absent or
award of civil damages expressly or outside the province or city.
impliedly by being silent on the matter.
 The losing party may appeal the ruling
on the civil liability, as in any other 2. Presence of accused required;
ordinary appeal, in his name and not exception
in the name of the People [Rule 120, Sec. 6]
 Judge acquitting an accused cannot  General rule: Presence of the accused is
punish him at the same time mandatory.
 Exception: convictions for light
offenses
B. Promulgation of Judgment
(1997 BAR) Conviction for He may appear through
light offense counsel/representative
 PROMULGATION— An official To prevent subversion of judicial
proclamation/announcement of judgment Promulgation
process and enable
in absentia
or order. enforcement of civil liability
 Judgment/sentence does not become a No appeal necessary; judgment
judgment/sentence in law until: is final and executory
1) Read and announced to the
defendant; or Verdict of - Note the old rule that presence
acquittal of the accused during
2) Has become a part of the record of
promulgation of judgment is
the court. [US v. CFI of Manila, 24 Phil required only in case of
321] conviction
 If the judgment is for conviction and the  Even the subsequent discovery of an
failure of the accused to appear was erroneous imposition of a penalty will
without justifiable cause, he shall lose the not justify correction of the judgment 86
remedies available in the ROC against the after it has become final.
CRIMINAL PROCEDURE
judgment and the court shall order his
arrest.
 However, within 15 days from 1. When judgment on conviction
promulgation of judgment, he can becomes final
surrender and file a motion for leave
of court to avail of these remedies. He [Rule 120, Sec. 7]
shall state the reasons for his  Judgment becomes final:
absence. 1) After the lapse of the period for
 If he proves his absence was for a perfecting an appeal;
justifiable cause, shall be allowed to 2) When the sentence has been
avail of the remedies within 15 days partially/totally satisfied or served; or
from notice. 3) The accused has expressly waived in
 Promulgation when accused is writing his right to appeal,
confined/detained in another city 4) When the accused applies for probation,
 It will be done in the RTC who has and thereby waives right to appeal.
jurisdiction over the place of [Regalado]
confinement.  Exception: cases where death penalty
 Failure to appear at the scheduled date of was imposed—automatic review;
promulgation judgment does not become final after
the promulgation and by the TC’s
 Promulgation is made by recording
issuance of a commitment order.
the judgment in the criminal docket
 Before the judgment becomes final, TC has
and serving a copy at the accused’s plenary power to make, either on motion or
last known address or through motu proprio, such amendment or
counsel. alterations as it may deem best, within the
 Promulgation date where judge no longer frame of law, to promote the ends of justice.
a judge is void.  After finality, TC is divested of authority to
 If at the time of the promulgation, the amend/alter the judgment, except to correct
judge penning the decision has clerical errors.
ceased being a judge of the court, the
decision would not be an act of the
court. [People v. Dimalanta] 2. When judgment of acquittal
 Promulgation thereby a succeeding becomes final
judge produces no legal effect since it
cannot restore validity to a document
 It is immediately final and executory.
already void.
 The State may not seek its review without
placing the accused in double jeopardy.
C. Modification of Judgment
D. Entry of Judgment
 Judgment of conviction may be modified or
set aside before it becomes final
 After judgment has become final, it shall
 Upon motion of the accused: [Rule 120,
be entered in accordance with Rule 36.
Sec. 7]
[Rule 120, Sec. 8]
o Before it becomes final, or
o Before appeal is perfected.
 The court motu propio and without
notice to either party, on the basis of the 1. Manner
evidence in the records, so long as the
judgment has not become final, as it still  Made when there is no appeal or Motion for
has the jurisdiction over the case. New Trial/Motion for Reconsideration is filed
 Conversely, a judgment which has become within the time provided in the ROC. [Rule
final and executory can no longer be 36, Sec. 2]
amended or corrected. [Icao v. Apalisok  How made: [Rule 36, Sec. 2]
(1989)]
 Exception: Only as regards clerical
errors.
 The judgment or final order shall be

entered by the clerk in the book of
entries of judgments. 87
 The date of finality of the judgment or
CRIMINAL PROCEDURE
final order shall be deemed to be the
date of its entry.
1. Formalities required
[Rule 36, Sec. 2]

 The record shall contain the dispositive part
of the judgment or final order.
 It shall be signed by the clerk, with a
certificate that such judgment or final order
has become final and executory.
2. Existing provisions governing

suspension of sentence
a. Rules on probation
 The Rule does not affect laws governing
suspensions of sentence, prohibition or
parole. [Rule 120, Sec. 9]
b. Statutes governing suspension,

prohibition or parole
 Art. 80 of the RPC – suspension of
execution
 Act No. 4103, as amended – Indeterminate
Sentence Law (parole)
 PD 968, as amended – Probation Law
 Suspension of sentence as respects youthful
offenders is provided for in The Child and
Youth Welfare Code (P.D. No. 603, as
amended by P.D. No. 1179), which repealed
Article 80 of the Revised Penal Code.
 The Comprehensive Dangerous Drugs Act
of 2002 provides suspended sentence for
minors found liable for illegal possession of
dangerous drugs. [Sec.66]
REMEDIAL LAW REVIEWER Chapter 12: POST-JUDGMENT REMEDIES
old judgment is Old judgment is set

Chapter 12: Post-Judgment Remedies vacated, and new one aside and new one
rendered, as if no trial rendered 88
A. MOTION FOR RECONSIDERATION OR had taken place
CRIMINAL PROCEDURE
NEW TRIAL (MFR/MNT)
1. DEFINITION 2. Grounds for MNT
2. GROUNDS FOR MNT
3. GROUND FOR MFR
4. PROCEDURE [Rule 121, Sec. 2]
5. EFFECT OF GRANTING MNT/MFR  That errors of law or irregularities
B. ORDINARY APPEAL prejudicial to the substantial rights of the
1. DEFINITION accused have been committed during the
2. FINAL JUDGMENT OR ORDER trial;
3. APPELLATE JURISDICTION OF THE CA
4. PROCEDURE
 General rule: Error of the defense
5. JURISDICTION OF THE TC PRIOR TO counsel in the conduct of the trial is
EXPIRATION OF PERIOD TO APPEAL neither an error of law nor an
C. PROCEDURE IN THE DIFFERENT COURTS irregularity.
1. PROCEDURE IN THE MTC (INCL. RULE o Exception: Acquittal would in all
ON SUMMARY PROCEDURE) probability have followed the
2. PROCEDURE IN THE CA introduction of certain testimony
3. PROCEDURE IN THE SC which was not submitted at the
trial under improper or injudicious
A. Motion for Reconsideration or New advice of incompetent counsel.
Trial (MFR/MNT)  Irregularities must be with such
seriousness as to affect prejudicially
the substantial rights of the accused.
1. Definition  That new and material evidence has been
discovered which the accused could not
 New trial and reconsideration are the with reasonable diligence have discovered
same thing in criminal procedure whether and produced at the trial and which if
it be a first, second, new or an old trial. introduced and admitted would probably
“New” refers to time and not to substance. change the judgment.
[US v. Dacir (1913)]  NEWLY DISCOVERED EVIDENCE –
 NEW TRIAL – A proceeding whereby Evidence which could not, by the
errors of law or irregularities are expunged exercise of due diligence, have been
from the record, or new evidence is discovered before the trial in the court
introduced, or both steps are taken. below.
[People v. Tamayo (2002)]  Requisites: That the evidence - [Jose
 Purpose: A new invention to temper v. CA (1997)]
severity of a judgment or prevent the a) Was discovered after the trial;
failure of justice. [Jose v. CA (1997)] b) Could not have been discovered
 The word “trial” as used covers not only and produced at the trial even with
trial proper but also includes the rendition the exercise of reasonable
of judgment. [People v. Enriquez (1951)] diligence. [US v. Pico (1982)]
 Differences: o Burden of proving this is on
the accused. [US v. Torrente
New trial Reopening of the case (1922)]
filed after rendition of filed before rendition of c) Is material, not merely
judgment judgment but after the cumulative/corroborative/impeachi
parties have submitted ng; and
the case for decision (not d) Is of such weight that it would
prescribed by the rules, probably change the judgment if
but given in the
paramount interest of
admitted.
justice and under sound o It must be of weighty influence
discretion of court) and will affect the result of the
trial. [People v. Alfaro (2003)]
Motion for New Trial Motion for  Exceptions:
Reconsideration o “Interest of justice” as gauge for
Requires further Requires no further introduction of new evidence
proceedings proceedings
 In People v. Almendras b. Who may initiate MNT/MFR

(2003), the court ruled a
motion for a new trial may be
[Rule 121, Sec. 1] 89
granted on a ground not  On motion of the accused;
CRIMINAL PROCEDURE
specifically provided in the  By the court motu propio, BUT with the
rules, provided that it is consent of the accused.
sought in the interest of  The consent may be given tacitly (e.g.
justice. In the case, the relief he interposed no objection to the new
of a new trial was granted to a trial of the case).
client who has suffered by
reason of his/her counsel’s c. Granting of motion
gross mistake and
negligence.  Motion may be filed with the appellate
o When there is variance in 2 court when during the pendency of the
reports appeal new and material evidence have
 In People v. del Mundo been discovered.
(1996), the court allowed the  Grant rests upon the discretion of the
presentation in a new trial of a court.
police report, not new, and  Unless there is a clear showing of
which could have been GAD, the judgment of the court on the
discovered with due diligence, matter shall not be disturbed.
because the evidence [Republic v. Vda. De Castelvi (1974)]
contained in such was at such  The correctness/validity/legality of a
variance with the health new trial in a criminal case do not
officer’s report at trial, that its depend upon the consent of the
contents raised doubts to the parties but upon the grant being made
guilt of the accused. conformably to the prescription of the
ROC and the applicable
jurisprudence. [Luciano v. Estrella
3. The only ground for MFR (1970)]
 If filed on the basis of minor/trivial
conflicts, motion will be denied.
 Errors of law or fact in the judgment, which  What would constitute meritorious
requires no further proceedings. [Rule circumstances is left to the sound
121, Sec. 3]
discretion of the court on a case to
Rationale: To afford the TC the case basis. [Jose v. CA (1997)]
opportunity to correct its own mistakes
and to avoid unnecessary appeals.
d. Effect on period to appeal
 General rule: The period at the end of
4. Procedure which the judgment in a criminal case
a. When to file MNT/MFR becomes final is not suspended.
 Exception: by the filing of a
 At any time before a judgment of MNT/MFR.
conviction becomes final; [Rule 121, Sec.
1]
 After sentence has become final, any e. Form of motion
attempt to alter/amend/modify the [Rule 121, Sec. 4]
same, except to correct clerical errors, (1) It must be in writing.
is unwarranted in law. [US v. CFI (2) It shall state the grounds on which it is
Manila] based.
 Within Period for Perfecting an Appeal  If based on newly-discovered evidence
 After an appeal is perfected and the motion must be supported by
before the judgment of the CA o affidavits of witnesses by whom such
convicting the accused becomes final, evidence is expected to be given; or
the accused may still file a MNT in the o duly authenticated copies of
appellate court on the ground of newly documents which are proposed to be
discovered evidence [Rule 124, Sec. introduced in evidence.
14]
(3) Notice of the motion shall be given to the  Remedy against GAD in granting
prosecutor. MNT/MFR: Certiorari or prohibition.
 Private prosecutor need not be served  Otherwise, prosecution may no longer 90
with the motion. have opportunity to question the order
CRIMINAL PROCEDURE
(4) Filing of the motion must be made within if accused is acquitted after new trial
15 days from date of promulgation of is conducted (because there will be
judgment, the 15-day period being non- double jeopardy). [Luciano v. Estrella
extendable. (1970)]
f. Hearing on motion B. Ordinary Appeal

 The court may hear evidence by affidavits
or otherwise when the motion calls for 1. Definition
resolution of any question of fact. [Rule
121, Sec. 5]  APPEAL – A proceeding for review by
 Purpose: merely to determine WON the which the whole case is transferred to a
new trial requested should be granted. higher court for a final determination.
 An appeal in a criminal proceeding throws

5. Effect of granting MNT/MFR the whole case open for review and it
becomes the duty of the appellate court to
[Rule 121, Sec. 6] correct an error as may be found in the
 In all cases: appealed judgment, WON it is made the
 The original judgment set aside or subject of assignment of errors. [People v.
vacated; Calayca (1999)]
 A new judgment is rendered  The right to appeal is neither a natural
accordingly. right nor a part of due process. It is merely
 Specific effects when granted upon a statutory privilege, and may be
different grounds: exercised only in the manner provided by
law. [Bello v. Fernando (1962)]
Ground Effect Court may  Remedy if appeal is denied: Mandamus,
Errors of law All Allow but only when the party appealing is
or irregularities proceedings introduction of entitled to it. [Trinidad v. Sweeney (1904)]
committed and evidence additional
during the trial affected shall evidence in the
be set aside interest of 2. Final Judgment or Order
and taken justice
anew
 An appeal may be taken only from a final
If error or judgment or order, not from interlocutory
irregularity orders.
goes into the  FINAL JUDGMENT — Judgment which
jurisdiction, would become final if no appeal is taken.
entire
proceeding is
 It does not mean a judgment which
void and must has already become final, otherwise
be set aside no appeal is allowed anymore.
Newly- Evidence Allow  FINAL ORDER — One which disposes of
discovered already introduction of the whole subject matter or terminates a
evidence adduced shall other such particular proceeding/action, leaving
stand and the evidence in the nothing to be done but to enforce by
newly- interest of execution what has been determined.
discovered justice  General rule: An order overruling the
and such other
motion is interlocutory; hence, not
evidence shall
be taken and appealable. [Fuster v. Johnson (1903)]
considered  Exception: When the motion is based
together with upon lack of jurisdiction or the ground
the evidence that the information fails to allege facts
already in the constituting a public offense, it is not
record
interlocutory. [Lopez v. Alikpala that there is justifiable reason for such

(1965)] (2005 Bar) action. The extension is an exception
 An order sustaining a MTQ is a final order; granted only in very meritorious cases 91
hence, immediately appealable. (e.g. fraud, accident, mistake or
CRIMINAL PROCEDURE
excusable negligence or similar
supervening casualty without fault of
3. Appellate Jurisdiction of the CA the appellant).
 The CA is vested with the power to try b. How period is counted

cases and conduct hearings, receive
 The 1st day is excluded and the last day is
evidence, and perform any and all acts
included. [Admin Code; CC]
necessary to resolve factual issues in
 Should the last day fall on a Sunday or a
cases falling within its original and
appellate jurisdiction. [BP 129] holiday, the period continues to run until
the next day which is neither a Sunday nor
 The CA also has appellate jurisdiction in
a holiday. [Admin Code]
cases where the RTC imposed penalty of
 The period is not extended by the 20-day
reclusion perpetua, life imprisonment, or
requirement for the TC to elevate the
where a lesser penalty is imposed for
records of the case to the SC. [People v.
offenses committed in the same occasion
Tirol (1981)]
or which arose of the same occurrence
that gave rise to the more serious offense
i. Suspension of period of appeal
for which the penalty for death, reclusion
 Period is suspended by the filing of
perpetua, or life imprisonment is imposed.
[BP 129] MNT/MFR.
 Suspension is until notice of the order
Appeal Certiorari
overruling the MNT/MFR. [Hiquina v.
Error of judgment Error of jurisdiction Veloso]
Judgment is void or  But the filing of a motion to extend
Judgment is valid time to appeal does not suspend the
voidable (2004 Bar)
Reviewable on appeal Reviewable on certiorari period. [Reyes v. Santa Maria (1972)]
 General rule: When appeal available for ii. Shortening of period of appeal
errors of judgment, certiorari is not  The court cannot shorten the period to
allowed. appeal.
 Exception: Cases where the SC  Hence, the court cannot make the
allowed certiorari despite availability of decision final before the end of the
appeal: period by issuing a commitment order
 A writ of certiorari was granted against immediately. [Del Rosario v. Rosero
the TC’s ruling rejecting rebuttal (1983)]
evidence for the prosecution because
appeal is no longer available when iii. When period does not apply
accused was acquitted. [People v.  When judgment of conviction imposes
Abalos (1969)] death penalty, the SC automatically
reviews it without need of the
accused’s intervention. Judgment
becomes final only after the SC has
4. Procedure passed upon it.
a. When ordinary appeal should be
taken c. Who May Appeal
 Within 15 days from promulgation of [Rule 122, Sec. 1]
judgment or from notice of the final  General rule: Any party may appeal from a
judgment appealed from. [Rule 122, Sec. judgment or final order.
6]  Exception: A party cannot appeal
 General rule: If no appeal is taken within when the accused will be placed in
the 15 days, judgment or order becomes double jeopardy.
final. [US v. Samio (1904)]  “Party” includes not only the government
 Exception: The time for appeal may or the accused. It also includes the private
be extended if it is satisfactorily shown offended party. [People v. Madali (2001)]
 Usually, the participation of the private  Where the information was quashed
offended party is a mere surplusage. (e.g. prior to arraignment, the prosecution
when the State will simply seek the may appeal the order sustaining the 92
affirmation of conviction). MTQ because before a plea is
CRIMINAL PROCEDURE
 However, where the State takes a contrary entered, no jeopardy attaches.
position and recommends the acquittal of [People v Pascual (1957)]
the accused, then the private offended  Dismissal of case provisionally with
party shall be allowed to participate the consent of the accused is an error
separately. on the part of the TC. Such dismissal
is appealable without violating right of
i. When appeal by the people will not lie accused against double jeopardy.
 The People/State cannot appeal when [People v. Quimsing (1964)]
it will put the accused in double  The People may appeal when it has
jeopardy. been deprived of due process in the
 The constitutional mandate against lower court.
double jeopardy prohibits not only a  Rationale: A decision in a
subsequent prosecution in a new and proceeding that did not follow due
independent cause but extends also process is a patent nullity and
to appeal in the same case by the cannot be a basis for the claim of
prosecution after jeopardy had former jeopardy. [People v.
attached. [Republic v. CA] Balisacan (1966)]
 The prosecution cannot appeal from a
judgment of acquittal iii. Appeal with respect to civil liability
 Rationale: A verdict of that nature  When such appeal is allowed – Where
is immediately final and to try on the TC found the accused guilty but
the merits, even in an appellate erroneously failed to enter judgment
court, places the accused in as to the civil liability of the accused,
double jeopardy. [Central Bank v. the fiscal may appeal the judgment for
CA (1989)] that purpose. [People v. Ursua (1934)]
 Dismissal of case upon filing of  When such appeal is not allowed:
demurrer by the accused was held to  If the offense carries no civil
be final even though based on liability, or if the offended party
erroneous interpretation of the law. has waived his right thereto or has
Hence, an appeal therefrom by the reserved the right to institute a
prosecution would constitute double separate civil action, the
jeopardy. [US v. Kilayko (1916)] aggrieved party cannot appeal
 Where the TC has jurisdiction but from the judgment of the TC.
mistakenly dismisses the [People v. Olavides (1948)]
complaint/information on the ground of  Where the criminal case was
lack of it, the order of dismissal is dismissed at the instance of or
unappealable. [People v. Duran with the consent of the fiscal, the
(1960)] offended party cannot appeal from
 An appeal by the People will not lie if the order of dismissal, since the
the purpose is to correct the penalty dismissal of the criminal action
imposed by the trial court or to include “does not affect the right of the
in a judgment a penalty erroneously offended party to institute or
omitted. [People v. Paet (1956)] continue the civil action already
 The preclusion against appeal by the instituted arising from the offense
State from judgments or final orders because such dismissal or
having the effect of acquittal, applies extinction of the penal action does
even though accused did not raise not carry with it the extinction of
question of jeopardy. [People v. Ferrer the civil one.” [People v. Velez
(1956)] (1947)]
 If the judgment of conviction was
ii. When appeal by the People is appealed by the accused, the
permissible appellate tribunal is competent to
 Generally, where the defendant would assess damage/indemnity against the
not be placed in jeopardy a 2nd time defendant, although the decision of
for the same offense. the TC made no award of such nature.
This is because an appeal in a RTC (if it involves questions of fact and
The
CA
criminal case opens the whole case of law)
for review. [Quemel v. CA (1946)] 93
 The appellate court may increase the RTC
CRIMINAL PROCEDURE
penalty, the indemnity/damages a) If it involves questions of law only
b) If it involves constitutionality or
awarded by the TC, although the
validity of any
offended party did not appeal and only treaty/law/ordinance/EO/ regulation
the accused did. [Quemel v. CA or the jurisdiction of the inferior
(1946)] court
The SC
c) In criminal cases involving offenses
Appeal by a person prejudiced by the for which the penalty imposed is
judgment death or life imprisonment
 General rule: Only the parties to a case d) Other offenses, which, although not
may appeal a judgment thereon. [Rule so punished, arose out of the same
occurence or which may have been
122, Sec. 2]
committed by the accused on the
 Exception: A person, other than a real same occasion, as that giving rise
party to a case, who stands to be to the more serious offense
adversely affected by the judgment in CA or Sandiganbayan
The
SC
a direct or significant way.
Appeal when promulgation of judgment was

made in absentia
e. Service of notice of appeal
 General rule: Where the accused is tried
in absentia and the decision was also [Rule 122, Sec. 4]
promulgated in his absence, the accused  Modes of service under Rule 13, Sec. 7
should not be afforded the right to appeal and 8:
[People v. Magpalao (1991)]  Personal service upon adverse party or
 Exception: When he voluntarily his counsel;
submits to the jurisdiction of the court  By registered mail;
or is otherwise arrested within 15 days  By substituted service.
from the notice of the judgment  Court may order publication in a
against him. newspaper of general circulation at least
 Rationale: While at large, he cannot seek once a week for period not exceeding 30
relief from the judgment as he is days.
considered to have waived the same and  Mere failure of the accused to serve a
he has no standing in court. copy of notice of appeal is not a defect.
 Other instances when appeal will not be What is important is that the appellant is
entertained: If the accused, during the able to exercise the right of appeal. [US v.
pendency of his appeal, escapes from Sotavento (1919) ]
prison or confinement, or jumps bail, or  The appellee may waive his right to a
flees to a foreign country, his appeal shall notice that an appeal has been taken.
be dismissed and his right to appeal shall [Rule 122, Sec. 5]
be considered abandoned. [People v.  The appellate court may entertain an
Ramos (1993)] appeal notwithstanding failure to give such
notice if the interests of justice so require.
[Rule 122, Sec. 5]
d. Where to appeal
[Rule 122, Sec. 2] f. Transcribing and filing of
stenographic notes
Appeal
For cases decided by [Rule 122, Sec. 7]
in
MTC/MeTC/MCTC
RTC
The
When appellant The court shall direct the

is - stenographic reporter to
RTC or MTC/MeTC/MCTC (if it is The accused Transcribe his notes of the
Sandigan
government duty-related - i.e. filed proceeding

bayan
The
under EO 1, 2, 4 and 14-A) The People of Transcribe such portion of his

the Philippines notes of the proceedings as the
court, upon motion, shall specify
in writing
i. Stenographer’s certification [Rule 122, h. Procedure of appeal to the RTC

Sec. 7]
 He certifies the correctness of the
[Rule 122, Sec. 9] 94
notes and the transcript thereof, which
CRIMINAL PROCEDURE
Transmission of record to RTC
shall consist of the original and 4
Within 5 days from perfection of the appeal, the
copies. clerk of court shall transmit the original record to
 He shall file said original and 4 copies the appropriate RTC.
of the TSN with the clerk without
unnecessary delay.
Notification of parties
ii. If death penalty is imposed— [Rule Upon receipt of the complete record, TSN and
122, Sec. 7] evidence of the case, the RTC clerk of court shall
 Within 30 days from promulgation of notify the parties of such fact.
the sentence, the stenographer shall
file with the clerk the original and 4
copies of the duly certified TSN. Submission of memoranda/briefs
 He shall do so WON the accused Within 15 days from receipt of said notice, the
has appealed. parties may submit memoranda/briefs, or may be
required by the RTC to do so.
 General rule: No extension of time for
filing of said TSN shall be granted.
 Exceptions:
Decision
 If extension is by the SC and only After submission of such memoranda/briefs or upon
upon justifiable grounds. the expiration of the period to file the same, the
 When period for appeal is RTC shall decide the case on the basis of the entire
suspended, this period is also record of the case and of such memoranda/briefs
extended. as may have been filed.
 If the defendant files a MNT within
15 days, the TC may entertain
i. Transmission of records in case of
said motion, and if this motion
death penalty
takes weeks to consider up to the
rendition of the new decision, then [Rule 122, Sec. 10] (1998 Bar)
the 30 day period given by law  The records shall be forwarded to the CA
must be extended. [People v. for automatic review and judgment.
Bocar (1955)]  Transmission to be done within 20 days
but not earlier than 15 days (i.e. within 5
days from the expiration of the 15 day
g. Transmission of papers to appellate
period):
court  From the promulgation of the
[Rule 122, Sec. 8] judgment; or
 Within 5 days from filing of notice of  From notice of the denial of
appeal, the clerk of the court with whom MNT/MFR.
the notice of appeal was filed must  TSN shall also be forwarded within 10
transmit to the clerk of the appellate court: days after the filing thereof by the
1. The complete record of the case; stenographic reporter.
2. The notice of appeal;  Although a judgment of conviction is
3. Original and 3 copies of the TSN (4th entered by the TC, such is not final and
copy of the TSN shall remain in the conclusive until it has been reviewed by
lower court). the SC. This automatic review is
 If any material part of the evidence is not something which neither the court nor the
transmitted from the RTC to the SC, the accused can evade. It is intended for the
case will be remanded to the court of protection of the accused, ensuring the
origin for a new trial. [US v. Tan (1905)] correctness of the decision of the TC
 It is the duty of the government (and sentencing him to death. [US v. Laguna
not of the defendant) to cause to be (1910); People v. Bocar (1955)]
kept and, in case of an appeal by the  Unlike any other direct appeal to the SC
defendant, to be sent to the appellate where only questions of law are reviewed,
court, a complete record of the the SC in automatic review may review the
proceedings. findings of fact of the TC. [People v.
Soriano (2002)]
5. Jurisdiction of the TC prior to withdraw his appeal before the record

expiration of period to appeal has been forwarded by the clerk of
court to the proper appellate court. 95
 The effect of such withdrawal is that
CRIMINAL PROCEDURE
 The rationale for the prohibition of not
the judgment becomes final.
sending up the records of the case before
 After record has been forwarded to RTC:
the 15 days is up is: within those 15 days,
 The RTC may also allow the appellant
the case is still within the jurisdiction of the
of the MTC judgment to withdraw his
TC. [Director of Prisons v. Teodoro, Sr.
appeal.
(1955)]
 After the perfection of appeal or after  The withdrawal must be by a motion
expiration of 15 days, however, the to that effect, filed before rendition of
appellate court acquires jurisdiction over the judgment in the case on appeal.
the case to the exclusion of the TC.  The effect of such withdrawal is that
[Director of Prisons v. Teodoro] the judgment shall become final and
 During this period, the TC can still the case shall be remanded to the
decrease (but not increase) the penalty, MTC for execution of the judgment.
acquit the accused, or grant a MNT filed  After the appeal has been heard on the
by the defendant. merits and submitted to the court for
 MNT suspends the running of the 15-day decision, or after the briefs were
period. Hence, the transmission of the presented, the appellant has no absolute
records to the SC for automatic review is right to withdraw the appeal. The
necessarily suspended. withdrawal is now a matter that rests
within the sound discretion of the court.
[People v. Rapirap (1958)]
a. Effect of appeal by any of several  Withdrawal of appeal by counsel de oficio
accused needs consent of the accused, since the
withdrawal of an appeal affects his
[Rule 122, Sec. 11]
substantive rights.
 General rule: An appeal taken by one or
more of several accused shall not affect
those who did not appeal. c. Effect of escape by accused pending
 As to the appealing party, the appeal
execution of judgment appealed from
is stayed upon the perfection of the [Longao v. Fakat (1969)]
appeal.  Situations contemplated: If the accused:
 Escapes from confinement;
 As to the co-accused who did not
 Jumps bail;
appeal, the judgment of the TC insofar
 Flees to a foreign country.
as it relates to him becomes final and
 The appellate court may dismiss the
the appellate court has no power to
appeal, motu propio or upon appellee’s
interfere with it. [Salvatierra v. CA
motion.
(1996)]
 Exception: Insofar as the judgment of  Rationale: It is in contempt of the
the appellate court is favorable and authority of the court and of the law,
applicable to those who did not appeal and the accused places himself in a
or who withdrew his appeal. [People v. position to speculate on the chances
Escano] for a reversal, meanwhile keeping out
 The appeal of the offended party from the of the reach of justice and preparing to
civil aspect shall not affect the criminal render the judgment nugatory at his
aspect of the judgment or order appealed option.
from.
b. Withdrawal of appeal from MTC/RTC automatic review
judgment [People v. Cornelio (1971)]
[Rule 122, Sec. 12]  Withdrawal is not allowed in case of
 Before record is forwarded to appellate automatic review.
court:  It would not remove the case from the
jurisdiction of the SC. Even the escape of
 Even if appeal was already perfected,
the accused from detention during the
the MTC/RTC may allow appellant to
pendency of his appeal does not relieve  If the case is directly filed with the
the court of the burden of reviewing the court, the case should not be
case. dismissed. The court should just refer 96
it to the City Prosecutor for the filing of
CRIMINAL PROCEDURE
the corresponding information.
 Cases governed by the Revised Rules on
accused on appeal
Summary Procedure:
[Rule 122, Sec. 13] a) Violations of traffic laws/ rules/
 Upon the filing of the notice of appeal, it regulations;
becomes the duty of the TC clerk of court b) Violations of the rental law;
to: c) Violations of municipal/city
 Ascertain from the appellant, if ordinances;
confined in prison, WON he desires d) Violations of BP 22;
the RTC/CA/SC to appoint a counsel e) All other criminal cases where the
de oficio to defend him; and penalty is imprisonment not exceeding
 Transmit with the record (on a form 6 months or a fine not exceeding
prepared be the clerk of the appellate P1,000 or both, irrespective of other
court) a certificate of compliance with imposable penalties (accessory or
this duty and of the response of the otherwise) or of the civil liability arising
appellant to his inquiry. from it.
 Rationale: The constitutional right of the  However, in offenses involving
accused to defend by himself and by damage to property through criminal
counsel. negligence where imposable fine does
not exceed P 10,000, the Uniform
Procedure Rule shall govern (i.e. it is
C. Procedure in the Different Courts not governed by Revised Rules on
Summary Procedure).
1. Procedure in the MTC  Revised Rules on Summary
Procedure also does not apply to
a. Uniform procedure criminal cases where the offense
[Rule 123, Sec. 1] charged is necessarily related to
 General rule: The procedure to be another criminal case subject to the
observed in the MeTC/MTC/MCTC shall ordinary procedure.
be the same as that in the RTC.
 Exceptions: c. The Revised Rules on Summary
1) Where a particular provision applies
Procedure
only to either of said courts;
2) Criminal cases governed by the
Revised Rules on Summary i. COMMENCEMENT OF ACTION
Procedure. [SEC. 11]
 The filing of the criminal case shall be
either by complaint or by information.
b. When procedures are different
 However, in Metropolitan Manila
 Offenses falling under the MTC/MCTC’s and in chartered cities,
Jurisdiction: [Salcedo v. Nobles-Bans commencement shall be only by
(1985)] information.
 Notwithstanding the uniform Exception: When the offense cannot
procedure rule, if the offense falls be prosecuted de oficio.
under the jurisdiction of the  The complaint/information shall be
MTC/MCTC, complaint/information accompanied by the affidavits of the
may be filed directly with said courts complaint and of his witnesses.
or with the City Prosecutor’s Office.  No. of copies = [ No. of accused +
 Offenses falling under the MeTC’s 2 copies for the court’s files]
Jurisdiction: [Salcedo v. Nobles-Bans  If the required no. of copies ment
(1985)] is not complied with within 5 days
 In Metro Manila and other chartered from date of filing, the case may
cities, the complaint may be filed only be dismissed.
with the Office of the City Prosecutor
ii. REFERRAL TO LUPON v. ARRAIGNMENT

[SEC. 18] [SEC. 13]
 If the case requires referral to the  After consideration of the 97
Lupong Tagapamayapa under PD complaint/information and the
CRIMINAL PROCEDURE
1508 and this is not complied with, it affidavits, if the court finds no
shall be dismissed without prejudice. cause/ground to hold the accused for
The case may be revived only after trial, it shall order the dismissal of the
compliance with the requirement. case; otherwise, the court shall set the
 Exception: Criminal cases of case for arraignment and trial.
warrantless arrest.  If the accused is in custody for the
crime charged, he shall be
iii. COURT’S DUTY immediately arraigned. If he enters a
[SEC. 12] plea of guilty, he shall forthwith be
 If commenced by complaint: sentenced.
 Based on the compliant/ affidavits/
evidence, the court may dismiss vi. PRELIMINARY CONFERENCE
the case outright for being [SEC. 14]
patently without basis/merit and  Before conducting the trial, the court
order the release of the accused shall call the parties to a preliminary
(if in custody). conference for:
 If commenced by information or if not (1) Stipulation of facts;
dismissed according to #1: o Refusal/failure to stipulate
 The court shall order the accused shall not prejudice the
to submit his counter-affidavit and accused.
the affidavits of his witnesses as (2) Plea bargaining;
well as any evidence on his behalf o No admission by the
(with copies served on the accused shall be used
complainant/prosecutor) not later
against him unless reduced
than 10 days from receipt of order.
to writing and signed by the
 The prosecution may file reply
affidavits within 10 days after accused and his counsel.
receipt of the counter-affidavits. (3) Other matters to clarify the issues
and to ensure a speedy
iv. PROHIBITED PLEADINGS AND disposition of the case.
MOTIONS
[SEC. 19] vii. TRIAL
(1) MTD; [SEC. 15]
 The submitted affidavits will be the
o Exception: On grounds of
direct testimonies of the
either: witnesses/affiants. They shall be
a) LOJ over subject matter; subject to cross, re-direct and re-cross
b) Failure to refer to Lupon. examinations.
(2) Motion for BOP;  If the affiant fails to testify, his affidavit
(3) MNT/MFR or motion for re- will not be considered as competent
opening of trial; evidence for the party presenting his
(4) Petition for relief from judgment; affidavit. However, the adverse party
(5) Motion for extension to file; may utilize his affidavit for any
(6) Memoranda; purpose.
(7) Petition for  A witness cannot testify unless his
certiorari/mandamus/prohibition affidavit was previously submitted to
against any interlocutory order; the court according to Sec. 12.
(8) Motion to declare defendant in Exception: On rebuttal or sur-rebuttal.
default;  If a party wishes to present additional
(9) Dilatory motions for affidavits/counter-affidavits, he should
postponement; so manifest (and his purpose) during
(10)Reply; the preliminary conference.
(11)3rd-party complaints;  If the court allows the additional
(12)Interventions. affidavits/counter-affidavits, they shall
be submitted to the court and served
on the adverse party within 3 days  It shall be filed within 30 days from receipt
from the termination of the preliminary by the appellant (his counsel) of the CA
conference. clerk of court’s notice that the evidence is 98
 If it is the prosecution who submits already attached to the record.
CRIMINAL PROCEDURE
additional affidavits, the defense may  Purpose: To show grounds for reversal of
file counter-affidavits thereto (copy judgment and to point out the
furnished the prosecution) within 3 errors/irregularities in the lower court’s
days from service. proceedings.
viii. ARREST OF THE ACCUSED

[SEC. 16]
d. Brief for appellee
 The court shall not order the arrest of [Rule 124, Sec. 4]
the accused.  Appellee shall file 7 copies of his brief with
Exception: For failure to appear the clerk of court, accompanied by proof of
whenever required. service of 2 copies on the appellant.
 Release of the accused shall be by  It shall be filed within 30 days from receipt
bail or on recognizance. of the appellant’s brief.
 Purpose: To meet/refute the appellant’s
ix. JUDGMENT submissions.
[SEC. 17]
 If trial was conducted, the court shall
promulgate judgment within 30 days e. Reply to appelle’s brief
from termination of trial. [Rule 124, Sec. 4]
 Appellant may (i.e. optional) file a reply
x. APPEAL brief covering matters raised in the
[SEC. 21] appellee’s brief but not in the brief of the
 Judgment may be appealed to RTC appellant.
per Sec. 22, BP 129.  It must be filed within 20 days from receipt
of the appellee’s brief.
2. Procedure in the CA
f. Extension of time for filing briefs
a. Parties and title [Rule 124, Sec. 5]
[Rule 124, Sec. 1]  General rule: Extension of time for the
 In all criminal cases appealed to the CA: filing of briefs is not allowed
 APPELLANT – The party appealing;  Exception: for good and sufficient
 APPELLEE – The party adverse to the cause
appellant.  It is sought through a motion for extension,
 The title of the case shall remain as it was which must be filed before the expiration
in the court of origin (i.e. People v. John of the time sought to be extended.
Doe).  Grant of extension rests on the court’s
discretion. [Piedad v. Batuyong (1974)]
 Court may grant as many extensions as
b. Appointment of counsel de oficio may be asked. [Gregorio v. CA (1976) ]
[Rule 124, Sec. 2]
 The counsel de oficio cannot dismiss the g. Form of briefs
appeal without the consent of his client
[US v. Lafuente (1918)] or admit findings [Rule 124, Sec. 6]
of fact by the TC [People v. Isaac (1952)].  Briefs shall be printed/encoded/
typewritten, in double space, on legal size
good quality unglazed paper, 330mm in
c. Brief for appellant length by 216mm in width.
[Rule 124, Sec. 3]  Mimeographed copies are not allowed.
 Appellant shall file 7 copies of his brief
with the clerk of court, accompanied by
proof of service of 2 copies on the
appellee.
h. Contents of brief ii. APPELLEE’S BRIEF:

[RULE 44, SEC. 14]
 The briefs in criminal cases shall have the a) Subject index. 99
same contents as provided in Rule 44, b) STATEMENT OF FACTS – Statement
CRIMINAL PROCEDURE
Sec. 13-14. [Rule 124, Sec. 7]
that appellee accepts the statement of
facts in the appellant’s brief; or
i. APPELLANT’S BRIEF:
COUNTER-STATEMENT OF FACTS
[RULE 44, SEC. 13]
– Points out the
a) SUBJECT INDEX – Digest of the insufficiencies/inaccuracies appellee
arguments and page references, and believes to exist in the appellant’s
a table of: (1) cases alphabetically statement of facts, with references to
arranged; and (2) books and statutes the supporting pages of the record.
cited, with references to the pages Matters in the appellant’s statement of
where they are cited. facts should not be repeated.
b) ASSIGNMENT OF ERRORS – Errors c) ARGUMENTS – Appellee’s
urged separately, distinctly and arguments on each assignment of
concisely; stated without repetition error, with page references to the
and numbered consecutively. record. The authorities relied upon
c) STATEMENT OF THE CASE – Clear shall be cited by the page of the report
and concise statement of the nature of at which the case begins and the page
the action, a summary of the
of the report on which the citation is
proceedings, the appealed court found.
rulings and orders, the nature of the
judgment and any other matters
necessary to an understanding of the i. Dismissal of appeal for abandonment
nature of the controversy, with page or failure to prosecute
references to the record.
[Rule 124, Sec. 8]
d) STATEMENT OF FACTS – Clear and
concise narrative statement of the  Grounds:
 Appellant fails to file his brief within
facts admitted by both parties and of
those in controversy, together with the the prescribed time;
substance of the related proof, in Exception: Where the appellant is
sufficient detail to make it clearly represented by a counsel de oficio.
intelligible and with page references to o If failure to file brief on time is the
the record. ground, appellant must be given
e) ISSUES – Clear and concise notice to give him opportunity to
statement of issues of fact/law reason out why his appeal should not
submitted to the court for its judgment. be dismissed.
f) ARGUMENTS – Appellant’s o However, dismissal is proper
arguments on each assignment of despite lack of notice:
error, with page references to the a) If appellant has filed a MFR or
record. The authorities relied upon motion to set aside the order
shall be cited by the page of the report dismissing the appeal, in
at which the case begins and the page which he stated the reason
of the report on which the citation is why he failed to file his brief
found. on time and the appellate
g) RELIEF – Specification of the court denied the motion after
considering reason. [Baradi v.
order/judgment which the appellant
People (1948)]
seeks. In cases not brought up by
record on appeal, the appellant’s brief b) If appeal was dismissed
shall contain (as an appendix) a copy without notice but appellant
of the judgment or final order took no steps to have the
appealed from. appeal reinstated. Such action
h) Attachment: Certified true copy of the amounts to abandonment.
[Salvador v. Reyes (1949)]
decision or final order appealed from.
 If the appellant escapes from
[Rule 124, Sec. 7]
prison/confinement, jumps bail or flees
to a foreign country during the
pendency of the appeal.
o Rationale: Escape of appellant k. Reversal / modification of judgment

during the pendency of the appeal on appeal
implies a withdrawal of the appeal. 100
Hence, judgment of the TC [Rule 124, Sec. 10]
CRIMINAL PROCEDURE
becomes final. [US v. Ravidas  General rule: No judgment shall be
(1905)] reversed/modified.
o Likewise, when accused flees  Exception: When the CA, after an
after the case has been submitted examination of the record and of the
for decision, he is deemed to have parties’ evidence, is of the opinion that
waived his right to appeal. [People error was committed and such error
v. Ang Gioc (1941)] injuriously affected the appellant’s
o Exception: Appeal will not be substantial rights.
dismissed despite escape:  When it involves credibility of witnesses,
a) In one exceptional case, the appellate courts will not generally disturb
appellant took advantage of a the TC’s findings.
mass jailbreak (because,  Rationale: The TC is in a better position
according to his counsel de to decide the question, having seen and
oficio he was innocent and heard the witnesses themselves. [People
wanted to elude an unjust v. Cabiling (1976)]
punishment) but was
recaptured 2 hours after, the l. Scope of CA’s judgment
SC said circumstances were
not sufficient to justify [Rule 124, Sec. 11]
dismissal of the appeal.  The CA may:
[People v. Valencia (1949)] 1) Reverse/affirm/modify the judgment;
b) If there was absolutely no 2) Increase/reduce the penalty imposed
evidence against the accused by the TC;
as found by the appellate 3) Remand the case to the RTC for new
court, he should be acquitted trial or retrial;
in order to prevent an injustice 4) Dismiss the case.
by technicalities. [People v.  When the accused appeals from the
Buenaventura (1994)] sentence of the TC, he waives the
c) In case of automatic review. constitutional safeguard against double
[People v. Cornelio (1971)] jeopardy and throws the whole case open
 CA may dismiss the appeal upon to the review of the appellate court, which
appellee’s motion or motu proprio. is then called upon to render such
judgment as law and justice dictate, WON
favorable to the accused and WON made
j. Prompt disposition of appeal the subject of assignment of errors. [Ko Bu
[Rule 124, Sec. 9] Lin v. CA (1982)]
 Appeals of accused who are under
detention are given precedence in their m. CA’s power to receive evidence
disposition over other appeals.
 The CA shall hear and decide the appeal [Rule 124, Sec. 12]
at the earliest practicable time with due  The CA has power to try cases and
regard to the parties’ rights. conduct hearings, receive evidence and
 The accused need not be present in court perform any and all acts necessary to
during the hearing of the appeal. resolve factual issues in cases:
 Proceedings on appeal will not be 1) Falling within its original jurisdiction;
stayed in a criminal case on account 2) Involving claims for damages arising
of the absence of the accused as his from provisional remedies;
presence is not necessary at said 3) Where the court grants a new trial
hearing. [US v. Lewis] based only on the ground of newly-
discovered evidence.
 CA’s trials and hearings must be
continuous and completed within 3
months, unless extended by the Chief
Justice.
n. Quorum in the CA p. Judgment transmitted and filed in TC

[Sec. 11, BP 129]  When the CA’s entry of judgment is 101
 3 CA Justices constitute a quorum for the issued, a certified true copy of the
CRIMINAL PROCEDURE
sessions of a division. judgment shall be attached to the original
 The unanimous vote of the 3 Justices of a record. These shall be remanded to the
division is necessary for the clerk of the court from which the appeal
pronouncement of a judgment or final was taken. [Rule 124, Sec. 17]
resolution  This copy of the entry serves as the formal
 Decision is reached through a consultation notice to the court from which the appeal
before the writing of the opinion by a was taken of the disposition of the case in
member of the division. the appellate court, so that the judgment
 If there is lack of unanimity, the Presiding may be executed and/or placed or noted
Justice shall direct the CA raffle committee in the proper file.
to designate 2 additional Justices to sit
temporarily with them. They shall then
form a special division of 5 members.
in the CA
 The concurrence of a majority of that
special division is necessary for the [Rule 124, Sec. 14]
pronouncement of a judgment or final  Appellant may file MNT on the ground of
resolution. newly discovered evidence material to his
 Designation of the additional Justices defense any time:
shall be made strictly by raffle and  After the appeal from the lower court
rotation among all other CA Justices. has been perfected, but
 Before the CA judgment convicting
o. Certification or appeal of cases to the him becomes final.
 The motion shall conform to Rule 121,
SC
Sec. 4.
[Rule 124, Sec. 13]  If the CA grants a MNT, it may either:
1) If the CA finds that death penalty should [Rule 124, Sec. 15]
be imposed: 1) Conduct the hearing and receive
 AUTOMATIC REVIEW – CA shall evidence;
render judgment but refrain from 2) Refer the trial to the court of origin.
making an entry of judgment. It shall
then certify the case and elevate its
r. MFR of CA judgment
entire record to the SC for review. The
accused does not have to do [Rule 124, Sec. 16]
anything.  MFR may be filed within 15 days from
 Note: Death penalty has been notice of the CA judgment or final order,
abolished. with copies served on the adverse party.
2) If the judgment also imposes a lesser  The mittimus shall be stayed during the
penalty for offenses committed on the MFR’s pendency.
same occasion or which arose from the  General rule: No party shall be allowed a
same occurrence that gave rise to the 2nd MFR of a judgment or final order.
more severe offense for which death is [Sec. 11, BP 129]
imposed, and the accused appeals:  Exception: Where the 1st MFR
 The appeal shall be automatically resulted in a reversal or substantial
included in the case certified for modification of the original decision or
review in the SC final resolution.
3) If the CA imposes reclusion perpetua, life In this case, the party adversely
imprisonment or a lesser penalty: affected by the reversal/modification
 It shall render and enter judgment may himself file a MFR of the latest
imposing such penalty. judgment of the court, because with
 Appeal here is not automatic. The respect to him, said motion is a first
accused has to file a notice of appeal pleading of that nature.
with the CA.
s. Applicable civil procedure rules elevated to the SC for review.

[Rule 124, Sec. 13]
[Rule 124, Sec. 18] 102
 Provisions of Rules 42, 44-46 and 48-56 ii. ORDINARY APPEAL
CRIMINAL PROCEDURE
relating to procedure in the CA and the SC  When available:
in original and appealed civil cases, shall
 When the penalty imposed by the
be applied to criminal cases insofar as
RTC is life imprisonment, decision
they are applicable and not inconsistent
is appealable directly to the SC by
with the provision of this Rule.
filing a notice of appeal with the
RTC. [Rule 122, Sec. 3]
 When an accused was charged
3. Procedure In The SC with 2 or more offenses committed
a. Uniform procedure on the same occasion or arising
out of the same occurrence, and
[Rule 125, Sec. 1] in one of those 2 cases, he was
 General rule: The procedure in the SC in sentenced to life imprisonment or
original and in appealed cases shall be death penalty, the appeal with
the same as in the CA. respect to the others, though
 Exception: If the Constitution or law punished with a lesser penalty, is
provides otherwise. to the SC. [Rule 122, Sec. 3]
 When the penalty of reclusion
b. What the SC may do on review perpetua or death is imposed on
some of the defendants and a
 In a criminal case, an appeal to the SC lesser penalty on the other co-
throws open the whole case for review defendants, on account of their
and it becomes its duty to correct such varying degree of participation in
errors as may be found in the judgment the commission of the offense or
appealed from, WON they were assigned due to the presence of modifying
as errors. [People v. Olfindo (1924)] circumstances, in which case the
 It may examine the judgment as to the decision on the non-life convicts is
qualification of the crime and the degree directly appealable to the SC.
of the penalty imposed. [Macali v. Revilla [People v. Carino]
(1926)]  In these cases, the SC reviews not
 It may also assess and award civil only errors of law but also the findings
indemnity. [Quemel v. CA (1946)] of fact by the TC.
iii. PETITION FOR REVIEW ON

CERTIORARI
SC
 When available:
i. AUTOMATIC REVIEW  When constitutionality/validity of
 It is not a matter of right on the part of any treaty, executive agreement,
the accused, but a matter of law. law, ordinance or executive order
 Hence, the escape of the accused or regulation is in question.
does not relieve the SC of the burden o When validity of law is
of automatically reviewing the case. questioned by an accused
[US v. Laguna (1910)] convicted under it by the TC,
 When available: the SC cannot review the
 When the RTC judgment upon the evidence or pass upon any
accused imposes death penalty. other question of law which
[Rule 122, Sec. 10] may appear on the record, but
 When the RTC decision is will only confine itself to the
appealed to CA and the latter is of question of the in/validity of
the opinion that the penalty that law. [Trinidad v. Sweeney
imposed should be death or life (1904)]
imprisonment. CA judgment is  When the jurisdiction of any
imposed but no entry of judgment inferior court is in issue.
is made; instead, the case is  When only an error or question of
certified and the entire record is law is involved.
 On decisions of the CA and the  Exception: [Vargas v. CA; Napolis v. CA

Sandiganbayan. (1972)]
o As a rule, review here is o When the conclusion is a finding 103
limited to errors of law. founded entirely on
CRIMINAL PROCEDURE
 General rule: Certiorari is used to speculations/surmises/conjectures;
correct only errors of jurisdiction and o When the inference made is
not errors of judgment of an inferior manifestly
court. For errors of judgment, ordinary mistaken/absurd/impossible;
o When there is GAD;
appeal is available.
o When the judgment is based on a
 Exception: Cases where certiorari is
misapprehension of facts;
granted despite existence of the o When the findings of facts are
remedy of appeal: conflicting;
1. Where public welfare and o When the CA, in making its findings,
advancement of public policy so went beyond the issues of the case
dictate. and the same are contrary to the
2. Where the broader interests of admissions of both appellant and
justice so require. appellee.
3. Where the orders complained of
were found to be completely null
and void. g. Decisions if opinion is equally
4. Where appeal was not considered divided
as the appropriate remedy. [Rule 125, Sec. 3]
 When the SC en banc is equally divided in
opinion or the necessary majority cannot be
d. Failure to specify appellate court
had on WON to acquit the appellant, the
 Failure of appellant to specify in his notice case shall again be deliberated upon.
of appeal the court to which the appeal is  If no decision is reached after re-
being made is not fatal. [RA 296] deliberation, the lower court’s judgment
of conviction shall be reversed and the
accused is acquitted.
e. Erroneous choice / mode of appeal  If case is decided by a division of the SC
 In the case of People v. Resuello (1969), the whose members are equally divided, the
contention of the adverse party that the case shall be heard and decided by the SC
ordinary appeal filed by appellant shall be en banc.
dismissed because the proper remedy is
petition for review on certiorari (only h. Constitutional provisions on SC
questions of law were involved) was composition
rejected.
 The SC said that in cases similarly situated, [Art. 8, Sec. 4, Consti]
and as long as the steps formally required  SC Composition: 1 Chief Justice + 14
for the perfection of an appeal were taken in Associate Justices.
due time, appeal may be given due course,  SC may sit en banc or (in its discretion) in
without prejudice to requiring the appellant divisions of 3, 5 or 7 members.
to file the necessary petition for review on  No doctrine or principle of law laid down
certiorari which is also a form of appeal. by the SC in a decision rendered en banc
or in division may be modified/reversed.
f. Review of CA decisions
 The procedure for the review by the SC of
CA decisions on criminal shall be the same
as in civil cases. [Rule 125, Sec. 2]
 General rule: The SC’s appellate jurisdiction
in cases brought to it from the CA is limited
to reviewing and revising the errors of law
incurred by the latter.
 The CA’s findings of fact are final.
 If an appeal in the SC involves
questions of facts, the SC has no
jurisdiction and should dismiss appeal.
[Guico v. Mayuga (1963)]
REMEDIAL LAW REVIEWER Appendices
Appendix 1: Availability of Bail

104
AVAILABLE as a MATTER AVAILABLE as a MATTER
NOT AVAILABLE
CRIMINAL PROCEDURE
OF RIGHT OF DISCRETION
After conviction by the RTC If the accused is charged with a capital offense or an
Before or after conviction
imposing a penalty of offense punishable by reclusion perpetua or life
by the MetTC, MTC, or
imprisonment which does not imprisonment, and the evidence of guilt is strong
MCTC (114.4)
exceed 6 years (114.5) (114.7)
After conviction by the RTC where a penalty of
imprisonment exceeding 6 years but not more than
20 years is imposed and any of the ff. circumstances
in sec. 5 is present:
1) Recidivism, quasi-recidivism, habitual
After conviction by the RTC
delinquency, commission of crime aggravated
where a penalty of
by circumstance of reiteration;
Before conviction by the imprisonment exceeding 6
2) Previously escaped from legal confinement,
RTC wheter in the exercise years but not more than 20
evasion of sentence or violation of conditions of
of its original or appellate years is imposed and not one
bail without valid justification;
jurisdiction (114.4) of the circumstances in sec. 5
3) Commission of offense while under probation,
is present, or any other similar
parole or conditional pardon;
circumstances (114.5)
4) Probability of flight;
5) Undue risk that he may commit another crime
during the pendency of appeal. (114.5)
6) Any other circumstances as may be present and
proved
If, prior to the judgment
becoming final or before the
accused serves his sentence,
the accused applies for After judgment has become final or the accused has
probation as allowed by law, commenced to serve his sentence (114.24)
he may be admitted to bail or
released on recognizance
(114.24)
REMEDIAL LAW REVIEWER Appendices
Appendix 2: Modes of Review

105
Ordinary appeal Petition for Review Petition for Review on Certiorari
CRIMINAL PROCEDURE
 Available after any judgment or final  Available only when the  General Rule: Available only when
order petition shows prima facie issues of law are involved; findings
that the lower court has of fact being deemed conceded by
committed an error of fact the appellant.
or law that will warrant the
reversal/modification of  Exception: SC reviews questions
the decision or final order both of fact and of law in cases
sought to be reviewed. decided by the RTC: [RA 296]
a. Where the penalty imposed is
life imprisonment;
b. Which involve other offenses
committed on the same
occasion or arising out of the
same occurrence that gave
rise to the more serious
offense for which the penalty
of death or life imprisonment is
imposed.
 Matter of right  Not a matter of right  Not a matter of right
 By filing a notice of appeal with the  Appeal by PFRC from the decision
court that rendered the judgment or final order of the RTC/CA may
and serving a copy on the adverse be taken by filing the petition within
party. 15 days from notice of judgment or
 NOTICE OF APPEAL – Written of the denial of MFR filed in due
notice of intention to take appeal. A time.
mere verbal notice of an intention to  Copy must be served on the court
appeal expressed by the accused, whose judgment or final order is
does not perfect an appeal. [People sought to be reviewed.
v. Natividad (1936)]  If no record of appeal has been
 When no notice of appeal is given in filed in the CA, the SC clerk of
writing or no record that any was court, upon admission of the
given, the cause will be stricken petition, shall demand from the CA
from the court calendar since there the elevation of the whole record of
was no appeal. [US v. Tenorio the case. [Rule 45, Sec. 2]
(1917)]  Provision above governs
 But when the accused manifests or procedure of appeal from RTC or
gives notice of his intention to Sandiganbayan to the SC.
appeal in open court and files a
bond for his provisional release
within 15 days from the
promulgation of the decision against
him, he may be considered as
having perfected his appeal.
[People v. Agasang (1956)]
- end of Criminal Procedure -

CIVIL PROCEDURE
Table of Contents
Part 1: Jurisdiction.......................................110 A. Amendment....................................... 133 107

I. Definition ..............................................110 B. Supplemental Pleadings ................... 134
CIVIL PROCEDURE
II. Prescribed Jurisdiction ......................110 C. Bill of Particulars ............................... 134
III. Specific Jurisdiction ...........................111 D. Intervention ....................................... 135
A. Supreme Court..................................111 E. Summons .......................................... 136
SC’S POWERS .....................................111 F. Motions.............................................. 139
B. Constitutional Commissions..............112 VI. Terminating the Action Before Trial .. 140
C. Court of Appeals ...............................112 A. Motion to Dismiss.............................. 140
D. Regional Trial Courts ........................113 B. Dismissal of Actions.......................... 144
E. Metropolitan, Municipal and Municipal C. Dismissal of Counterclaims/ Cross-
Circuit Trial Court .......................................114 Claims/ 3rd-Party Complaints.................... 145
F. Katarungang Pambarangay ..............114 D. Defaults ............................................. 145
E. Remedies of a Party Declared In Default
Part 2: Ordinary Civil Action .......................117 147
I. Preliminaries ........................................117 F. Judgment on the Pleadings .............. 147
A. Actions, In General............................117 G. Summary Judgments ........................ 148
B. Cause of Action.................................118 H. Partial Summary Judgment............... 148
C. Requirements for a Person to be a Party VII. Modes of Discovery ........................ 149
to a Civil Action ..........................................119 A. Depositions Under Rule 23 ............... 149
D. Parties to a Civil Action .....................120 B. Depositions Before Action Under Rule
E. Venue of Actions ...............................123 24 151
II. Pleadings..............................................125 C. Depositions Pending Appeal Under Rule
A. Definition ...........................................125 24 151
B. Pleadings Allowed.............................125 D. Rule 23 Applies on the Manner or
C. Parts of a Pleading............................125 Conduct of the Deposition ......................... 151
D. Disciplinary Action on Counsel E. Request for Admission Under Rule 26
Regarding Pleadings .................................125 152
E. Verification ........................................125 F. Production or Inspection of Documents
F. How a Pleading is Verified ................125 or Things.................................................... 153
G. Certification of Non-Forum Shopping G. Physical and Mental Examination of a
(CNFS).......................................................125 Party Under Rule 28 .................................. 153
H. Test to Determine WON there is Forum H. Consequences of Refusal Under Rule
Shopping....................................................126 29 154
I. Effect of Submission of False CNFS or VIII. Pre-Trial............................................ 154
Non-Submission of CNFS..........................126 A. Notice of Pre-Trial ............................. 154
J. Effect of Willful and Deliberate Forum B. Appearance of Parties ...................... 154
Shopping....................................................126 C. Pre-Trial Brief .................................... 155
K. Different Pleadings............................126 D. Record of Pre-Trial............................ 155
III. Manner of Making Allegations .......130 E. Calendar of Cases ............................ 155
A. In General .........................................130 IX. Trial ....................................................... 155
B. Facts that may be Averred Generally130 A. Notice of Trial.................................... 156
C. Facts that must be Averred Particularly B. Adjournments and Postponement .... 156
130 C. Subpoena.......................................... 156
D. Three Ways of Making a Specific Denial D. Conduct of Trial................................. 157
130 E. General Order of Trial ....................... 157
IV. Acquisition of Jurisdiction .................131 F. Agreed Statement of Facts ............... 158
A. Filing and Service..............................131 G. Statement of the Judge..................... 158
B. Papers Required to be Filed and Served H. Suspension of Actions ...................... 158
131 I. Reception of Evidence ...................... 158
C. Proof of Filing ....................................131 J. Trial by Commissioner ...................... 158
D. Mode of Service ................................131 K. Consolidation and Severance........... 158
E. Service...................................................131 L. Demurrer to Evidence ....................... 159
V. Amendment and Supplemental X. Judgments, Final Orders and Entry of
Pleadings ......................................................133 Judgment ...................................................... 159
A. Parts of a Judgment ..........................159 V. Rules..................................................... 186

B. Distinction Between Judgment and A. General Rule ..................................... 186
Opinion of the Court...................................160 1. Procedure in the Court of Appeals186
C. Requisites of a Valid Judgment ........160 2. Procedure in the Supreme Court
D. Interpretation of the Judgment ..........160 (Appealed Cases).................................. 194
E. Kinds of Judgment ............................160 B. Questions of Fact vs. Questions of Law 108
F. Amendments to Judgment ................161 196
CIVIL PROCEDURE
G. Entry of Judgments and Final Orders162 C. Notice of Appeal................................ 197
XI. Execution of Judgments.....................162 D. Record on Appeal ............................. 197
A. Execution as a Matter of Right..........162 E. Perfection of Appeal.......................... 197
B. Discretionary Execution ....................164 F. Period to Appeal ............................... 197
C. Execution of Judgments for Money...165 VI. Special Topic: Remedies from a Void
D. Execution of Judgments for Specific Judgment ...................................................... 199
Acts 166
E. Execution of Special Judgments.......167 Part 4: Provisional Remedies ..................... 200
F. General Rules Governing Execution.167 I. Definition .............................................. 200
G. Remedies of Judgment Creditor in Aid of II. Preliminary Attachment ...................... 200
Execution ...................................................172 A. Definition ........................................... 200
H. Entry of Satisfaction ..........................172 B. Purposes ........................................... 200
I. Effects of Judgments or Final Orders172 C. Grounds ............................................ 200
XII. Summary Procedure ......................174 D. Stages in the Grant of Preliminary
A. Scope ................................................174 Attachment................................................. 201
B. Determination of Applicability............174 E. Issuance and Contents of Order of
C. The Only Pleadings Allowed .............174 Attachment................................................. 201
D. Court Duty .........................................174 F. Contents of Affidavit of Applicant...... 201
E. Answer ..............................................174 G. Condition of Applicant's Bond ........... 201
F. Effect of Failure to Answer ................174 H. Manner of Attaching Property ........... 201
G. Preliminary Conference.....................174 I. Effects of Attachment........................ 202
H. Record of Preliminary Conference....175 J. Sale of Attached Property ................. 203
I. Submission of Affidavits and Position K. Discharge of Attachment................... 203
Papers........................................................175 L. Proceedings Where Attached Property
J. Rendition of Judgment ......................175 Claimed By Third Person........................... 203
K. Referral to Lupon ..............................175 M. Recovery Upon the Counter-Bond;
L. Prohibited Pleadings and Motions ....175 Disposition of Deposit/ Attached Property
M. Affidavits............................................175 After Judgment .......................................... 203
N. Appeal ...............................................176 N. Improper, Irregular or Excessive
O. Applicability of the Regular Rules .....176 Attachment................................................. 203
III. Preliminary Injunction......................... 204
Part 3: Remedies and Appeals ...................177 A. Definition ........................................... 204
I. Kinds.....................................................177 B. Classes ............................................. 204
A. Before Finality ...................................177 1. Preliminary preventive injunction.. 204
B. After Finality ......................................177 2. Preliminary mandatory injunction . 204
II. Reconsideration and New Trial..........178 C. Purpose............................................. 205
A. Rules .................................................178 D. Grounds ............................................ 205
B. Motion for Reconsideration ...............179 E. Requirements.................................... 205
C. Motion for New Trial ..........................180 F. Rule 58 Provides for both a Main Action
III. Appeal...................................................181 for Injunction and an Ancillary Writ of
IV. Modes of Appeal..................................182 Preliminary Injunction ................................ 206
A. MTC to RTC ......................................182 IV. Temporary Restraining Order (TRO) . 206
B. MTC to RTC to CA ............................182 A. Status Quo Order vs. Injunction........ 206
C. MTC to RTC to CA to SC ..................182 B. Objection to/Motion for Dissolution of
D. MTC to SC ........................................184 Injunction/ Restraining Order..................... 206
E. RTC to CA .........................................184 C. Global Injunction of a Foreign Court . 207
F. RTC to CA to SC...............................185 V. Receivership ........................................ 207
G. RTC to SC .........................................185 A. Nature ............................................... 207
H. CA to SC ...........................................185 B. Appointment of Receiver................... 207
I. QJA to CA .........................................185 C. Termination of Receivership ............. 208
J. QJA to CA to SC ...............................186 VI. Replevin ............................................... 209
K. QJA to SC .........................................186 A. Nature ............................................... 209
B. Requirements....................................209 C. When to File ...................................... 226

C. Order of Replevin ..............................209 D. Order of Partition................................... 226
D. Disposition of Property by Sheriff......210 E. Partition by Agreement ..................... 226
E. Where Property Claimed by Third F. Partition by Commissioners .............. 226
Person........................................................210 G. Judgment ...................................... 227
VII. Support Pendente Lite....................210 IX. Forcible Entry and Unlawful Detainer227 109
A. Nature................................................210 A. Actions for the Recovery of Possession
CIVIL PROCEDURE
B. Requirements....................................210 of Real Property......................................... 227
C. Verified Comment .............................210 1. Accion Interdictal .......................... 227
D. Hearing..............................................210 2. Accion Publiciana ......................... 228
E. Order of Support ...............................210 3. Accion Reivindicatoria .................. 228
F. Remedies of a Party Who Was B. Forcible Entry.................................... 228
Erroneously Compelled to Give Support ...211 C. Unlawful Detainer.............................. 228
D. Pleadings .......................................... 229
Part 5: Special Civil Actions........................212 E. Procedure ......................................... 229
I. Interpleader ..........................................212 F. Preliminary Injunction........................ 231
A. Definition ...........................................212 G. Matters Not Constituting Prejudicial
B. Purpose .............................................212 Question to Ejectment .............................. 231
C. When Proper .....................................212 X. Contempt.............................................. 232
D. Procedure..........................................212 A. Definition ........................................... 232
II. Declaratory Relief ................................213
A. Requisites .........................................213 APPENDIX 1: Service of Summons upon
B. Who May File ....................................213 Different Entities .......................................... 235
C. Parties ...............................................213
D. Where Filed .......................................214 APPENDIX 2: Subpoena Duces Tecum and
E. When Court May Refuse to Declare Order for the Production or Inspection ..... 236
Rights/Construe Instruments .....................214
F. Similar Remedies Covered by Rule 63 APPENDIX 3: Consequences of Refusal
214 under Rule 29 ............................................... 237
III. Review of Judgments and Final Orders
or Resolutions of the COMELEC and COA214 APPENDIX 4: Procedure for Expropriation239
A. Scope ................................................214
B. Procedure..........................................214
IV. Certiorari, Prohibition, and Mandamus
215
A. Procedure..........................................217
V. Quo Warranto.......................................218
A. How Commenced..............................218
B. By Whom/Against Whom ..................219
C. Contents of Petition...........................219
D. Venue ................................................219
E. When Filed ........................................219
F. Judgment ..........................................219
VI. Expropriation .......................................220
A. Concept and Basis of Expropriation..220
B. Two Stages in Expropriation
Proceedings: ..............................................220
C. Procedure..........................................220
VII. Foreclosure of Real Estate Mortgage
223
A. Complaint’s Contents ........................223
B. Judgment ..........................................223
C. Disposition of the Proceeds of the Sale
223
D. Deficiency Judgment........................224
E. Registration .......................................224
VIII. Partition............................................225
A. Complaint ..........................................225
B. Venue ................................................226
REMEDIAL LAW REVIEWER Part 1: JURISDICTION
Part 1: Jurisdiction
CIVIL PROCEDURE TEAM
CIVIL PROCEDURE
Prof Theodore O Te I. DEFINITION
Faculty Editor
II. PRESCRIBED JURISDICTION
Jo Blanca P.B. Labay III. SPECIFIC JURISDICTION
Lead Writer A. SUPREME COURT 110
Anna Tarhata S. Basman B. CONSTITUTIONAL COMMISSIONS
CIVIL PROCEDURE
Dianne Margarette T. Delos Reyes C. COURT OF APPEALS [SEC. 9, BP 129]
May Frances S. Calsiyao D. REGIONAL TRIAL COURTS
Writers E. METROPOLITAN, MUNICIPAL AND
MUNICIPAL CIRCUIT TRIAL COURT
REMEDIAL LAW F. KATARUNGANG PAMBARANGAY
Jo Blanca P.B. Labay
Subject Editor
I. Definition
ACADEMICS COMMITTEE
Kristine Bongcaron  Jurisdiction is defined as the authority to try,
Michelle Dy
hear and decide a case [Tolentino v. Leviste
Patrich Leccio
Editors-in-Chief (2004)]
PRINTING & DISTRIBUTION  Judicial power includes the duty of the

Kae Guerrero courts of justice: [Art 8, Sec. 1, Consti]
DESIGN & LAYOUT 1) To settle actual controversies involving

Pat Hernandez rights which are legally demandable
Viktor Fontanilla and enforceable;
Romualdo Menzon Jr.
Rania Joya 2) To determine WON there has been a
LECTURES COMMITTEE grave abuse of discretion amounting to
lack or excess of jurisdiction on the part
Michelle Arias of any government branch/
Camille Maranan instrumentality.
Angela Sandalo
Heads
 All courts exercises judicial power. Only the
Katz Manzano Mary Rose Beley
Sam Nuñez Krizel Malabanan
Supreme Court is the court created by the
Arianne Cerezo Marcrese Banaag Constitution [Art 8, Sec. 1, Consti]. The
Volunteers Sandiganbayan is a Constitutional
mandated court, but it is created by statute.
MOCK BAR COMMITTEE [PD 1486]
Lilibeth Perez
BAR CANDIDATES WELFARE II. Prescribed Jurisdiction

Dahlia Salamat
 Jurisdiction over a particular subject matter.
LOGISTICS  Conferred only by the Constitution or by law
and cannot be agreed upon by the parties or
Charisse Mendoza
waived.
SECRETARIAT COMMITTEE  Jurisdiction over the subject matter is
determined by the allegations of the
Jill Hernandez
Head
complaint. It is not affected by the pleas set
up by the defendant in the answer or in the
Loraine Mendoza Faye Celso answer or in a motion to dismiss. [Sindico v.
Mary Mendoza Joie Bajo
Members Diaz (2004)]
 An error in jurisdiction can be raised at any
time and even for the first time on appeal.
This rule presupposes that estoppel has not
yet supervened. [Soliven vs. Fastforms
(2004)
 Jurisdiction by estoppel.  Cases affecting ambassadors and

General Rule: Estoppel does not apply to other public ministers and consuls;
confer jurisdiction to a tribunal that has none  Petitions for certiorari, prohibition,
over a cause of action. Jurisdiction is mandamus, quo warranto, and
conferred by law. Where there is none, no habeas corpus.
agreement of the parties can provide one. 111
Settled is the rule that the decision of a 2. REVIEW/REVISE/REVERSE/MODIFY/
CIVIL PROCEDURE
tribunal not vested with appropriate AFFIRM ON APPEAL OR
jurisdiction is null and void. [SEAFDEC v. CERTIORARI, FINAL
NLRC (1992)] JUDGMENTS/ORDERS OF LOWER
COURTS ON:
Exception :  Constitutionality/validity of any
[Soliven v. Fastforms (2004)] – Participation treaty, international or executive
in all stages of the case before the trial agreement, law, presidential
court, that included invoking its authority in decree/proclamation/order/
asking for affirmative relief, effectively instruction, ordinance or regulation;
barred petitioner by estoppel from  Legality of any tax /impost
challenging the court’s jurisdiction. /assessment /toll, or any penalty
imposed in relation thereto;
 Cannot be the subject of compromise [Art.  Any lower court’s jurisdiction;
2035, CC]
 Once attached to a court, cannot be ousted 3. CRIMINAL CASES IN WHICH THE
by subsequent statute. PENALTY IMPOSED IS RECLUSION
PERPETUA OR HIGHER;
Exception: The statute itself conferring new
jurisdiction expressly provides for retroactive 4. ONLY ERRORS/QUESTIONS OF LAW
effect. [Southern Food v. Salas (1992)] ARE INVOLVED.
 Exception: [Josefa v. Zhandong
 The filing of the complaint or appropriate (2003)]
initiatory pleading and the payment of the  The conclusion is grounded on
prescribed docket fee vest a trial court with speculations/ surmises
jurisdiction over the subject matter or the /conjectures;
nature of the action [CB v. CA ( )](2008 Bar  The inference is manifestly
Exam). mistaken/absurd/impossible;
 There is grave abuse of
 Exception: Non-payment of docket fee does
discretion;
not automatically cause the dismissal of the
 The judgment is based on a
case on the ground of lack of jurisdiction as
misapprehension of facts;
long as the fee is paid within the applicable
prescriptive or reglementary period, more so  The findings of fact are
when the party involved demonstrates a conflicting;
willingness to abide by the rules prescribing  There is no citation of specific
such payment. [Go v. Tong (2003)] evidence on which the factual
findings are based;
 The finding of absence of facts
III. Specific Jurisdiction is contradicted by the presence
of evidence on record;
A. Supreme Court  The findings of the CA are
contrary to those of the trial
court;
 The judicial power shall be vested in one SC
 The CA manifestly overlooked
and in such lower courts as may be
certain relevant and undisputed
established by law. [Art. 8, Sec. 1, Consti]
facts that, if properly
SC’S POWERS considered, would justify a
different conclusion;
[ART. 8, SEC. 5, CONSTI]  The findings of the CA are
beyond the issues of the case;
1. EXERCISE ORIGINAL JURISDICTION
 Such findings are contrary to the
OVER:
admissions of both parties.
Distinctions between Questions of Law and days from receipt of copy. [Art. 9-A, Sec. 7,
Fact (2004 Bar Exam) Consti]
 A question of law exists when the doubt or  CSC - Judgments/decisions/orders are

controversy concerns the correct application within the exclusive appellate jurisdiction of
of law or jurisprudence to a certain set of the CA through Rule 43.[RA 7902] 112
facts; or when the issue does not call for an
CIVIL PROCEDURE
examination of the probative value of the COURT OF TAX APPEALS
evidence presented, the truth or falsehood
of facts being admitted. SANDIGANBAYAN
 A question of fact exists when the doubt or
query invites calibration of the whole  Decisions and final orders of the
evidence considering mainly the credibility of Sandiganbayan shall be subject to review on
the witnesses, the existence and relevancy certiorari by the Supreme Court in
of specific surrounding circumstances, as accordance with Rule 45 of the Rules.
well as their relation to each other and to the Whenever, in any case decided, the death
whole, and the probability of the situation penalty shall have been imposed, the records
(Mendoza vs. Salinas, 2007). shall be forwarded to the SC whether the
accused shall have appealed or nor, for review
5. ASSIGN TEMPORARILY JUDGES OF and judgment. [PD 1606 Sec 7]
LOWER COURTS TO OTHER STATIONS
AS PUBLIC INTEREST MAY REQUIRE, C. Court of Appeals
WHICH SHALL NOT LAST 6 SIX MONTHS [Sec. 9, BP 129]
WITHOUT THE CONSENT OF THE JUDGE
CONCERNED.  ORIGINAL JURISDICTION
 To issue writs of mandamus, prohibition,
6. ORDER A CHANGE OF VENUE OR certiorari, habeas corpus and quo
PLACE OF TRIAL TO AVOID A warranto, and auxiliary writs/processes,
MISCARRIAGE OF JUSTICE. WON in aid of its appellate jurisdiction.
7. PROMULGATE RULES ON:  EXCLUSIVE ORIGINAL JURISDICTION
 Protection and enforcement of  Annulment of RTC judgments.
constitutional rights;
 Pleading/practice/procedure in all  EXCLUSIVE APPELLATE JURISDICTION
courts;  Final judgments /decisions /resolutions
 Admission to the practice of law; /orders/ awards of:
 The Integrated Bar; a. RTC;
 Legal assistance to the under-privileged. b. Quasi-judicial agencies
 Guidelines on the rules: /instrumentalities/boards/commissions
(1)Simplified and inexpensive including:
procedure for the speedy disposition of a. SEC;
cases; b. Social Security Commission;
(2)Uniform for all courts of the same c. ECC;
grade; d. CSC.
(3)Not diminish/increase/modify  Exception: Those falling within the SC’s
substantive rights. appellate jurisdiction of the Supreme
Court in accordance with:
8. APPOINT ALL JUDICIARY a. The Constitution;
OFFICIALS/EMPLOYEES IN b. Labor Code;
ACCORDANCE WITH THE CIVIL SERVICE c. BP 129;
LAW. d. Sec. 17, Par. 3(1) and Par. 4(4)
of
B. Constitutional Commissions e. the Judiciary Act of 1948.
Review of decisions by the NLRC

 COMELEC and COA– Decisions/orders
 Supposed appeals from the NLRC to the SC
/rulings may be brought to the SC on
are interpreted and hereby declared to mean
certiorari by the aggrieved party, within 30
and refer to Petitions for Certiorari under
Rule 65. [Manufacturer’s Distributor’s v. Yu Siu

 All such petitions should be initially filed in Liong (1966)]
the CA in strict observance of the doctrine 4) The jurisdiction of the respective courts
on the hierarchy of courts. [St. Martin’s is determined by the value of the
Funeral Home v. NLRC (1998)] demand and not the value of the
 All special civil actions arising out of any transaction out of which the demand 113
decision or final resolution or order of the arose.
CIVIL PROCEDURE
NLRC filed with the SC after June 1, 1999  The alternative prayer for specific
shall not longer be referred to the CA, but performance is also of the same
shall forthwith be dismissed. value, for the alternative prayer
would not have been made in the
 POWERS complaint if one was more valuable
1) Try cases and conduct hearings; than the other.[Cruz v. Tan (1950)]
2) Receive evidence 5) Rescission is a counterpart of specific
3) And any and all acts necessary to performance therefore also incapable of
resolve factual issues raised, including pecuniary estimation. [Lapitan v.
the power to grant and conduct new Scandia (1968)]
trials or further proceedings. 6) Action for declaration of nullity of a deed
of partition is incapable of pecuniary
Trials or hearings must be continuous and must estimation. [Russel v. Vestil (1999)]
be completed within 3 months. 7) An action for expropriation is incapable
of pecuniary estimation. [Bardillon v.
D. Regional Trial Courts Masili (2003)]
 Title to, or possession of, real property

1. EXCLUSIVE ORIGINAL JURISDICTION IN
(or any interest therein) where the property’s
CIVIL CASES [SEC. 19, BP 129, ASKED IN
assessed value exceeds P20K or P50K (for
THE 2002 BAR EXAMINATIONS)
civil actions in Metro Manila);
 Incapable of pecuniary estimation  Exception: Forcible entry into and
(2000 Bar Exam); unlawful detainer of lands/buildings.
 If the action is primarily for the recovery
 Admiralty and maritime jurisdiction where
of a sum of money, the claim is
the demand/claim exceeds P300K or P400K
considered capable of pecuniary
(in Metro Manila);
estimation, and jurisdiction over the
action will depend on the amount of the  Maritime and admiralty cases involve
claim. [RCPI v. CA (2002)] trade and transactions in the sea.
Maritime jurisdiction includes maritime
 If the basic issue is something other
tort. [Negre v. Cabahug (1966)]
than the right to recover a sum of
money, if the money claim is purely
 Probate (testate and intestate) where the
incidental to, or a consequence of, the
gross value of the estate exceeds P300K or
principal relief sought, the action is one
P400K (in Metro Manila);
where the subject of the litigation may
not be estimated in terms of money.
 Marriage contract and marital relations;
[Soliven v. Fastforms (1992)]
2. GENERAL ORIGINAL JURISDICTION –
1) If the thing sought to be deposited or
consigned is a sum of money, the
 All cases not within the exclusive
amount of the debt due is determinable
jurisdiction of any court /tribunal /person/
and capable of pecuniary estimation.
body exercising judicial or quasi-judicial
[Ascue v. CA (1991)]
functions;
2) Action for support is incapable of
 Within the exclusive original jurisdiction of a
pecuniary estimation because the court
Juvenile and Domestic Relations Court and
is asked to determine first WON the
of the Court of Agrarian Relations;
plaintiff is indeed entitled to support.
 All other cases where the demand
[Baito v. Sarmiento (1960)]
(exclusive of interest, damages of
3) Action for specific performance is
whatever kind, attorney's fees, litigation
incapable of pecuniary estimation.
expenses and costs) or the value of the
property in controversy exceeds P300K or costs shall be included in the

P400K in Metro Manila. determination of the filing fees.
 The exclusion of the term “damages of
whatever kind” in determining the  If there are several claims or causes of
jurisdictional amount under Sec. 19(8) actions between the same/different parties
and Sec. 33 (1) of BP 129, as amended in the same complaint, the amount of the 114
by RA7691, applies to cases where the demand shall be the totality of the claims in
CIVIL PROCEDURE
damages are merely incidental to or a all the causes of action, WON the causes of
consequence of the main cause of action arose out of the same/different
action. transactions.
 However, if the claim for damages is the
main cause of action, or one of the  Forcible entry and unlawful detainer;
causes of action, the amount of such  If the defendant raises the question of
claim shall be considered in determining ownership in his pleadings and the
the jurisdiction of the court.[Admin Circ. question of possession cannot be
09-94] resolved without deciding the issue of
 Actions for damages based on quasi- ownership,
delicts are primarily and effectively  the issue of ownership shall be resolved
actions for the recovery of a sum of only to determine the issue of
money for the damages suffered possession.
because of the defendant’s alleged  That the MeTC has jurisdiction even in
tortious acts. cases where the issue of possession is
 This money claim is the principal relief closely intertwined with the issue of
sought, and is not merely incidental ownership is now a settled doctrine in
thereto or a consequence thereof. ejectment proceedings. [Heirs of B.
[Iniego v. Purganan(2006)] Hernandez v. Vergara (2006)]
3. ORIGINAL JURISDICTION [SEC. 21, BP  All civil actions that involve title to, or
129] possession of, real property (or any
interest therein) where the assessed value
 Certiorari, prohibition, mandamus, quo of the property (or interest therein) does not
warranto, habeas corpus and injunction exceed P20K or P50K (in civil actions in
which may be enforced in any part of their Metro Manila).
respective regions;
 Actions affecting ambassadors and other 2. DELEGATED JURISDICTION IN
public ministers and consuls. CADASTRAL AND LAND REGISTRATION
CASES [SEC. 34, BP 129]
4. APPELLATE JURISDICTION [SEC. 22, BP
129]  Lots where there is no
controversy/opposition;
 All cases decided by MeTCs/MTCs/MCTCs  Contested lots the value of which does not
in their respective territorial jurisdictions. exceed P100K.
Metropolitan, Municipal and Municipal  The value is to be ascertained:
Circuit Trial Courts o By the claimant’s affidavit;
o By agreement of the respective
E. Metropolitan, Municipal and claimants, if there are more than
Municipal Circuit Trial Court one;
o From the corresponding tax
declaration of the real property.
1. EXCLUSIVE ORIGINAL JURISDICTION  MTC decisions in cadastral and land
[SEC. 33, BP 129] registration cases are appealable in the
 Civil actions and probate proceedings same manner as RTC decisions.
(testate and intestate), including the grant of
provisional remedies, where the value of
the personal property, estate or amount F. Katarungang Pambarangay
of the demand does not exceed P300K or
P400K (in Metro Manila);  Purpose: To reduce the number of court
 Interest, damages of whatever kind, litigations and prevent the deterioration of
attorney's fees, litigation expenses and the quality of justice which has been brought
about by the indiscriminate filing of cases in  Procedure For Amicable Settlement [Sec.
the courts. [Lumbuan v. Republic (2006)] 410, Ra 7160]
 General rule: Authority to bring together the 1) Any individual who has a cause of action
parties actually residing in the same city or against another individual may complain
municipality for amicable settlement of all (orally or in writing) to the barangay’s lupon 115
disputes. [Sec. 480, RA 7160] chairperson.
CIVIL PROCEDURE
2) Within the next working day, the lupon
 Exceptions: chairperson shall summon the respondents,
 If one party is the government; with notice to the complainants, for them
 If one party is a public officer/EE and and their witnesses to appear before him for
 the dispute relates to the performance mediation.
 of his official functions; 3) If the mediation effort fails within 15 days
 Offenses punishable by imprisonment from the 1st meeting, he shall set a date for
exceeding 1 year or a fine exceeding the constitution of the pangkat.
P5K; 4) While the dispute is under mediation, the
 Offenses with no private offended party; prescriptive periods for offenses and causes
 Real properties located in different of action shall be interrupted upon filing the
complaint with the punong barangay.
 cities/municipalities;
5) Such interruption shall not exceed 60 days
o Exception to exception: Parties
from the filing of the complaint with the
agree to submit their differences to
punong barangay.
amicable settlement by an
6) The prescriptive periods shall resume upon
appropriate lupon.
receipt by the complainant of the complaint
 Parties who actually reside in barangays
or the certificate of repudiation or of the
of different cities/municipalities;
certification to file action issued by the lupon
o Exception to exception: If such
or pangkat secretary.
barangay units adjoin each other
7) The pangkat shall arrive at a
and the parties agree to submit their
settlement/resolution of the dispute within 15
differences to amicable settlement
days from the day it convenes, extendible
by an appropriate lupon.
for another period which shall not exceed 15
 Such disputes which the President may days, except in clearly meritorious cases.
determine in the interest of justice or
upon the recommendation of the
 Note: In the 1999 Bar Examination, a
Secretary of Justice.
question was asked on the distinctions
between conciliation proceedings in the
 Venue [Sec. 409, RA 7160]
Katarungang Pambarangay and the Pre-trial
Conference.
Nature of Dispute Venue
Disputes between Their barangay  Effect [Sec. 416, RA 7160]
persons actually
 General rule: Same as a court’s final
residing in the same
judgment, upon the expiration of 10
barangay
days from the date thereof.
Disputes between Barangay where the
 Exception: If the settlement was
actual esidents of respondent (or any of
repudiated:
different barangays the respondents)
o By any party, within 10 days from
within the same actually resides, at the
the date of the settlement;
city/municipality complainant's election
o By filing with the lupon chairperson
Disputes on real Barangay where the
a statement to that effect, sworn to
property real
before him;
(or any interest property (or the larger
o Where the consent is vitiated by
therein) portion thereof) is
fraud/violence/intimidation;
situated
o Where there is sufficient basis for
Disputes arising at the Barangay where the the issuance of the certification for
workplace or at the workplace or institution filing a complaint.
institution where the is
 If a petition to nullify the award was filed
parties located
before the proper city/municipal court.
are enrolled
 Execution [Sec. 417, RA 7160]

 By the lupon, within 6 months from the
date of the settlement.
 After the lapse of the 6 months, by
action in the appropriate city/municipal
court 116
CIVIL PROCEDURE
Note: In the 2006 Bar Exams, questions were
asked on the following: (1) jurisdiction of the
Court of Tax Appeals En Banc in comparison
with the Court of Tax Appeals Division, (2) the
jurisdiction of the Ombudsman, and (3) cases
handled by the Office of the Solicitor General.
These areas are discussed in the proper
subjects to which they belong, namely Taxation
and Political Law.
REMEDIAL LAW REVIEWER Part 2: ORDINARY CIVIL ACTION
prevention/redress of a wrong. [Rule 1, Sec.

Part 2: Ordinary Civil Action 3(a)]
 Ordinary – Governed by rules for
I. PRELIMINARIES ordinary civil actions;
II. PLEADINGS
 Special – Subject to specific rules but
III.
IV.
MANNER OF MAKING ALLEGATIONS
ACQUISITION OF JURSIDICTION
also governed by rules for ordinary civil 117
V. AMENDMENT AND SUPPLEMENTAL actions. [Rule 1, Sec.3(a) par 2]
CIVIL PROCEDURE
PLEADINGS  SPECIAL PROCEEDINGS – One by which
VI. TERMINATING THE ACTION BEFORE TRIAL a party seeks to establish a status, a right,
VII. MODES OF DISCOVERY or a particular fact.
VIII. PRE-TRIAL
IX. TRIAL Distinctions between Civil Actions and Special
X. JUDGMENTS, FINAL ORDERS AND ENTRY OF Proceedings
JUDGMENT (Asked in the 1998 Bar Exam)
XI. EXECUTION OF JUDGMENTS Action Special
XII. SUMMARY PROCEDURE Proceeding
As to parties Involves 2 or Involves at least
more parties 1 party or 2 or
I. Preliminaries more
parties in proper
A. ACTIONS, IN GENERAL cases
B. CAUSE OF ACTION As to cause Involves a right May involve a
C. REQUIREMENTS FOR A PERSON TO BE of action and a violation of right, but there
A PARTY TO A CIVIL ACTION such right by the need not be a
defendant which violation of this
D. PARTIES TO A CIVIL ACTION causes some right
E. VENUE OF ACTIONS damage/prejudic
e upon the
plaintiff
A. Actions, In General As to Requires the Requires no such
formalities application of formalities, as it
1. DEFINITION legal remedies in may be granted
accordance with upon application
 ACTION – An ordinary suit in a court of the prescribed
justice by which one party prosecutes rules
another for the enforcement/protection of a As to Ordinary rules of Special rules of
right or the prevention/redress of a wrong governing procedure procedure
(Santos vs. Vda. De Caparas, 1959). rules
As to appeal Cannot be Can be
from an directly and immediately and
 Distinguished from cause of action (Asked in
interlocutory immediately directly appealed
the 1999 Bar Exam): order appealed to the to the appellate
 A cause of action is the fact or appellate court court
combination of facts which affords a until after final
party a right to judicial interference in his judgment on the
behalf. merits
 An action means an ordinary suit in a
court of justice, by which one party 3. CLASSIFICATION OF ACTIONS
prosecutes another for the enforcement
or protection of a right, or the  As to nature:
prosecution or redress of a wrong (Into
vs. Valle, 2005). Ordinary Civil Action Special Civil Action
Governed by ordinary Also governed by
2. KINDS OF ACTIONS rules ordinary
rules but subject to
specifically prescribed
 CRIMINAL ACTION – One by which the rules
State prosecutes a person for an (Rules 62 to 71)
act/omission punishable by law. [Rule 1,
Sec. 3(b)]
 CIVIL ACTION – One by which a party
prosecutes another for the
enforcement/protection of a right or the
 As to object: in the 1998 Bar Exam particularly its

comparison with joinder of causes of action)
Real action Personal Mixed action  A party may not institute more than one suit
action for a single cause of action. [Rule 2, Sec. 3]
Ownership or Personal Both real and  Purpose: [City of Bacolod v. SM Brewery
possession of property is personal (1969)] 118
real property is sought to be properties are Action in rem Action in Action
CIVIL PROCEDURE
involved recovered or involved personam quasi in rem
damages for
breach of
Directed against Directed Directed
contract are
the thing itself against against
sought
particular particular
Founded on Founded on Founded on persons persons
privity of real privity of both
Jurisdiction over Jurisdiction Jurisdiction
estate contract
the person of over the person over the person
Filed in the Filed in the The rules on the defendant of the of the
court where the court where venue of real is not required defendant is defendant is
property (or the actions govern required not required as
any portion plaintiff or any long as
thereof) is of the jurisdiction over
situated defendants the res is
resides, at the acquired
plaintiff’s
A proceeding to An action to A proceeding to
option
determine the impose subject the
state/ responsibility/ interest of a
 As to place of filing: condition of a liability upon a named
thing person directly defendant over
Local action Transitory action a particular
One that could be One that could be property to an
instituted in one specific prosecuted in any one of obligation/lien
place several places burdening it
Judgment is Judgment is Judgment is
binding on the binding only binding upon
whole world upon parties particular
B. Cause of Action impleaded or persons
1. DEFINITION their
 CAUSE OF ACTION – The act/omission by successors
which a party violates a right of another. in interest
Ex: Accion Ex: Action for Ex: Action for
[Rule 2, Sec. 2]
reivindicatoria; specific partition; action
annulment of performance; to foreclose real
2. ELEMENTS OF A CAUSE OF ACTION marriage; action to estate
 Plaintiff’s legal right; naturalization recover money mortgage
 Defendant’s correlative obligation to proceedings or property
respect plaintiff’s right; (real or
 Defendant’s act/omission in violation of personal)
plaintiff’s right [Mao Sugar Central v.  To prevent repeated litigation between
Barrios (1947) )(Asked in the 1997 Bar the same parties in regard to the same
Exam). subject or controversy;
 Every ordinary civil action must be based on  To protect the defendant from
a cause of action [Rule 2, Sec. 1] unnecessary vexation. Nemo debet
 A cause of action stems from the sources of vexare pro una et eadem causa (No
obligations under Art. 1156, CC - Law, man shall be twice vexed for one and
Contract, Quasi-contract, Acts and the same cause);
omissions punishable by law and Quasi-  To avoid the costs and expenses
delict. [Sagrada de Orden v. Nacoco (1952)] incident to numerous suits.
3. SPLITTING OF CAUSE OF ACTION 4. EFFECTS OF SPLITTING A CAUSE OF

 Definition: The act of dividing a single or ACTION [RULE 2, SEC. 4] (ASKED IN THE
indivisible cause of action into several parts 1999 AND 2005 BAR EXAMS)
or claims and bringing several actions a. Filing of the 1st complaint may be
thereon. It is not allowed. [Regalado] (Asked pleaded in abatement of the 2nd
complaint, on the ground of litis  TOTALITY RULE - Where the claims in all
pendentia; or the causes of action are principally for
b. A judgment upon the merits in any of the recovery of money, the aggregate amount
complaints is available as ground for claimed shall be the test of jurisdiction.
dismissal of the others based on res
judicata. 7. MISJOINDER OF CAUSES OF ACTIONS 119
c. A MTD under Rule 16 Sec. 1(e) or (f) [RULE 2, SEC. 6]
CIVIL PROCEDURE
may be filed in order that the complaint  Misjoinder of causes of action is not a
may be dismissed. ground for dismissal of an action.
 A single act/omission can be violative of  A misjoined cause of action may, on motion
various rights at the same time, as when the or motu propio, be severed and proceeded
act constitutes juridically a violation of with separately.
several separate and distinct legal  There is no sanction against non-joinder of
obligations. separate causes of action since a plaintiff
 However, where there is only one needs only a single cause of action to
delict/wrong, there is but a single cause of maintain an action (Regalado).
action regardless of the number of rights
that may have been violated belonging to
one person. C. Requirements for a Person to be a
 The singleness of a cause of action lies in Party to a Civil Action
the singleness of the delict/wrong violating
the rights of a person. If only 1 injury 1. HE MUST BE EITHER:
resulted from several wrongful acts, only 1  A natural person;
cause of action arises. [Joseph v. Bautista  A juridical person; or
(1989)]  An entity authorized by law.
 For a single cause of action or violation of a  The estate of a deceased person
right, the plaintiff may be entitled to several [Limjoco vs. Intestate Estate of Fragante
reliefs. It is the filing of separate complaints (1948)] ;
for these several reliefs that constitutes  (A political party incorporated under Act
splitting up of the cause of action which is 1459 [now BP 68 (Corporation Code)];
proscribed by Rule 2, Sec. 3 and 4. [City of  A registered labor union [Sec. 243, PD
Bacolod v. SM Brewery (1969)] 442 (Labor Code)], with respect to its
property;.
5. JOINDER OF CAUSES OF ACTION  The Roman Catholic Church has legal
(ASKED IN THE 1998 BAR EXAM) capacity to sue. [Barlin v. Ramirez
 The joinder of causes of action in one (1906)].
complaint promotes the policy on avoiding
multiplicity of suits. 2. HE MUST HAVE THE LEGAL CAPACITY
 The rule however is purely permissive as the TO SUE;
plaintiff can always file separate actions for
each cause of action (Baldovir vs. Sarte, 36 3. HE MUST BE THE REAL PARTY IN
Phil. 550) INTEREST.
[Berman v. Cheng (2005)]
6. REQUISITES FOR JOINDER OF CAUSES  The rule is that only natural or juridical
OF ACTION [RULE 2, SEC. 5] persons or entities authorized by law may be
a. The party joining the causes of action parties in a civil case.
must comply with the rules on joinder of  A sole proprietorship is not vested with
parties; juridical personality and cannot sue or file or
b. The joinder shall not include special civil defend an action.
actions or actions governed by special  There is no law authorizing sole
rules; proprietorship to file a suit.
c. Where causes of action are between the  A sole proprietorship does not possess a
same parties but pertain to different judicial personality separate and distinct
venues/jurisdictions, the joinder may be from the personality of the owner of the
allowed in the RTC provided one of the enterprise.
causes of action are within the RTC’s
jurisdiction and the venue lies therein; [Rimbunan v. Oriental (2005)]
 An unlicensed foreign corporation is
nonetheless permitted to bring suit in the
Philippines if it is suing on an isolated a. The party who stands to be

transaction. benefited/injured by the judgment in the
 Thus, the ascertainment of whether a suit;
foreign corporation is merely suing on an b. The party entitled to the avails of the
isolated transaction or is actually doing suit.
business in the Philippines requires the  The party’s interest must be direct, 120
elicitation of at least a preponderant set of substantial and material [Sumalo v. Litton
CIVIL PROCEDURE
facts. (2006)].
 Husband and wife shall sue and be sued
Note: A foreign corporation may be party to an jointly, except as provided by law [Rule
action in Philippine courts: 3, Sec. 4]
1) If licensed to engage in business in the  A minor or a person alleged to be
2) Philippines, it may sue or be sued in incompetent may sue or be sued, with
3) our courts; the assistance of his father, mother,
4) If not licensed, it cannot sue, but it guardian, or if he has none, a guardian
5) may be sued in our courts; ad litem. [Rule 3, Sec. 5]
6) If not engaged in business in the
7) Philippines, it may sue in courts on a single  REPRESENTATIVE PARTY – [Rule 3, Sec.
isolated transaction, but it cannot be sued in 3]
our courts on such transaction.  Those acting in fiduciary capacity, such
as a
Lack of legal capacity to Lack of legal trustee/guardian/executor/administrator
sue personality to sue or a party authorized by law or ROC.
The plaintiff’s general The plaintiff is not the
disability to sue, such as on real party in interest
 The beneficiary shall be included in the
account of minority, insanity, title of the case and shall be deemed to
incompetence, lack of be the real party in interest.
juridical personality or any  An agent acting in his own name and for
other general the benefit of an undisclosed principal
disqualifications may sue or be sued without joining the
principal.
It can be a ground for a MTD It can be used as  Exception: If the contract involves
[Rule 16 (1) (d)] ground for a MTD
things belonging to the principal.
based on the failure of
complaint to state a [Art. 1883, CC]
cause of action. [Rule
16 (1) (g)] 2. KINDS OF PARTIES IN INTEREST
Indispensable parties Necessary parties

D. Parties to a Civil Action [Rule 3, Sec. 7] [Rule 3, Sec. 8]
 PLAINTIFF – One having interest in the Must be joined under Should be joined
matter of the action or in obtaining the relief any and all conditions, whenever possible; the
demanded. his presence being a action can proceed
 DEFENDANT – One claiming an interest in sine qua non for the even in their absence
the controversy or the subject thereof exercise of judicial
adverse to the plaintiff. The term may also power
No valid judgment if The case may be
include [Rule 3, Sec 1):
indispensable party is determined in court but
 UNWILING CO-PLAINTIFF – A party not joined. the judgment therein
who should be joined as plaintiff but will not resolve the
whose consent cannot be obtained. He entire controversy if a
may be made a defendant and the necessary party is not
reason therefore shall be stated in the joined
complaint. [Rule 3, Sec. 10] They are those with They are those whose
 The original plaintiff becoming a such an interest in the presence is necessary
controversy that a final to adjudicate the whole
defendant to the original defendant’s
decree would controversy but whose
counterclaim [Rule 3, Sec 1]; necessarily affect their interests are so far
rights so that the court separable that a final
1. CLASSIFICATION OF PARTIES cannot proceed without decree can be made in
their presence. their absence without
 REAL PARTY IN INTEREST - [Rule 3, Sec. affecting them.
2]
 Rule 3, Sec. 2 requires that an action must 1) Right to relief arises out of the same
be brought in the name of, but not transaction or series of transactions;
necessarily by, the real party in interest. In  SERIES OF TRANSACTIONS –
fact, the practice is for an attorney-in-fact to Transactions connected with the
bring an action. [Tuason v. Bolanos] same subject matter of the suit.
 Neither misjoinder nor non-joinder of parties 2) There is a question of law or fact 121
is ground for dismissal of the action. [Rule 3, common to all the plaintiffs or
CIVIL PROCEDURE
Sec. 11] defendants;
 Non-joinder of an indispensable party is not 3) Such joinder is not otherwise proscribed
a ground for outright dismissal. Reasonable by the rules on jurisdiction and venue.
opportunity must be given for his inclusion
by amendment of the complaint[Cortez v b. CLASS SUIT [RULE 3, SEC. 12]
Avila (1957)].  Requisites
 Objections to defects in parties should be 1) Subject matter of the controversy is one
made at the earliest opportunity. of common/general interest to many
 The moment such defect becomes persons;
apparent, a motion to strike the names of 2) The persons are so numerous that it is
the parties must be made. impracticable to join them all as parties
 Objections to misjoinder cannot be raised for (i.e. impracticable to bring them all
the first time on appeal. before the court);
 If a necessary party is not joined, the 3) Parties bringing the class suit are
pleading shall set forth his name (if known) sufficiently numerous and representative
and shall state reason why he is omitted. of the class and can fully protect the
 If court finds the reason for the omission interests of all concerned;
unmeritorious, it may order the inclusion 4) The representative sues/defends for the
of the omitted necessary party if benefit of all.
jurisdiction over his person may be  If a class suit is improperly brought, the
obtained. action is subject to dismissal regardless of
 Failure to comply with the order for the cause of action [Rule 16, Sec 1 (d)].
inclusion, without justifiable cause, is  A taxpayer's suit or a stockholder's
deemed a waiver of the claim against derivative suit is in the nature of a class suit,
such party. [Rule 3, Sec. 9] although subject to the other requisites of
 Minors (represented by their parents) are the corresponding governing law especially
real parties in interest under the principle of on the issue of locus standi. [Regalado]
intergenerational responsibility. [Oposa v.  In a class suit, any party in interest shall
Factoran ()] have the right to intervene to protect his
 Note: This doctrine is inconsistent with Rule individual interest.
3, Sec. 1 which provides that only natural or
juridical persons may be parties in a civil Class Suit Permissive Joinder of
action. Parties
There is a single cause of There are multiple
action pertaining to causes of action
3. KINDS OF JOINDERS OF PARTIES
numerous persons. separately belonging to
several persons.
 Compulsory joinder of indispensable parties;
[Rule 3, Sec. 7] CLASS SUIT AND DERIVATIVE SUIT, COMPARED
 Permissive joinder of: (Asked in the 2005 Bar Examination)
 necessary parties; [Rule 3, Sec. 8] CLASS SUIT DERIVATIVE SUIT
 on a common question of law or fact; When the subject matter  An action brought by
[Rule 3, Sec. 6] of the controversy is one minority
 Class suit. [Rule 3, Sec. 12] of common or general shareholders in the
 Alternative defendants; [Rule 3, Sec. 13] interest to many persons, name of the
and the parties are so corporation to
numerous that it is redress wrongs
a. PERMISSIVE JOINDER [Rule 3, Sec. 6] impracticable to bring committed against it,
 Parties can be joined, as plaintiffs or them all before the court, for which the
defendants, in one single complaint or may one or more may sue or directors refuse to
themselves maintain or be sued in separate defend for the benefit of sue.
suits. all. (Rule 3.12)  It is a remedy
 Requisites: designed by equity
and has been the
principal defense of known, but they cannot sue under such

the minority name.
shareholders against  The service of summons may be effected
abuses by the upon all the defendants by serving upon any
majority.
of them, or upon the person in charge of the
 In a derivative
action, the real party office or place of business maintained under 122
in interest is the such name. [Rule 14, Sec. 8]
CIVIL PROCEDURE
corporation itself, not
the shareholders 6. SUBSTITUTION OF PARTIES
who actually  Death of a party, where the claim is not
instituted it (Lim vs. extinguished by the death of the party (e.g.
Lim Yu 2001) cases involving property and property
rights); [Rule 3, Sec. 16] (Asked in the 1998
c. Alternative Defendants [Rule 3, Sec. 13] and 1999 Bar Exams)
 Where the plaintiff is uncertain against  In this case, the heirs will be substituted
whom of several persons he is entitled to for the deceased or if no legal
relief, representative is named, the court will
 he may join any or all of them in the order the opposing party to procure the
alternative, although a right to relief against appointment of an executor or
one may be inconsistent with a right to relief administrator for the estate.
against the other.  In case of minor heirs, the court may
appoint a guardian ad litem for them.
4. UNKNOWN IDENTITY OR NAME OF  The substitute defendant need not be
DEFENDANT [RULE 3, SEC. 13] summoned. The order of substitution
shall be served upon the parties
 Rules and requisites: substituted for the court to acquire
a. There is a defendant; jurisdiction over the substitute party.
b. His identity or name is unknown;
 When a party to a pending action dies
c. A fictitious name may be used because
and the claim is not extinguished, it is
of ignorance of defendant's true name
the counsel’s duty to:
and said ignorance is alleged in the
a) Inform court within 30 days after
complaint;
such death of the fact thereof;
d. An identifying description may be used
b) Give the name and address of the
(e.g. as unknown owner/heir/devisee);
legal representatives.
e. Pleading is amended when the identity
 Failure to comply with this duty is a
or true name is discovered;
ground for disciplinary action.
f. The unknown defendant is the
 Death or separation of a party who is a
defendant being sued, not a mere
public officer; [Rule 3, Sec. 17]
additional defendant.
 Requisites:
 Service of summons upon a defendant
a) Public officer is a party to an action
whose identity is unknown may be made by
publication in a newspaper of general in his official capacity;
circulation in accordance with Rule 14, Sec. b) During the pendency of the action,
he either dies/resigns or otherwise
14.
ceases to hold office;
c) It is satisfactorily shown to the court
5. ENTITY WITHOUT JURIDICAL
PERSONALITY AS DEFENDANT [RULE 3, by any party, within 30 days after
SEC. 15] the successor takes office, that
there is a substantial need to
continue/maintain the action;
 Requisites:
d) The successor adopts/continues (or
a. There are 2 or more persons not
threatens to do so) his
organized as a juridical entity;
b. They enter into a transaction; predecessor’s action;
c. A wrong is committed against a 3rd e) The party or officer affected was
given reasonable notice of the
person in the course of such
application therefore and accorded
transaction.
an opportunity to be heard.
 Persons associated in an entity without
 Incompetency/incapacity; [Rule 3, Sec. 18]
juridical personality may be sued under the
name by which they are generally/commonly  If a party becomes incompetent/
incapacitated during the pendency of
the action, the action survives and may  If one is authorized to litigate as an indigent,
be continued by/against the the authority shall include an exemption
incompetent/ incapacitated assisted by from:
his legal guardian or guardian ad litem. 1) Payment of docket fees;
 Transfer of interest during the pendency of 2) Payment of TSN.
the action. [Rule 3, Sec. 18]  The amount of docket and other lawful fees 123
 General rule: The rule does not is a lien on any judgment rendered in favor
CIVIL PROCEDURE
consider the transferee an of indigent party, unless court otherwise
indispensable party. Hence, the action provides.
may proceed without the need to
implead him. 9. NOTICE TO THE SOLICITOR GENERAL
 Exception: When the substitution by or [RULE 3, SEC. 21]
joinder of the transferee is ordered by  The court may require appearance of the
court. OSG in actions involving validity of any
o The case will be dismissed if the treaty, law, ordinance, EO, PD, rules or
plaintiff’s interest is transferred to regulations.
defendant
o unless there are several plaintiffs,
in which case the remaining E. Venue of Actions
plaintiffs can proceed with their 1. DEFINITION
own cause of action.
 VENUE – Place of trial or geographical
7. ACTION ON CONTRACTUAL MONEY location in which an action/proceeding
CLAIMS [RULE 3, SEC. 20] should be brought.
 Requisites: Distinctions between Venue and Jurisdiction

1) The action must primarily be for (Asked in the 2006 and 2008 Bar Exams)
recovery of money/debt or interest Place where the action Power of the court to
thereon; is instituted hear and decide a
2) The claim arose from express/implied case
contract; May be waived Jurisdiction over the
3) Defendant dies before the entry of final subject matter and
judgment in the court in which the action over the nature
was pending. of the action is
 The defendant’s death will not result in the conferred by law and
dismissal of the action. cannot-be waived
 The deceased shall be substituted by his Procedural Substantive
legal representatives in the manner provided May be changed by Cannot be the subject
for in Rule 3, Sec. 16, and the action will the written agreement of the agreement of the
continue until the entry of final judgment of the parties parties
(Asked in the 2000 Bar Exam)
 However, execution shall not issue in favor 2. PROPER VENUES
of the winning plaintiff. It should be filed as a a. Real actions – Where the real property (or
claim against the decedent’s estate without any portion thereof) is located. [Rule 4, Sec.
need of proving the claim. 1] (Asked in the 2006 Bar Exams, compare
with Personal Actions)
8. INDIGENT PARTY [RULE 3, SEC. 21]  If the property is located at the boundaries of
2 places, file the case in either place (at the
 INDIGENT – One who has no money or plaintiff’s option).
property sufficient and available for food,  If the case involves 2 properties located in 2
shelter and basic necessities. He need not different places:
be a pauper to entitle him to litigate in forma
 If the properties are the object of the
pauperis.
same transaction, file it in any of the 2
 While the authority to litigate as an indigent
places;
party may be granted upon an ex parte
 If they are the objects of 2 distinct
application and hearing, it may be contested
transactions, separate actions should be
by the adverse party at any time before
filed in each place unless properly
judgment is rendered.
joined.
b. Personal actions – At the plaintiff’s 3. WAIVER OF VENUE

election: [Rule 4, Sec. 2] (Asked in the
1997 bar Exam)  Until and unless the defendant objects to the
 Where the plaintiff or any of the principal venue in a motion to dismiss prior to a
plaintiffs resides; responsive pleading, the venue cannot truly
 Where the defendant or any of the be said to have been improperly laid 124
principal defendants resides;  since for all intents and purposes, the venue
CIVIL PROCEDURE
 In case of a non-resident-defendant, though technically wrong may yet be
where he may be found. considered acceptable to the parties for
whose convenience the rules on venue had
c. Actions against non-residents – been devised.
 Non-resident found in the Philippines –  Although venue is mandatory, it is waivable.
(1) For personal actions – Where the [Diaz v. Adiong (1993)]
plaintiff resides;
(2) For real actions – Where the 4. MEANS OF WAIVING VENUE
property is located. 1) Where parties validly agreed in writing
 Non-resident not found in the before the filing of the action on the
Philippines – An action may be filed only exclusive venue thereof [Rule 4, Sec 4 (b)];
when the case involves: and
(1) Personal status of plaintiff - Where 2) Failure to raise improper venue as
plaintiff resides; affirmative defense or in motion to dismiss
(2) Any property of said defendant
located in the Phil. - Where the  The court may declare agreements on
property (or any portion thereof) is venue as contrary to public policy if such
situated/found. stipulation unjustly denies a party fair
opportunity to file a suit in the place
 Actions in personam/in rem refers to the designated by the Rules. [Regalado]
binding effect of the judgment.  In Sweet Lines, Inc v. Teves, 1978, the
Real/personal action, on the other hand Court declared void and unenforceable the
refers to venue. agreement on exclusive venue imprinted on
 Where several/alternative reliefs are prayed passage tickets due to the state of the
for in the complaint, the nature of the action shipping industry which could not provide
as real or personal is determined by the enough accommodations for plaintiffs.
primary object of the suit or by the nature of [Regalado]
the principal claim.  The agreement of parties must be restrictive
 Thus, where the purpose is to nullify the title and not permissive [Regalado]
to real property, the venue of the action is in
the province where the property lies, 5. INAPPLICABILITY OF THE RULE ON
notwithstanding the alternative relief sought, VENUE [RULE 4, SEC. 4]
recovery of damages, which is predicated
upon a declaration of nullity of the title.  If a specific rule/law provides otherwise (e.g.
 The venue of an action for review of an action for damages arising from libel);
administrative decision regarding real  If the parties have validly agreed in writing,
property is the court of the province where before the filing of the action, on the
the officer who rendered the decision holds exclusive venue thereof.
office, and not the province where his real  In the absence of qualifying restrictive
property is situated.[Salud v. Exec Secretary words (e.g. “only/solely/exclusively in
(1969)] such court”), venue stipulation is merely
 The Court may not motu propio dismiss an permissive;
action on the ground of improper venue.  that is, the stipulated venue is in
[Dacoycoy v. IAC (1991)] addition to the venue provided for in the
 Exception: In summary procedures. rules. [Polytrade Corp. v. Blanco (1969)]
 The SC has the power to change the venue
to prevent a miscarriage of justice. [Art. 8,
Sec. 5, Consti]
II. Pleadings  Paragraphs must be numbered, and

each paragraph number must contain a
A. DEFINITION single set of circumstances
B. PLEADINGS ALLOWED  Headings: if more than one cause of
C. PARTS OF A PLEADING action, use "1st cause of action," 2nd
D. DISCIPLINARY ACTION ON COUNSEL cause of action," etc. 125
REGARDING PLEADINGS  Specify relief sought, but it may add a
CIVIL PROCEDURE
E. VERIFICATION
general prayer for such further/other
F. HOW A PLEADING IS VERIFIED
G. CERTIFICATION OF NON-FORUM SHOPPING
relief as may be deemed just/equitable.
(CNFS)  Every pleading shall be dated.
H. TEST TO DETERMINE WON THERE IS FORUM  Pleading must be signed by the
SHOPPING party/counsel. State address (not PO box) in
I. EFFECT OF SUBMISSION OF FALSE CNFS either case.
OR NON-SUBMISSION OF CNFS  Counsel’s signature is a certification that:
J. EFFECT OF WILFUL AND DELIBERATE a) He has read the pleading;
FORUM SHOPPING
b) To the best of his knowledge,
K. DIFFERENT PLEADINGS
information and belief there is good
ground to support it;
A. Definition c) It is not interposed for delay.
 They are the written statements of the  An unsigned pleading produces no legal
respective claims and defenses of the effect.
parties, submitted to the court for  However, the court may allow such
appropriate judgment [Rule 6, Sec. 1] deficiency to be remedied if it shall
appear that the same was due to
Pleading Motion inadvertence and not intended for delay.
Purpose: To submit a Purpose: To apply for an
claim/defense for order not included in the
D. Disciplinary Action on Counsel
appropriate judgment judgment
Regarding Pleadings
May be initiatory Cannot be initiatory as
 Deliberately filing an unsigned pleading;
they are always made in  Deliberately signing a pleading in
a case already filed in violation of the Rules;
court.  Alleging scandalous/Indecent matter in
the pleading;
Always filed before May be filed even after
judgment judgment  Failing to promptly report a change of
his address.
B. Pleadings Allowed E. Verification

[Rule 6, Sec. 2]
 Pleadings need not be verified, unless
1) Complaint;
otherwise provided by the law/rules.
2) Counterclaim;
3) Cross-claim;
4) 3rd-party Complaint, F. How a Pleading is Verified
5) Complaint-in-intervention;  By an affidavit that:
6) Answer;  That the affiant read the pleading;
7) Reply;  That the allegations therein are true and
8) Counter-counterclaim; correct of his personal knowledge or
9) Counter-crossclaim. based on authentic documents.
C. Parts of a Pleading G. Certification of Non-Forum Shopping

[RULE 7] (CNFS)
 CAPTION – Court’s name, action’s title (i.e. [RULE 7, SEC. 5]
parties’ names) and docket number.  Definition: The filing of multiple suits in
 BODY – Pleading’s designation, allegations different courts, simultaneously or
of party's claims/defenses, relief prayed for successively, involving the same parties, to
and pleading’s date. ask the courts to rule on the same/related
causes and/or to grant the same or
substantially the same relief. [T'Boli Agro-
Industrial Development, Inc. (TADI) v. constituting the plaintiff’s cause/s of action,

Solidapsi (2002)] (Asked in the 2006 Bar not evidentiary facts or legal conclusions.
Exam).  It shall contain:
 in a methodical and logical form
H. Test to Determine WON there is  a plain, concise and direct statement of
Forum Shopping ultimate facts on which the plaintiff relies 126
for his claim,
CIVIL PROCEDURE
(ASKED IN THE 2002 BAR EXAM)
 omitting statement of mere evidentiary
 WON in the 2 or more cases pending, there
facts.
is identity of:
 Its function is to inform the defendant clearly
1) Parties;
and definitely of claims made against him so
2) Rights or causes of action;
that he may be prepared to meet the issues
3) Relief sought.
at trial.
 It should inform the defendant of all material
 CNFS is to be executed by the petitioner,
facts on which the plaintiff relies to support
not by the counsel.
his demand.
 CNFS is required only for complaints or
 It should state the theory of a cause of
initiatory pleadings (e.g. permissive
action which forms the bases of plaintiff’s
counterclaim, cross-claim etc.).
claim of liability. [Tantuico v. Republic
 CNFS is not required in a compulsory
(1991)]
counterclaim. A counterclaim is not an
 ULTIMATE FACTS – Essential facts
initiatory pleading. [UST Hospital v.
constituting the plaintiff’s cause of action. A
Surla]
fact is essential if it cannot be stricken out
 Failure to comply is not curable by mere
without leaving the statement of the cause of
amendment of the pleading but shall be
action insufficient. [Remitere v. Montinola
cause for the dismissal of the case, without
(1966)]
prejudice and upon motion and after
 Not ultimate facts:
hearing, unless otherwise provided.
 Evidentiary or immaterial facts;
 Legal conclusions, conclusions or
I. Effect of Submission of False CNFS inferences of facts from facts not stated,
or Non-Submission of CNFS or incorrect inferences or conclusions
 Indirect contempt; from facts stated;
 Administrative and criminal actions.  Conclusions of law alleged in the
complaint are not binding on the court.
J. Effect of Willful and Deliberate Forum  The details of probative matter or
Shopping particulars of evidence, statements of
law, inferences and arguments.
(Asked in the 2006 and 2007 Bar Exams)
 TEST OF SUFFICIENCY OF THE FACTS
 Ground for summary dismissal of the case
ALLEGED IN THE COMPLAINT
with prejudice;
 WON upon the averment of facts, a
 Direct contempt and administrative
valid judgment may be properly
sanctions.
rendered [Pamintan v. Costales (1914)].
 Pleadings as well as remedial laws
should be liberally construed
ANSWER [RULE 6, SEC. 4]
 in order that the litigant may have ample
opportunity to prove their respective
claims, and possible denial of  Definition: The pleading where the
substantial justice, due to technicalities, defendant sets forth his affirmative/negative
may be avoided. [Gerales v. CA (1993)] defenses. It may also be the response to a
counterclaim or a cross-claim.
K. Different Pleadings 1. TWO KINDS OF DEFENSES THAT MAY
BE SET FORTH IN THE ANSWER: [RULE
COMPLAINT [Rule 6, Sec. 3] 6, SEC 5]
a. AFFIRMATIVE DEFENSES –
 Definition: The pleading alleging the Allegations of new matters which, while
plaintiff’s cause/s of action. It should contain hypothetically admitting the material
a concise statement of the ultimate facts allegations in the claimant’s pleading,
would nevertheless prevent/bar
recovery by him. It includes fraud,  It is in effect an admission of the averment it

prescription, release, payment and any is directed to. [Philamgen v. Sweet Lines
other matter by way of confession and (1993)]
avoidance.
b. NEGATIVE DEFENSES – Specific 5. INSUFFICIENT DENIALS OR DENIALS
denials of the material facts alleged in AMOUNTING TO ADMISSIONS 127
the pleading of the claimant essential to  General denial;
CIVIL PROCEDURE
his cause of action.  Negative pregnant.
2. KINDS OF DENIAL (ASKED IN THE 2004 6. WAIVER OF DEFENSES

BAR EXAM):  Defenses and objections not pleaded either
a. SPECIFIC DENIAL – Specifies each in a MTD or in the answer, are deemed
material allegation of fact the truth of waived. [Rule 9, Sec. 1]
which he does not admit, and sets forth  Exception:
the substance of the matters upon which  LOJ over the subject matter;
he relies to support his denial.[Rule 8,  Litis pendentia;
Sec10]  Res judicata;
b. DENIAL WITH QUALIFICATION -  Prescription
Specifies so much of it as is true and
material, and deny the remainder. COUNTERCLAIM [RULE 6, SEC. 6]
c. SPECIFIC DENIAL FOR LACK OF
KNOWLEDGE/INFORMATION
 Definition: Any claim which a defending
sufficient to form as belief as to the truth
party may have against an opposing party.
of a material averment made in the
 A counterclaim is in the nature of a
complaint.
cross-complaint. Although it may be
d. SPECIFIC DENIAL UNDER OATH -
alleged in the answer, it is not part of the
Contests the authenticity or due
answer.
execution of an actionable document.
[Rule 8, Sec 8]  Upon its filing, the same proceedings
are had as in the original complaint.
3. ACTIONABLE DOCUMENT –  For this reason, it must be answered 10
 A document which is really the basis of the days from service (Asked in the 2002
cause of action (or defense), and not merely and 2008 Bar Exams).
evidentiary thereof. [Rule 8, Sec 7]
 Genuineness and due execution of an  How to raise counterclaims
actionable instrument shall be deemed  Included in the answer: [Rule 11, Sec. 8]
admitted unless the adverse party, under  A compulsory counterclaim or a cross-
oath, specifically denies them, and sets forth claim that a defending party has at the
what he claims to be the facts. [Rule 8, Sec. time he files his answer shall be
8] contained therein.
 Exception: the adverse party does not  Exception: Pleadings may be amended
appear to be a party to the instrument. under Rule 11, Sec. 10:
[Donato v. CA (1993)] a) By leave of court;
 How an action or defense may be based on b) Before judgment;
a document: c) On the grounds of:
a. By copying a substantial portion of the (1) Oversight;
document into the pleading; (2) Inadvertence;
b. By annexing /incorporating the (3) Excusable neglect;
document into the pleading; (4) When justice requires.
c. By both copying and annexing  After the answer: [Rule 11, Sec. 9]
document into the pleading.  Counterclaims/cross-claims arising after
the answer,
4. NEGATIVE PREGNANT – DENIAL  with the court’s permission,
PREGNANT WITH AN ADMISSION  may be presented as a
 It is a denial pregnant with the admission of counterclaim/cross-claim by
the substantial facts in the pleading supplemental pleading before judgment.
responded to which are not squarely denied.
1. RULES ON COUNTERCLAIMS
 In an original action before the RTC, the c. It must be within the court’s jurisdiction
counterclaim may be considered compulsory both as to the amount and the nature.
regardless of the amount. [Rule 6, Sec. 7]
 In the case of Agustin v. Bacalan, if a  General rule: A compulsory counterclaim
counterclaim is filed in the MTC in excess of not set up in the answer is deemed barred.
its jurisdictional amount, the excess is  Exception: If it is a counterclaim which 128
considered waived. either matured or was acquired by a party
CIVIL PROCEDURE
 But in Calo v. Ajax, the remedy where a after serving his answer. In this case, it may
counterclaim is beyond the jurisdiction of the be pleaded by filing a supplemental answer
MTC is to set off the claims and file a or pleading before judgment. [Rule 11, Sec.
separate action to collect the balance. 9]
 The filing of a MTD and the setting up of a
2. KINDS OF COUNTERCLAIMS compulsory counterclaim are incompatible
remedies.
Compulsory Permissive  In the event that a defending party has a
counterclaim counterclaim ground for dismissal and a compulsory
One which arises out It does not arise out of counterclaim at the same time, he must
of or is necessarily nor is it necessarily choose only one remedy.
connected with the connected with the  If he decides to file a MTD, he will lose his
transaction or subject matter of the counterclaim. But if he opts to set up his
occurrence -that is the opposing party's counterclaim, he may still plead his ground
subject matter of the claim. for dismissal as an affirmative defense in his
opposing party's answer.
claim.  If any of the grounds to dismiss under Rule
Does not require for May require for its 17, Sec. 3 arises, the proper recourse for a
its adjudication the adjudication the defendant who desires to pursue his
presence of third presence of third compulsory counterclaim in the same
parties of whom the parties over whom the proceeding is not a MTD.
court cannot acquire court cannot acquire  Instead, he should only move to have the
jurisdiction. jurisdiction. plaintiff declared non-suited on the
Barred if not set up in Not barred even if not complaint so that the latter can no longer
the action. set up in the action. present his evidence thereon, and
Need not be Must be answered, simultaneously move that he be declared as
answered; no default. otherwise, the in default on the compulsory counterclaim,
defendant can be and reserve the right to present evidence ex
declared in default. parte on his compulsory counterclaim. [BA
Finance v. Co (1993)]
 A permissive counterclaim requires the  Under Section 3, Rule 17, dismissal of
payment of docket fees. [Sun Insurance v. action due to plaintiff’s fault shall be without
Asuncion] prejudice to the defendant’s right to
 A plaintiff who fails or chooses not to answer prosecute his counterclaim in the
a compulsory counterclaim may not be same/separate action.
declared in default, principally because the
issues raised in the counterclaim are 4. TEST TO DETERMINE WHETHER A
deemed automatically joined by the COUNTERCLAIM IS COMPULSORY OR
allegations in the complaint. [Gojo v. Goyala] PERMISSIVE
 LOGICAL RELATIONSHIP TEST –
3. REQUISITES OF A COMPULSORY  Where conducting separate trials of the
COUNTERCLAIM [RULE 6, SEC 7] (ASKED respective claims would entail
IN THE 1998 BAR EXAM) substantial duplication of effort and time
a. It must arise out of, or be necessarily and involves many of the same factual
connected with, the and legal issues. [Meliton v. CA]
transaction/occurrence that is the
subject matter of the opposing party's 5. EFFECT OF FAILURE TO SET UP
claim;  General Rule - A compulsory counterclaim
b. It does not require for its adjudication not set up is considered barred. [Rule 9,
the presence of 3rd parties of whom the Sec. 2]
court cannot acquire jurisdiction;  Exception – If due to oversight,
inadvertence, excusable neglect, etc. the
compulsory counterclaim, with leave of  A claim asserted against an original counter-

court, may be set up by amendment before claimant.
judgment. [Rule 11, Sec. 10]
2. COUNTER-CROSS-CLAIM –
CROSS-CLAIM [Rule 6, Sec. 8]  A claim filed against an original cross-
claimant. 129
1. REQUISITES FOR A CROSS-CLAIM
CIVIL PROCEDURE
a. A claim by one party against a co-party; REPLY [Rule 6, Sec. 10]
b. It must arise out of the subject matter of
the complaint or of the counterclaim;  Definition: The plaintiff’s response to the
c. The cross-claimant is prejudiced by the defendant's answer,
claim against him by the opposing party.  the function of which is to deny or allege
 A cross-claim is always compulsory. A facts in denial or in avoidance of new
cross-claim not set up shall be barred. [Rule matters alleged by way of defense in the
9, Sec. 2] answer and
 Exception:  thereby join or make issue as to such
a. When it is outside the court’s new matters.
jurisdiction;
b. If the court cannot acquire jurisdiction 1. EFFECT OF FAILURE TO REPLY (ASKED
over 3rd parties whose presence is IN THE 2000 BAR EXAM)
necessary for the adjudication of said  General rule: Filing a reply is merely
cross-claim. In this case, the cross-claim optional. New facts that were alleged in the
is considered permissive. answer are deemed controverted should a
 The dismissal of the complaint carries with it party fail to reply thereto.
the dismissal of a cross-claim which is  Exception: Reply is required:
purely defensive, but not a cross-claim  Where the answer is based on an
seeking an affirmative relief.[Torres v. CA actionable document. [Rule 8, Sec. 8]
(1973)  Where the answer alleges the defense
of usury. [Rule 8, Sec. 11]
Comparative Table:
Cross Claim, Counterclaim and Third Party 3RD – PARTY COMPLAINT
Complaint [Rule 6, Sec. 11]
(Asked in the 1997 and 1999 Bar Exams)cl
rd
Cross-claim Counterclaim 3 Party  Definition: It is a claim that a defending
complaint party may, with leave of court, file against a
Against a co- Against an Against a person not a party to the action for
party opposing party person not contribution, indemnity, subroqation or any
a party to other relief, in respect of his opponent's
the action claim.
Must arise out May arise out of Must be in  There could also be a 4 /etc.-party
th
of the or be necessarily respect of complaint with the same purpose and
transaction connected with the function.
that is the the transaction or opponent’s
subject matter the subject (plaintiff’s) 3rd-party complaint Complaint in
of the original matter of the claim intervention
action or of a opposing party’s Brings into the action Same
counterclaim claim a 3rd person who was
therein (compulsory not originally a party
counterclaim), or
Initiative is with the Initiative is with a non-
it may not
person already a party party who seeks to
(permissive
to the action join the action
counterclaim)
3rd-party complaint Counterclaim
COUNTER-COUNTERCLAIMS AND Need not be within the Must be within the
COUNTER-CROSS-CLAIMS[Rule 6, Sec. 9] jurisdiction of the court jurisdiction of the
trying the main case court trying the main
1. COUNTER-COUNTERCLAIM – case
Diminishes/defeats the Need not
recovery sought by the diminish/defeat the  If defense relied on based on law, cite the
opposing party recovery sought by provisions and their applicability.
the opposing party
Cannot exceed the May exceed in B. Facts that may be Averred Generally
amount stated in the amount or be
 Conditions precedent; but there must still
original complaint different in kind from
be an allegation that the specific condition
130
that sought in the
CIVIL PROCEDURE
precedent has been complied with,
original complaint
otherwise it will be dismissed for lack of
cause of action;
2. TESTS TO DETERMINE WHETHER THE  Capacity to sue or be sued;
3RD-PARTY COMPLAINT IS IN RESPECT  Capacity to sue or be sued in a
OF PLAINTIFF'S CLAIM [CAPAYAS V. CFI representative capacity;
(1946)]  Legal existence of an organization ;
 WON it arises out of the same transaction
 A party desiring to raise an issue as to
on which the plaintiff's claim is based, or
the legal existence or capacity of any
although arising out of another/different
party to sue or be sued in a
transaction, is connected with the plaintiff’s
representative capacity shall do so by
claim;
specific denial which shall include
 WON the 3rd-party defendant would be
supporting particulars within the
liable to the plaintiff or to the defendant for
pleader's knowledge.
all/part of the plaintiff’s claim against the
 Malice/intent/knowledge or other condition
original defendant;
of the mind;
 WON the 3rd-party defendant may assert
 Judgments of domestic/foreign courts,
any defenses which the 3rd-party plaintiff
tribunals, boards or officers (without need to
has or may have to the plaintiff’s claim.
show jurisdiction);
 Official documents/acts.
 Leave of court to file a 3rd-party complaint
may be obtained by motion under Rule 15.

th
Summons on 3rd (4 /etc.) – party defendant C. Facts that must be Averred
must be served for the court to obtain Particularly
jurisdiction over his person, since he is not  Circumstances showing fraud/mistake in all
an original party. averments of fraud/mistake.
 Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the D. Three Ways of Making a Specific
3rd-party complaint, regardless of the
Denial
amount involved as a 3rd-party complaint is
merely auxiliary to and is a continuation of 1. SPECIFIC ABSOLUTE DENIAL –
the main action. [Republic v. Central Surety]  By specifically denying the averment and,

rd
A 3 -party complaint is not proper in an whenever practicable, setting forth the
action for declaratory relief. substance of the matters relied upon for
such denial.
III. Manner of Making Allegations 2. PARTIAL SPECIFIC DENIAL –

 Part admission and part denial;
A. IN GENERAL 3. DISAVOWAL OF KNOWLEDGE –
B. FACTS THAT MAY BE AVERRED GENERALLY  By an allegation of lack of knowledge or
C. FACTS THAT MUST BE AVERRED information sufficient to form a belief as to
PARTICULARLY the truth of the averment in the opposing
D. THREE WAYS OF MAKING A SPECIFIC party's pleading.
DENIAL
 This does not apply where the fact as to
which want of knowledge is asserted is, to
A. In General the knowledge of the court, so plain and
[Rule 8, Sec. 1] necessarily within the defendant's
 In a methodical and logical form. knowledge that his averment of ignorance
 Plain, concise and direct statement of the must be palpably untrue.
ultimate facts on which the party pleading
relies for his claim/defense.  General rule: Allegations not specifically
 Omit evidentiary facts. denied are deemed admitted [Rule 8, Sec.
11]
 Exceptions: private carrier) is deemed to be the date

 Allegations as to the amount of of the filing of that pleading. [Benguet
unliquidated damages; Electric Cooperative v. NLRC]
 Allegations immaterial to the cause of  By registered mail.
action;  Filing by mail should be through the
 Allegations of merely evidentiary or registry service (i.e. by depositing the 131
immaterial facts may be expunged from pleading in the post office).
CIVIL PROCEDURE
the pleading or may be stricken out on  The pleading is deemed filed on the
motion. [Rule 8, Sec. 12] date it was deposited with the post
 Conclusion of law. office.
 If registry service is not available in the
locality of either sender or addressee,
IV. Acquisition of Jurisdiction service may be done by ordinary mail.
A. FILING AND SERVICE D. Mode of Service

B. PAPERS REQUIRED TO BE FILED AND
SERVED  Filing is proved by its existence in the record
C. PROOF OF FILING of the case.
D. MODE OF SERVICE  If it is not in the record:
E. SERVICE
When Proof of filing
A. Filing and Service pleading is
deemed
1. DEFINITION filed
 FILING – The act of presenting the pleading Personally Upon receipt Written/stamped
or other paper to the clerk of court. [Rule 13, of the acknowledgment by
Sec. 2] pleading by the clerk of court
 SERVICE – The act of providing a party or the clerk of
his counsel with a copy of the pleading or court
paper concerned. [Rule 13, Sec. 2] By On the date Registry receipt, and
registered the pleading affidavit of the person
mail was who did the mailing
B. Papers Required to be Filed and deposited with:
Served with the post 1) Full statement of the
[Rule 13, Sec. 4] office date/place of
depositing the mail in
a. Pleading subsequent to the complaint;
the post office in a
b. Appearance; sealed envelope
c. Written Motion; addressed to the court
d. Notice; 2) Postage fully paid
e. Order; 3) Instructions to the
f. Judgment; postmaster to return
g. Demand; the mail to the sender
h. Offer of Judgment; after 10 days if
i. Resolution; undelivered
j. Similar papers.
E. Service
C. Proof of Filing 1. MODES OF SERVICE [RULE 13, SEC. 5]
1. MANNER OF FILING [RULE 13, SEC. 3]  Personal service. [Rule 13, Sec. 6]
(Asked in the 2005 Bar particularly comparison a) Delivering personally a copy to the party
with filing in criminal actions) or his counsel.
 Personally. b) Leaving a copy in counsel's office with
 By personally presenting the original to his clerk or with a person having charge
the clerk of court. thereof.
 The pleading is deemed filed upon the c) If no person is found in his office, or if
receipt of the same by the clerk of court his office is unknown, or if he has no
who shall endorse on it the date and office – Leaving the copy between 8am
hour of filing. and 6 pm at the party's or counsel's
residence (if known) with a person of
 If a party avails of a private carrier, the
date of the court’s actual receipt of the sufficient age and discretion then
residing therein.
pleading (not the date of delivery to the
2. SERVICE BY (REGISTERED) MAIL. [RULE  General rule: Personal filing and service.
13, SEC. 7] Resort to other modes of filing and service
 By depositing the copy in the office, in a must be accompanied by an explanation
sealed envelope, plainly addressed to the why the service/filing was not done
party or his counsel at his office or at his personally.
residence (if known), with postage fully pre-  If there is no written explanation, the 132
paid, and with instructions to the postmaster paper considered not filed.
CIVIL PROCEDURE
to return the mail to the sender after l0 days  Exception: Papers emanating from the
if undelivered. court
 If no registry service is available in the 6. NOTICE OF LIS PENDENS [RULE 13,
locality of either sender or addressee, SEC. 14]
service may be done by ordinary mail.  LIS PENDENS - Notice of a pendency of the
action between the parties involving title to
3. SUBSTITUTED SERVICE. [RULE 13, SEC. or right of possession over real property.
8]  Requisites: [AFP Mutual Benefit Association
 By delivering the copy to the clerk of court, v. CA]
with proof of failure of both personal service 1) Action affects the title or the right of
and service by mail. possession of the real property;
2) Affirmative relief is claimed;
Completeness Proof of service 3) Notice shall contain the name of the
of service parties and the object of the
Personal Upon actual Written admission action/defense and a description of the
service delivery of the party served property affected thereby;
Xxx xxx Official return of the 4) Action in rem.
server; or affidavit
 The notice serves as a warning to all
of the party serving,
with a full statement persons, prospective purchasers or
of the encumbrancers of the property in litigation to
date/place/manner keep their hands off the property in litigation
of service unless they are prepared to gamble on the
Service by 10 days after Affidavit of the result of the proceedings.
ordinary mailing, unless person mailing,  The defendant may also record a notice of
mail otherwise showing facts that lis pendens when he claims an affirmative
provided by the comply with Rule relief in his answer.
court 13, Sec. 7  The notice of cannot be cancelled on an ex
Service by Whichever is Affidavit of the parte motion or upon the mere filing of a
registered earlier: person mailing, bond by the party on whose title the notice is
mail showing facts that
annotated, as Sec. 14 provides that such
comply with Rule
13, Sec. 7 cancellation may be authorized only upon
Xxx 1) Actual receipt Registry receipt order of court, after proper showing that:
by the issued by the post [Roxas v. CA (1993)]
addressee office  The notice is for the purpose of
Xxx 2) 5 days after Xxx molesting the adverse party; or
addressee  It is not necessary to protect the rights
received 1st of the party who caused it to be
postmaster's recorded.
notice
4. SERVICE OF JUDGMENT, FINAL

ORDERS OR RESOLUTIONS [RULE 13,
SEC. 9]
 By personal service;
 By registered mail;
 By publication if party is summoned by
publication and has failed to appear in the
action.
5. PRIORITY IN MODES OF FILING AND

SERVICE [RULE 13, SEC. 11]
V. Amendment and Supplemental summarily corrected by the court or by

Pleadings motion:
o At any stage of the action.
A. AMENDMENT
o Provided that no prejudice is caused
B. SUPPLEMENTAL PLEADINGS to the adverse party.
C. BILL OF PARTICULARS  SUBSTANTIAL AMENDMENTS (Asked in 133
D. INTERVENTION the 2003 Bar Exam)
CIVIL PROCEDURE
E. SUMMONS  If as a matter of right – Made at any time
F. MOTIONS before a responsive pleading is served.
If it is a reply, at any time within l0 days
A. Amendment after it is served. [Rule 10, Sec. 2]
1. HOW TO AMEND PLEADINGS [RULE 10,  If as a matter of discretion –
SEC. 1] Amendment requires leave of court if:
a. Adding an allegation of a party; o It is substantial; and
b. Adding the name of a party; o A responsive pleading has already
c. Striking out an allegation of a party; been served. [Rule 10, Sec. 3]
d. Striking out the name of a party;
e. Correcting a mistake in the name of a 5. REQUISITES FOR AMENDMENTS BY
party; and LEAVE OF COURT
f. Correcting a mistake or inadequate  Motion filed in court;
allegation or description in any other  Notice to the adverse party;
respect.  Opportunity to be heard afforded to the
 Purpose: That the actual merits of the adverse party.
controversy may speedily be determined, (NOTE: In the 2008 Bar Exam, a question was
without regard to technicalities, and in the asked on amendment of complaint to implead
most expeditious and inexpensive manner. additional parties)
 As a general policy, liberality in allowing
amendments is greatest in the early stages 6. WHEN AMENDMENT BY LEAVE OF
of a law suit, decreases as it progresses and COURT MAY NOT BE ALLOWED
changes at times to a strictness amounting  If the cause of action, defense or theory of
to a prohibition. the case is changed.
 This is further restricted by the condition that  If amendment is intended to confer
the amendment should not prejudice the jurisdiction to the court.
adverse party or place him at a  If the court has no jurisdiction in the
disadvantage. [Barfel Development v. CA subject matter of the case, the
(1993)] amendment of the complaint cannot be
allowed so as to confer jurisdiction on
the court over the property. [PNB v.
2. FORM [RULE 10, SEC. 7] Florendo (1992)]
 A new copy of the entire pleading,  If amendment is for curing a premature or
incorporating the amendments, which shall non-existing cause of action.
be indicated by appropriate marks, shall be  If amendment is for purposes of delay.
filed.
 Admitting an amended complaint in
3. EFFECT [RULE 10, SEC. 8] intervention is a matter addressed to the
 The amendment supersedes the amended court’s discretion, subject only to the
pleading. limitations that amendments should not
 Claims and defenses in superseded substantially change the cause of action or
pleading which are not incorporated in the alter the theory of the case or made to delay
amended pleading are deemed waived. the action.
 Admissions made in the superseded  Once exercised, it cannot be disturbed on
pleading may still be received in evidence appeal, except in case of abuse thereof.
against the pleader. [Metropolitan Bank v. Presiding Judge
(1990)]
4. KINDS OF AMENDMENTS
 FORMAL AMENDMENTS – 7. AMENDMENT TO CONFORM TO
 A defect in the designation of the parties EVIDENCE [RULE 10, SEC. 5] (ASKED IN
and other clearly clerical errors may be THE 2004 BAR EXAM)
 If issues not raised by the pleadings are by side with the original
tried with the express/implied consent of the pleading)
parties, they shall be treated as if they had When an amended A supplemental pleading
been raised in the pleadings. pleading is filed, a new does not require the
 Amendment of pleadings as may be copy of the entire filing of a new copy of
pleading must be filed the entire pleading
necessary to cause them to conform to the 134
evidence and to raise these issues, may be
CIVIL PROCEDURE
made upon motion of any party, any time C. Bill of Particulars
(even after judgment). (Asked in the 2003 Bar Exam)
 But failure to amend does not affect the
result of the trial on these issues.  Definition: It is a detailed explanation
 If evidence is objected to at the trial on the respecting any matter which is not averred
ground that it is not within the issues made with sufficient definiteness/particularity in the
by the pleadings, complaint as to enable a party to properly
 the court may allow the pleadings to be prepare his responsive pleading or to
amended and shall do so with liberality if the prepare for trial. [Rule 12, Sec. 1]
presentation of the merits of the action and  It is filed by the plaintiff pursuant to a court
the ends of substantial justice will be order issued upon granting a motion for
subserved thereby. BOP filed by the defendant before the latter
files an answer.
B. Supplemental Pleadings  In said motion, the defendant prays for a
more definite statement of matters which are
not averred with sufficient definiteness in the
complaint.
 Definition: One which sets forth
 An action cannot be dismissed on the
transactions, occurrences or events which
ground that the complaint is
have happened since the date of the
vague/indefinite.
pleading sought to be supplemented. [Rule
 The remedy of the defendant is to move for
10, Sec. 6]
a BOP or avail of the proper mode of
 It is made upon motion of a party with
discovery. [Galeon v. Galeon]
reasonable notice and upon terms as are
 Purpose: To inform the adverse party more
just.
specifically of the precise nature and
 The cause of action stated in the
character of the cause of action or defense
supplemental complaint must be the same
alleged in the pleading, with the view of
as that stated in the original complaint.
enabling him to prepare properly his
 Otherwise, the court should not admit the
responsive pleading or to prepare for trial.
supplemental complaint. [Asset Privatization
 The purpose of a BOP is to define/
Trust v. CA]
clarify/particularize/limit/circumscribe the
issues in the case to expedite the trial
1. AMENDMENTS VIS-À-VIS
and assist the court.
SUPPLEMENTAL PLEADINGS
 A supplemental complaint/pleading supplies  The only question to be resolved in a
deficiencies in aid of an original pleading, motion for a BOP is WON the
not to entirely substitute the latter. allegations in the complaint averred with
 Unlike in an amended complaint, the original sufficient definiteness/particularity to
complaint exists side by side with the enable the movant to properly prepare
supplemental complaint. [Shoemart v. CA his responsive pleading and to prepare
(1990)] for trial. [Tantuico, Jr. v. Republic
(1991)]
Amendments Supplemental  A BOP becomes part of the pleading for
pleadings which it was intended. [Rule 12, Sec. 6]
Reason for the Grounds for the
amendment is available supplemental pleading 1. WHEN APPLIED FOR [RULE 12, SEC. 1]
at time of the 1st arose after the 1st  Before responding to a pleading
pleading pleading was filed  If the pleading is a reply, within 10 days from
Either as a matter of Always a matter of service thereof
right or a matter of discretion
discretion 2. WHAT A MOTION FOR BOP SHOULD
Supersedes the pleading Supplements the POINT OUT [RULE 12, SEC. 1]
pleading (i.e. Exists side
 The defects complained of;
 The paragraph wherein they are contained; Bill of Particulars Intervention

 The details desired. (BOP)
Purpose is to enable a Purpose is to enable a
3. COURT ACTION [RULE 12, SEC. 2] party bound to respond person not yet a party to
 Deny; to a pleading to get more an action, yet having a
details about matters certain right or interest in
 Grant the motion outright; which are alleged such action, the 135
 Allow the parties the opportunity to be generally or which are opportunity to appear
CIVIL PROCEDURE
heard. indefinite and vague, and be joined
4. COMPLIANCE WITH ORDER [RULE 12, so as to properly guide so he could assert or

SEC. 3] such party in answering protect such right or
 If motion for BOP is granted wholly/partially: the pleading and to interest
 Within 10 days from notice of order, BOP or avoid surprise in the trial
a more definite statement should be of the case
Available to the Available to any person
submitted (unless court fixes a different
defendant before he files not yet a party to the
period). his responsive pleading action at any time after
 BP or definite statement filed either as a the commencement of
separate pleading or as an amended an action, even during
pleading, a copy of which must be served on the proceeding, but not
the adverse party. after the trial has been
concluded
5. EFFECT OF NON-COMPLIANCE [RULE
12, SEC. 4] D. Intervention
 In case of non-compliance or insufficient 1. DEFINITION(ASKED IN THE 2003 BAR
with the order for BOP, the court: EXAM):
a) May order the striking out of the
 A legal remedy whereby a person is
pleading (or portion thereof) to which the
permitted to become a party in a case, by
order is directed;
either:
b) Make such order as it may deem just.
1) Joining the plaintiff;
 If the plaintiff fails to obey, his complaint
2) Joining the defendant;
may be dismissed with prejudice unless
3) Asserting his right against both plaintiff
otherwise ordered by the court. [Rule 12,
and defendant, considering that either:
Sec. 4; Rule 17, Sec. 3]
a) He has a legal interest in the subject
 If defendant fails to obey, his answer will be
matter of the action;
stricken off and his counterclaim dismissed,
b) He is going to be adversely affected
and he will be declared in default upon
by the disposition of the property in
motion of the plaintiff. [Rule 9, Sec. 3; Rule
the custody of the court
12, Sec. 4; Rule 17, Sec. 4]
 Intervention is a proceeding in a suit/action
by which a 3rd person is permitted by the
6. STAY OF PERIOD TO FILE RESPONSIVE
court to make himself a party, either joining
PLEADING [RULE 12, SEC. 5]
plaintiff in claiming what is sought by the
 A Motion for BOP interrupts the period to file
complaint, or uniting with defendant in
an answer.
resisting the claims of plaintiff, or demanding
1) If the motion is granted: 15 days to file
something adversely to both of them.
answer.
[Metropolitan Bank v. Presiding Judge
2) If the motion is denied: File answer
(1990)]
within the period the movant is entitled
 It is the act/proceeding by which a 3rd
to, which should not be less than 5
person becomes a party in a suit pending
days.
between others.
 It is the admission, by leave of court, of a
person not an original party to pending legal
proceedings, by which such person
becomes a party thereto for the protection of
some right of interest alleged by him to be
affected by such proceedings.
 An intervenor is a party to the action as the
original parties are, and to make his right
effectual he must necessarily have the same
powers as the original parties. He is entitled
to have the issues raised between him and  Interest in the subject means a direct
the original parties tried and determined. interest in the cause of action as
 Intervention is never an independent pleaded and which would put the
action, but is ancillary and supplemental intervenor in a legal position to litigate a
to the existing litigation. fact alleged in the complaint, without the
 Its purpose is to afford one not an establishment of which plaintiff could not 136
original party, yet having a certain recover. [Magsaysay-Labrador v. CA]
CIVIL PROCEDURE
right/interest in the pending case, the  Intervention is allowed any time before TC
opportunity to appear and be joined so renders judgment. [Rule 19, Sec. 2]
he could assert or protect such  After rendition of judgment, a motion to
right/interest. [Cariño vs. Ofilada (1993)] intervene is barred, even if the judgment
 Intervention is never an independent action, itself recognizes the movant’s right. The
but is ancillary and supplemental to the movant’s remedy is to file a separate action.
existing litigation. Its purpose is to afford one
not an original party, yet having a certain 4. PLEADINGS IN INTERVENTION [RULE 19,
right/interest in the pending case, the SEC. 3]
opportunity to appear and be joined so he 1) COMPLAINT-IN-INTERVENTION – If
could assert or protect such right/interest. intervenor asserts a claim against either or
[Cariño vs. Ofilada (1993)] all of the original parties.
 Hence, the final dismissal of the 2) ANSWER-IN-INTERVENTION – If
principal action results into the dismissal intervenor unites with the defending party in
of said ancillary action. resisting a claim against the latter.
2. WHO MAY INTERVENE [RULE 19, SEC. 1] 5. ANSWER TO COMPLAINT-IN-

 One who has a legal interest in the matter in INTERVENTION [RULE 19, SEC. 4]
litigation;  It must be filed within 15 days from notice of
 One who has a legal interest in the success the order admitting the complaint-in-
of either of the parties; intervention, unless a different period is fixed
 One who has an interest against both by the court.
parties; 6. REMEDIES
 One who is so situated as to be adversely  For denial of intervention:
affected by a distribution/disposition of a) Appeal.
property in the court’s custody. b) Mandamus, if there is GAD.
 For improper granting of intervention:
3. HOW INTERVENTION IS DONE Certiorari.
 By a motion to intervene, with the pleading-
in- intervention attached. Must also serve Intervention Interpleader
copy of the pleading-in-intervention on the An ancillary action An original action
original parties. [Rule 19, Sec. 2] Proper in any of the Presupposes that the
 General rule: Allowance of intervention is four situations mentioned plaintiff has no interest in
in Rule 19 the subject matter of the
discretionary with the court.
action or has an interest
 Exception: When the intervenor is an therein, which in whole or
indispensable party. in part is not disputed by
 Factors considered in allowing intervention: the other parties to the
1) WON intervention will unduly delay or action
prejudice the adjudication of the rights of There is already a Defendants are being
the original parties. defendant among the sued precisely to implead
2) WON the intervenor's rights may be fully original parties to the them
protected in a separate proceeding. pending suit
 The interest must be actual and
material, direct and immediate; not E. Summons
simply contingent or expectant.  Definition: A coercive force issued by the
 It must be in the matter in litigation and court to acquire jurisdiction over the person
of such direct and immediate character of the defendant (asked in the 1999 Bar
that the intervenor will either gain or lose Exam)
by the direct legal operation and effect  Purpose:
of the judgment. [Cariño vs. Ofilada  To acquire jurisdiction over the person
(1993)] of the defendant in a civil case;
 To give notice to the defendant that an  shall be made by motion in writing,

action has been commenced against supported by affidavit of the plaintiff or some
him. person on his behalf, setting forth the
grounds for the application. [Rule 14, Sec.
1. ISSUANCE OF SUMMONS 17]
 Upon the filing of the complaint and the 137
payment of legal fees, the clerk of court shall  Service in person on defendant [Rule 14,
CIVIL PROCEDURE
issue the corresponding summons to the Sec. 6]
defendants. [Rule 14, Sec. 1] 1) By handing a copy of summons to him;
2) By tendering it to him, if he refuses to
2. SUMMON’S CONTENTS [RULE 14, SEC. receive it.
2]
 Summons must be directed to the  Substituted service [Rule 14, Sec. 7]
defendant, signed by the clerk of the court (asked in the 2004 Bar Exam)
under seal, and contain:  Rationale: Enjoyment of the privileges
1) Name of the court and names of the of residence within the state, and the
parties; attendant right to invoke the protection
2) Direction that the defendant answer of its laws, are inseparable from the
within the time fixed; various incidences of state citizenship.
3) Notice that unless the defendant so  One such incident of domicile is
answers, plaintiff will take judgment by amenability to suit within the state even
default and may be granted the relief during sojourns without the state, where
applied for. the state has provided and employed a
 A copy of the complaint and order for reasonable method for apprising such
appointment of guardian ad litem (if any) an absent party of the proceedings
shall be attached to the original and each against him. [Northwest v. CA (1995)]
copy of the summons.  For a valid substituted service of
summons, the following must be
3. SERVICE OF SUMMONS established in the proof of service: [Sps.
Ventura v. CA (1987)]
a. Who serves the summons [rule 14, sec. 3] 1) Impossibility of the personal service of
1) The sheriff or his deputy; summons within a reasonable time;
2) Other proper court officers; 2) Efforts made to find the defendant
3) For justifiable reasons, any suitable person personally and the fact that such efforts
authorized by the court issuing the failed; [Laus v. CA (1993)]
summons. 3) Service by leaving copy of summons
b. Return of summons [rule 14, sec. 4] either:
 When the service has been completed, the a) With some person of suitable age
server shall, within 5 days therefrom, and discretion then residing in the
 serve a copy of the return (personally or by defendant’s residence;
registered mail) to the plaintiff's counsel, and b) With some competent person in
 shall return the summons to the clerk who charge of the defendant’s office or
issued it, accompanied by proof of service. regular place of business.
 For a substituted service to be valid,
c. Alias summons [rule 14, sec. 5] summons served at the defendant's
 Upon plaintiff’s demand, the clerk may issue residence must be served at his residence
an alias summons if either: at the time of such service and not at his
1) If summons is returned without being former place of residence.
served on any/all of the defendants.  "Dwelling house" or "residence" refer to the
 The server shall also serve a copy of the place where the person named in the
return on the plaintiff's counsel within 5 summons is living at the time when the
days therefrom, stating the reasons for service is made, even though he may be
the failure of service. temporarily out of the country at the time.
2) If summons was lost. [Sps. Ventura v. CA (1987)]
 Substituted service must be used only as
d. Modes of service of summons
prescribed and in the circumstances
 Any application to the court under Rule 14
authorized by statute.
for leave to effect service in any manner for
 Statutes prescribing modes other than
which leave of court is necessary
personal service of summons must be
strictly complied with to give the court  Any mode of appearance in court by a
jurisdiction, and such compliance must defendant or his lawyer is equivalent to
appear affirmatively in the return. [Laus v. service of summons, absent any
CA (1993)] indication that the appearance of
 Absence in the sheriff's return of a counsel for petitioner is precisely to
statement about the impossibility of personal protest the jurisdiction of the court over 138
service does not conclusively prove that the the person of the defendant. [Delos
CIVIL PROCEDURE
service is invalid. Santos v. Montesa (1993)]
 Proof of prior attempts at personal service
may be submitted by the plaintiff during the 4. RETURN OF SERVICE [RULE 14, SEC. 4]
hearing of any incident assailing the validity  When service has been completed, the
of the substituted service. server shall serve a copy of the return within
 While the sheriff's return carries with it the 5 days (personally or by registered mail) to
disputable presumption of regularity in the the plaintiff's counsel, and shall return the
sense that the entries therein are deemed summons to the clerk who issued it,
correct, it does not necessarily follow that an accompanied with the proof of service.
act done in relation to the official duty for  General rule: Return of service of summons
which the return is made was not done immediately shifts burden of evidence from
simply because it is not disclosed therein. plaintiff to defendant since there is a
[Mapa v. CA (1992)] presumption of regularity.
 Without return of service: Burden is on
e. Publication [Rule 14, Sec. 14] plaintiff.
 Requisites:  In the Mapa case, though, while there
1) The action is in rem or quasi in rem; was a return, return was patently
2) Defendant's identity or whereabouts are irregular, thus no presumption of
unknown and cannot be ascertained by regularity could be had.
diligent inquiry;  Exception: Doctrine of substantial
3) There must be leave of court. compliance – If defendant actually
 Summons by publication in a personal received summons and complaint
action cannot confer upon the court despite all these technicalities.
jurisdiction over the person of the defendant,
who does not voluntarily submit himself to 5. PROOF OF SERVICE
the authority of the court. 1) If personal or substituted service: In writing
 The proper recourse for the plaintiff is to by the server and shall: [Rule 14, Sec. 18]
locate properties of the defendant whose  Set forth the manner/place/date of
address is unknown and cause them to be service;
attached. [Consolidated Plywood vs. Breve  Specify any papers which have been
(1988)] served with the process and the name
f. Service of summons upon different entities of the person who received the same;
(SEE APPENDIX 1 FOR TABLE)  Be sworn to when made by a person
other than a sheriff or his deputy.
 Summons is validly served if it is left with 2) If by publication: [Rule 14, Sec. 19]
some person of suitable age and discretion  Affidavit of the printer, foreman, principal
then residing in the defendant's residence, clerk, editor, business/advertising
even if defendant was abroad at that time. manager, with a copy of the publication
 The fact that the defendant did not actually attached.
receive the summons did not invalidate the  Affidavit showing the deposit of a copy
service of such summons. [Montalban v. of the summons and order for
Maximo] publication in the post office, postage
g. Waiver of service of summons [rule 14, prepaid, directed to the defendant by
sec. 20] registered mail to his last known
 Defendant's voluntary appearance in the address.
action shall be equivalent to service of
summons; 6. EFFECT OF NON-SERVICE OF
 Exception: Special appearance to file a SUMMONS (ASKED IN THE 2006 BAR
MTD. EXAM)
 Inclusion in the MTD of grounds other  Unless the defendant voluntarily submits to
than LOJ over the defendant’s person, the jurisdiction of the court,
is not deemed a voluntary appearance.
 non-service or irregular service of 2. MOTION’S FORM [RULE 15, SEC. 2]

summons renders null and void all  General rule: In writing.
subsequent proceedings and issuances  Exception: Oral motions:
in the action from the order of default up  Made in open court;
to and including the judgment by default  In the course of a hearing/trial.
and the order of execution. 139
 If the defendant has already been served 3. CONTENTS [RULE 15, SEC. 3]
CIVIL PROCEDURE
with summons on the original complaint, no  Relief sought to be obtained
further summons is required on the  Grounds upon which it is based
amended complaint if it does not introduce  If it is required/necessary to prove facts
new causes of action. [Ong Peng v. alleged in a motion, it shall be accompanied
Custodio] by supporting affidavits and other papers.
 But if the defendant was declared in default  Motions raising factual issues must be
on the original complaint and the plaintiff supported by affidavits.
subsequently filed an amended complaint,
new summons must be served on the 4. REQUISITES OF MOTIONS (NOT MADE
defendant on the amended complaint, as the IN OPEN COURT OR IN THE COURSE OF
original complaint was deemed withdrawn HEARING/TRIAL):
upon such amendment. [Atkins v. Domingo]  In writing; [Rule 15, Sec. 2]
 Hearing on the motion set by the applicant;
F. Motions  PRO FORMA MOTION – A motion
 Definition: An application for relief other failing to indicate time and date of the
than by a pleading. [Rule 15, Sec. 1] hearing.
 Notice of hearing shall addressed to all
Motion Pleading parties not later than 10 days from the filing
Contains allegations of Contains allegations of of the motion. [Rule 15, Sec. 5]
facts the ultimate facts  Notice must be addressed to the
Prays for a relief Prays for a relief counsels.
Grant of the relief does Grant of relief  A notice of hearing addressed to the
not extinguish the action extinguishes the action clerk of court, and not to the parties, is
(interlocutory relief) (final relief) no notice at all.
Generally in writing (with Always in writing  Accordingly, a motion that does not
some exceptions)
contain a notice of hearing to the
adverse party is nothing but a mere
 General rule: A motion cannot pray for
scrap of paper, as if it were not filed;
judgment.
hence, it did not suspend the running of
 Exception:
the period to appeal. [Provident
 Motion for judgment on the pleadings. International Resources v. CA (1996)]
 Motion for summary judgment.  Motion and notice of hearing must be served
 Motion for judgment on demurrer to at least 3 days before the date of hearing;
evidence. [Rule 15, Sec. 4]
 Purpose: To prevent surprise upon the
1. KINDS OF MOTION adverse party and to enable the latter to
 MOTION EX PARTE - Made without study and meet the arguments of the
notification to the other party because the motion.
question generally presented is not  Exception:
debatable. a) Ex parte motions;
 LITIGATED MOTION - Made with notice to b) Urgent motions;
the adverse party so that an opposition c) Motions agreed upon by the parties
thereto may be made. to be heard on shorter notice, or
 MOTION OF COURSE - Motion for a kind of jointly submitted by the parties;
relief/remedy to which the movant is entitled d) Motions for summary judgment
to as a matter of right, Allegations contained which must be served at least 10
in such motion do not have to be days before its hearing.
investigated/verified.  Proof of service. [Rule 15, Sec. 6]
 SPECIAL MOTION - Discretion of the court
 A written motion set for hearing will not
is involved. An investigation of the facts
be acted upon by the court if there is no
alleged is required.
proof of service thereof.
 What may be proof:

a) If by registered mail: Affidavit or
VI. Terminating the Action Before Trial
registry receipt or postmark on
envelope or return card, with an A. MOTION TO DISMISS
explanation. B. DISMISSAL OF ACTIONS
b) If by personal service: Affidavit or
C. DISMISSAL OF COUNTERCLAIMS/ CROSS-
CLAIMS/3RD-PARTY COMPLAINTS
140
acknowledgment of receipt by the D. DEFAULTS
CIVIL PROCEDURE
other party. E. REMEDIES OF A PARTY DECLARED IN
 Exception: DEFAULT
a) If the motion is one which the court F. JUDGMENT ON THE PLEADINGS
can hear ex parte. G. SUMMARY JUDGMENTS
b) If the court is satisfied that the rights H. PARTIAL SUMMARY JUDGMENT
of the adverse parties are not
affected by the motion. A. Motion to Dismiss
c) If the party is in default because 1. DEFINITION
such a party is not entitled to notice.  MOTION TO DISMISS – A remedy of the
defendant, or the responding party in
5. MOTION DAY [RULE 15, SEC. 7] general, which attacks the entire pleading
 Except for urgent motions, motions are and seeks its dismissal based on:
scheduled for hearing: 1) Grounds which are patent on the face of
1) On Friday afternoons; the complaint;
2) Afternoon of the next working day, if 2) Defenses available to the defendant at
Friday is a non-working day. the time of the filing of the complaint.
 It hypothetically admits the facts stated in
6. OMNIBUS MOTION RULE [RULE 15, SEC. the complaint.
8]  It is not a responsive pleading. It is not a
 Definition: A motion attacking a pleading at all. It is subject to the omnibus
pleading/order/judgment/proceeding must motion rule since it is a motion that attacks a
include all objections then available. All pleading. Hence, it must raise all objections
objections not included in the motion are available at the time of the filing thereof.
deemed waived.  General rule: A court may not motu propio
 Exception: When the court’s jurisdiction is dismiss a case, unless a motion to that
in issue: effect is filed by a party.
1) LOJ over subject-matter;  Exception:
2) Litis pendentia;  Cases where the court may dismiss a
3) Res judicata; case motu propio; [Rule 9, Sec. 1]
4) Prescription.  Failure to prosecute; [Rule 17, Sec. 3]
 Sec. 4, Revised Rule on Summary
7. MOTION FOR LEAVE TO FILE A Procedure.
PLEADING/MOTION [RULE 15, SEC. 9]
 Must be accompanied by the 2. TYPES OF DISMISSAL OF ACTION:
pleading/motion sought to be admitted.  MTD before answer under Rule 16;
 MTD under Rule 17:
8. MOTIONS NOT ACTED UPON a) Upon notice by plaintiff;
 Parties and counsel should not assume that b) Upon motion by plaintiff;
courts are bound to grant the time they pray c) Due to fault of plaintiff.
for.  Demurrer to evidence after plaintiff has
 After all, a motion that is not acted upon in completed the presentation of his evidence
due time is deemed denied. [Orosa v. CA under Rule 33;
(1996)]  Dismissal of an appeal.
MTD under Rule 16 MTD under Rule 33

(Demurrer to evidence)
Based on preliminary Based on insufficiency of
objections evidence
May be filed by any May be filed only by the
defending party against defendant against the
whom a claim is asserted complaint of the plaintiff
in the action
Should be filed within the May be filed only after are raised, it cannot be considered as a
time for, but prior to, the the plaintiff has special appearance. [De los Santos v.
filing of the defending completed the Montesa (1993)]
party’s answer to the presentation of his
pleading asserting the evidence
b. LOJ over the subject matter of the claim
claim against him
If denied, defendant If denied, defendant may
 If the complaint shows on its face LOJ, the 141
answers; else, he may be present evidence. court may dismiss the case outright instead
CIVIL PROCEDURE
declared in default. If granted, plaintiff of hearing the motion.
If granted, plaintiff may appeals and the order of  A MTD on the ground of LOJover the
appeal or if a subsequent the dismissal is subject matter may be raised either:
case is not barred, he reversed; the defendant 1) Before answer;
may re-file the case loses his right to present 2) After answer is filed;
evidence. 3) After hearing had commenced;
4) At any stage of the proceeding, even for
 A MTD shall be proved/disproved according the first time on appeal and even if no
to the rules of evidence. such defense is raised in the answer.
 The hearing shall be conducted as an
ordinary hearing and the parties shall be c. Improper venue
allowed to present evidence, except when  Unless and until the defendant objects to the
the motion is based upon failure of the venue in a MTD prior to a responsive
complaint to state a cause of action. pleading, the venue cannot truly be said to
 When the MTD is based on facts not have been improperly laid since,
appearing of record, the court may hear the  for all practical intents and purposes, the
matter on affidavits/depositions. venue though technically wrong may yet be
considered acceptable to the parties for
3. GROUNDS [RULE 16, SEC. 1] (ASKED IN whose convenience the rules on venue had
THE 2008 BAR EXAM) been devised. Improper venue may be
waived and such waiver may occur by
a. LOJ over the defendant’s person; laches. [Diaz v. Adiong (1993)]
b. LOJ over the subject matter of the claim;  A stipulation between the parties as to
c. Improper venue; venue does not preclude the filing of suits in
d. Plaintiff’s lack of legal capacity to sue; the residence of plaintiff/defendant under
e. Litis pendentia; Rule 4, Sec. 2(b). In the absence of
f. Res judicata; qualifying/restrictive words which would
g. Prescription; indicate that a specific place alone is the
h. Failure to state a cause of action; venue, an agreement as to venue is merely
i. Extinguished claim; permissive and there is no waiver of right to
j. Unenforceable claim under the Statute pursue remedy in other courts. [HSBC v.
of Frauds; Sherman (1989)]
k. Non-compliance with a condition  If the court erroneously denies the MTD, the
precedent for filing claim. remedy is prohibition.
a. LOJ over the defendant’s person d. Plaintiff’s lack of legal capacity to sue
 The objection of LOJ over the person on  The plaintiff lacks legal capacity to sue:
account of lack of service or defective 1) When he does not possess the
service of summons, must be raised: necessary qualification to appear at the
 At the very first opportunity; trial (e.g. when he plaintiff is not in the
 Before any voluntary appearance is made. full exercise of his civil rights);
 If a defendant had not been properly 2) When he does not have the character
summoned, the period to file a MTD for which he claims, which is a matter of
LOJ over his person does not evidence (e.g. when he is not really a
commence to run until he voluntarily duly appointed administrator of an
submits to the jurisdiction of the court. estate).
[Laus v. CA (1993)]  Lack of legal capacity to sue refers to
 Appearance of counsel is equivalent to plaintiff’s disability; while lack of legal
summons, unless such is made to personality to sue refers to the fact that the
protest the jurisdiction of the court over plaintiff is not a real party in interest,
the person of the defendant. If grounds
other than invalid service of summons
 in which case the ground for dismissal would Inclusion of additional parties will not
be that the complaint states no cause of affect the application of the principle of
action. res judicata.
 The test of identity of cause of action
e. Litis pendentia lies not in the form of the action but on
 Requisites: [Anderson Group v. CA (1997) WON the same evidence would support 142
Asked in the 2007 Bar Exam] and establish the former and the present
CIVIL PROCEDURE
1) Identity of parties; causes of action. [DBP v. Pundogar
2) identity of rights asserted and relief (1993)]
prayed for;  Rationale: The sum and substance of the
3) Relief founded on the same facts and whole doctrine is that a matter once
the same basis; judicially decided is finally decided because
4) Identity in the 2 proceedings should be of: [Nabus v. CA (1991)]
such that any judgment which may be  Public policy and necessity makes it the
rendered in the other action will amount interest of the State that there should be
to res judicata on the action under an end to litigation;
consideration.  The hardship on the individual that he
 It is not required to allege that there be a should be vexed twice for the same
prior pending case. It is sufficient to allege cause.
and prove the pendency of another case,
even if same had been brought later. 4. TWO CONCEPTS OF RES JUDICATA
 It does not require that the later case be [ABALOS V. CA 1993, ASKED IN THE 1997
dismissed in favor of the earlier case. To BAR EXAM)]
determine which case should be abated,
apply:  BAR BY PRIOR JUDGMENT – Judgment
1) The More Appropriate Action Test; on the merits in the 1st case constitutes an
2) The Interest of Justice Test, taking into absolute bar to the subsequent action
account:  not only as to every matter which was
a) Nature of the controversy; offered and received to sustain or defeat
b) Comparative accessibility of the the claim/demand,
court to the parties;  but also to any other admissible matter
c) Other similar factors. which might have been offered for that
 In both tests, the parties’ good faith shall be purpose and to all matters that could
taken into consideration. have been adjudged in that case.
 The 1st case shall be abated if it is merely (Asked in the 2002 Bar Exam)
an anticipatory action or defense against an  CONCLUSIVENESS OF JUDGMENT –
expected suit.  Where the 2nd action between the
 The 2nd case will not be abated if it is not parties is upon a different
brought to harass. [Vitrionics Computers v. claim/demand,
RTC (1993)]  the judgment in the 1st case operates
as an estoppel only with regard to those
f. Res judicata issues directly controverted, upon the
 Requisites (Asked in the 2000 Bar Exam): determination of which the judgment
1) Former judgment rendered by a court was rendered.
having jurisdiction over the subject
matter and over the parties; g. Statute of limitations
2) Judgment must be a final judgment;  Prescription applies only when the complaint
3) Judgment must be on the merits; on its face shows that indeed the action has
 There can be res judicata without a trial, already prescribed.
such as in a judgment on the pleadings  If the fact of prescription is not indicated on
(Rule 34); a summary judgment (Rule the face of the complaint and the same may
35); or an order of dismissal under Rule be brought out later, the court must defer
17, Sec. 3. decision on the motion until such time as
4) There must be identity of parties, of proof may be presented on such fact of
subject matter and of the causes of prescription.
action.
 For res judicata to apply, absolute
identity of parties is not required
because substantial identity is sufficient.
Prescription Laches preliminary hearing thereon as if a MTD was

Concerned with the Concerned with the filed.
fact of delay effect of delay
A matter of time A matter of equity 6. HEARING AND ORDER
Statutory Not statutory  During the hearing of the motion, parties
Applies in law Applies in equity shall submit: [Rule 16, Sec. 2] 143
Based on fixed time Not based on fixed 1) Their arguments on questions of law;
CIVIL PROCEDURE
time 2) Their evidence on questions of fact.
 Exception: Those not available at
h. Complaint states no cause of action that time.
 Failure to state a cause of action (not lack of  If the case goes to trial, such
cause of action) is the ground for a MTD. evidence presented shall
The former means there is insufficiency in automatically be part of the
the allegations in the pleading. The latter evidence of the party who presented
means that there is insufficiency in the them.
factual basis of the action.  After the hearing, the court may either: [Rule
 The failure to state a cause of action must 16, Sec. 3]
be evident on the face of the complaint itself. 1) Dismiss the action/claim;
 Test: Assuming the allegations and 2) Deny the MTD;
statements to be true, does the plaintiff have 3) Order the amendment of pleadings.
a valid cause of action?  The court’s resolution on the MTD must
 A MTD based upon the ground of failure to clearly and distinctly state the reasons
state a cause of action imports a therefor.
hypothetical admission by the defendant of  The court cannot defer the resolution of the
the facts alleged in the complaint. MTD for the reason that the ground relied
 If the court finds the allegations of the upon is not indubitable.
complaint to be sufficient but doubts their
veracity, it must deny the MTD and require 7. EFFECTS
the defendant to answer and then proceed
to try the case on its merits. a. Of dismissal: [Rule 16, Sec.5]
 A complaint containing a premature cause of  General rule: The action/claim may be re-
action may be dismissed for failure to state a filed.
cause of action.  Exception: The action cannot be re-filed
 If the suit is not brought against the real (although subject to appeal) if it was
party-in-interest, a motion to dismiss may be dismissed on any of the following grounds:
filed on the ground that the complaint states  Res judicata;
no cause of action. [Tanpinco v. IAC (1992)]  Prescription;
 Extinguishment of the claim/demand;
i. Extinguished claim  Unenforceability under the Statute of
 That the claim/demand set forth in the Frauds.
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished. b. On periods for pleading: [Rule 16, Sec.4]
 If MTD is denied – Movant must file his
j. Unenforceable claim under the statute of answer within the balance of the period
frauds under Rule 11 to which he was entitled at
the time of serving his MTD (but not less
k. Non-compliance with a condition precedent than 5 days).
 Non-compliance with PD 1508 (Katarungang  If pleading is ordered to be amended –
Pambarangay Law) may result in dismissal Movant must file his answer within the
of the case on the ground of non-compliance period under Rule 11, counted from service
with a condition precedent. of the amended pleading (unless the court
gives a longer period).
5. PLEADING THE GROUNDS AS
AFFIRMATIVE DEFENSES [RULE 16, SEC. c. On other grounds and omnibus motion rule:
6]  MTD based on the following grounds may
 If no MTD was filed, the grounds in Rule 16, be filed even after filing an answer: [Rule 9,
Sec. 1 may be pleaded as an affirmative Sec. 1]
defense and the court may conduct a  LOJ over subject-matter;
 Litis pendentia;
 Res judicata;  Court approval of the court is necessary in

 Prescription. the dismissal/compromise of a class suit.
 Dismissal of the complaint under Rule 16, 3. DISMISSAL DUE TO PLAINTIFF’S FAULT
Sec. 6 is without prejudice to the [RULE 17, SEC. 3]
prosecution (in the same or in a separate  If, without justifiable cause, plaintiff fails 144
action) of a counterclaim pleaded in the either:
CIVIL PROCEDURE
answer. 1) To appear on the date of the
presentation of his evidence-in-chief on
B. Dismissal of Actions the complaint;
 The plaintiff’s failure to appear at the
1. DISMISSAL UPON PLAINTIFF’S NOTICE trial after he has presented his
[RULE 17, SEC. 1] evidence and rested his case does
 Dismissal here is effected not by motion but not warrant the dismissal of the
by mere notice before the service of either: case on the ground of failure to
1) The answer; prosecute.
2) A motion for summary judgment.
 It is merely a waiver of his right to
 Upon plaintiff’s filing of notice, the court shall
cross-examine and to object to the
issue an order dismissing the case. (i.e. the
admissibility of evidence. [Jalover v.
court has no discretion on WON to dismiss
Ytoriaga]
the case).
2) To prosecute his action for an
 The dismissal is without prejudice.
unreasonable length of time (nolle
 Exception:
prosequi);
1) If the notice of dismissal provides
 The test for dismissal of a case due
that it is with prejudice.
to failure to prosecute is WON,
 The dismissal is still with prejudice even
under the circumstances, the
it the notice of dismissal does not so
plaintiff is chargeable with want of
provide, where such notice is premised
due diligence in failing to proceed
on the fact of payment by the defendant
with reasonable promptitude.
of the claim involved. [Serrano v.
[Calalang v. CA (1993)]
Cabrera]
3) To comply with the ROC or any court
2) TWO-DISMISSAL RULE –
order.
 If the plaintiff has previously dismissed  Here, the case may be dismissed motu
an action based on or including the propio or upon the defendant’s motion.
same claim, the notice operates as an  The dismissal has the effect of an
adjudication on the merits. adjudication on the merits, unless the court
declares otherwise.
2. DISMISSAL UPON PLAINTIFF’S MOTION
[RULE 17, SEC. 2] Rule 17, Sec. 2 Rule 17, Sec. 3
 Here, dismissal of the complaint is subject to Dismissal is at the Dismissal is not procured
the court’s discretion and upon such terms plaintiff’s instance by plaintiff, although
and conditions as may be just. justified by causes
 Leave of court for the dismissal is necessary imputable to him
because the motion is made after a Dismissal is a matter of Dismissal is a matter of
responsive pleading or a motion for procedure, without evidence, an adjudication
summary judgment has been served. prejudice unless on the merits
 If defendant pleaded a counterclaim prior to otherwise stated in the
court order or on
the service upon him of the plaintiff’s motion
plaintiff’s motion for
for dismissal, the dismissal shall be without dismissal of his own
prejudice to the defendant’s right to either: complaint.
1) Prosecute his counterclaim in a Dismissal is without Dismissal is without
separate action; prejudice to the prejudice to the
2) Have the counterclaim resolved in the defendant’s right to defendant’s right to
same action, by manifesting such prosecute his prosecute his
preference within 15 days from being counterclaim in a counterclaim in the same
notified of plaintiff’s motion for dismissal. separate action (unless or in a separate action
within 15 days from
 Dismissal here is without prejudice, unless
notice of the motion he
otherwise provided in the order. manifests his intention to
have his counterclaim
resolved in the same 2. CASES WHERE NO DEFAULTS ARE

action) ALLOWED
 Annulment of marriage; Declaration of nullity
C. Dismissal of Counterclaims/ Cross- of marriage; Legal Separation;
Claims/ 3rd-Party Complaints  Here, the court shall order the
[Rule 17, Sec. 4]
prosecuting attorney to investigate WON 145
parties are colluding and, if there is no
CIVIL PROCEDURE
collusion, to intervene from the State to
 Rule 17 applies to the dismissal of
ensure that evidence is not fabricated.
counterclaims, cross-claims or 3rd-party
 Special civil actions of certiorari, prohibition
complaints.
and mandamus, where comment (instead of
 Where a counterclaim is made the subject of
an answer) is required to be filed.
a separate suit, it may be abated upon a
plea of auter action pendentia and/or
3. EFFECT OF ORDER OF DEFAULT
dismissal on the ground of res judicata.
(ASKED IN THE 1999 BAR EXAM)
 Res judicata, however, is not applicable
 Party in default loses standing in court as a
since the court held that it did not acquire
party litigant. His failure to answer operates
jurisdiction due to non-payment of docket
as a waiver of right to take part in the trial, of
fees.
being heard, and of presenting evidence in
 Dismissal on the ground of LOJ does not
his favor.
constitute res judicata, there being no
consideration and adjudication of the case  If the defendant was declared in default
on the merits. Neither is there litis pendentia. upon an original complaint, the filing of
[Meliton v. CA (1992)] the amended complaint resulted in the
withdrawal of the original complaint.
 Hence, the defendant was entitled to file
D. Defaults answer to the amended complaint as to
[Rule 9, Sec. 3] which he was not in default.
 The court shall proceed to render judgment
 Definition: Failure of the defendant to granting the claimant relief as his pleading
answer within the proper period. It is not his may warrant, unless the court in its
failure to appear nor his failure to present discretion requires the claimant to submit
evidence (Asked in the 2000 and 2001 Bar evidence. Such reception of evidence may
Exams) be delegated to the clerk of court.
 The party in default shall be entitled to
Order of default Judgment by default notice of subsequent proceedings but not to
Issued by the court on Rendered by the court take part in the trial.
plaintiff’s motion, for following a default  A defendant declared in default cannot
failure of the defendant order take part in the trial, but he cannot be
to file his responsive or after it received ex disqualified from testifying as a witness
pleading seasonably parte plaintiff’s in favor of non-defaulting defendants.
evidence [Cavili v. Florendo]
Interlocutory – Not Final – Appealable  A party in default is entitled to notice of:
appealable a. Motion to declare him in default;
b. Order declaring him in default;
1. ELEMENTS OF A VALID DECLARATION c. Subsequent proceedings;
OF DEFAULT d. Service of final orders and
a. Court validly acquired jurisdiction over judgments.
the defendant’s person, either by
service of summons or voluntary
appearance; 4. RELIEF FROM ORDER OF DEFAULT
b. Defendant fails to answer within the  Before judgment, a party declared in default
time allowed therefor; may file a motion under oath to set aside the
c. Motion to declare the defendant in order of default upon proper showing that:
default; 1) His failure to answer was due to fraud,
d. Notice to the defendant by serving upon accident, mistake or excusable
him a copy of such motion; negligence;
e. Proof of such failure to answer. 2) He has a meritorious defense.
 In such case, the order of default may be set evidence shall render judgment
aside on terms and conditions as justice Relief awarded must be Relief awarded may be
requires. the same in nature and of different nature and
amount as prayed for in amount from the relief
5. EFFECT OF PARTIAL DEFAULT the complaint prayed for
 If the pleading asserting a claim states a 146
common cause of action against several  A defendant who already filed an answer
CIVIL PROCEDURE
defending parties, cannot be declared in default. Only when
 and some of the defending parties answer the defendant fails to file an answer to the
while the others fail, complaint may the court proceed to render
 the court shall try the case against all judgment. [Lesaca v. CA (1992)]
defendants upon the answers filed and  The Revised Rules on Summary Procedure
render judgment upon the evidence does not provide that an answer filed after
presented. the reglamentary period should be
 Exception: If the defense is personal to the expunged from the records.
one who answered; in which case, it will not  As a matter of fact, there is no provision for
benefit those who did not answer. an entry of default if a defendant fails to file
his answer.
6. EXTENT OF RELIEF TO BE AWARDED  The defense of LOJ may have even been
 The award shall not exceed the amount or raised by the defendant in a MTD as an
be different in kind from that prayed for; nor exception to the rule on prohibited pleadings
award unliquidated damages. in the Revised Rule on Summary Procedure.
 Rationale: It is presumed that where the  Such a motion is allowed under Sec. 19(a)
relief demanded is greater or different in thereof. [Bayog v. Natino (1996)]
kind, defendant would not have allowed  Where the failure to appear at the pre-trial
himself to be declared in default. hearing was uncontrovertedly due to illness,
 In a judgment based on evidence presented the default order may be set aside on the
ex parte, judgment should not exceed the ground of accident over which petitioner had
amount or be different in kind from that no control.
prayed for.  Also, the order of arrest was illegal as there
 On the other hand, in a judgment where an is nothing in the ROC which authorizes such
answer was filed but defendant did not a consequence of a default order.
appear at the hearing, the award may [Malanyaon v. Sunga (1992)]
exceed the amount or be different in kind
from that prayed for. [Datu Samad Mangelen
v. CA (1992)]
7. FAILURE TO APPEAR AT PRE-TRIAL
Who fails to Effect

appear
Plaintiff Cause for dismissal of the action
which will be with prejudice, unless
otherwise ordered by the court
Defendant Cause to allow plaintiff to present

evidence ex parte, and court to
render judgment on the basis
thereof
Default As in default
(Rule 9, Sec. 3) (Rule 18, Sec. 5)
Upon motion and notice Not required
to defendant.
Requires proof of failure Not required
to answer
Court to render Court to allow plaintiff to
judgment, unless it present evidence ex
requires submission of parte, then the court
is appealable. [MERALCO v. La Campana

E. Remedies of a Party Declared In Food Products (1995)]
Default  A petition for certiorari under Rule 65,
 Pleadings, as well as remedial laws, should although not a substitute for an available or
be liberally construed in order that litigants lost appeal, may be invoked while the orders
may have ample opportunity to prove their of the lower court are issued without or in 147
respective claims, and possible denial of excess of jurisdiction.
CIVIL PROCEDURE
substantial justice. [Gerales v. CA]  Judgment by default being appealable,
appeal should be perfected within 15 days
 Dulos v. CA (1990)] from receipt of copy of order denying MFR
1. MOTION TO  At any time after the of default judgment. [Oriental Media v. CA
SET ASIDE discovery of default and (1995)]
ORDER OF before judgment,  A satisfactory showing by the movant of the
DEFAULT defendant may file a existence of fraud, accident, mistake or
[RULE 9, motion under oath to set excusable neglect is an indispensable
SEC. 3(B)] aside order of default on requirement for the setting aside of a
the ground that his failure judgment of default or the order of default.
to file an answer or  A meritorious defense is only one of the two
appear on the date set for
conditions. The meritorious defense must
the pre-trial was due to
fraud, accident mistake of concur with the satisfactory reason for the
law, and excusable non-appearance of the defaulted party. If
negligence and that he there is no such reason, the appropriate
has a meritorious defense remedy is an ordinary appeal under Rule 41,
2. MNT [RULE  If the judgment has Sec. 2. [Ramnani v. CA (1993)]
37, SEC. already been rendered  The jurisdiction was properly acquired by the
1(A)] when the defendant TC over the defendant’s person; he was
discovered the default, therefore properly declared in default for not
but before the same having filed any answer.
became final and
executor.
 Despite his failure to file a motion to set
 It should be filed within aside the declaration of default, he has the
the period for perfecting right to appeal the default judgment.
an appeal. Timely filing  But in the appeal, only the evidence of the
thereof interrupts the 15- petitioner may be considered, respondent
day reglementary period not having adduced any defense evidence.
for an appeal. [Boticano v. Chu (1987)]
 It is required that
defendant file first a
motion to lift order of F. Judgment on the Pleadings
default to regain his [Rule 34]
standing. [Tan v. CA (Asked in the 1999 and 2005 Bar Exams)
(1997)]
3. PETITION  If the defendant  Grounds: If the answer either:
FOR RELIEF discovered the default
1) Fails to tender an issue;
FROM after the judgment has
ORDER become final and 2) Admits the material allegations of the
[RULE 38, executory adverse party’s pleading.
SEC. 1 AND  An answer fails to tender an issue due to
2] either:
4. APPEAL  The defendant may also 1. General denial of the material
FROM THE appeal from the judgment allegations of the complaint;
RTC [RULE rendered against him as 2. Insufficient denial of the material
41, SEC. 1] contrary to the evidence allegations of the compliant.
or the law, even if he did  A judgment on the pleadings can be done
not present a petition to
set aside the order of
only upon motion to the effect filed by the
default appropriate party. It cannot be rendered by
the court motu propio.
 An order of default is an interlocutory order  Exception: If at pre-trial the court finds
which is not appealable. A judgment by that a judgment on the pleadings is
default is a final disposition of the case and proper, it may render such judgment
motu propio. [Rule 18, Sec. 2(g)]
 In the following cases, judgment on the  Bases of summary judgment: When, upon
pleadings will not lie and material facts the following, no genuine issue as to any
alleged in the complaint must always be material fact exists:
proved: 1) Affidavits made on personal knowledge;
1) Declaration of nullity of marriage; 2) Depositions of the adverse or a 3rd
2) Annulment of marriage; party; (Rule 23) 148
3) Legal separation. 3) Admissions of the adverse party; (Rule
CIVIL PROCEDURE
 By moving for judgment on the pleadings, 26)
the plaintiff waives his claim for unliquidated 4) Answers to interrogatories. (Rule 25)
damages (because claims for such
damages must be alleged and proved). H. Partial Summary Judgment
 One who prays for the judgment on the
pleadings without offering proof as to the
truth of his own allegations and without
 Applies when for some reason there can be
giving the opposing party an opportunity to
no full summary judgment. Trial should deal
introduce evidence,
only with the facts not yet specified or
 must be understood to admit all material and
established. The court shall direct further
relevant allegations of the opposing party
proceedings in the action as are just.
and to rest his motion for judgment upon
 Effect of partial summary judgment: A partial
those allegations taken together with such of
summary judgment is not a final judgment,
his own as are admitted in the pleadings.
but merely a pre-trial adjudication that said
[Falcasantos v. How Suy Ching]
issues in the case shall be deemed
established for the trial of the case.
G. Summary Judgments [Guevarra v. CA (1983)]
 Definition: A judgment granted by the court Summary Judgment on Judgment by

for the prompt disposition of civil actions, if it judgment the pleadings default
clearly appears that there exists no genuine Based on the Based solely Based on the
issue/controversy as to any material fact, pleadings, upon the complaint and
except as to the amount of damages. depositions, pleadings evidence, if
admissions and court requires its
 Also called accelerated judgment. affidavits presentation
 GENUINE ISSUE – An issue of fact which There is no The answer No issues as no
calls for the presentation of evidence; as genuine issue fails to tender answer is filed
distinguished from an issue which is sham, between the an issue or by the defending
fictitious, contrived and patently insubstantial parties there is an party
so as not to constitute a genuine issue for admission of
trial. the material
 When the facts as pleaded appear allegations
uncontested or undisputed, then there is no Available to Generally Available to the
both plaintiff available only plaintiff alone
real/genuine issue as to the facts.
and defendant to the plaintiff,
 The TC cannot motu propio issue a unless the
summary judgment. A party must move for defendant
summary judgment. presents a
counterclaim
Who may file motion When
for summary 10-day notice 3-day notice 3-day notice rule
judgment required required applies
Plaintiff May file the motion only May be On the merits On the merits
after the answer has interlocutory or
been served on the merits
Defendant May file the motion any Usually Available in any Available in any
time available in action, except action, except
actions to annulment of annulment of
 Filing of a motion for summary judgment recover a debt, marriage or marriage or legal
does not interrupt the running of the period or for a legal separation separation
liquidated sum cases cases
for filing an answer. Hence, the movant must
of money, or for
also file a Motion for Extension of Time to declaratory
File Answer. relief
VII. Modes of Discovery  Exception:

 The exceptions however to the
A. DEPOSITIONS UNDER RULE 23 inadmissibility of such deposition are
B. DEPOSITIONS BEFORE ACTION UNDER provided for in Rule 23, Section 4, as
RULE 24 follows:
C. DEPOSITIONS PENDING APPEAL UNDER 1) Any deposition may be used by any party for 149
RULE 24 the purpose of contradicting or impeaching
CIVIL PROCEDURE
D. RULE 23 APPLIES ON THE MANNER OR the testimony of deponent as a witness;
CONDUCT OF THE DEPOSITION 2) The deposition of a party or of any one who
E. REQUEST FOR ADMISSION UNDER RULE 26
F. PRODUCTION OR INSPECTION OF
at the time of taking the deposition was an
DOCUMENTS OR THINGS officer, director, or managing agent of a
G. PHYSICAL AND MENTAL EXAMINATION OF A public or private corporation, partnership, or
PARTY UNDER RULE 28 association which is a party may be used by
H. CONSEQUENCES OF REFUSAL UNDER RULE an adverse party for any purpose;
29 3) The deposition of a witness, whether or not
a party, may be used by any party for any
A. Depositions Under Rule 23 purpose if the court finds:
a) that the witness is dead; or
1. GENERAL RULES
b) that the witness resides at a distance
more than one hundred (100) kilometers
 PRIMARY FUNCTION OF A DEPOSITION
from the place of trial or hearing, or is
–
out of the Philippines, unless it appears
 Deposition is chiefly a mode of discovery,
that his absence was procured by the
the primary function of which is to
party offering the deposition; or
supplement the pleadings for the purpose of
c) that the witness is unable to attend to
disclosing the real points of dispute between
testify because of age, sickness,
the parties and affording an adequate
infirmity, or imprisonment; or
factual basis during the preparation for trial.
d) that the party offering the deposition has
 The liberty of a party to avail of such modes
been unable to procure the attendance
of discovery is unrestricted if the matters
of the witness by subpoena; or
inquired into are relevant and not privileged,
e) upon application and notice, that such
and the inquiry is made in good faith and
exceptional circumstances exist as
within the bounds of the law.
to make it desirable, in the interest of
 Limitations would arise if the examination is
justice and with due regard to the
conducted in bad faith; or in such a manner
importance of presenting the testimony
as to annoy, embarrass or oppress the
of witnesses orally in open court, to
person under examination; or when the
allow the deposition to be used; and
inquiry touches upon the irrelevant or
4) If only part of a deposition is offered in
encroaches upon the recognized domains of
evidence by a party, the adverse party may
privilege.
require him to introduce all of it which is
 Under certain conditions and for certain
relevant to the part introduced, and any
limited purposes, it may be taken even after
party may introduce any other parts.
trial has commenced and may be used
without the deponent being actually called to
 BEFORE WHOM TAKEN
the witness stand. [Jonathan Landoil v
 General Rule: Depositions may be taken
Mangudadatu (2006)
before any judge, notary public, or the
person referred to in section 14 (which
 General Rule:
refers to any person authorized to
 A deposition is not generally supposed
administer oaths designated by the parties
to be a substitute for the actual
by stipulation).
testimony in open court of a party or
 Exceptions: In our jurisdiction, depositions
witness.
in foreign countries may be taken:
 If the witness is available to testify, he
 on notice before a secretary of embassy
should be presented in court to testify.
or legation, consul general, consul, vice
 If available to testify, a party’s or consul, or consular agent of the
witness’ deposition is inadmissible in Republic of the Philippines;
evidence for being hearsay.
 before such person or officer as may be
[Dasmariñas Garments,Inc. v. Reyes
appointed by commission or under
(1993)]
letters rogatory; or
 before any person authorized to purpose makes the deponent the witness of
administer oaths as stipulated in writing the party introducing the deposition.
by the parties.  Exception: if the purpose if to contradict or
impeach the deponent.
COMMISSION LETTERS  ONLY INSTANCE WHEN ONE ALWAYS
ROGATORY NEEDS LEAVE OF COURT BEFORE 150
 Addressed Any authority in a A judicial TAKING DEPOSITIONS: Where the
CIVIL PROCEDURE
to whom foreign country authority in the deponent is in jail.
authorized foreign country  DEPOSITION, WHEN AVAILABLE IN
therein to take
CRIMINAL CASES: A deposition, in
down depositions
 Rules that Rules laid down Rules laid
keeping with its nature as a mode of
govern the by the court down by such discovery, should be taken BEFORE AND
deposition issuing the foreign judicial NOT DURING TRIAL.
commission authority  In fact, rules on criminal practice -
 When Preferred over Generally particularly on the defense of alibi,
issued letters rogatory resorted to which is respondent’s main defense in
since the when there is the criminal proceedings against him in
process is difficulty or the court below - states that when a
simpler impossibility of
person intends to rely on such a
(generally, no obtaining the
need to resort to deposition by
defense, that person must move for the
diplomatic commission (J. taking of the deposition of his witnesses
channels unlike Regalado) within the time provided for filing a pre-
in letters trial motion.
rogatory)  The use of discovery procedure in
criminal cases is directed to the sound
 No deposition shall be taken before a discretion of the trial judge.
person who is:  The deposition taking cannot be based
 a relative within the sixth degree of nor can it be denied on flimsy reasons.
consanguinity or affinity, or Discretion has to be exercised in a
 employee or counsel of any of the reasonable manner and in consonance
parties, or who is a relative within the with the spirit of the law. [People v.
same degree, or employee of such Hubert Webb (1999)]
counsel; or
 who is financially interested in the GROUNDS FOR QUESTIONING THE DEPOSITION
action. BEFORE DURING AFTER
DEPOSITION DEPOSITION DEPOSITION
2. OTHER RULES -Lack of notice -Deposition -Manner of
to parties officer is preparing the
-Deposition disqualified deposition
 RULE 23 Section 5. Effect of substitution of officer is -Error in the
parties. disqualified manner of
 Substitution of parties does not affect -Lack of taking the
the right to use depositions previously relevance, deposition
taken; materiality and -Error in the
 and, when an action has been competence of form of the
dismissed and another action involving the deposition deposition
to the action
the same subject is afterward brought
between the same parties or their
representatives or successors in  DASMARINAS GARMENTS VS. REYES
interest, (1993): Any deposition offered to prove the
facts therein at the trial of the case, in lieu of
 all depositions lawfully taken and duly
actual testimony of the deponent in court,
filed in the former action MAY BE USED
may be opposed and excluded for being
IN THE LATTER AS IF ORIGINALLY
hearsay save in specific instances under the
TAKEN THEREFOR.
Rules. [Dasmariñas Garments v. Reyes
 A party shall not be deemed to make a
(1993)]
person his own witness for any purpose by
taking his deposition (Section 7).
 General Rule: Introduction in evidence of
deposition or any part thereof for any
B. Depositions Before Action Under

Rule 24 4. DESIGNATING OR DESCRIBING THE
PERSONS WHOSE DEPOSITION MAY BE
 Purpose: To perpetuate the testimony of TAKEN AND SPECIFYING THE SUBJECT
witnesses for probable use in the event of MATTER OF THE EXAMINATION AND
further proceedings in said court.
151
5. WHETHER THE DEPOSITIONS SHALL BE

CIVIL PROCEDURE
Procedure: TAKEN UPON ORAL EXAMINATION OR
WRITTEN INTERROGATORIES
1. FILE A VERIFIED PETITION IN THE
COURT OF THE PLACE OF THE  Procedure for taking deposition by oral
RESIDENCE OF ANY EXPECTED examination or written interrogatories will be
ADVERSE PARTY. THE PETITION SHALL governed by Rule 23 on depositions de
BE ENTITLED IN THE NAME OF THE bene esse.
PETITIONER AND SHALL SHOW:
a) that the petitioner expects to be a party C. Depositions Pending Appeal Under

to an action in a court of the Philippines Rule 24
but is presently unable to bring it or
cause it to be brought;  J. Regalado believes that the following
b) the subject matter of the expected procedure is applicable to civil and criminal
action and his interest therein; cases.
c) the facts which he desires to establish  Procedure:
by the proposed testimony and his
reasons for desiring to perpetuate it; 1. DURING THE PENDENCY OF AN
d) the names or a description of the APPEAL, THE COURT IN WHICH THE
persons he expects will be adverse JUDGMENT WAS RENDERED
parties and their addresses so far as  may allow the taking of depositions of
known; and witnesses to perpetuate their testimony
e) the names and addresses of the in the event of further proceedings in the
persons to be examined and the said court.
substance of the testimony which he  In such case the party who desires to
expects to elicit from each, and shall ask perpetuate the testimony may make a
for an order authorizing the petitioner to motion in the said court for leave to take
take the depositions of the persons to the depositions, upon the same notice
be examined named in the petition for and service thereof as if the action was
the purpose of perpetuating their pending therein.
testimony.  The motion shall state:
 (a) the names and addresses of the
2. NOTICE AND SERVICE TO EACH persons to be examined and the
PERSON NAMED IN THE PETITION AS substance of the testimony which he
AN EXPECTED ADVERSE PARTY, expects to elicit from each, and
TOGETHER WITH A COPY OF THE  (b) the reason for perpetuating their
PETITION, STATING THAT: testimony
 the petitioner will apply to the court, at a
time and place named therein, for the 2. ORDER ALLOWING THE DEPOSITION:
order described in the petition.  If the court finds that the perpetuation of
 At least twenty (20) days before the date the testimony is proper to avoid a failure
of the hearing, the court shall cause or delay of justice, it may make an order
notice thereof to be served on the allowing the deposition to be taken.
parties and prospective deponents in
the manner provided for service of
D. Rule 23 Applies on the Manner or
summons.
Conduct of the Deposition
3. ORDER AND EXAMINATION: 1. INTERROGATORIES TO PARTIES UNDER
 If the court is satisfied that the RULE 25
perpetuation of the testimony may  Procedure:
prevent a failure or delay of justice, it  By leave of court after jurisdiction has been
shall make an order obtained over any defendant or over
property which is the subject of the action, adverse party to give testimony in open
or court, or
 Without such leave after an answer has  to give a deposition pending appeal unless
been served, thereafter allowed by the court for good
 any party desiring to elicit material and cause shown and to prevent a failure of
relevant facts from any adverse parties justice. (RULE 25, section 6) 152
shall file and serve upon the latter
CIVIL PROCEDURE
written interrogatories to be answered 8. CONSEQUENCES OF REFUSAL TO
by the party served or, ANSWER THE SET OF
 if the party served is a public or private INTERROGATORIES:
corporation or a partnership or  The party serving the interrogatories may
association, by any officer thereof apply to the court for an order to compel an
competent to testify in its behalf. answer.
 If it also finds that the refusal to answer
2. ANSWER. was without substantial justification, it
 The interrogatories shall be ANSWERED may require the refusing party or
FULLY IN WRITING and shall be SIGNED deponent or the counsel advising the
AND SWORN TO BY THE PERSON refusal, or both of them, TO PAY THE
MAKING THEM. PROPONENT THE AMOUNT OF THE
 The party upon whom the interrogatories REASONABLE EXPENSES
have been served shall file and serve a copy INCURRED IN OBTAINING THE
of the answers on the party submitting the ORDER, INCLUDING ATTORNEY'S
interrogatories within fifteen (15) days after FEES (Rule 29, section 1).
service thereof unless the court on motion  CONTEMPT for refusal to comply with
and for good cause shown, extends or an order of the court to compel an
shortens the time. answer
 Subject of discovery DEEMED
3. ANSWER DEFERRED ADMITTED OR ESTABLISHED (RULE
 When objections to any interrogatories is 29 SECTION 3a).
presented to the court within ten (10) days  Party prohibited from introducing
after service thereof, with notice as in case CONTRADICTORY EVIDENCE (RULE
of a motion. 29, SECTION 3b)
4. NUMBER OF INTERROGATORIES.  STRIKING OUT PLEADINGS OR
 No party may, without leave of court, serve PARTS THEREOF (RULE 29,
more than one set of interrogatories to be SECTION 3c)
answered by the same party (Section 4,  STAYING FURTHER PROCEEDINGS
Rule 23). UNTIL THE ORDER IS OBEYED, or
DISMISSING THE ACTION OR
5. SCOPE OF INTERROGATORIES: PROCEEDING OR ANY PART
 Any matter, THEREOF(RULE 29, SECTION 3c), or
 not privileged and which is  RENDERING A JUDGMENT BY
 relevant to the subject of the pending DEFAULT AGAINST THE
action, whether relating to the claim or DISOBEDIENT PARTY; AND (RULE
defense of any other party, including the 29, SECTION 3c)
existence, description, nature, custody,  In lieu of any of the foregoing orders or in
condition, and location of any books, addition thereto, an order directing the arrest
documents, or other tangible things and of any party or agent of a party for
the identity and location of persons disobeying any of such orders (RULE 29,
having knowledge of relevant facts SECTION 3c)
6. USE OF INTERROGATORIES: E. Request for Admission Under Rule 26

 Same as Rule 23 Section 4 mutatis
mutandis. 1. AT ANY TIME AFTER ISSUES HAVE BEEN
JOINED, A PARTY MAY FILE AND SERVE
7. CONSEQUENCE OF FAILURE TO SERVE UPON ANY OTHER PARTY MAY FILE
WRITTEN INTERROGATORIES. AND SERVE UPON ANY OTHER PARTY A
 A party not served with written WRITTEN REQUEST FOR THE
interrogatories may not be compelled by the ADMISSION BY THE LATTER OF
 The genuineness of any material and OUGHT TO BE, WITHIN THE PERSONAL
relevant document described in and KNOWLEDGE OF THE LATTER,
exhibited with the request or  shall not be permitted to present
 the truth of any material and relevant matter evidence on such facts.
of fact set forth in the request.  The request for admission MUST BE
SERVED ON THE PARTY and NOT ON 153
2. EACH OF THE MATTERS OF WHICH AN THE COUNSEL.
CIVIL PROCEDURE
ADMISSION IS REQUESTED SHALL BE  This is an exception to the general rule that
DEEMED ADMITTED UNLESS, notices shall be served upon counsel and
 within a period designated in the request, not upon the party. [Duque v. CA (2002)]
which shall not be less than fifteen (15) days
after service thereof, or within such further F. Production or Inspection of
time as the court may allow on motion, Documents or Things
 the party to whom the request is directed
files and serves upon the party requesting  This mode of discovery does not mean that
the admission a SWORN STATEMENT the person who is required to produce the
either document or the thing will be deprived of its
 denying specifically the matters of which possession even temporarily.
an admission is requested or  It is enough that the requesting party be
given the opportunity to inspect or copy or
 setting forth in detail the reasons why he
photograph the document or take a look at
cannot truthfully either admit or deny
the thing. (Regalado). (Asked in the 2002
those matters.
Bar Exam)
3. OBJECTIONS TO ANY REQUEST FOR
ADMISSION SHALL BE: G. Physical and Mental Examination of a
 Submitted to the court by the party Party Under Rule 28
requested  Procedure:
 within the period for and prior to the filing of
his sworn statement as contemplated in the 1. MOTION FOR THE ISSUANCE OF AN
preceding paragraph and ORDER FOR EXAMINATION, REQUISITES
 his compliance therewith shall be deferred  the lis mota of the case is the physical
until such objections are resolved, which or mental condition of a party (NOT A
resolution shall be made as early as WITNESS!!!)
practicable.  good cause
 notice to the party to be examined
4. EFFECT OF ADMISSION.  must specify physician
 Any admission made by a party pursuant to
 scope of examination
such request is for the purpose of the
pending action only and shall not constitute
2. COURT IN WHICH THE ACTION IS
an admission by him for any other purpose
PENDING MAY IN ITS DISCRETION
nor may the same be used against him in
ISSUE THE ORDER FOR EXAMINATION.
any other proceeding.
3. REPORT OF FINDINGS.
5. WITHDRAWAL. THE COURT MAY ALLOW
 If requested by the party examined, the
THE PARTY MAKING AN ADMISSION
party causing the examination to be made
UNDER THE RULE, WHETHER EXPRESS
shall deliver to him a copy of a detailed
OR IMPLIED, TO WITHDRAW OR AMEND
written report of the examining physician
IT UPON SUCH TERMS AS MAY BE JUST.
setting out his findings and conclusions.
 After such request and delivery, the party
6. EFFECT OF FAILURE TO FILE AND
causing the examination to be made shall be
SERVE REQUEST FOR ADMISSION.
entitled upon request to receive from the
UNLESS OTHERWISE ALLOWED BY THE
party examined a like report of any
COURT FOR:
examination, previously or thereafter made,
 good cause shown and
of the same mental or physical condition.
 to prevent a failure of justice, a party who
 If the party examined refuses to deliver such
fails to file and serve a request for admission
report, the court on motion and notice may
on the adverse party of material and
make an order requiring delivery on such
relevant facts at issue which ARE, OR
terms as are just, and if a physician fails or
refuses to make such a report the court may  Possibility of obtaining stipulations or
exclude his testimony if offered at the trial. admissions of facts and of documents to
avoid unnecessary proof;
4. WAIVER OF PRIVILEGE.  Limitation of the number of witnesses;
 By requesting and obtaining a report of the  Advisability of a preliminary reference of
examination so ordered or by taking the issues to a commissioner; 154
deposition of the examiner,  Propriety of rendering judgment on the
CIVIL PROCEDURE
 the party examined waives any privilege he pleadings, or summary judgment, or of
may have in that action or any other dismissing the action should a valid
involving the same controversy, ground therefor be found to exist;
 regarding the testimony of every other  Advisability/ecessity of suspending the
person who has examined or may thereafter proceedings; and
examine him in respect of the same mental  Other matters that may aid in the prompt
or physical examination. disposition of the action.
5. PHYSICIAN-PATIENT PRIVILEGE,  Pre-trial is primarily intended to make certain
 Inapplicable because the results of the that all issues necessary to the disposition of
examination are intended to be made public. a case are properly raised.
 Such examination is not necessary to treat  Thus, to obviate the element of surprise,
or cure the patient but to assess the extent parties are expected to disclose at a pre-trial
of injury or to evaluate his physic al or conference (PTC) all issues of law and fact
mental condition. which they intend to raise at the trial, except
such as may involve privileged or
H. Consequences of Refusal Under Rule impeaching matters. The determination of
29 issues at a pre-trial conference bars the
(SEE APPENDIX 3) consideration of other questions on appeal.
[Caltex v. CA (1992)]
 When conducted: After the last pleading has
VIII. Pre-Trial been served and filed, it shall be the
plaintiff’s duty to move ex parte that the case
A. NOTICE OF PRE-TRIAL be set for pre-trial. [Rule 18, Sec. 1]
B. APPEARANCE OF PARTIES  A pre-trial cannot validly be held until the
C. PRE-TRIAL BRIEF last pleading has been filed, which last
D. RECORD OF PRE-TRIAL pleading may be the plaintiff's reply, except
E. CALENDAR OF CASES where the period to file the last pleading has
lapsed.
 Definition:  Discretion to declare a party non-suited in
 A mandatory conference and personal PTC must not be abused. Unless a party is
confrontation before the judge between so negligent, irresponsible, contumacious, or
the parties litigant and their dilatory as to provide substantial grounds for
representative counsels, dismissal for non-appearance, the court
 called by the court after the joinder of should consider lesser sanctions which
issues in a case or after the last would still amount to achieving the end
pleading has been filed and before trial, desired. [Calalang v. CA (1993)]
 for the purpose of settling the litigation
expeditiously or simplifying the issues A. Notice of Pre-Trial
without sacrificing the necessary
demands of justice (Asked in the 1999 [Rule 18, Sec. 3]
Bar Examination, Examiner asked to
compare this with proceedings in the  Notice of pre-trial shall be served on
Katarungang Pambarangay). counsel, or on the party who has no
counsel.
 Purpose: To consider: [Rule 18, Sec. 2]  Counsel served with such notice has a duty
 Possibility of an amicable settlement or to notify the party he represents.
of a submission to alternative modes of
dispute resolution; B. Appearance of Parties
 Simplification of the issues; [Rule 18, Sec. 4]
 Necessity/desirability of amendments to
the pleadings;
 It is the duty of the parties and their counsel

to appear at the pre-trial. D. Record of Pre-Trial
 A party’s non-appearance may be excused
[Rule 18, Sec. 7]
only if either:
1) Valid cause is shown for it;
 The pre-trial proceedings shall be recorded.
2) A representative appears in his behalf,
Upon termination of such proceedings, the
155
fully authorized in writing:
CIVIL PROCEDURE
court shall issue the pre-trial order.
a) To enter into an amicable
 Pre-trial order’s contents:
settlement;
1) Matters taken up in the conference;
b) To submit to alternative modes of
2) Action taken thereon;
dispute resolution;
3) Amendments allowed on the pleadings;
c) To enter into stipulations/admissions
4) Agreements/admissions made by the
of facts and of documents.
parties as to any matters considered;
 Note: See the section on default for the
5) Should the action proceed to trial, the
effects of failure to appear in the pre-trial.
explicit definition and limit of the issues
 SC admonishes the courts against
to be tried.
precipitate orders of default as they have the
 Consequence: The contents of the order
effect of denying the party the chance to be
shall control the subsequent course of the
heard.
action, unless modified before trial to
 There are instances when parties may
prevent manifest injustice.
properly be defaulted, but such is the
 Upon manifestation of the parties of their
exception rather than the rule and should be
willingness to discuss a compromise, the TC
used only in clear cases of obstinate refusal
should order the suspension of the
or inordinate neglect to comply with court
proceedings to allow them reasonable time
orders. [Citibank v. Chua (1993)]
to discuss and conclude an amicable
settlement.
C. Pre-Trial Brief  If despite all efforts exerted by the TC and
[Rule 18, Sec. 6] the parties the settlement conference still
fails, then the action should have continued
 Parties shall file and serve their respective as if no suspension had taken place.
pre-trial briefs, ensuring receipt by adverse [Goldloop Properties v. CA (1992)]
party at least 3 days before the date of the
pre-trial.  Note: AM 03-1-09-SC
 Pre-trial brief’s contents (Asked in the 2001
Bar Exam): E. Calendar of Cases
1) Statement of their willingness to enter
 Under the direct supervision of the judge,
into amicable settlement or alternative
the clerk of court shall keep a calendar of
modes of dispute resolution, indicating
cases for pre-trial, for trial, those whose
the desired terms thereof;
trials were adjourned/postponed, and those
2) Summary of admitted facts and
with motions to set for hearing. [Rule 20,
proposed stipulation of facts;
Sec. 1]
3) Issues to be tried/resolved;
 Preference shall be given to habeas corpus
4) Documents/exhibits to be presented,
cases, election cases, special civil actions,
stating the purpose thereof;
and those so required by law. [Rule 20, Sec.
5) Manifestation of their having availed or
1]
their intention to avail themselves of
 The assignment of cases to the different
discovery procedures or referral to
branches of a court shall be done
commissioners;
exclusively by raffle. The assignment shall
6) Number and names of the witnesses,
be done in open session of which adequate
and the substance of their respective
notice shall be given so as to afford
testimonies.
interested parties the opportunity to be
 Failure to file the pre-trial brief shall have the
present. [Rule 20, Sec. 2]
same effect as failure to appear at the pre-
trial.
IX. Trial C. Subpoena
A. NOTICE OF TRIAL 1. TYPES OF SUBPOENA [RULE 21, SEC. 1]

B. ADJOURNMENTS AND POSTPONEMENT  SUBPOENA AD TESTIFICANDUM -
Process directed to a person, requiring him
C.
D.
SUBPOENA
CONDUCT OF TRIAL to attend and to testify at the hearing/trial of
156
E. GENERAL ORDER OF TRIAL an action or at any investigation conducted
CIVIL PROCEDURE
F. AGREED STATEMENT OF FACTS by competent authority, or for the taking of
G. STATEMENT OF THE JUDGE his deposition.
H. SUSPENSION OF ACTIONS  SUBPOENA DUCES TECUM – Process
I. RECEPTION OF EVIDENCE
J. TRIAL BY COMMISSIONER
directed to a person, requiring him to bring
K. CONSOLIDATION AND SEVERANCE with him any books/documents/things under
L. DEMURRER TO EVIDENCE his control. (Asked in the 1997 Bar Exam)
2. BY WHOM ISSUED [RULE 21, SEC. 2]

 The court before whom the witness is
A. Notice of Trial
required to attend;
[Rule 30, Sec. 1]  The court of the place where the deposition
is to be taken;
 Upon entry of a case in the trial calendar,  The officer/body authorized by law to do so
the clerk shall notify parties the date of its in connection with investigations conducted
trial, ensuring receipt of the notice at least 5 by said officer/body;
days before the trial date.  Any SC/CA Justice in any case or
investigation pending within the Philippines.
B. Adjournments and Postponement
[Rule 30, Sec. 2] 3. APPLICATION FOR SUBPOENA TO
PRISONER [RULE 21, SEC. 2]
 General rule: The court may adjourn a trial  The judge/officer shall examine and study
from day to day to any stated time, as the the application carefully to determine WON it
expeditious and convenient transaction of is made for a valid purpose.
business may require.  However, no prisoner sentenced to death,
 Exception: Court may not adjourn for longer reclusion perpetua or life imprisonment and
than 1 month for each adjournment, nor who is confined in a penal institution shall be
more than 3 months in all. brought outside for appearance/attendance
 Exception to exception: When authorized in any court unless authorized by the SC.
in writing by the SC Court Administrator.
4. SUBPOENA’S FORM AND CONTENTS
Ground for Requisite for motion to [RULE 21, SEC. 3]
postponement of postpone  Name of court;
trial  Title of action/investigation;
For absence of Affidavit showing:  Directed to a person whose attendance is
evidence [Rule 30, 1) The materiality/relevancy of required
Sec. 3] such evidence;  If subpoena duces tecum, a reasonable
2) That due diligence has been description of the books/documents/things
used to procure the evidence demanded which must appear to the court
But if the adverse party admits
prima facie relevant.
the facts to be given in
evidence, trial shall not be 5. QUASHING A SUBPOENA [RULE 21, SEC.
postponed even if he objects or 4]
reserves the right to object to  Upon motion promptly made, at/before the
their admissibility. time specified in the subpoena.
For illness of Affidavit or sworn certification:  Grounds for quashing:
party/counsel [Rule 1) That the presence of such 1) Subpoena duces tecum:
30, Sec. 4] party/counsel at the trial is a) It is unreasonable and oppressive;
indispensable;
b) The relevancy of the
2) That the character of his
illness is such as to render his books/documents/things does not
non-attendance excusable. appear;
c) The person in whose behalf the  The cost of warrant and seizure shall be
subpoena is issued fails to advance paid by the witness if the court
the reasonable cost of production; determines that the failure to attend was
d) Witness fees and kilometrage were willful and without just excuse.
not tendered when subpoena was  Such failure shall be deemed a contempt of
served. the court which issued the subpoena. [Rule 157
2) Subpoena ad testificandum: 21, Sec. 9]
CIVIL PROCEDURE
a) That the witness is not bound  If subpoena was not issued by a court,
thereby; the disobedience shall be punished by
b) That witness fees and kilometrage applicable law or ROC.
were not tendered when the  Exception: Arrest warrant and contempt not
subpoena was served. applicable to: [Rule 21, Sec. 10]
1) A witness who resides more than 100km
6. SUBPOENA FOR DEPOSITIONS [RULE from his residence to the place where
21, SEC. 5] he is to testify.
 Proof of service of a notice to take a 2) A detention prisoner, if there is no
deposition is sufficient authorization for the permission from the court in which his
issuance of subpoena ad testificandum for case is pending.
the persons named in the notice.
 Issued by the clerk of court of the place in D. Conduct of Trial
which the deposition is to be taken.
 However, subpoena duces tecum for [Rule 30, Sec. 5]
depositions cannot be issued without court
order.  General rule: Trial shall be limited to the
issues stated in the pre-trial order.
7. SERVICE OF SUBPOENA [RULE 21, SEC.  Exception:
6] 1) Provisions on separate trials.
 Same manner as personal or substituted 2) When for special reasons the court
service of summons. directs otherwise.
 The original shall be exhibited and a copy
delivered to person on whom it is served, E. General Order of Trial
with tender of fees for one day’s attendance  Plaintiff shall adduce evidence in support of
and kilometrage. his claim;
 Exception: Tender not required if subpoena  Defendant shall adduce evidence in support
is issued by or on behalf of the Republic or of his defense, counterclaim, cross-claim
an officer/agency thereof. and 3rd-party complaint;
 For subpoena duces tecum, also tender the  3rd-party defendant (if any) shall adduce
reasonable cost of producing the evidence of his defense, counterclaim,
books/documents/things demanded. cross-claim and 4th-party complaint;
 Service must be made so as to allow the  4th-party (and so forth) shall adduce
witness reasonable time for preparation and evidence of the material facts pleaded by
travel to the place of attendance them;
 Parties whom any counterclaim or cross-
8. PERSONAL APPEARANCE IN COURT claim has been pleaded, shall adduce
[RULE 21, SEC. 7] evidence in support of their defense, in the
 A person present in court before a judicial order prescribed by the court.
officer may be required to testify as if he  Parties may then respectively adduce
were in attendance upon a subpoena issued rebutting evidence only.
by such court/officer.  Exception: When the court permits
them to adduce evidence upon their
9. REMEDY IN CASE OF WITNESS’ FAILURE original case, for good reasons and in
TO ATTEND furtherance of justice.
 Upon proof of service of subpoena and of  Upon admission of evidence, the case shall
witness’ failure to attend, be deemed submitted for decision, unless
 the court/judge issuing the subpoena may the court directs the parties to argue or to
issue a warrant to the sheriff to arrest the submit their respective memoranda or any
witness and bring him before the further pleadings.
court/officer where his attendance is
required. [Rule 21, Sec. 8]
 If several defendants or 3rd-party a) Trial of an issue of fact requires the

defendants having separate defenses examination of a long account on either
appear by different counsel, the court shall side
determine the relative order of presentation b) Taking of an account is necessary for
of their evidence. the court’s information before judgment,
or for carrying judgment/order into 158
F. Agreed Statement of Facts effect.
CIVIL PROCEDURE
c) A question of fact, other than upon the
[Rule 30, Sec. 6]
pleadings, arises in any stage of a case
 Parties may agree in writing upon the facts
or for carrying a judgment/order into
involved in the litigation, and submit the
effect.
case for judgment without introduction of
evidence.
2. ORDER OF REFERENCE [RULE 32, SEC.
 If the parties agree to only some of the facts
2 TO 12]
in issue, trial shall be held as to the disputed
 When a reference is made, the clerk shall
facts in such order as the court shall
furnish the commissioner with a copy of the
prescribe.
order of reference. The order may
specify/limit the commissioner’s power, and
G. Statement of the Judge may direct him to report only upon particular
[Rule 30, Sec. 7] issues, or to do/perform particular acts, or to
 During the hearing/trial of the case, any receive and report evidence only.
statement made by the judge shall be made  The commissioner shall set a time/place for
of record in the STN if made with reference the first meeting and shall notify
to the case/parties/witnesses/counsels. parties/counsels.
 Upon completion of the trial/hearing, the
H. Suspension of Actions commissioner shall file a written report with
the court.
[Rule 30, Sec. 8]  The clerk shall notify parties of the filing of
 Governed by the CC provisions. the report. The parties 10 days to object to
the report’s findings.
I. Reception of Evidence  After the 10 days, the report shall be set for
[Rule 30, Sec. 9] hearing. The court may issue an order
 General rule: The judge of the court where adopting/modifying/rejecting the report or
the case is pending shall personally receive part of it.
the evidence to be adduced by the parties.  When parties stipulate that the
 Exception: The court may delegate the Commissioner's findings of fact are final,
reception of evidence to its clerk of court only questions of law shall thereafter be
who is a member of the bar in: considered.
a) Default hearings;
b) Ex parte hearings; K. Consolidation and Severance
c) Cases where parties agree in writing.
 However, the clerk of court has no power to 1. CONSOLIDATION OF TRIAL [RULE 31,
rule on objections to any question/admission SEC. 1]
of exhibits.  When actions involving common question of
 Objections shall be resolved by the court law/fact are pending before the court, it may:
upon submission of the clerk’s report and 1) Order a joint hearing/trial of any/all the
TSN within 10 days from termination of the matters in issue in the actions;
hearing. 2) Order all the actions consolidated;
3) Make such orders concerning the
J. Trial by Commissioner proceedings as to avoid unnecessary
costs or delay.
 COMMISSIONER – Includes a referee, an  Where a case has been partially tried before
auditor or an examiner. [Rule 32, Sec. 1] one judge, the consolidation of the same
with another related case pending before
1. KINDS OF TRIAL BY COMMISSIONER another judge who had no opportunity to
[RULE 32, SEC. 1 AND 2] observe the demeanor of the witness during
 Reference by consent of both parties. trial makes the consolidation not mandatory.
 Reference ordered on motion when: [PCGG v. Sandiganbayan (1992)]
Effect If a MTD is granted,

2. SEVERANCE OF TRIAL [RULE 31, SEC. 2] the complaint is
 The court may issue separate trials for likewise dismissed.
convenience or to avoid prejudice: But, depending on
the ground, the
1) Of any claim, cross-claim, counterclaim complaint may be re-
or 3rd-party complaint; filed 159
2) Of any separate issue;
CIVIL PROCEDURE
3) Of any number of claims, cross-claims, If the MTD is denied,
counterclaims, 3rd-party complaints or the defendant shall
issues. file his responsive
pleading
L. Demurrer to Evidence
DIFFERENCES BETWEEN DEMURRER IN CIVIL
 Definition: A specie of MTD that may be AND CRIMINAL CASES
invoked based on insufficiency of evidence (Asked in the 2003 and 2007 Bar Exams)
(i.e. upon the facts and the law the plaintiff Demurrer in civil cases Demurrer in criminal
has shown no right to relief). [Rule 33, Sec. cases
1] Defendant need not ask May be filed with or
 It is invoked after the plaintiff has presented for leave of court without leave of court.
all the evidence available to him.
Leave of court is
necessary so that the
Grant of demurrer Denial of demurrer
accused can present his
The case shall be The court should set the evidence in case the
dismissed date for the reception of demurrer is denied
the defendant’s
evidence-in-chief If the demurrer was
[Northwest Airlines v. CA] without leave, the
Plaintiff's remedy would xxx accused can no longer
be to appeal. present his evidence; the
case is deemed
However, if the order submitted for decision
granting the demurrer is based on prosecution’s
reversed on appeal, the evidence
defendant loses his right [Rule 119, Sec.23]
to present evidence. If the demurrer is The order of dismissal is
[Rule 33, Sec .1; granted, the order of not appealable because it
Republic v. Tuvera] dismissal is appealable will constitute double
jeopardy
The appellate court
should render judgment
on the basis of the X. Judgments, Final Orders and Entry of
evidence submitted by Judgment
the plaintiff. [Radiowealth
Finance v. Del Rosario]X
A. PARTS OF A JUDGMENT
Equivalent to judgment An interlocutory order B. DISTINCTION BETWEEN JUDGMENT AND
(i.e. based on the merits and not appealable. OPINION OF THE COURT
of the evidence However, it may be the C. REQUISITES OF A VALID JUDGMENT
presented so far) subject of a petition for D. INTERPRETATION OF THE JUDGMENT
certiorari for GAD under E. KINDS OF JUDGMENT
Rule 65 [Katigbak v. F. AMENDMENTS TO JUDGMENT
Sandiganbayan] G. ENTRY OF JUDGMENTS AND FINAL ORDERS
MTD Demurrer  JUDGMENT - The final ruling by a court of

When to Before the service After the plaintiff competent jurisdiction regarding the rights
File and filing of the rests his case and obligations of the parties or other
answer matters submitted to it in an
Ground Those enumerated Only ground: The action/proceeding.
in Rule 16 plaintiff has
shown no right to
relief (i.e.
A. Parts of a Judgment
evidence is  OPINION OF THE COURT - It contains the
insufficient) findings of facts and conclusions of law;
 DISPOSITION OF THE CASE – The final D. Interpretation of the Judgment

and actual disposition of the rights litigated
 Where the judgment is difficult to execute
(i.e. the dispositive part);
because of ambiguity in its terms, the
 Signature of the judge.
remedy of the party is to file a motion for
clarificatory judgment and not to assail the
B. Distinction Between Judgment and judgment as void.
160
Opinion of the Court  Where there is a conflict between the body
CIVIL PROCEDURE
(Asked in the 2006 Bar Exam) and the dispositive portion (fallo) of the
 A judgment (or FALLO) must be decision, the dispositive portion controls.
distinguished from an opinion.  Exception: Where the inevitable conclusion
 The latter is the informal expression of the from the body of the decision is so clear that
views of the court and cannot prevail against there was a mistake in the dispositive
its final order or decision. portion, the body of the decision will prevail.
 While the two may be combined in one [Poland Industrial v. National Dev’t Co.]
instrument, the opinion forms no part of the
judgment. E. Kinds of Judgment
 So ... there is a distinction between the
findings and conclusions of a court and its 1. JUDGMENT UPON COMPROMISE –
judgment.  It is one conferred on the basis of a
 While they may constitute its decision and compromise agreement entered into
amount to a rendition of a judgment they are between the parties.
not the judgment itself.  It is immediately executory in the absence of
 They amount to nothing more than an order a motion to set aside on the ground of
for judgment, which, of course, must be FAME.
distinguished from the judgment. (Freeman
on Judgments, Vol. I, 5th Edition, page 6, 2. JUDGMENT UPON CONFESSION –
quoted in Casilan vs. Salcedo, 1969)  It is one rendered by the court when a party
expressly agrees to the other party’s claim
C. Requisites of a Valid Judgment or acknowledges the validity of the claim
[Rule 36, Sec. 1; Art. 8, Sec. 14, 1987 against him.
Constitution]
a. Court/tribunal must be with authority to hear Judgment upon Judgment by
and determine the matter before it; compromise confession
b. Court must have jurisdiction over the parties The provisions and An affirmative and
and the subject matter; terms are settled by voluntary act of the
c. Parties must have been given an opportunity the parties to the defendant himself. The
to adduce evidence in their behalf; action. The judgment court exercises a
d. Evidence must have been considered by the is entered in the record certain amount of
tribunal in deciding the case; [Acosta v. by consent of the supervision over the
COMELEC] court. entry of judgment.
e. Judgment must be in writing, personally and
directly prepared by the judge;
f. A verbal judgment is, under the law,  Kinds of judgment by confession:
ineffective. [Corpus v. Sandiganbayan] a. JUDGMENT BY COGNOVIT
g. Judgment must state clearly the facts and ACTIONEM – After service, the
the law upon which the decision is based, defendant, instead of entering a plea,
signed by the judge and filed with the clerk acknowledged and confessed that the
of court. plaintiff’s cause of action was just and
rightful.
 A decision need not be a complete recital of b. JUDGMENT BY CONFESSION
the evidence presented. So long as the RELICTA VERIFICATIONE – After
factual and legal bases are distinctly and pleading and before trial, the defendant
clearly set forth, the judgment is valid. [Chan both: (a) confessed the plaintiff’s cause
v. CA] of action and (b) withdrew his plea or
other allegations, whereupon judgment
was entered against him without
proceeding to trial.
 Remedy against judgment by consent,  The court may stay its enforcement until
confession or compromise is to first file rendition of subsequent judgments, and
a motion to set it aside; if denied, file the may prescribe conditions to secure the
appropriate petition under Rule 65. judgment’s benefits.
3. JUDGMENT UPON THE MERITS –  Judgment may be given for/against one or 161
 It is one that is rendered after consideration more of several plaintiffs/defendants. The
CIVIL PROCEDURE
of the evidence submitted by the parties court may require the parties on each side to
during the trial of the case. file adversary pleadings as between
themselves. [Rule 36, Sec. 3]
4. CLARIFICATORY JUDGMENT –  If judgment is rendered against 2 or more
 It is rendered to clarify an ambiguous persons sued as an entity without juridical
judgment or one difficult to comply with. personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec.
5. JUDGMENT NON PRO TUNC – 6]
 Literally, “now for then”. It is a judgment
intended to enter into the record the acts 10. PROMULGATION –
which had already been done, but which do  The process by which a decision is
not appear in the records. published, officially announced, made
known to the public or delivered to the clerk
6. JUDGMENT SIN PERJUICIO – of court for filing, coupled with notice to the
 It may refer to a dismissal of a case without parties or their counsel.
prejudice to it being re-filed.
11. MEMORANDUM DECISION –
7. CONDITIONAL JUDGMENT –  A decision of the appellate court which
 It is one the effectivity of which depends adopts the findings and conclusions of the
upon the occurrence or non-occurrence of TC.
an event.  A judgment is considered rendered
upon the filing of the signed decision.
8. SEVERAL JUDGMENT –  This includes an amended decision
 It is one rendered by a court against one or because an amended decision is a
more defendants and not against all of them, distinct and separate judgment and
leaving the action to proceed against the must follow the established procedural
others. [Rule 36, Sec. 4] rule.
 It is proper when the liability of each
party is clearly separate and distinct F. Amendments to Judgment
from his co-parties
(Asked in the 2008 Bar Exams)
 such that the claims against each of
 The power to amend judgments is inherent
them could have been the subject of
to the court before judgment becomes final
separate suits, and the judgment for or
and executory.
against one of them will not necessarily
 General rule: The court cannot amend the
affect the other.
judgment once it has become final and
executory.
9. SEPARATE JUDGMENT –
 Exception:
 It is one rendered disposing of a claim
1) To make corrections of clerical errors,
among several others presented in a case,
not substantial amendments, as by an
after a determination of the issues material
amendment non pro tunc;
to a particular claim and all counterclaims
2) To clarify an ambiguity which is borne
arising out of the transaction or occurrence
out by and justifiable in the context of
that is the subject matter of said claim. [Rule
the decision;
36, Sec. 5]
3) In judgments for support, which can
 It is proper when more than one claim
always be amended from time to time.
for relief is presented in an action for the
determination as to the issues material Amended/clarified judgment Supplemental
to the claim has been made. decision
 The judgment shall terminate the action An entirely new decision and Does not take the
with respect to the claims disposed of, supersedes the original place of or
and shall proceed as to the remaining judgment extinguish the
claims. original judgment
Court makes a thorough study Serves to add to

of the original judgment and the original
renders the amended and judgment XI. Execution of Judgments
clarified judgment only after
considering all the factual and A. EXECUTION AS A MATTER OF RIGHT
legal issues B. DISCRETIONARY EXECUTION 162
C. EXECUTION OF JUDGMENTS FOR MONEY
CIVIL PROCEDURE
G. Entry of Judgments and Final Orders D. EXECUTION OF JUDGMENTS FOR SPECIFIC
ACTS
[Rule 36, Sec. 2] E. EXECUTION OF SPECIAL JUDGMENTS
 If there is no appeal/MNT/MFR filed within F. GENERAL RULES GOVERNING EXECUTION
the prescribed periods, the clerk of court G. REMEDIES OF JUDGMENT CREDITOR IN AID
shall enter the judgment or final order in the OF EXECUTION
book of entries of judgments. H. ENTRY OF SATISFACTION
 Date of finality of the judgment – Date of its I. EFFECTS OF JUDGMENTS OR FINAL
entry in the book. ORDERS
 The record shall contain the judgment’s
dispositive part, shall be signed by the clerk
of court, and certified that the judgment has
become final and executor.
A. Execution as a Matter of Right
JUDGMENT OR FINAL ORDER (order

that disposes of the action or proceeding)
If no appeal has been perfected, or the If an appeal has been perfected and duly
period of appeal has expired resolv ed, there are twoways by whic h
execution can be carried out
Prevailing Party applies (by motion) for a

writ of execution, whic h is granted by the Prevailing party files a The appellate court
judge since it is a matter of right motion in the court of may, on motion in the
origin, submitting same case, when the
therewith certified true interest of justice so
copies of the judgment or requires, direct the
judgments or final order court of origin to issue
or orders sought to be the writ of execution.
enforced and of the entry
thereof, with notice to
the adverse party1.
 General rule: When the judgment or order  CONDITIONAL since as a matter of law,
becomes executory, the court cannot refuse such judgment CANNOT BE FINAL;
to issue a writ of execution  When the judgment has been
 Exceptions: The issuance of a writ of NOVATED BY THE PARTIES
execution which issues as a matter of right 1) When SUBSEQUENT FACTS AND
can be countered in any of the following CIRCUMSTANCES transpire as to
cases (R-I-N-S-E-D): render such execution unjust or
 When a PETITION FOR RELIEF or an impossible
action to enjoin judgment is filed and a 2) On EQUITABLE GROUNDS as
preliminary injunction is prayed for and when there has been a change in
granted (Rule 38.5); the situation of the parties which
 When the judgment turns out to be makes execution INEQUITABLE.
INCOMPLETE OR IS 3) When the judgment becomes
DORMANT, the 5-year period under
Rule39.6 having expired without the the injunction, receivership, accounting, or

judgment having been revived. award of support.
 General rule: An ex parte motion for the
issuance of the writ of execution would  General rule:
suffice since the trial court may take judicial  According to Rule 39, Section 6: A final
notice of the record of the case to determine and executory judgment or order may 163
the propriety of the issuance thereof. be executed on motion within five (5)
CIVIL PROCEDURE
 Exception: However when the losing party years from the date of its entry.
shows that subsequent facts had taken  After the lapse of such time, and before
place which would render the execution it is barred by the statute of limitations, a
unjust, a hearing on the motion should be judgment may be enforced by action.
held. [Luzon Surety v. Beson (1976)]  The revived judgment may also be
enforced by motion within five (5) years
 General rule: An appeal seasonably from the date of its entry and thereafter
perfected shall stay the execution of the by action before it is barred by the
judgment, unless discretionary execution is statute of limitations.
granted by the court.
 Exceptions: However, judgments in the  The maximum period within which a final
following action, despite perfection of an and executory judgment may be executed is
appeal, shall be executed, unless the court 20 years (Rule 39.6 in relation to New Civil
orders otherwise: Code provision on prescription of judgment).
 injunction  Exceptions:
 receivership  judgment for support WHICH DO NOT
 accounting BECOME DORMANT AND WHICH
 support CAN BE EXECUTED BY MOTION
 such other judgments as shall now or [Canonizado v. Benitez] except for
may hereafter be declared to be support in arrears beyond 10 years from
immediately executory the date they become due;
 contempt orders by reason of
 Judgments in these actions shall be unauthorized reentry on the land by the
enforceable after their rendition and shall ejected defendant [Azotes v. Blanco];
not, be stayed by an appeal taken  issuance of writs of possession in
therefrom, UNLESS OTHERWISE FORECLOSURE CASES within the
ORDERED BY THE TRIAL COURT. statute of limitations;
 On appeal therefrom, the appellate court in  land registration proceedings (and other
its discretion may make an order special proceedings), hence the right to
suspending, modifying, restoring or granting ask for a WRIT OF POSSESSION
THEREIN NEVER PRESCRIBES
B. Discretionary Execution
Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original record
or the record on appeal, as the case
may be. 164
CIVIL PROCEDURE
In Situat ion1, prevailing party f iles a MOTION WITH
NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situat ion2, prevailing party f iles the motion
f or execution pending appeal in the appellate court.
Discretionary execution may be

granted only f or GOOD REASONS to
be stated in a SPECIAL ORDER.
NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICI ENT SUPERSEDEAS BOND FIL ED by the party against w hom it is
directed, conditioned upon the perf ormance of the judgment or order allow ed to be executed
in case it shall be f inally sustained in w hole or in part. The bond thus given m ay be
procee ded against on motion with notice to the s ure ty
IN CASE the judgment w hich w as executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherw ise, the trial court may, on
motion, issue such orders of res titution or reparation of dam ages as
equity and justice m ay w arrant unde r the circumstances
 General rule: Under the Rule on judgment obligee, or ANY OTHER

Discretionary Execution, the court rendering FORM OF PAYMENT ACCEPTABLE
the judgment, if it still has jurisdiction, may TO THE LATTER (e.g., dacion en
exercise discretion and order execution pago), the amount of the judgment debt
pending appeal (Asked in the 2002 Bar under proper receipt directly to the
Exam). judgment obligee or his authorized 165
 Exception: This rule, however, is representative if present at the time of
CIVIL PROCEDURE
inapplicable in the case of the Court of payment.
Appeals.  The lawful fees shall be handed under
 The Rule on Discretionary Execution proper receipt to the executing sheriff
contemplates a situation where a who shall turn over the said amount
judgment or final order rendered in the within the same day to the clerk of court
exercise of its original jurisdiction and of the court that issued the writ.
the prevailing party in said decision  If the judgment obligee or his authorized
seeks immediate execution during the representative is not present to receive
pendency of an appeal. payment, the judgment obligor shall
 The CA has no authority to issue deliver the aforesaid payment to the
IMMEDIATE EXECUTION PENDING executing sheriff. The latter shall turn
APPEAL OF ITS OWN DECISIONS over all the amounts coming into his
THEREIN. possession within the same day to the
 Discretionary execution is allowed clerk of court of the court that issued the
pending appeal of judgment or final writ, or if the same is not practicable,
order of the trial court upon good deposit said amounts to a fiduciary
reasons to be stated in a e special account in the nearest government
order. depository bank of the Regional Trial
 A JUDGMENT OF THE CA CANNOT Court of the locality.
BE EXECUTED PENDING APPEAL.  The clerk of said court shall thereafter
 It is acquired either by the arrest of the arrange for the remittance of the deposit
accused or by his voluntary appearance to the account of the court that issued
in court. [Heirs of Justice J.B.L. Reyes v. the writ whose clerk of court shall then
CA (2000)] deliver said payment to the judgment
obligee in satisfaction of the judgment.
 General rule: The filing of a supersedeas  The excess, if any, shall be delivered to
bond is sufficient to stay the enforcement of the judgment obligor while the lawful
a discretionary execution. fees shall be retained by the clerk of
 Exception: However, according to J. court for disposition as provided by law.
Regalado, THE FILING OF SUPERSEDEAS In no case shall the executing sheriff
BOND does not entitle the judgment debtor demand that any payment by check be
to the suspension of execution as a made payable to him.
MATTER OF RIGHT.
 Where the needs of the prevailing party 2. SATISFACTION BY LEVY
are URGENT, the Court can order
immediate execution despite such  Nature:
SUPERSEDEAS BOND.  LEVY MEANS THE ACT OR ACTS by
which an officer sets apart or
C. Execution of Judgments for Money appropriates a part or the whole of the
property of the judgment debtor for
(asked in the 2007 Bar Exam) purposes of the prospective execution
sale [Llenares v. Vandevella (1966)].
1. IMMEDIATE PAYMENT ON DEMAND
 If susceptible of appropriation, the
officer REMOVES AND TAKES THE
 Procedure:
PROPERTY FOR SAFEKEEPING;
 The sheriff or executing officer otherwise the same is placed under
demands from the judgment obligor sheriff’s guards. Without valid levy
the immediate payment of the full having been made, ANY SALE OF THE
amount stated in the writ of execution PROPERTY THEREAFTER is void.
and all lawful fees.  Procedure:
 The judgment obligor shall pay in cash,  If the judgment obligor cannot pay all or
certified bank check payable to the part of the obligation in cash, certified
bank check or other mode of payment  The garnishee shall make a WRITTEN
acceptable to the judgment obligee, the REPORT to the court within five (5)
officer shall levy upon: days from service of the notice of
 the properties of the judgment obligor of garnishment stating whether or not the
every kind and nature whatsoever which judgment obligor has sufficient funds or
may be disposed, of for value and credits to satisfy the amount of the 166
 not otherwise exempt from execution judgment.
CIVIL PROCEDURE
 The sheriff gives the judgment obligor  If not, the report shall state how much
the option as to which of the property or funds or credits the garnishee holds for
part thereof may be levied upon, the judgment obligor
sufficient to satisfy the judgment  The garnished amount in cash, or
 If the judgment obligor does not certified bank check issued in the name
exercise the option, the officer shall first of the judgment obligee, shall BE
levy on the personal properties, if any, DELIVERED DIRECTLY TO THE
and then on the real properties if the JUDGMENT OBLIGEE within ten (10)
personal properties are insufficient to working days from service of notice on
answer for the judgment. said garnishee requiring such delivery,
 The sheriff shall sell only a sufficient except the lawful fees which shall be
portion of the personal or real property paid directly to the court.
of the judgment obligor which has been  In the event there are two or more
levied upon. garnishees holding deposits or credits
 When there is more property of the sufficient to satisfy the judgment, the
judgment obligor than is sufficient to judgment obligor, if available, shall have
satisfy the judgment and lawful fees, he the right to indicate the garnishee or
must sell only so much of the personal garnishees who shall be required to
or real property as is sufficient to satisfy deliver the amount due, otherwise, the
the judgment and lawful fees. choice shall be made by the judgment
obligee.
3. GARNISHMENT OF DEBTS AND CREDITS  The executing sheriff shall observe the
same procedure under IMMEDIATE
 Scope: The officer may levy on debts due PAYMENT ON DEMAND with respect to
the judgment obligor and other credits, delivery of payment to the judgment
including bank deposits, financial interests, obligee.
royalties, commissions and other personal
property not capable of manual delivery in D. Execution of Judgments for Specific
the possession or control of third parties. Acts
 The process of levying shall be called
garnishment if the property involved is
1. CONVEYANCE, DELIVERY OF DEEDS,
money, stocks, or other incorporeal
OR OTHER SPECIFC ACTS
property in the HANDS OF THIRD
PERSONS. Garnishment merely sets
 Under this situation, there is a judgment
apart such funds but does not constitute
which directs a party to execute a
the creditor as owner of the garnished
conveyance of land or personal property, or
property.
to deliver deeds or other documents, or to
 In Chinabank v. Ortega, the Court held
perform, any other specific act IN
that garnishment is not a violation of RA
CONNECTION THEREWITH.
1405 on the secrecy of bank deposits.
 If the party so ordered fails to comply within
 Procedure:
a specified period, there are two possible
 Levy shall be made by SERVING remedies. Either:
NOTICE UPON THE PERSON OWING
 the court may DIRECT THE ACT TO BE
SUCH DEBTS OR HAVING IN HIS
DONE AT THE COST OF THE
POSSESSION OR CONTROL SUCH
DISOBEDIENT PARTY by some other
CREDITS TO WHICH THE JUDGMENT
person appointed by the court and the
OBLIGOR IS ENTITLED. The
act when so done shall have like effect
garnishment shall cover only such
as if done by the party, or
amount as will satisfy the judgment and
 if real or personal property is situated
all lawful fees.
within the Philippines, the court in lieu of
directing a conveyance thereof may by
an order divest the title of any party and E. Execution of Special Judgments
vest it in others, which shall have the
force and effect of a conveyance
 When a judgment requires the performance
executed in due form of law.
of ANY ACT OTHER THAN THOSE
MENTIONED IN THE TWO PRECEDING
2. SALE OF REAL OR PERSONAL
SECTIONS (EXECUTION OF JUDGMENT
167
PROPERTY
FOR MONEY AND SPECIFIC ACTS),
CIVIL PROCEDURE
 a certified copy of the judgment shall be
 If judgment is rendered ordering the sale of
attached to the writ of execution and shall be
real or personal property, an order for
served by the officer upon the party against
execution shall be issued describing such
whom the same is rendered, or upon any
property as may be ordered sold, selling it,
other person required thereby, or by law, to
and applying the proceeds in conformity with
obey the same, and such party or person
the judgment’s instructions.
may be punished for contempt if he
disobeys such judgment.
3. DELIVERY OR RESTITUTION OF REAL
 Special judgments are those which can be
PROPERTY
complied with by the judgment obligor
because of his personal qualifications or
 The officer shall demand of the person
circumstances (e.g., a judgment ordering a
against whom the judgment for the delivery
partner to render an accounting, a judgment
or restitution of real property is rendered and
ordering a party to comply with his recording
all persons claiming rights under him
contract otherwise, pay damages).
 to peaceably vacate the property within
 Note the difference with sections 9 and 10
three (3) working days, and restore
(on execution of money judgments and
possession thereof to the judgment obligee,
specific acts) where contempt is not a
 otherwise, the officer shall oust all such
remedy against disobedience by a party.
persons therefrom with the assistance, if
necessary, of appropriate peace officers,
and employing such means as may be F. General Rules Governing Execution
reasonably necessary to retake possession,
and place the judgment obligee in 1. PROPERTY EXEMPT FROM EXECUTION
possession of such property.
 ANY COSTS, DAMAGES, RENTS OR  General rule: Except as otherwise
PROFITS AWARDED BY THE JUDGMENT expressly provided by law, the following
SHALL BE SATISFIED IN THE SAME property, and no other, shall be exempt from
MANNER AS A JUDGMENT FOR MONEY. execution: (FOTNUP-LBS-GMRE)
4. REMOVAL OF IMPROVEMENTS ON (a) The judgment obligor's family home as

PROPERTY SUBJECT OF EXECUTION provided by law, or the homestead in
which he resides, and land necessarily
 When the property subject of the execution used in connection therewith;
contains improvements constructed or
planted by the judgment obligor or his agent, (b) Ordinary tools and implements
 the officer shall not destroy, demolish or personally used by him in his trade,
remove said improvements except upon employment, or livelihood;
special order of the court, issued upon
motion of the judgment obligee after the (c) Three horses, or three cows, or three
hearing and after the former has failed to carabaos, or other beasts of burden,
remove the same within a reasonable time such as the judgment obligor may select
fixed by the court. necessarily used by him in his ordinary
occupation;
5. DELIVERY OF PERSONAL PROPERTY
(d) His necessary clothing and articles for
 In judgment for the delivery of personal ordinary personal use, excluding
property, the officer shall take possession of jewelry;
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for (e) Household furniture and utensils
money as therein provided. necessary for housekeeping, and used
for that purpose by the judgment obligor
and his family, such as the judgment

obligor may select, of a value not  The exemptions MUST BE CLAIMED,
exceeding one hundred thousand otherwise they are deemed waived. It is not
pesos; the duty of the sheriff to set off the
exceptions on his own initiative. [Herrera v.
(f) Provisions for individual or family use Mcmicking] 168
sufficient for four months;
CIVIL PROCEDURE
2. RETURN OF WRIT OF EXECUTION
(g) The professional libraries and
equipment of judges, lawyers,  The writ of execution shall be returnable to
physicians, pharmacists, dentists, the court issuing it immediately after the
engineers, surveyors, clergymen, judgment has been satisfied in part or in full.
teachers, and other professionals, not  If the judgment cannot be satisfied in full
exceeding three hundred thousand within thirty (30) days after his receipt of the
pesos in value; writ, the officer shall report to the court and
state the reason therefor.
(h) One fishing boat and accessories not  Such writ shall continue in effect during the
exceeding the total value of one period within which the judgment may be
hundred thousand pesos owned by a enforced by motion.
fisherman and by the lawful use of  The officer shall make a report to the court
which he earns his livelihood; every thirty (30) days on the proceedings
taken thereon until the judgment is satisfied
(i) So much of the salaries, wages, or in full, or its effectivity expires.
earnings of the judgment obligor for his  The returns or periodic reports shall set forth
personal services within the four months the whole of the proceedings taken, and
preceding the levy as are necessary for shall be filed with the court and copies
the support of his family; thereof promptly furnished the parties.
[Section 12, Rule 39]
(j) Lettered gravestones; 3. NOTICE REQUIREMENT
(k) Monies, benefits, privileges, or annuities  Before the sale of property on execution,
accruing or in any manner growing out notice thereof must be given as follows:
of any life insurance; a. In case of perishable property, by
posting written notice of the time and
(l) The right to receive legal support, or place of the sale in three (3) public
money or property obtained as such places, preferably in conspicuous areas
support, or any pension or gratuity from of the (CPM) municipal or city hall, post
the Government; office and public market in the
municipality or city where the sale is to
(m) Properties specially exempted by law. take place, for such time as may be
(e.g., property mortgaged to the DBP reasonable, considering the character
[Section 26, CA 458]; savings of and condition of the property;
national prisoners deposited with the b. In case of other personal property, by
POSTAL SAVINGS BANK [Act 2489]; posting a similar notice in the three (3)
benefits from private retirement systems public places above-mentioned for not
of companies and establishments with less than five (5) days;
limitations [RA 4917]; laborer’s wages c. In case of real property, by posting for
except for debts incurred for food, twenty (20) days in the three (3) public
shelter, clothing and medical attendance places abovementioned a similar notice
[ART 1708, CIVIL CODE]; benefit particularly describing the property and
payments from SSS [Section 16, RA stating where the property is to be sold,
1161 AS AMENDED]) and if the assessed value of the
property exceeds fifty thousand
 Exception: However, no article or species (P50,000.00) pesos, by publishing a
of property mentioned in this section shall be copy of the notice once a week for two
exempt from (1) execution issued upon a (2) consecutive weeks in one
judgment recovered for its price or (2) upon newspaper selected by raffle, whether in
a judgment of foreclosure of a mortgage English, Filipino, or any major regional
thereon. language published, edited and
circulated or, in the absence thereof,  The officer shall not be bound to keep the
having general circulation in the property, as a general rule
province or city;
d. In all cases, written notice of the sale
shall be given to the judgment obligor, at  Sheriff is bound to keep the property when the
least three (3) days before the sale, judgment obligee, on demand of the officer, files 169
except as provided in paragraph (a) a bond approved by the court to indemnify the
CIVIL PROCEDURE
third-party claimant in a sum not less than the
hereof where notice shall be given the
value of the property levied on.
same manner as personal service of
pleadings and other papers as provided
by section 6 of Rule 13.
 In case of disagreement as to such value of the
bond, the same shall be determined by the court
 The notice shall specify the place, date and issuing the writ of execution.
exact time of the sale which should not be  No claim for damages for the taking or keeping of
earlier than nine o'clock in the morning and the property may be enforced against the bond
not later than two o'clock in the afternoon unless the action therefor is filed within one
(9am-2pm). hundred twenty (120) days from the date of the
 The place of the sale MAY BE AGREED filing of the bond.
UPON BY THE PARTIES.  The officer shall not be liable for damages for the
taking or keeping of the property, to any third-
 In the absence of such agreement, the sale
party claimant if such bond is filed
of the property or personal property not
capable of manual delivery
 The proceedings set forth above shall not
 shall be held in the office of the clerk of court
prevent such claimant or any third person
of the Regional Trial Court or the Municipal
from vindicating his claim to the property in a
Trial Court which issued the writ of or which
separate action,
was designated by the appellate court.
 or prevent the judgment obligee from
 In the case of personal property capable of
claiming damages in the same or a separate
manual delivery, the sale shall be held in the
action against a third-party claimant who
place where the property is located. [Section
filed a frivolous or plainly spurious claim.
15, Rule 39]
 Apart from Rule 39, the only other provisions
PENALTIES
(Selling without notice and defacing notice) of the Rules of Court dealing with terceria or
An officer selling without A person willfully third party claims are Rule 57.14 on
the notice prescribed by removing or defacing the preliminary attachment and Rule 60.7 on
section 15 of this Rule notice posted replevin.
pay punitive damages in if done before the sale,
the amount of five or before the satisfaction  In Sierra v. Rodriguez and Northern Motors
thousand (P5,000.00) of the judgment if it be v. Coquia, the Court held that the third party
pesos to any person satisfied before the sale, claimant CANNOT APPEAL NOR AVAIL
injured thereby, IN shall be liable to pay five OF CERTIORARI AS A REMEDY in the
ADDITION TO HIS thousand (P5,000.00)
event that his claim was denied since HE IS
ACTUAL DAMAGES, pesos to any person
BOTH TO BE injured by reason
A NONPARTY to the original action.
RECOVERED BY thereof, in addition to his
MOTION IN THE SAME actual damages, to be 5. PREVENTING EXECUTION SALE
ACTION recovered by motion in
the same action  At any time before the sale of property on
execution, the judgment obligor may prevent
4. RULES REGARDING TERCERIA (THIRD- the sale by paying the amount required by
PARTY CLAIMS) the execution and the costs that have been
(Asked in the 2000 & 2005 Bar Exams) incurred therein. [Section 18, Rule 39]
 This is akin to the equitable right of
 The third person whose property was levied on redemption under Rule 68, which is
must make an (A—G—S-) available to the judgment obligor in judicial
 affidavit of his title thereto or right to the foreclosure of mortgage.
possession thereof,  The difference lies in the fact that under
 stating the grounds of such right or title, and Rule 68, a definite period is given.
 serves the same upon the officer making the
levy and copy thereof, upon the judgment
6. CONCLUDING THE EXECUTION SALE
oblige;
 When the purchaser is the judgment  BUT IN ALL CASES, the judgment
obligee, and no third-party claim has been obligor shall have the entire period of 1
filed, he need not pay the amount of the bid YEAR from the date of registration of
if it does not exceed the amount of his the sale to redeem the property.
judgment. If it does, he shall pay only the  IF THE JUDGMENT OBLIGOR
excess. [Section 21, Rule 39] REDEEMS, no further redemption is 170
 By written consent of the judgment obligor allowed and he is restored to his estate.
CIVIL PROCEDURE
and obligee, or their duly authorized  THE PERIOD FOR REDEMPTION IS
representatives, the officer may adjourn the NOT SUSPENDED by an action to
sale to any date and time agreed upon by annul the foreclosure sale.
them. Without such agreement, he may
adjourn the sale from day to day if it  A right of redemption cannot be levied upon
becomes necessary to do so for lack of time by a judgment creditor. The creditor may not
to complete the sale on the day fixed in the deprive the debtor of any further rights to the
notice or the day to which it was adjourned property [Lichauco v. Olegario]
[Section 22, Rule 39]. Written consent is
essential, otherwise the adjournment will be  Redemption price varies depending on who
void [Abrozar v. IAC (1988)] the redemptioner is:
 Upon a sale of real property , the officer  If judgment obligor:
must give to the purchaser a certificate of  Purchase price
sale containing: (a) A particular description o 1 % interest thereon up to the time
of the real property sold; (b) The price paid of redemption
for each distinct lot or parcel; (c) The whole o Any amount of assessments or
price paid by him; (d) A statement that the taxes which the purchaser may
right of redemption expires one (1) year have paid thereon after purchase
from the date of the registration of the and interest on such last named
certificate of sale. Such certificate must be amount at the same rate.
registered in the registry of deeds of the o If the purchaser be also a creditor
place where the property is situated. having prior lien to that of the
[Section 25, Rule 39] redemptioner, other than the
 How property sold on execution (See judgment under which such
Appendix1) purchase was made, the amount of
such other lien, with interest.
7. RULES GOVERNING REDEMPTION
 If redemptioner
 Real property sold as provided in the last  Amount paid on the last redemption
preceding section, or any part thereof sold o 2% interest thereon.
separately, may be redeemed in the manner o Any amount of assessments or
hereinafter provided, by the following taxes which the last redemptioner
persons: may have paid thereon after
 The judgment obligor; or his successor redemption by him with interest on
in interest in the whole or any part of the such last named amount;
property; o Amount of any liens held by said
 A creditor having a lien by virtue of an last redemptioner prior to his own
attachment, judgment or mortgage on with interest
the property sold, or on some part
thereof, subsequent to the lien under 8. EFFECTS OF REDEMPTION
which the property was sold. Such
redeeming creditor is termed a  [Section 29, Rule 39]
redemptioner. [Section 27, Rule 39]  If the judgment obligor redeems he must
make the same payments as are
 Redemption can be made by either person: required to effect a redemption by a
 JUDGMENT OBLIGOR, within one year redemptioner, whereupon, no further
from the date of registration of the redemption shall be allowed and he is
certificate of sale restored to his estate.
 REDEMPTIONER, within one year from  The person to whom the redemption
the date of registration of the certificate payment is made must execute and
of sale; or within 60 days from the last deliver to him a certificate of redemption
redemption by another redemptioner.
acknowledged before a notary public or when such property is in the possession of a

other officer authorized to take tenant.
acknowledgments of conveyances of  All rents, earnings and income derived from
real property. the property pending redemption shall
 Such certificate must be filed and belong to the judgment obligor until the
recorded in the registry of deeds of the expiration of his period of redemption. In all, 171
place in which the property is situated the judgment debtor shall exercise the
CIVIL PROCEDURE
and the registrar of deeds must note the following rights:
record thereof on the margin of the  Remain in possession of the property
record of the certificate of sale.  He cannot be ejected;
 The payments mentioned in this and the  Use the property in the same manner it
last preceding sections may be made to was previously used;
the purchaser or redemptioner, or for  Make Necessary repairs to buildings
him to the officer who made the sale. thereon while he occupies the property
 Use it in the ordinary course of
 [Section 30, Rule 39] husbandry
 A redemptioner must produce to the officer,  vi. Collect rents, earnings and income
or person from whom he seeks to redeem, derived from the property until the
and serve with his notice to the officer expiration of peiord of redemption.
 a copy of the judgment or final order
under which he claims the right to  [Section 33, Rule 39]
redeem, certified by the clerk of the  If no redemption be made within one (1)
court wherein the judgment or final order year from the date of the registration of
is entered, OR, the certificate of sale,
 if he redeems upon a mortgage or other  the purchaser is entitled to a
lien, a memorandum of the record conveyance and possession of the
thereof, certified by the registrar of property; or, if so redeemed whenever
deeds, OR sixty (60) days have elapsed and no
 an original or certified copy of any other redemption has been made, and
assignment necessary to establish his notice thereof given, and the time for
claim; AND redemption has expired, the last
 an affidavit executed by him or his redemptioner is entitled to the
agent, showing the amount then actually conveyance and possession;
due on the lien.  but in all cases the judgment obligor
shall have the entire period of one (1)
 [Section 31, Rule 39] year from the date of the registration of
 Until the expiration of the time allowed the sale to redeem the property.
for redemption, the court may, as in  The deed shall be executed by the
other proper cases, restrain the officer making the sale or by his
commission of waste on the property by successor in office, and in the latter
injunction, on the application of the case shall have the same validity as
purchaser or the judgment obligee, with though the officer making the sale had
or without notice; continued in office and executed it.
 but it is not waste for a person in  Upon the expiration of the right of
possession of the property at the time of redemption, the purchaser or
the sale, or entitled to possession redemptioner shall be substituted to and
afterwards, during the period allowed for acquire all the rights, title, interest and
redemption, to continue to use it in the claim of the judgment obligor to the
same manner in which it was previously property as of the time of the levy.
used, or to use it in the ordinary course  The possession of the property shall be
of husbandry; or to make the necessary given to the purchaser or last
repairs to buildings thereon while he redemptioner by the same officer unless
occupies the property. a third party IS ACTUALLY HOLDING
THE PROPERTY adversely to the
 The purchaser or a redemptioner shall not judgment obligor.
be entitled to receive the rents, earnings and
income of the property sold on execution, or  Recovery of purchase price and revival of
the value of the use and occupation thereof judgment:
 When property liable to an execution ascertained without controversy, the

against several persons is sold thereon, court may order a sale of such interest
and [section 42].
 more than a due proportion of the  if the person alleged to have the
judgment is satisfied out of the proceeds property of the judgment debtor or be
of the sale of the property of one of indebted to him, claims an adverse 172
them, or interest in the property or denies the
CIVIL PROCEDURE
 one of them pays, without a sale, more debt,
than his proportion,  The court may authorize the judgment
 he may compel a contribution from the creditor to institute an action to recover the
others; property, forbid its transfer and may punish
 and when a judgment is upon an disobedience for contempt [section 43]
obligation of one of them, as security for
another, and the surety pays the H. Entry of Satisfaction
amount, or any part thereof, either by 1. [SECTION 44, RULE 39]
sale of his property or before sale,  Satisfaction of a judgment shall be entered
 he may compel repayment from the by the clerk of court in the court docket, and
principal. [Section 35, Rule 39]. in the execution book,
 upon the return of a writ of execution
G. Remedies of Judgment Creditor in showing the full satisfaction of the
Aid of Execution judgment, or
(Sections 36-43)  upon the filing of an admission to the
(Asked in the 2008 Bar Exam particularly satisfaction of the judgment executed
steps to be taken if writ of execution is and acknowledged in the same manner
unsatisfied) as a conveyance of real property by the
judgment obligee or by his counsel
 If the execution is returned unsatisfied, he  unless a revocation of his authority is
may cause the examination of the judgment filed, or upon the endorsement of such
debtor as to his property and income admission by the judgment obligee or
[section 36] (asked in the 2002 bar exam) his counsel, on the face of the record of
the judgment.
 He may cause examination of the debtor of
the judgment debtor as to any debt owed by 2. [SECTION 45, RULE 39]
him or to any property of the judgment  Whenever a judgment is satisfied in fact, or
debtor in his possession [section 37]. otherwise than upon an execution on
demand of the judgment obligor,
 If after examination, the court finds the  the judgment obligee or his counsel must
property of the judgment debtor either in his execute and acknowledge, or indorse an
own hands or that of any person, admission of the satisfaction as provided in
 the court may order the property applied to the last preceding section,
the satisfaction of the judgment.  and after notice and upon motion the court
 A party or other person may be compelled may order either the judgment obligee or his
by an order or subpoena to attend before counsel to do so, or may order the entry of
the court or commissioner to testify as satisfaction to be made without such
provided in sect 36-37. admission.
 if the court finds the earnings of the
judgment debtor are more than sufficient I. Effects of Judgments or Final Orders
for his family’s needs, it may order
payment in installments [section 40] 1. RES JUDICATA IN JUDGMENTS IN REM
 the court may appoint a receiver for the
property of the judgment debtor not Judgments or final Conclusive as to
exempt from execution or forbid a order
transfer or disposition or interference Against a specific thing Title of the thing
with such property [section 41] Probate of a will or The will or administration.
 if the court finds the judgment debtor administration of the However, the probate of
had an ascertainable interest in real estate of a deceased a will or granting of letters
person of administration shall
property either as mortgagor, mortgagee
only be prima facie
or otherwise, and his interest can be
evidence of the death of subsequent appeal [Zarate vs. Director

the testator or intestate; of Lands].
IN RESPECT TO THE Condition, status or
PERSONAL, political, relationship of the  Law of the case designates the principle that
or legal condition or person, if an appellate court has passed on a legal
status of a particular
person or his
question and remanded the case to the 173
relationship to another court below for further proceedings, the legal
CIVIL PROCEDURE
question thus determined by the appellate
2. RES JUDICATA IN JUDGMENTS IN court will not be differently determined on a
PERSONAM subsequent appeal in the same case where
the facts remain the same.
 In other cases, the judgment or final order is,  It is a doctrine which provides that an
with respect to the matter directly adjudged appellate court’s determination on a legal
or as to any other matter that could have issue is binding on both the trial court on
been missed in relation thereto, remand and an appellate court on a
 conclusive between the parties and their subsequent appeal given the same case
successors in interest, and substantially the same facts.
 by title subsequent to the commencement of  The doctrine of "law of the case" is one of
the action or special proceeding, litigating for policy only and will be disregarded when
the same thing and under the same title and compelling circumstances call for a
in the same capacity. redetermination of the determination of point
of law on prior appeal, and this is particularly
3. CONCLUSIVENESS OF JUDGMENT/ true where intervening or contemporaneous
PRECLUSION OF ISSUES (AUTER change in law has occurred by overruling
ACTION PENDANT) former decisions or establishment of new
precedent by controlling authority.
 In any other litigation between the same
parties or their successors in interest, that 4. EFFECT OF FOREIGN JUDGMENTS
only is deemed to have been adjudged in a (Asked in the 2005 Bar Exam)
former judgment or final order which
appears upon its face to have been so  In case of a judgment or final order upon a
adjudged, or which was actually and specific thing , the judgment or final order, is
necessarily included therein or necessary conclusive upon the title to the thing (Rule
thereto. 39, Sect. 48).
BAR BY FORMER CONCLUSIVENESS  In case of a judgment or final order against a

JUDGMENT (RES OF JUDGMENT person, the judgment or final order is
JUDICATA) presumptive evidence of a right as between
There is identity of Identity of parties and the parties and their successors in interest
parties, subject matter subject matter. by a subsequent title (Rule 39 Sect. 48).
and causes of action
The first judgment The first judgment is  In either case, the judgment or final order
constitutes an conclusive only as to may be repelled by evidence of a want of
absolute bar to all matters directly
jurisdiction, want of notice to the party,
matters directly adjudged and actually
adjudged and those litigated in the first collusion, fraud, or clear mistake of law or
that might have been action. Second action fact (Rule 39 Sect. 48).
adjudged. can be prosecuted.
 Such limitation on the review of foreign
 Res Judicata vs. “law of the case”. judgment is adopted in all legal systems to
 Law of the case refers to legal avoid repetitive litigation on claims and
conclusions announced on a first issues, prevent harassment of the parties
appeal, whether on the general law or and avoid undue imposition on the courts.
the law as applied to the concrete facts,  This policy of preclusion rests on principles
 not only prescribes the duty and limit the of comity, utility and convenience of nations.
power of the trial court to strict  As a generally accepted principle of
obedience and conformity thereto, international law, it is part of the law of the
 but they become and remain the law of Philippines by virtue of the Incorporation
the case in all other steps whether in the Clause (Section 2, Article II) of the 1987
lower court or in the appellate court on a Constitution [Regalado].
XII. Summary Procedure D. Court Duty

[SEC. 4]
A. SCOPE
B. DETERMINATION OF APPLICABILITY  After the court determines that the case falls
C. THE ONLY PLEADINGS ALLOWED
under summary procedure, from an
D. COURT DUTY
examination of the allegations therein and
174
E. ANSWER
such evidence as may be attached thereto,
CIVIL PROCEDURE
F. EFFECT OF FAILURE TO ANSWER
G. PRELIMINARY CONFERENCE it may dismiss the case outright on any of
H. RECORD OF PRELIMINARY CONFERENCE the grounds apparent therefrom for the
I. SUBMISSION OF AFFIDAVITS AND POSITION dismissal of a civil action.
PAPERS  If no ground for dismissal is found it shall
J. RENDITION OF JUDGMENT forthwith issue summons which shall state
K. REFERRAL TO LUPON that the summary procedure under this Rule
L. PROHIBITED PLEADINGS AND MOTIONS
shall apply.
M. AFFIDAVITS
N. APPEAL
O. APPLICABILITY OF THE REGULAR RULES E. Answer
[SEC. 5]
 1991 REVISED RULES ON SUMMARY
PROCEDURE  Within 10 days from service of summons,
the defendant shall file his answer to the
A. Scope complaint and serve a copy thereof on the
[SEC. 1] plaintiff.
 Affirmative and negative defenses not
 This governs the summary procedure in the pleaded therein shall be deemed waived,
MeTCs/MTCs/MCTCs in the following cases  except for LOJ over the subject matter.
falling within their jurisdiction:  Cross-claims and compulsory counterclaims
1) All cases of forcible entry and unlawful not asserted in the answer shall be
detainer, irrespective of the amount of considered barred. The answer to
damages or unpaid rentals sought to be counterclaims or cross-claims shall be filed
recovered. Where attorney's fees are and served within ten 10 days from service
awarded, the same shall not exceed of the answer in which they are pleaded.
P20K.
2) All other civil cases, except probate F. Effect of Failure to Answer
proceedings, where the total amount of [SEC. 6]
the plaintiff's claim does not exceed
P10K, exclusive of interest and costs.  The court shall render judgment as may be
warranted by the facts alleged in the
B. Determination of Applicability complaint and limited to what is prayed for
[SEC. 2] therein.
 However, the court may reduce the amount
 Upon the filing of a civil action, the court of damages and attorney's fees claimed for
shall issue an order declaring WON the case being excessive or otherwise
shall be governed by this Rule. unconscionable.
 A patently erroneous determination to avoid  This is without prejudice to the applicability
the application of the Rule is a ground for of Rule 15, Sec. 4, ROC if there are 2 or
disciplinary action. more defendants.
C. The Only Pleadings Allowed G. Preliminary Conference

[SEC. 3] [SEC. 7]
1) Complaints;  Not later than 30 days after the last answer

2) Compulsory counterclaims and cross-claims is filed, a preliminary conference shall be
pleaded in the answer; held.
3) Answers thereto.  The rules on pre-trial in ordinary cases shall
be applicable to the preliminary conference
 All pleadings shall be verified. unless inconsistent with the provisions of
this Rule.
 The failure of the plaintiff to appear in the expiration of the period for filing the same,
preliminary conference shall be a cause for the court shall render judgment.
the dismissal of his complaint.  However should the court find it necessary
 The defendant who appears in the absence to clarify certain material facts, during the
of the plaintiff shall be entitled to judgment said period it may issue an order specifying
on his counterclaim in accordance with Sec. the matters to be clarified, and require the 175
6. parties to submit affidavits or other evidence
CIVIL PROCEDURE
 All cross-claims shall be dismissed. on the said matters within 10 days from
 If a sole defendant shall fail to appear, the receipt of said order.
plaintiff shall be entitled to judgment in  Judgment shall be rendered within 15 days
accordance with Sec. 6. after the receipt of the last clarificatory
 Exception: This Rule shall not apply where affidavits, or the expiration of the period for
one of 2 or more defendants sued under a filing the same.
common cause of action who had pleaded a  The court shall not resort to the clarificatory
common defense shall appear at the procedure to gain time for the rendition of
preliminary conference. the judgment.
H. Record of Preliminary Conference K. Referral to Lupon

[SEC. 8] [SEC. 18]
 Within 5 days after the termination of the  Cases requiring referral to the Lupon for
preliminary conference, the court shall issue conciliation under PD 1508 where there is
an order stating the matters taken up no showing of compliance with such
therein, including but not limited to: requirement, shall be dismissed without
1) WON the parties have arrived at an prejudice and may be revived only after
amicable settlement and the terms such requirement shall have been complied
thereof; with.
2) Stipulations or admissions entered into  Exception: Criminal cases where the
by the parties; accused was arrested without a warrant.
3) WON based on the pleadings and
stipulations and admissions made by L. Prohibited Pleadings and Motions
the parties, judgment may be rendered
[SEC. 19]
without the need of further proceedings,
in which event the judgment shall be
 MTD the complaint or to quash the
rendered within 30 days from issuance
complaint/information except on the ground
of the order;
of LOJ over the subject matter, or failure to
4) A clear specification of material facts
comply with the preceding section;
which remain controverted;
1. Motion for a BOP;
5) Other matters intended to expedite the
2. MNT/MFR of a judgment, or motion for
disposition of the case.
opening of trial;
3. Petition for relief from judgment;
I. Submission of Affidavits and 4. Motion for extension of time to file
Position Papers pleadings/affidavits;
[SEC. 9] 5. Memoranda;
6. Petition for
 Within 10 days from receipt of the order, the certiorari/mandamus/prohibition against
parties shall submit the affidavits of their any interlocutory order;
witnesses and other evidence on the factual 7. Motion to declare the defendant in
issues defined in the order, together with default;
their position papers setting forth the law 8. Dilatory motions for postponement;
and the facts relied upon by them. 9. Reply;
10. 3rd party complaints;
J. Rendition of Judgment 11. Interventions.
[SEC. 10]
M. Affidavits
 Within 30 days after receipt of the last [SEC. 20]
affidavits and position papers, or the
 The affidavits required to be submitted

under this Rule shall state only facts of
direct personal knowledge of the affiants
which are admissible in evidence, and shall
show their competence to testify to the
matters stated therein. 176
 A violation of this requirement may subject
CIVIL PROCEDURE
the party or the counsel who submits the
same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit
or portion thereof from the record.
N. Appeal
[SEC. 21]
 The judgment or final order shall be

appealable to the RTC which shall decide
the same in accordance with Sec. 22, BP
129.
 The RTC decision in civil cases governed by
this Rule, including forcible entry and
unlawful detainer, shall be immediately
executory, without prejudice to a further
appeal that may be taken therefrom.
 Rule 70, Sec. 10 shall be deemed repealed.
O. Applicability of the Regular Rules

[SEC. 22]
 The regular procedure prescribed in the

ROC shall apply suppletorily.
REMEDIAL LAW REVIEWER Part 3: REMEDIES and APPEALS
It is only in appropriate cases where a party

Part 3: Remedies and Appeals aggrieved by the judgment has not been able to
file a motion for new trial or motion for
I. KINDS reconsideration that a petition for relief can be
A. Before Finality filed.
B. After Finality
II. RECONSIDERATION AND NEW TRIAL
177
A. Rules
Grounds:
CIVIL PROCEDURE
B. Motion for Reconsideration Rule 38, Sec.1. Petition for relief from judgment,
C. Motion for New Trial order, or other proceedings.—When a judgment
III. APPEAL or final order is entered, or any other proceeding
IV. MODES OF APPEAL is thereafter taken against a party in any court
A. MTC to RTC through fraud, accident, mistake, or excusable
B. MTC to RTC to CA negligence, he may file a petition in such court
C. MTC to RTC to CA to SC
and in the same case praying that the judgment,
D. MTC to SC
E. RTC to CA order or proceeding be set aside.
F. RTC to CA to SC
G. RTC to SC Rule 38, Sec.2. Petition for relief from denial of
H. CA to SC appeal.—When a judgment of final order is
I. QJA to CA rendered by any court in a case, and a party
J. QJA to CA to SC thereto, by fraud, accident, mistake, or
K. QJA to SC
V. RULES
excusable negligence, has been prevented from
A. General Rule taking an appeal, he may file a petition in such
1. Procedure in the CA court and in the same case praying that the
2. Procedure in the SC appeal be given due course.
B. Questions of Fact vs. Questions of Law
C. Notice of Appeal Under both grounds, the petition shall be filed
D. Record on Appeal in the same court which rendered the
E. Perfection of Appeal
judgment and in the very same case.
F. Period to Appeal
VI. SPECIAL TOPIC: REMEDIES FROM A VOID
JUDGMENT Prayer in petition for relief from judgment:
1. That the judgment/order/proceeding be set
I. Kinds aside;
2. That the appeal be given due course.
A. Before Finality
When to file:
Rule 38, Sec.3. Time for filing petition; contents
The following are the remedies before finality of
and verification.—A petition provided for in either
judgment:
of the preceding sections of this Rules must be
1. Motion for Reconsideration
verified, filed within 60 days after the petitioner
2. Motion for New Trial
learns of the judgment, final order, or other
3. Appeal
proceeding to b set aside, and not more than 6
months after such judgment or final order was
B. After Finality entered, or such proceeding was taken; and
must be accompanied with affidavits showing
Petition for Relief from Judgment the fraud, accident, mistake, or excusable
Q: Define relief from judgment. negligence relied upon, and the facts
A: It is a legal remedy whereby a party seeks to constituting the petitioner’s good and substantial
set aside a judgment rendered against him by a cause of action or defense, as the case may be.
court whenever he is unjustly deprived of a
hearing or was prevented from taking an appeal  Within 60 days from knowledge of judgment
because of fraud, accident, mistake or or order or proceedings to be set aside.
excusable negligence.  Not more than 6 months from the entry of
such judgment or order or proceeding.
Francisco vs. Puno: A party who has filed a  Both periods must concur. They are also
timely motion for new trial or motion for non-extendible and never interrupted.
reconsideration can no longer file a petition for
relief from judgment after his motion has been Form and content of petition:
denied. These remedies are mutually exclusive. 1. Must be verified;
2. Must be accompanied by an affidavit which such aggrieved party has probably

showing the fraud, accident, mistake or been impaired in his rights; or
excusable negligence relied upon;
3. The affidavit of merit accompanying the (b) Newly discovered evidence, which could
petition must also show the facts constituting not, with reasonable diligence, have
the petitioner’s good and substantial cause discovered and produced at the trial, and 178
of action or defense. which if presented would probably alter the
CIVIL PROCEDURE
result.
 An affidavit of merit serves as the
jurisdictional basis for the court to Within the same period, the aggrieved party may
entertain a petition for relief. However, it is also move for reconsideration upon the grounds
not a fatal defect to warrant denial of the that the damages awarded are excessive, that
petition so long as the facts required to be the evidence is insufficient to justify the decision
set out also appear in the verified petition. or final order, or that the decision or final order is
contrary law.
 When an affidavit of merit is not necessary:
1. When there is lack of jurisdiction over  Motion must be filed within the period for
the defendant; appeal.
2. When there is lack of jurisdiction over
the subject matter;  The period for appeal is within 15 days after
3. When judgment was taken by default; notice to the appellant of the judgment or
4. When judgment was entered by mistake final order appealed from.
or was obtained by fraud; or  The 15-day period is deemed to commence
5. Other similar cases. upon receipt by the counsel of record, which
is considered notice to the parties. Service
Two hearings in a petition for relief from upon the parties themselves is prohibited
judgment: and is not considered as official receipt
1. Hearing to determine whether or not the of judgment.
judgment should be set aside;
2. If #1 is in the affirmative, hearing upon the  No motion for extension of time shall be
merits of the case. allowed.
Other remedies after finality of judgment:  Where a ROA is required, the appellant shall
1. Action to Annul a Judgment file:
2. Certiorari 1. a notice of appeal, and
3. Collateral Attack of a Judgment that is Void 2. record on appeal within 30 days from
on its Face notice of the judgment or final order.
 A record on appeal is required only in:

II. Reconsideration and New Trial
1. Special proceedings;
2. Other cases of multiple or separate
A. Rules appeals.
Provisions common to motion for new trial and Effect of filing:

motion for reconsideration.: The filing of a timely motion interrupts the period
to appeal.
When to file:
Rule 37, Sec.1. Grounds of and period for filing Fresh period rule:
motion for new trial or reconsideration.—Within Neypes vs. CA (2005): If the motion is denied,
the period for taking an appeal, the aggrieved the movant has a “fresh period” of 15 days from
party may move the trial court to set aside the receipt or notice of the order denying the motion
judgment or final order and grant a new trial for for new trial or motion for reconsideration within
one or more of the following causes materially which to file an appeal. This applies to Rules 40,
affecting the substantial rights of said party: 41, 42, 43 and 45.
(a) Fraud, accident, mistake or excusable Resolution of the motion:

negligence which ordinary prudence could Rule 37, Sec.4. Resolution of motion.—A motion
not have guarded against and by reason of for new trial or reconsideration shall be resolved
within 30 days fromteh time it is submitted for law alleged to be contrary to such findings or
resolution. conclusions.
Rule 37, Sec.9. Remedy against order denying a A pro forma motion for new trial or
motion for new trial or reconsideration.—An reconsideration shall not toll the reglementary
order denying a motion for new trial or period of appeal. 179
reconsideration is now appealable. (As modified
CIVIL PROCEDURE
by AM 07-7-12) B. Motion for Reconsideration
 The motion shall be resolved within 30 days  A motion for reconsideration under Rule 37
from the time it is submitted for resolution. is directed against a judgment or final order.
 No appeal may be taken from an order  It is not the motion for reconsideration of
denying a motion for reconsideration or new interlocutory order, which often precedes a
trial. petition for certiorari under Rule 65.
 Remedy if motion is denied:  It does not apply to cases that fall under
1. To appeal from the judgment or final Summary Procedure.
order itself.
2. The order denying the motion for new Grounds for a motion for reconsideration:
trial or reconsideration may itself be 1. The evidence is insufficient to justify the
assailed by a petition for certiorari under decision;
Rule 65. 2. The damages awarded are excessive;
3. The decision or final order is contrary to law.
 Habaluyas vs. Japson (1986): A motion for
new trial or reconsideration is not a Form and content of a motion for
prerequisite to an appeal, a petition for reconsideration:
review or a petition for review on certiorari.  Motion for reconsideration must be in
And since the purpose is to expedite the writing, a written notice of which must be
final disposition of cases, a strict but served on the adverse party.
prospective application of said ruling is in  It is not sufficient to mention the ground
order. relied upon. It is necessary for the motion for
reconsideration to point out specifically
Rule 37, Sec.2. Contents of motion for new trial the findings or conclusions of the
or reconsideration.—The motion shall be made judgment or final order which are not
in writing stating the ground or grounds therefor, supported by the evidence or which are
a written notice of which shall be served by the contrary to law, making express reference
movant on the adverse party. to the testimonial or documentary evidence
or to the provisions of law alleged to be
A motion for new trial shall be proved in the contrary to such findings or conclusions.
manner provided for proof of motions. A motion  Non-compliance with this requirement would
for the cause mentioned in paragraph (a) of the reduce the motion to a mere pro forma
preceding section shall be supported by motion, which shall not toll the period for
affidavits of merits which may be rebutted by appeal.
affidavits. A motion for the cause mentioned in
paragraph (b) shall be supported by affidavits of Effects:
the witnesses by whom such evidence is Rule 37, Sec.3. Action upon motion for new trial
expected to be given, or by duly authenticated or reconsideration.—The trial court may set
documents which are proposed to be introduced aside the judgment or final order and grant a
in evidence. new trial, upon such terms as may be just, or
may deny the motion. If the court finds that
A motion for reconsideration shall point out excessive damages have been awarded or that
specifically the findings or conclusions of te the judgment or final order is contrary to the
judgment or final order which are not supported evidence or law, it may amend such judgment or
by the evidence or which are contrary to law, final order accordingly.
making express reference to the testimonial or
documentary evidence or to the provisions of
 Grant of motion for reconsideration: the prudence could not have guarded against
court may amend the judgment or final order and by reason of which the aggrieved party
accordingly. has probably been impaired in his rights.
 The amended judgment is in the nature of a i. The motion shall be supported by
new judgment, which supersedes the affidavits of merit. Non-compliance with
original judgment. this requirement would reduce the 180
 Denial of motion for reconsideration: the motion to a mere pro forma motion.
CIVIL PROCEDURE
judgment or final order shall stand as is. ii. The affidavits of merit must show the
facts (not mere conclusions or opinions)
Rule 37, Sec.7. Partial new trial or constituting the valid cause of action or
reconsideration.—If the grounds for a motion defense which the movant may prove in
under this Rule appear to the court to affect the case a new trial is granted. Otherwise, if
issues as to only a part, or less than all of the the complaint is after all groundless or
matter in controversy, or only one, or less than the defense is ineffective, a new trial
all, of the parties to it, the court may order a new would serve no purpose.
trail or grant reconsideration as to such issues if
severable without interfering with the judgment 2. Newly discovered evidence, which he could
or final order upon the rest. not, with reasonable diligence, have
discovered and produced at the trial, and
If the court finds that a motion affects less than which if presented would probably alter the
all of the matters in controversy or less than all result.
of the parties to it, the order may grant a motion i. The motion shall be supported by:
for reconsideration as to such issues if affidavits of the witnesses by whom
severable without interfering with the judgment such evidence is expected to be given;
or final order upon the rest. and/or duly authenticated documents
XXX which are proposed to be introduced in
Single motion rule: evidence.
Rule 37, Sec.5. Second motion for new trial.—A ii. Non-compliance with this requirement
motion for new trial shall include all grounds would reduce the motion to a mere pro
then available and those not so included shall be forma motion.
deemed waived. A second motion for new trial
based on a ground not existing or available Tumang vs. CA: Newly discovered evidence
when the first motion was made, may be filed may and does commonly refer to evidence
within the time herein provided excluding the already in existence prior to or during trial but
time during which the first motion had been which could not have been secured and
pending. presented during the trial despite reasonable
diligence on the part of the litigant.
No party shall be allowed a second motion for
reconsideration of a judgment or final order. Extrinsic fraud: any fraudulent scheme
executed by the prevailing party outside of the
trial against the losing party who, because of
 A party shall not be allowed to file a second
such fraud, was prevented from presenting his
motion for reconsideration of a judgment or
side of the case.
final order.
 The prohibition on a second motion does not
Intrinsic fraud: acts of a party during the trial
apply to a motion for reconsideration of an
which does not affect the presentation of the
interlocutory order.
case.
Accident: an event that occurs without one’s

C. Motion for New Trial foresight or expectation.
The aggrieved party may move the trial court to Mistake: generally, mistakes of facts or law
set aside the judgment or final order and grant a where, in good faith, the defendant was misled
new trial for one or more of the following causes in a case.
materially affecting the substantial rights of the
said party: Effects:
a. Grant of motion for new trial: the original
1. FAME (Extrinsic Fraud, Accident, Mistake or judgment shall be vacated, and the action
Excusable Negligence) which ordinary shall stand for trial de novo. The recorded
evidence upon the former trial shall be used third-party complaints, while the main case
at the new trial without retaking them (if they is pending, unless the court allows an
are material and competent). appeal therefrom; and
b. Denial of motion for new trial: the judgment g. An order dismissing an action without
or final order shall stand as is if the court prejudice.
finds that a motion affects the issues of the In any of the foregoing circumstances, the 181
case as to only a part or less than all of the aggrieved party may file an appropriate special
CIVIL PROCEDURE
matters in controversy, or only one or less civil action as provided in Rule 65.
than all of the parties to it, the order may
grant a reconsideration as to such issues if SIGNIFICANCE OF THE AMENDMENT:
severable without interfering with the An order denying motion for new trial or
judgment or final order upon the rest. reconsideration is NOW APPEALABLE!
Rule 37, Sec.8. Effect of order for partial new Perfection of appeal:
trial.—When less than all of the issues are Balgami vs. CA (2004): Perfection of an appeal
ordered retried, the court may either enter a in the manner and within the period laid down by
judgment or final order as to the rest, or stay the law is mandatory and jurisdictional.
enforcement of such judgment or final order until
after the new trial. Rationale:
Appeal is merely a statutory privilege, and
 The effect of this order is a partial new trial. may be exercised only in the manner and in
 When there is an order for partial new trial, accordance with the provisions of the law. It
the court may either enter a judgment or is neither a natural right nor a part of due
final order as to the rest, or stay the process.
enforcement of such judgment or final order
until after the new trial. Cognizable judgments/issues
X
When a second motion for new trial is  Appellate court has no jurisdiction to review
permissible: a motion for new trial shall include a judgment which is immediately final and
all grounds then available. Those not so executory by express provision of law.
included are deemed waived. However, when a [Republic v. Bermudez-Lorino (2005)]
ground for new trial was not existing or available  Rationale: Appeal is merely a privilege
when the first motion was made, a second conferred by law upon the litigants.
motion for new trial may be filed.  A party cannot change the theory on appeal.
Only issues pleaded in the lower court and
III. Appeal properly raised may be resolved by the
appellate court. [Medina v. CA (1992)]
RULE 41 (as amended by A.M. 07-07-12,  However, issues which are inferred from or
2007) necessarily connected with the issue
SECTION 1. Subject of appeal. An appeal may properly raised and pleaded may be
be taken from a judgment or final order that resolved by the appellate court. [Espina v.
completely disposes of the case, or of a CA (1992)]
particular matter therein when declared by these
Rules to be appealable. Effect of failure to perfect appeal:
No appeal may be taken from: 1. Defeats a party’s right to appeal.
a. An order denying a petition for relief or any 2. Precludes appellate court from acquiring
similar motion seeking relief from judgment; jurisdiction.
b. An interlocutory order;
c. An order disallowing or dismissing an Camposagrado vs. Camposagrado (2005):
appeal; Failure to pay the appellate court docket fee
d. An order denying a motion to set aside a within the reglementary period confers only a
judgment by consent, confession or discretionary (not mandatory) power to dismiss
compromise on the ground of fraud, mistake the proposed appeal. Such discretion should
or duress, or any other ground vitiating consider all attendant circumstances and must
consent; be exercised with a view to substantial justice.
e. An order of execution;
f. A judgment or final order for or against one Republic v. Bermudez-Lorino (2005): Appellate
or more of several parties or in separate court has no jurisdiction to review a judgment
claims, counterclaims, cross-claims and
which is immediately final and executory by reconsideration filed in due time after judgment.
express provision of law. Upon proper motion and the payment of the full
Rationale: Appeal is merely a privilege conferred amount of the docket and other lawful fees and
by law upon the litigants. the deposit for costs before the expiration of the
reglementary period, the CA may grant an
Medina vs. CA (1992): A party cannot change additional period of 15 days only within which to 182
the theory on appeal. Only issues pleaded in the file the petition for review. No further extension
CIVIL PROCEDURE
lower court and properly raised may be resolved shall be granted except for the most compelling
by the appellate court. reason and in no case to exceed 15 days.
Espina vs. CA (1992): However, issues which (Asked in the 1999 and 2002 Bar Exam)
are inferred from or necessarily connected with
the issue properly raised and pleaded may be PETITION FOR REVIEW FROM RTC TO CA
resolved by the appellate court. [Rule 42]
APPLICABILITY - Appeal of RTC decision

IV. Modes of Appeal
rendered in exercise of appellate jurisdiction
[Rule 42, Sec. 1]
A. MTC to RTC
CERTIFICATE OF NON-FORUM SHOPPING
Rule 40, Sec.1. Where to appeal.—An appeal (CNFS)- Petitioner in a petition for review in
from a judgment or final order of a MTC may be CA/SC must submit a CNFS with the petition.
taken to the RTC exercising jurisdiction over the However, this rule is relaxed where there is
area to which the former pertains. The title of the need to conduct a review. In those instances,
case shall remain as it was in the court of origin, petitioner may comply with the requirement after
but the party appealing the case shall be further he has filed the petitions. [Rule 42, Sec.1]
referred to as the appellant and the adverse
party the appellee. C. MTC to RTC to CA to SC
 Appeal from a judgment or final order of a Rule 41. Sec.2(c). Appeal by certiorari.—In all
MTC may be taken to the RTC exercising cases where only questions of law are raised or
jurisdiction over the area which the former involved, the appeal shall be to the SC by
pertains through notice of appeal or in petition for review on certiorari in accordance
special proceedings and in other cases of with rule 45.
multiple or separate appeals by record on
appeal. Rule 45, Sec.1. Filing of petition with Supreme
Court.—A party desiring to appeal by certiorari
 The other provisions governing appeal from from a judgment or final order or resolution of
RTC to CA so long as they are not the CA, the Sandiganbayan, the RTC or other
inconsistent are applicable to appeal from courts whenever authorized by law, may file with
MTC to RTC. the SC a verified petition for review on certiorari.
The petition shall raise only questions of law
which must be distinctly set forth.
B. MTC to RTC to CA
(Asked in the 2002 Bar Exams)
Rule 42. Sec.1. How appeal taken; time for
filing.—A party desiring to appeal from a  Where only questions of law are
decision of the RTC rendered in the exercise of raised/involved.
its appellate jurisdiction may file a verified
petition for review with the CA, paying at the  Appeal by certiorari from a judgment or final
same time to the clerk of said court the order or resolution of CA or Sandiganbayan
corresponding docket and other lawful fees, or RTC or other courts whenever authorized
depositing the amount of P500.00 for costs and by law.
furnishing the RTC and the adverse party with a
copy of the petition. The petition shall be filed  No appeal may be taken from:
and served within 15 days from notice of the 1. An order denying a petition for relief or
decision sought to be reviewed or of the denial any similar motion seeking relief from
of petitioner’s motion for new trial or judgment;
2. An interlocutory order; 2. Without impleading the lower court or judges

3. An order disallowing or dismissing an as petitioners/respondents.
appeal; 3. Material dates:
4. An order denying a motion to set aside a i. When notice of the judgment or final
judgment by consent, confession or order or resolution subject thereof was
compromise on the ground of fraud, received; 183
mistake or duress, or any other ground ii. When a motion for new trial or
CIVIL PROCEDURE
vitiating consent; reconsideration (if any) was filed and
5. An order of execution; when notice of the denial thereof was
6. A judgment or final order for or against received.
one or more of several parties or in 4. Concise statement of the matters involved,
separate claims, counterclaims, cross- and the reasons/arguments relied on for the
claims and third party complaints, while allowance of the petition;
the main case is pending, unless the 5. A clearly legible duplicate original, or a
court allows an appeal therefrom; and certified true copy of the judgment or final
7. An order dismissing an action without order or resolution certified by the clerk of
prejudice. court of the court a quo and the requisite
number of plain copies thereof, and such
 In any of the foregoing circumstances, the material portions of the record as would
aggrieved party may file an appropriate support the petition;
special civil action as provided in Rule 65. 6. Certificate of non-forum shoping.
 A party desiring to appeal by certiorari from  File petition within 15 days from notice of the
a judgment, final order or resolution of the judgment or final order or resolution
Court of Appeals, the Sandiganbayan, the appealed from, or of the denial of the
Court of Tax Appeals, the Regional Trial petitioner's motion for new trial or
Court or other courts, whenever authorized reconsideration filed in due time after notice
by law, may file with the Supreme Court a of the judgment.
verified petition for review on certiorari. The  On motion duly filed and served, with full
petition may include an application for a writ payment of the docket and other lawful fees
of preliminary injunction or other provisional and the deposit for costs before the
remedies and shall raise only questions of expiration of the reglementary period, the
law, which must be distinctly set forth. The SC may for justifiable reasons grant an
petitioner may seek the same provisional extension of 30 days only within which to file
remedies by verified motion filed in the same the petition.
action or proceeding at any time during its
pendency. Rule 45, Sec.3. Docket and other lawful fees;
proof of service of petition.—Unless he has
Applicability of Rule 45: theretofore done so, the petitioner shall pay the
Rule 45, Sec.9. Rule applicable to both civil and corresponding docket and other lawful fees to
criminal cases.—The mode of appeal prescribed the clerk of court of the Supreme Court and
in this Rule shall be applicable to both civil and deposit the amount of P500.00 for costs at the
criminal cases, except in criminal cases where time of the filing of the petition. Proof of service
the penalty imposed is death, reclusion perpetua of a copy thereof on the lower court concerned
or life imprisonment. and on the adverse party shall be submitted
together with the petition.
Filing of petition:
 File with the SC a verified petition for review Payment of docket and other lawful fees:
on certiorari. Unless he has theretofore done so, the
 In 18 copies, with the original copy intended petitioner shall pay the docket and other lawful
for the court being indicated as such by the fees to the SC clerk of court and deposit P500
petitioner. for costs at the time of the filing of the petition.
 Petition shall raise only questions of law
which must be distinctly set forth. Proof of service of petition:
Proof of service of a copy on the lower court and
Contents of petition: on the adverse party shall be submitted together
1. Full name of the appealing party (petitioner) with the petition.
and the adverse party (respondent).
Dismissal or denial of petition:
Rule 45, Sec.5. Dismissal or denial of petition.— Rule, or where the petition is given due course
The failure of the petitioner to comply with any of under sec.8 hereof, the SC may require or allow
the foregoing requirements regarding the the filing of such pleadings, briefs, memoranda
payment of the docket and other lawful fees, or documents as it may deem necessary within
deposit for costs, proof of service of the petition, such periods and under such conditions as it
and the contents of and the documents which may consider appropriate, and impose the 184
should accompany the petition shall be sufficient corresponding sanctions in case of non-filing or
CIVIL PROCEDURE
ground for the dismissal thereof. unauthorized filing of such pleadings and
documents or non-compliance with the
The SC may on its own initiative deny the conditions therefor.
petition on the ground that the appeal is without
merits, or is prosecuted manifestly for delay, or For purposes of determining whether or not the
that the questions raised therein are too petition should be dismissed or denied pursuant
unsubstantial to require consideration. to Rule 45, Sec.5, or where the petition is given
due course under Sec. 8 hereof, the SC may
 Failure of the petitioner to comply with any require/allow the filing of pleadings or briefs or
of the requirements regarding the payment memoranda or documents as it may deem
of the docket and other lawful fees, deposit necessary, and impose the sanctions in case of
for costs, proof of service of the petition, and non-filing or unauthorized filing of such
the contents of and the documents which pleadings and documents or noncompliance
should accompany the petition, shall be with the conditions therefore.
sufficient ground for the dismissal thereof.
Due course and elevation of records:
 SC may on its own initiative deny the Rule 45, Sec.8. Due course; elevation of
petition on the ground that: records.—If the petition is given due course, the
1. The appeal is without merit; SC may require the elevation of the complete
2. The appeal is prosecuted manifestly for record of the case or specified parts thereof
delay; within 15 days from notice.
3. The questions raised therein are too
unsubstantial to require consideration. D. MTC to SC
Review is discretionary:
 A review is not a matter of right, but of  The remedy is a petition for certiorari under
sound judicial discretion, and will be granted Rule 65.
only when there are special and important  This is not an appeal.
reasons therefore.
 The following, while neither controlling nor E. RTC to CA
fully measuring the court's discretion,
indicate the character of reasons which will Under Rule 41, an appeal of judgment or final
be considered: order under that completely disposes of either:
1. When the court a quo has decided a 1. The case;
question of substance, not theretofore 2. A particular matter in the case, when
determined by the SC, or has decided it declared by ROC to be appealable.
in a way probably not in accord with law
or with the applicable decisions of the Not appealable under Rule 41:
SC; or 1. Order denying motion for new trial or
2. When the court a quo has so far reconsideration;
departed from the accepted and usual 2. Order denying petition for review or any
course of judicial proceedings, or so far similar motion seeking relief from judgment;
sanctioned such departure by a lower 3. Interlocutory order;
court, as to call for an exercise of the 4. Order disallowing/dismissing appeal;
power of supervision. 5. Order denying motion to set aside judgment
by consent or confession or compromise on
May require pleadings and documents: ground of fraud or mistake or duress or any
Rule 45, Sec.7. Pleadings and documents that other vitiation of consent;
may be required; sanctions.—For purposes of 6. Order of execution;
determining whether the petition should be 7. While the case is pending, judgment or final
dismissed or denied pursuant to sec.5 of this order:
i. For/against one or more of several F. RTC to CA to SC

parties;
ii. In separate claims, counterclaims,
 The remedy is a petition for review on
cross-claims, third-party complaints.
certiorari under Rule 45.
Exception: If court allows appeal.
8. Order dismissing an action without 185
prejudice. G. RTC to SC
CIVIL PROCEDURE
In the 8 cases not appealable under Rule 41, the  The remedy is a petition for certiorari under
aggrieved party may file a special civil action Rule 65.
under Rule 65.  This is not an appeal.
Interlocutory order: H. CA to SC
 Definition: Investments, Inc. vs. CA (1987): If
it does not dispose of the case but leaves
 The remedy is a petition for review on
something else to be done by the trial court
certiorari under Rule 65.
on the merits of the case.
 For purposes of appeal, an order is final if it
disposes of the entire case. I. QJA to CA
 GSIS vs. Phil. Village Hotel (2004): An order
for partial summary judgment is an Applicability:
interlocutory order which cannot be Appeals from judgments or final orders of the
appealed from. The trial court had not yet CTA and from awards, judgments, final orders or
rendered a complete final judgment. resolutions of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
Multiple appeals: functions: (arranged alphabetically)
 Civil cases which admit of multiple appeals:
1. Judgment in an action for recovery or for 1. Agricultural Inventions Board (AIB);
partition of property is separately 2. Board of Investments (BOI);
appealable from the proceedings on that 3. Bureau of Patents, Trademarks and
part of the judgment wherein accounting Technology Transfer (BPTTT);
for receipts from the property is ordered 4. Central Board of Assessment Appeals
as a primary or incidental relief. When (CBAA);
such accounting is submitted and either 5. Civil Aeronautics Board (CAB);
approved or rejected by the trial court, 6. Civil Service Commission (CSC);
another appeal lies therefrom. 7. Construction Industry Arbitration
2. Special civil actions: Commission;
i. Expropriation; (Rule 67) 8. Department of Agrarian Reform (DAR under
ii. Judicial partition; (Rule 69) RA 6657)
iii. Judicial foreclosure of mortgage; 9. Employees Compensation Commission
(Rule 68) (ECC);
 Special proceedings also admit of multiple 10. Energy Regulatory Board (ERB);
appeals. 11. Government Service Insurance System
 Ko vs. PNB (2006): The order of dismissal (GSIS);
due to failure to prosecute is appealable by 12. Insurance Commission;
notice of appeal under Rule 41. 13. Land Registration Authority (LRA);
 Philexport vs. PI (2004): But an order of 14. National Electrification Administration (NEA);
dismissal without prejudice is not appealable 15. National Telecommunications Commission
under Rule 41. (NTC);
 Lanaria v. Planta (2007): Submission of a 16. Office of the President (OP);
document together with the motion for 17. Philippine Atomic Energy Commission
reconsideration constitutes substantial (PAEC);
compliance with compliance with Section 2, 18. Securities and Exchange Commission
Rule 42 or the requirement that relevant or (SEC);
pertinent documents be submitted along 19. Social Security Commission (SSC);
with the petition, and calls for the relaxation 20. Voluntary arbitrators authorized by law.
of procedural rules
Rule 43, Sec.2. Cases not covered.—This Rule the same is certified by the proper officer of
shall not apply to judgments or final orders the court, tribunal, agency or office involved.
issued under the Labor Code of the Philippines. This is to assure that such copy is a faithful
reproduction of the judgment, order,
 Fabian vs. Desierto (1998): NLRC resolution or ruling subject of the petition.
judgments and final orders or resolutions are 186
now reviewable, in the first instance, by the  The remedy of an aggrieved party from a
CIVIL PROCEDURE
Court of Appeals on certiorari under Rule resolution issued by the CSC is to file a
65, but those of the Employees petition for review thereof under Rule43 of
Compensation Commission should be the Rules of Court within fifteen days from
brought to the Court of Appeals through a notice of the resolution. [DECS v. Cuanan
petition for review under this Rule. Also, (2008)]
appeals from the Office of the Ombudsman
in administrative disciplinary cases are now  Recourse to a petition for certiorari under
covered by this Rule. Rule 65 renders the petition dismissible for
being the wrong remedy. Nonetheless,
 RA 9282: Decisions of the CTA are now there are exceptions to this rule, to wit: (a)
appealable to the SC by petition for review when public welfare and the advancement of
on certiorari under Rule 45. public policy dictates; (b) when the broader
interest of justice so requires; (c) when the
 Orosa vs. Roa (2006): Resolution of DOJ writs issued are null and void; or (d) when
Secretary is not appealable under Rule 43. the questioned order amounts to an
Recourse should be to the President, oppressive exercise of judicial authority.
instead of the CA, under the established [DECS v. Cuanan (2008)]
principle of exhaustion of administrative
remedies. J. QJA to CA to SC
 Exhaustion of administrative remedies: If  Remedy is a petition for review on certiorari

an appeal/remedy obtains or is available under Rule 45.
within the administrative machinery, this
should be resorted to before resort can be
K. QJA to SC
made to the courts.
 Villorente vs. Laiya (2005): Under Rule 43,  Remedy is a petition for certiorari under
Sec. 4 the petition should be filed within 15 Rule 65, which is not an appeal.
days from:
1. Notice of the final order; V. Rules
2. The date of its last publication, if
publication is required by law for its
effectivity; A. General Rule
3. The denial of the petitioner’s MFR duly
1. Procedure in the Court of Appeals
filed according to the governing law of
the court or agency a quo. Ordinary appealed cases:
Rule 44, Sec.1. Title of cases.—In all cases
 Basmayor v. Atencio (2005): Under Rule 43, appealed to the Court of Appeals under Rule 41,
there is no need to implead the lower court the title of the case shall remain as it was in the
or agency which rendered the assailed court of origin, but the party appealing shall be
decision. further referred to as the appellant and the
adverse party as the appellee.
 Coca-cola v. Cabalo (2006): Submission of
the duplicate original or certified true copy of Counsels and guardians:
judgment, order, resolution or ruling subject Rule 44, Sec.2. Counsel and guardians.—The
of a petition for certiorari is essential to counsel and guardians ad litem of the parties in
determine whether or not the court, body or the court of origin shall be respectively
tribunal which rendered the same indeed considered as their counsel and guardians ad
committed grave abuse of discretion. Either litem in the Court of Appeals. When others
a legible duplicate original or certified true appear or are appointed, notice thereof shall be
copy thereof shall be submitted. If what is
submitted is a copy, then it is required that
served immediately on the adverse party and shall be a ground for dismissal of the
filed with the court. appeal.
 The counsel and guardians ad litem of the Record completion:

parties in the court of origin shall be Rule 44, Sec.5. Completion of record.—Where
respectively considered as their counsel and the record of the docketed case is incomplete, 187
guardians ad litem in the CA. the clerk of court of the Court of Appeals shall so
CIVIL PROCEDURE
 When others appear or are appointed, inform the court and recommend to it measures
notice thereof shall be served immediately necessary to complete the record. It shall be the
on the adverse party and filed with the court. duty of said court to take appropriate action
towards the completion of the record within the
Order of transmittal of record: shortest possible time.
Rule 44, Sec.3. Order of transmittal of record.—
If the original record or the record on appeal is Rule 44, Sec.6. Dispensing with complete
not transmitted to the Court of Appeals within 30 record.—Where the completion of the record
days after the perfection of appeal, either party could not be accomplished within a sufficient
may file a motion with the trial court, with notice period allotted for said purpose due to
to the other, for the transmittal of such record or insuperable or extremely difficult cases, the
record on appeal. court, on its own motion or on motion of an of
the parties, may declare that the record and its
Case docketing: accompanying transcripts and exhibits so far
Rule 44, Sec.4. Docketing of case.—Upon available are sufficient to decide the issues
receiving the original record or the record on raised in the appeal, and shall issue an order
appeal and the accompanying documents and explaining the reasons for such declaration.
exhibits transmitted by the lower court, as well
as the proof of payment of the docket and other  Where the record of the docketed case is
lawful fees, the clerk of court of the Court of incomplete, the clerk of the Court of Appeals
Appeals shall docket the case and notify the shall so inform said court and recommend to
parties thereof.. it measures necessary to complete the
record. It shall be the duty of said court to
Within 10 days from receipt of said notice, the take appropriate action towards the
appellant, in appeals by record on appeal, shall completion of the record within the shortest
file with the clerk of court 7 clearly legible copies possible time.
of the approved record on appeal, together wit ht
the proof of service of 2 copies thereof upon the  Where the completion of the record could
appellee. not be accomplished within a sufficient
period allotted for said purpose due to
Any unauthorized alteration, omission or insuperable or extremely difficult causes, the
addition in the approved record in appeal shall court may declare that the record and its
be a ground for dismissal of the appeal. accompanying transcripts and exhibits so far
available are sufficient to decide the issues
 Upon receiving the original record or record raised in the appeal, and shall issue an
on appeal, the accompanying documents order explaining the reasons for such
and exhibits transmitted by the lower court, declaration.
as well as the proof of payment of the
docket and other lawful fees, the clerk of the Appellant’s brief:
Court of Appeals shall docket the case and Rule 44, Sec.7. Appellant’s brief.—It shall be the
notify the parties thereof. duty of the appellant to file with the court, within
45 days from receipt of the notice of the clerk
 Within 10 days from receipt of said notice, that all the evidence, oral and documentary, are
the appellant, in appeals by record on attached to the record, 7 copies of his legibly
appeal, shall file with the clerk of court 7 written, mimeographed or printed brief, with
clearly legible copies of the approved record proof of service of 2 copies thereof upon the
on appeal, together with the proof of service appellee.
of 2 copies thereof upon the appellee.
Important numbers to remember:
 Any unauthorized alteration, omission or  File brief within 45 days from receipt of
addition in the approved record on appeal notice,
 File seven copies of the brief, Rule 44, Sec.15. Questions that may be raised
 Serve two copies to appellee and file proof on appeal.—Whether or not the appellant has
of service. filed a motion for new trial in the court below, he
may include in his assignment of errors any
Contents of appellant’s brief: question of law or fact that has been raised in
Rule 44, Sec.13. Contents of appellant’s brief.— the court below and which is within the issues 188
The appellant’s brief shall contain, in the order framed by the parties.
CIVIL PROCEDURE
herein indicated, the following:
Rule 124, Sec.7. Contents of brief.—The briefs n
(1) A subject index of the matter in the brief with criminal cases shall have the same contents as
a digest of the arguments and page provided in sections 13 and 14 of Rule 44. A
references, and a table of cases certified true copy of the decision or final order
alphabetically arranged, textbooks and appealed from shall be appended to the brief of
statutes cited with references to the pages the appellant.
where they are cited; 1. Subject index: Digest of the arguments and
page references, and a tables of:
(2) An assignment of errors intended to be i. cases alphabetically arranged and
urged, which errors shall be separately, ii. books and statutes cited,
distinctly and concisely stated without with references to the pages where they are
repetition and numbered consecutively; cited.
2. Assignment of errors: Errors urged
(3) Under the heading “Statement of the Case,” separately, distinctly and concisely; stated
a clear and concise statement of the nature without repetition and numbered
of the action, a summary of the proceedings, consecutively.
the appealed rulings and orders of the court, Whether or not the appellant has filed a
the nature of the judgment and any other motion for new trial in the court below, he
matters necessary to an understanding of may include in his assignment of errors any
the nature of the controversy, with page question of law or fact that has been raised
references to the record; in the court below and which is within the
issues framed by the parties.
(4) Under the heading “Statement of Facts,” a 3. Statement of the case: Clear and concise
clear and concise statement in a narrative statement of the nature of the action, a
form of facts admitted by both parties and of summary of the proceedings, the appealed
those in controversy, together with the court rulings and orders, the nature of the
substance of proof relating thereto in judgment and any other matters necessary
sufficient detail to make it clearly intelligible, to an understanding of the nature of the
with page references to the record; controversy, with page references to the
record.
(5) A clear and concise statement of the issues 4. Statement of facts: Clear and concise
of fact or law to be submitted to the court for narrative statement of the facts admitted by
its judgment; both parties and of those in controversy,
together with the substance of the related
(6) Under the heading “Argument,” the proof, in sufficient detail to make it clearly
appellant’s arguments on each assignment intelligible and with page references to the
of error with page references to the record. record.
The authorities relied upon shall be cited by 5. Issues: Clear and concise statement of
the page of the report at which the case issues of fact or law submitted to the court
begins and the page of the report on which for its judgment.
the citation is found. 6. Argument: Appellant’s arguments on each
assignment of error, with page references to
(7) Under the heading “Relief,” a specification of the record. The authorities relied upon shall
the order of judgment which the appellant be cited by the page of the report at which
seeks; and the case begins and the page of the report
on which the citation is found.
(8) In cases not brought up by record on 7. Relief: Specification of the order or judgment
appeal, the appellant’s brief shall contain, as which the appellant seeks. In cases not
an appendix, a copy of the judgment or final brought up by record on appeal, the
order appealed from. appellant’s brief shall contain (as an
appendix) a copy of the judgment or final 4. Argument: Appellee’s arguments on each

order appealed from. assignment of error, with page references to
8. Attachment: Certified true copy of the the record. The authorities relied upon shall
decision or final order appealed from. be cited by the page of the report at which
the case begins and the page of the report
Appellee’s brief: on which the citation is found. 189
Rule 44, Sec.8. Appellee’s brief.—Within 45
CIVIL PROCEDURE
days from receipt of the appellant’s brief, the Reply brief:
appellee shall file with the court 7 copies of his Rule 44, Sec.9. Appellant’s reply brief.—Within
legibly type-written, mimeographed or printed 20 days from receipt of the appellant’s brief, the
brief, with proof of service of 2 copies thereof appellee shall file with the court 7 copies of his
upon the appellant. legibly typewritten, mimeographed or printed
brief, with proof of service of 2 copies thereof
Contents of appellee’s brief: upon the appellant.
Rule 44, Sec.14. Contents of appellee’s brief.—
The appellee’s brief shall, in the order herein Memoranda in special cases:
indicated, the following: Rule 44, Sec.10. Time for memoranda in special
cases.—In certiorari, prohibiton, mandamus, quo
(a) A subject index of the matter in the brief with warranto and habeas corpus cases, the parties
a digest of the arguments and page shall file, in lieu of briefs, their respective
references, and a table of cases memoranda within a non-extendible period of 30
alphabetically arranged, textbooks and days from receipt of the notice issued by the
statutes cited with references to the pages clerk that all the evidence, oral or documentary,
where they are cited; is already attached to the record.
(b) Under the heading “Statement of Facts,” the The failure of the appellant to file his
appellee shall state that the accepts the memorandum within the period therefore may be
statement of facts in the appellant’s brief, or a ground for dismissal of the appeal..
under the heading “Counter-Statement of
Facts,” he shall point out such insufficiencies  In certiorari, prohibition, mandamus, quo
or inaccuracies as he believes exist in the warranto and habeas corpus cases, the
appellant’s statement of facts with parties shall be file (in lieu of briefs) their
references to the pages of the record in respective memoranda within a non-
support thereof, but without repetition of extendible period of 30 days from receipt of
matters in the appellant’s statement of facts; the notice issued by the clerk that all the
and evidence is already attached to the record.
(c) Under the heading “Argument,” the appellee  The failure of the appellant to file his
shall set forth his arguments in the case on memorandum within the period therefor may
each assignment of error with page be a ground for dismissal of the appeal.
references to the record. The authorities
relied on shall be cited by the page of the Several or plurality of appellant’s, appellees
report at which the case begins and the and/or counsel:
page of the report on which the citation is Rule 44, Sec.11. Several appellants or
found. appellees or several counsel for each party.—
Where there are several appellants or appellees,
1. Subject index each counsel representing one or more but not
2. Statement of facts: Statement that appellee all of them shall be served with only one copy of
accepts the statement of facts in the the briefs. When several counsel represent one
appellant’s brief; or appellant or appellee, copies of the brief may be
3. Counter-statement of facts: Points out the served upon any of them.
insufficiencies or inaccuracies appellee
believes to exist in the appellant’s statement  Where there are several appellants or
of facts, with references to the supporting appellees, each counsel representing one or
pages of the record. Matters in the more but not all of them shall be served with
appellant’s statement of facts should not be only one copy of the briefs.
repeated.
 When several counsel represent one memorandum within the time provided by
appellant or appellee, copies of the brief these Rules;
may be served upon any of them.
(f) Absence of specific assignment of errors in
Extension of time for filing briefs: the appellant’s brief, or of page references
Rule 44, Sec.12. Extension of time for filing to the record as required in section 13, 190
briefs.—Extension of time for the filing of briefs paragraphs (a), (c), (d) and (f) of Rule 44;
CIVIL PROCEDURE
will not be allowed, except for good and
sufficient cause, and only if the motion for (g) Failure of the appellant to take the
extension is filed before the expiration of the necessary steps for the correction or
time sought to be extended. completion of the record within the time
limited by the court in its order;
 Extension will not be allowed, except for
good and sufficient cause. (h) Failure of the appellant to appear at the
 Motion for extension should be filed before preliminary conference under Rule 48 or to
the expiration of the time sought to be comply with orders, circulars, or directives of
extended. the court without justifiable cause; and
The brief: (i) The fact that the order or judgment appealed
In the case of De Liano vs. CA (2001), the from is not appealable.
Supreme Court discussed the following:
 Purpose of the brief is to present to the court Grounds:
in concise form the points and questions in 1. Failure of the record on appeal to show on
controversy, and by fair argument on the its face that the appeal was taken within
facts and law of the case to assist the court the period fixed by the Rules of Court.;
in arriving at a just and proper conclusion. 2. Failure to file the notice of appeal or record
 The brief should be so prepared as to on appeal within the period prescribed by
minimize the labor of the court in the Rules of Court;
examination of the record upon which the 3. Failure of the appellant to pay the docket
appeal is heard and determined. and other lawful fees;
 Failure to comply with required contents of 4. Unauthorized alterations, omissions or
appellant’s brief is cause for dismissal of the additions in the approved record on appeal;
petition. 5. Failure of the appellant to serve and file the
required number of copies of his brief or
Dismissal of appeal: memorandum within the time provided by
Rule 50, Sec.1. Grounds for dismissal of the Rules of Court;
appeal.—An appeal may be dismissed Court of 6. Absence of specific assignment of errors in
Appeals, on its own motion or on that of the appellant's brief, or of page references
appellee, on the following grounds: to the record as required;
7. Failure of the appellant to take the
(a) Failure of the record on appeal to show on necessary steps for the correction or
its face that the appeal was taken within the completion of the record within the time
period fixed by these Rules; limited by the court in its order;
8. Failure of the appellant to appear at the
(b) Failure to file the notice of appeal of the preliminary conference under Rule 48 or to
record on appeal within the period comply with court orders, circulars or
prescribed by these Rules; directives without justifiable cause;
9. The fact that the order/judgment appealed
(c) Failure of the appellant to pay the docket from is not appealable.
and other lawful fees as provide in section 5
of Rule 40 and Section4 of Rule 41; PNB vs. Philippine Milling (1969): CA has
discretion to dismiss or not to dismiss appeal.
(d) Unauthorized alterations, omission or Although said discretion must be a sound one,
additions in the approved record on appeal to be exercised in accordance with the tenets of
as provided in section 4 of Rule 44; justice and fair play, having in mind the
circumstances obtaining in each case, the
(e) Failure of the appellant to serve and file the presumption is that it has been so exercised.
required number of copies of his brief or
Padasdas vs. CA (1974): Failure to file Withdrawal of appeal:

appellant’s brief within the reglementary period Rule 50, Sec.3. Withdrawal of appeal.—An
need not necessarily cause dismissal of appeal appeal may be withdrawn as of right at any time
where the same was due to force majeure. before the filing of the appellee’s brief.
Thereafter, the withdrawal may be allowed in the
Dismissal of improper appeal: discretion of the court. 191
Rule 50, Sec. 2. Dismissal of improper appeal to
CIVIL PROCEDURE
the Court of Appeals.—An appeal under Rule 41  An appeal may be withdrawn as of right at
taken from the Regional Trial Court to the Court any time before the filing of the appellee's
of Appeals raising only questions of law shall be brief. Thereafter, the withdrawal may be
dismissed, issues purely of law not being allowed in the discretion of the court.
reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review Stay of execution:
from the appellate judgment of a Regional Trial Rule 70, Sec.19. Immediate execution of
Court shall be dismissed. judgment; how to stay same.—If judgment is
rendered against the defendant, execution shall
An appeal erroneously taken to the Court of issue immediately upon motion, unless an
Appeals shall not be transferred to the appeal has been perfected and the defendant to
appropriate court but shall be dismissed outright. stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court and
 An appeal under Rule 41 taken from the executed in favor of the plaintiff to pay the rents,
RTC to the CA raising only questions of law damages and accosts accruing down to the time
shall be dismissed; issues purely of law not of the judgment appealed from, and unless,
being reviewable by said court. during the pendency of the appeal, he deposits
 Similarly, an appeal by notice of appeal with the appellate court the amount of rent due
instead of by petition for review from the from time to time under the contract, if any, as
appellate judgment of a RTC shall be determined by the judgment of the Municipal
dismissed. Trial Court. In the absence of a contact, he shall
 An appeal erroneously taken to the CA shall deposit with the Regional Trial Court the
not be transferred to the appropriate court reasonable value of the use and occupation of
but shall be dismissed outright. the premises for the preceding month or period
 Atlas Consolidated vs. CA (1991): It is true at the rate determined by the judgment of the
that Circular No.2-90 now prohibits the lower court on or before the tenth day of each
transfer of appeals erroneously taken to the succeeding month or period. The supersedeas
SC or CA to whichever of these tribunals bond shall be transmitted by the Municipal Trial
has appropriate appellate jurisdiction. But Court, with the other papers, to the clerk of the
where SC believes that there are factual Regional Trial Court to which the action is
issues which must be resolved, it may, in the appealed.
exercise of its sound discretion and
considering the attendant circumstances, All amounts so paid to the appellate court shall
either itself take cognizance of and decide be deposited with said court or authorized
such issues or refer them to CA for government depositary band, and shall be held
determination. there until the final disposition of the appeal,
 Cu-unjieng vs. CA (2006): Nonpayment of unless the court, by agreement of the interested
the appellate court docket and other lawful parties, or in the absence of reasonable grounds
fees within the reglementary period as of opposition to a motion to withdraw, or for
provided under Rule 41, Sec.4 is a ground justifiable reasons, shall decree otherwise.
for the dismissal of an appeal under Rule Should the defendant fail to make the payments
50, Sec.1(c). The Supreme Court has above prescribed from time to time during the
invariably sustained the Court of Appeal’s pendency of the appeal, the appellate court,
dismissal on technical grounds under the upon motion of the plaintiff, and upon proof of
aforequoted provision unless considerations such failure, shall order the execution of the
of equity and substantial justice present judgment appealed from with respect to the
cogent reasons to hold otherwise. True, the restoration of possession, but such execution
rules may be relaxed but only for persuasive shall not be a bar to the appeal taking its course
and weighty reasons, to relieve a litigant of until the final disposition thereof on the merits.
an injustice commensurate with his failure to
comply with the prescribed procedure.
After the case is decided by the Regional Trial Court of Appeals shall direct otherwise upon
Court, any money paid to the court by the such terms as it may deem just.
defendant for purposes of the stay of execution
shall be disposed of in accordance with the Rule 39, Sec.4. Judgments not stayed by
provisions of the judgment of the Regional Trial appeal.—Judgments in actions for injunction,
Court. In any case wherein it appears that the receivership, accounting and support, and such 192
defendant has been deprived of the lawful other judgments as are not or may hereafter be
CIVIL PROCEDURE
possession of land or building pending the declared to be immediately executory shall be
appeal by virtue of the execution of the judgment enforceable after their rendition and shall not be
of the Municipal Trial Court, damages for such stayed by an appeal taken therefrom, unless
deprivation of possession and restoration of otherwise ordered by the trial court. On appeal
possession may be allowed the defendant in the therefrom, the appellate court in its discretion
judgment of the Regional Trial Court disposing may make an order suspending, modifying,
of the appeal. restoring or granting the injunction, receivership,
accounting, or award of support.
Rule 39, Sec.2. Discretionary execution.—
 General rule: In ordinary appeals, execution
(a) Execution of a judgment or a final order is stayed.
pending appeal.—On motion of the
prevailing party with notice to the adverse  Exceptions:
party filed in the trial court while it has 1. Decision in forcible entry and unlawful
jurisdiction over the case and is in detainer.
possession of either the original record or Exception to exception: If appellant
the record on appeal, as the case may be, at stays immediate execution by filing a
the time of the filing of such motion, said notice of appeal, supersedeas bond and
court may, in its discretion, order execution depositing in court a monthly rental or
of a judgment or final order even before the compensation for the occupation as
expiration of the period to appeal. fixed by the court which rendered the
decision.
After the trial court has lost jurisdiction, the 2. Decision of the MeTC, MTC or MCTC or
motion for execution pending appeal may be the RTC where execution pending
filed in the appellate court. appeal has been granted by the court of
origin or in a proper case by the
Discretionary execution may only issue upon appellate court upon good reasons to be
good reasons to be stated in a special order stated in the order.
after due hearing. 3. Decision of the RTC rendered in the
exercise of its appellate jurisdiction on
(b) Execution of several, separate or partial cases tried and decided by the court of
judgments.—A several, separate or partial origin under Summary Procedure.
judgment may be executed under the same 4. Decision of a quasi-judicial agency
terms and conditions as execution of a under the Rule 43, Sec.12, unless
judgment or final order pending appeal. otherwise provided by the Court of
Appeals;
Sec.21, Revised Rules on Summary Procedure. 5. Decision in cases of injunction,
Appeal. — The judgment or final order shall be receivership, support and accounting.
appealable to the appropriate regional trial court
which shall decide the same in accordance with When case is submitted for judgment:
Section 22 of Batas Pambansa Blg. 129. The Rule 51, Sec. 1. When case deemed submitted
decision of the regional trial court in civil cases for judgment.—A case shall be deemed
governed by this Rule, including forcible entry submitted for judgment:
and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal B. In ordinary appeals.—
that may be taken therefrom. Section 10 of Rule
70 shall be deemed repealed. 1) Where no hearing on the merits of the main
case is held, upon the filing of the last
Rule 43, Sec.12. Effect of appeal.—The appeal pleading, brief, or memorandum required by
shall not stay the award, judgment, final order or the Rules or by the court itself, or the
resolution sought to be reviewed unless the expiration of the period for its filing.
necessary for the deliberation required in section

2) When such hearing is held, upon its 2 of this Rules and the concurrence of a majority
termination or upon the filing of the last of such division shall be required for the
pleading or memorandum as may be pronouncement of a judgment or final resolution.
required or permitted to be filed by the court,
or the expiration of the period for its filing. Rule 51, Sec. 4. Disposition of a case.—The 193
Court of Appeals, in the exercise of its appellate
CIVIL PROCEDURE
A. In original actions and petitions for review.— jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may
1) Where not comment is filed, upon the direct a new trial or further proceedings to be
expiration of the period to comment. had.
2) Where no hearing is held, upon the filing of Sec.40, BP 129. Form of decision in appealed
the last pleading required or permitted to be cases.—Every decision or final resolution of a
filed by the court, or the expiration of the court in appealed cases shall clearly and
period for its filing. distinctly state the findings of fact and the
conclusion of law on which it is based, which
3) Where a hearing on the merits of the amin may be contained in the decision or final
case is held, upon its termination or upon resolution itself, or adopted by reference from
the filing of the last pleading or those set forth in the decision, order, or
memorandum as may be required or resolution appealed from.
permitted to be filed by the court, or the
expiration of the period for its filing.
Rule 51, Sec. 5. Form of decision.—Every
decision or final resolution of the court in
1. Where no hearing on the merits of the main
appealed cases shall clearly and distinctly state
case is held, upon the filing of the last
the finding of fact and the conclusions of law on
pleading, brief or memorandum required by
which it is based, which may be contained in the
the Rules of Court or by the court itself, or
decision or final resolution itself, or adopted from
the expiration of the period for its filing.
those set forth in the decision, order, or
2. Where such a hearing is held, upon its
resolution appealed from.
termination or upon the filing of the last
pleading or memorandum required or
permitted to be filed by the court, or the Rule 51, Sec.6. Harmless error.—No error in
expiration of the period for its filing. either the admission or the exclusion of
evidence and no error or defect in any ruling or
Judgment: order or in anything done or omitted by the trial
Rule 51, Sec.2. By whom rendered.—The court or by any of the parties is ground for
judgment shall be rendered by the members of granting a new trial or for setting aside,
the court who participated in the deliberation on modifying, or otherwise disturbing a judgment or
the merits of the case before its assignment to a order, unless refusal to take such action appears
member for the writing of the decision. to the court inconsistent with substantial justice.
The court at every stage of the proceedings
must disregard any error or defect which does
Rule 51, Sec.3. Quorum and voting in the not affect the substantial rights of the parties.
court.—The participation of all three Justices of
a division shall be necessary at the deliberation
and the unanimous vote of the three Justices Rule 51, Sec.7. Judgment where there are
shall be required for the pronouncement of a several parties.—In all actions or proceedings,
judgment or final resolution. If the three Justices an appealed judgment may be affirmed as to
do not reach a unanimous vote, the clerk shall some of the appellants, and revered as to
enter the votes of the dissenting Justices in the others, and the case shall thereafter be
record. Thereafter, the Chairman of the division proceeded with, so far as necessary, as of
shall refer the case, together with the minutes of separate actions had been begun and
the deliberation, to the Presiding Justice who prosecuted; and execution of the judgment of
shall designate two Justices chosen by raffle affirmance may be had accordingly, and costs
from among the other members of the court to may be adjudged in such cases, as the court
sit temporarily with them, forming a special shall deem proper.
division of five Justices. The participation of all
the five members of the special division shall be
Rule 51, Sec. 8. Questions that may be of law on which it is based, which may be
decided.—No error which does not affect the contained in the decision or final resolution
jurisdiction over the subject matter or the validity itself, or adopted from those set forth in the
of the judgment appealed from or the decision, order or resolution appealed from.
proceedings therein will be considered unless
stated in the assignment of errors, or closely  Harmless error rule: No error in the 194
related to or dependent on an assigned error admission or exclusion of evidence and no
CIVIL PROCEDURE
error or defect in any ruling or order or in
Rule 51, Sec. 9. Promulgation and notice of anything done or omitted by the trial court or
judgment.—After the or final resolution and of any of the parties is ground for granting a
dissenting or separate opinions, if any, are new trial or for setting aside, modifying or
signed by the Justices taking part, they shall be otherwise disturbing a judgment or order,
delivered for filing to the clerk who shall indicate unless refusal to take such action
thereon the date of promulgation and cause true appears to the court inconsistent with
copes thereof to be served upon the parties or substantial justice. The court at every
their counsel. stage of the proceeding must disregard
any error or defect which does not affect
the substantial rights of the parties.
 It is rendered by the members of the court
who participated in the deliberation on the
 In all actions or proceedings, an appealed
merits of the case before its assignment to a
judgment may be affirmed as to some of the
member for the writing of the decision.
appellants and reversed as to others, and
the case shall thereafter be proceeded with
 The participation of all 3 Justices of a
as if separate actions had been begun and
division shall be necessary at the
prosecuted.
deliberation.
 No error which does not affect the
 The unanimous vote of the 3 Justices shall
jurisdiction over the subject matter or the
be required for the pronouncement of a
validity of the judgment appealed from or
judgment or final resolution.
the proceedings therein will be
considered unless stated in the
 If the 3 Justices do not reach a unanimous
assignment of errors, or closely related
vote, the clerk shall enter the votes of the
to or dependent on an assigned error and
dissenting Justices in the record.
properly argued in the brief.
 The Chairman of the division shall refer the
 Exception: The court may pass upon plain
case (together with the minutes of the
errors and clerical errors.
deliberation) to the Presiding Justice who
shall designate 2 Justices chosen by raffle
 After the judgment or final resolution and
from among all the other members of the
dissenting or separate opinions are signed
court to sit temporarily with them, forming a
by the Justices taking part, they shall be
special division of 5 Justices.
delivered for filing to the clerk. The clerk
shall indicate thereon the date of
 The participation of all the 5 members of the
promulgation and cause true copies thereof
special division shall be necessary for the
to be served upon the parties or their
deliberation and the concurrence of a
counsel.
majority of such division shall be required for
the pronouncement of a judgment or final
resolution. 2. Procedure in the Supreme Court
(Appealed Cases)
 The CA, in the exercise of its appellate
jurisdiction, may affirm, reverse or modify
the judgment or final order appealed from, Mode of appeal:
and may direct a new trial or further Rule 56, Sec. 3. Mode of appeal.—An appeal to
proceedings to be had. the Supreme Court may be taken only by a
petition for review on certiorari, except in
 Every decision or final resolution of the CA criminal cases where the penalty imposed is
in appealed cases shall clearly and distinctly death, reclusion perpetua or life imprisonment.
state the findings of fact and the conclusions
 Only by a petition for review on certiorari.
 Exception: Criminal cases where the penalty 7. The fact that the case is not appealable to
imposed is death, reclusion perpetua or life SC.
imprisonment.
Improper appeal:
Procedure: Rule 56, Sec. 6. Disposition of improper
Rule 56, Sec. 4. Procedure.—The appeal shall appeal.—Except as provided in section 3, Rule 195
be governed by and disposed of in accordance 122 regarding appeals in criminal cases where
CIVIL PROCEDURE
with the applicable provisions of the the penalty imposed is death, reclusion perpetua
Constitution, laws, Rules 45, 48, sections 1, 2 or life imprisonment, an appeal taken to the
and 5 to 11 of Rules 51, 52 and this Rule. Supreme Court by notice of appeal shall be
dismissed.
 Governed by and disposed of in accordance
with the applicable provisions of the An appeal by certiorari taken to the Supreme
Constitution, laws, Rules 45, 48, Sec. 1, 2 Court from the Regional Trial Court submitting
and 5 to 11 of Rule 51, 52 and this Rule. issues of fact may be referred to the Court of
Appeals for decision or appropriate action. The
Grounds for dismissal of appeal: determination of the Supreme Court on whether
Rule 56, Sec. 5. Grounds for dismissal of or not issues of facts are involved shall be final.
appeal.—The appeal may be dismissed motu
proprio or on motion of the respondent on the Rule 122, Sec.3. How appeal taken.—
following grounds:
(a) The appeal to the Regional Trial Court, or to
(a) Failure to take the appeal within the the Court of Appeals in cases decided by
reglementary period; the Regional Trial Court in the exercise of its
original jurisdiction, shall be by notice of
(b) Lack of merit in the petition; appeal filed with the court which rendered
the judgment or final order appealed from
(c) Failure to pay the requisite docket fee and and by serving a copy thereof upon the
other lawful fees or to make a deposit for adverse party.
costs;
(b) The appeal to the Court of Appeals in cases
(d) Failure to comply with the requirements decided by the Regional Trial Court in the
regarding proof of service and contents of exercise of its appellate jurisdiction shall be
and the documents which should by petition for review under Rule 42.
accompany the petition;
(c) The appeal in cases where the penalty
(e) Failure to comply with any circular, directive imposed by the Regional Trial Court is
or order of the Supreme Court without reclusion perpetua or life imprisonment, or
justifiable cause; where a lesser penalty is imposed but for
offenses committed on the same occasion
(f) Error in the choice or mode of appeal; and or which arose out of the same occurrence
that gave rise to the more serious offense
(g) The fact that the case is not appealable to for which the penalty of death, reclusion
the Supreme Court. perpetua, or life imprisonment is imposed,
shall be by notice of appeal to the Court of
1. Failure to take the appeal within the Appeals in accordance with paragraph (a) of
reglementary period; this Rule.
2. Lack of merit in the petition;
3. Failure to pay the docket and other lawful (d) No notice of appeal is necessary in cases
fees or to make a deposit for costs; where the Regional Trial Court imposed the
4. Failure to comply with the requirements death penalty. The Court of Apppeals shall
regarding proof of service and contents of automatically review the judgment as
and the documents which should provided in Section 10 of this Rule.
accompany the petition;
5. Failure to comply with any SC (e) Except as provided in the last paragraph of
circular/directive/order without justifiable section 13, Rule 124, all other appeals to the
cause; Supreme Court shall be by petition for
6. Error in the choice/mode of appeal; review on certiorari under Rule 45.
Exception: CA’s findings of fact may be

 An appeal taken to the Supreme Court by reviewed by the SC on appeal by certiorari
notice of appeal shall be dismissed. when:
 Exception: Appeals in criminal cases where 1. Joaquin vs. Navarro: Conclusion is a finding
the penalty imposed is death, reclusion grounded entirely on speculations, surmises
perpetua or life imprisonment. or conjectures. 196
 An appeal by certiorari taken to the SC from 2. Luna vs. Linatok: Inference made is
CIVIL PROCEDURE
the RTC submitting issues of fact may be manifestly mistaken, absurd or impossible.
referred to the CA for decision or 3. Buyco vs. Pp: There is grave abuse of
appropriate action. The determination of the discretion in the appreciation of facts.
SC on whether or not issues of fact are 4. De la Cruz vs. Sosing: Judgment is based
involved shall be final. on a misapprehension of facts.
CIVIL PROCEDURE REMEDIAL LAW 5. Casica vs. Villaseca: The Court of Appeal’s
Equally divided: findings of fact are conflicting.
Rule 56, Sec. 7. Procedure if opinion is equally 6. Nakpil & Sons vs. CA (1986): The Court of
divided.—Where the court en banc is equally Appeals, in making its findings, went beyond
divided in opinion, or the necessary majority the issues of the case and the same is
cannot be had, the case shall again be contrary to the admissions of both appellant
deliberated on, and if after such deliberation no and appellee.
decision is reached, the original action 7. Abellana vs. Dosdos (1965): The Court of
commenced in the court shall be dismissed; in Appeals manifestly overlooked certain
appealed cases, the judgment or order appealed relevant facts not disputed by the parties
from shall stand affirmed; and on all incidental and which, if properly considered, would
matters, the petition or motion shall be denied. justify a different conclusion.
8. Manlapaz vs. CA (1987): The Court of
 Where the court en banc is equally divided Appeal’s findings of fact are contrary to
in opinion, or the necessary majority cannot those of the trial court, or are mere
be had, the case shall again be deliberated conclusions without citation of specific
on. evidence, or where the facts set forth by the
 If after such deliberation no decision is petitioner are not disputed by the
reached: respondent, or where the findings of fact of
1. The original action commenced in the the Court of Appeals are premised on
court shall be dismissed. absence of evidence but are contradicted by
2. In appealed cases, the judgment or the evidence of record.
order appealed from shall stand 9. Joaquin v. Navarro: Conclusion is a finding
affirmed. grounded entirely on
speculations/surmises/conjectures.
B. Questions of Fact vs. Questions of
Perez-Rosario vs. CA (2005): Rule 65 cannot
Law cure the failure to appeal thru Rule 45.
In the case of Agote vs. Lorenzo (2005), the

Supreme Court laid down the following Distinctions Between Rule 45 and
principles: Rule 65 Based on J. Regalado’s Commentary
 A question of law does not involve an (Asked in the 1999 and 2008 Bar Exams )
examination of the probative value of the Rule 45 Appeal by Rule 65 Original Action
evidence presented by any of the litigants. Certiorari for Certiorari
 There is a question of law in a given case 1. Issues Raised Grave Abuse of
Discretion Amounting to
when the doubt or difference arises as to
Questions of Law Lack or Excess of
what the law is on a certain state of facts; Jurisdiction
there is a question of fact when the doubt or 2. Against What Court Directed Against an
difference arises as to the truth or the Action Directed Interlocutory Order of
falsehood of the facts alleged. the court prior to appeal
Review of the judgment, from the judgment, or
Alsua-Betts vs. CA (1979): award or final order on the where there is no appeal
General rule: CA’s findings of fact are final and merits or any other plain
conclusive and cannot be reviewed on appeal to speedy and adequate
remedy
the SC, provided they are borne out by the
record or are based on substantial evidence.
3. Reglementary Period Not later than sixty (60) motion for extension of time to file a motion for
days from notice of the new trial or reconsideration shall be allowed.
Must be filed within the judgment, order or
reglementary period for resolution sought to be
Neypes vs. CA (2005) on the fresh period rule:
appeal. assailed.
4. Effect on the No effect (i.e.,  Definition: Period of appeal is interrupted by
Proceedings Below proceedings below a timely motion for new trial or 197
continue) unless a writ of reconsideration. Motion for extension of time
CIVIL PROCEDURE
Judgment, award or order preliminary injunction or to file motion for new trial or reconsideration
appealed from is stayed a temporary restraining is not allowed.
by the Appeal order has been issued  Applicability:
5. Parties Involved The parties are the 1. Rule 40 on appeals from MTC to RTC.
aggrieved party against 2. Rule 42 on petitions for review from
Original Parties to the the lower court/Quasi- RTC to CA.
action remain the same judicial agency and the
during appeal (albeit with prevailing parties, who
3. Rule 43 on appeals from QJA to CA.
the corresponding thereby respectively 4. Rule 45 on appeals by certiorari to SC.
appellation of appellant become the petitioner  Rationale: To standardize the appeal
and appellee), the lower and the respondents. periods provided in the Rules of Court and
court or quasi-judicial to afford litigants fair opportunity to appeal
agency is not to be their cases, the court deems it practical to
impleaded. allow a fresh period of 15 days within which
6. Requirement of A motion for to file the notice of appeal in the Regional
Motion for reconsideration is a Trial Court, counted from receipt of the order
Reconsideration CONDITION
dismissing a motion for new trial or
PRECEDENT subject
For purposes of appeal, only to certain reconsideration.
MR is not required exceptions.
7. Exercise of Higher Court exercises E. Perfection of Appeal
Jurisdiction original jurisdiction under
its power of control and
The Appellate Court supervision over the  Appeal from MTC to RTC: the rules on
exercises its appellate proceedings of lower perfection of appeal from RTC to CA
jurisdiction and power of courts. applies.
review  From the Regional Trial Court to CA:
 By notice of appeal: perfected as to
C. Notice of Appeal party who filed notice upon filing of the
same in due time
o The court loses jurisdiction over the
The notice of appeal shall indicate the parties to case upon perfection of appeal AND
the appeal, the judgment or final order or part expiration of time to appeal of the
thereof appealed from, the state the material other parties.
dates showing the timeliness of the appeal.
 By record on appeal: perfected as to the
party who filed appeal and with respect
to the subject matter thereof upon
D. Record on Appeal approval of the record filed in due time
o The court loses jurisdiction upon
Required only in: approval of the records on appeal
1. Special proceedings; AND expiration of the time to appeal
2. Multiple or separate appeals where the law of the other parties
or the Rules of Court so requires.  From MTC to RTC (appellate jurisdiction) to
CA: upon timely filing of a petition for review
Rule 40, Sec.2. When to appeal.—The appeal is and the payment of the corresponding
taken by filing a notice of appeal with the court docket and other lawful fees.
that rendered the judgment or final order  The RTC loses jurisdiction upon
appealed from. Where a record on appeal is perfection of appeals filed in due time
required, the appellant shall file a notice of AND the expiration of time to appeal of
appeal and a record on appeal within 30 days other parties.
after notice of the judgment or final order.
F. Period to Appeal
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
From MTC to RTC and from RTC (original) to 15 days from notice of judgment or final order or
CA: from denial of petitioner’s motion for
1. By notice of appeal: 15 days from notice of reconsideration or new trial. The SC may grant a
the judgment or final order 30 day extension for justifiable reasons.
2. By record of appeal: 30 days from notice of
the judgment or final order From QJA to CA: 198
3. From MTC to RTC (appellate) to CA: 15 15 days from notice of the award, judgment, final
CIVIL PROCEDURE
days from notice of the judgment or final order or resolution or from date of last
order but the Court of Appeals may grant a publication if required by law. The CA may grant
15 day extension. No further extension shall a 15 day extension. No further extension shall
be granted except for the most compelling be granted except for the most compelling
reasons and in no case longer then 15 days. reasons and in no case longer then 15 days.
From RTC (original) to CA to SC and from MTC

to RTC (appellate) to CA to SC and from CA to
SC and from QJA to CA to SC:
Matrix of Periods
Period to Appeal Extensions Effect of MR or MNT

By notice of appeal - 15 days
MTC to Interrupts the period
from notice of the judgment or No extensions allowed
RTC to appeal
final order
By record of appeal – 30 days
from notice of the judgment or
final order
By notice of appeal - 15 days
Interrupts the period
RTC to CA from notice of the judgment or No extensions allowed
to appeal
final order
By record of appeal – 30 days
from notice of the judgment or
final order
The CA may grant a 15 day
15 days from notice of the
extension. No further
judgment or final order OR from Fresh period to
MTC to extension shall be granted
denial of MR or MNT appeal from denial
RTC to CA except for the most compelling
MR or MNT
reasons and in no case longer
then 15 days.
The CA may grant a 15 day
15 days from notice of the
extension. No further
award, judgment, final order or Fresh period to
extension shall be granted
QJA to CA resolution or from date of last appeal from denial
except for the most compelling
publication if required by law OR MR or MNT
reasons and in no case longer
from denial of MR or MNT
then 15 days.
RTC to SC
15 days from notice of judgment The SC may grant a 30 day Fresh period to
RTC to CA
or final order OR from denial of extension for justifiable appeal from denial
to SC
petitioner’s MR or MNT. reasons. MR or MNT
CA to SC
This “fresh period rule” shall also apply to Rule reconsideration (whether full or partial) or any
40 governing appeals from the Municipal Trial final order or resolution. [Neypes vs. CA, (2005)]
Courts to the Regional Trial Courts; Rule 42 on
petitions for review from the Regional Trial A party litigant may now file his notice of appeal
Courts to the Court of Appeals; Rule 43 on either within fifteen days from receipt of the
appeals from quasi-judicial agencies to the original decision or within fifteen days from the
Court of Appeals and Rule 45 governing appeals receipt of the order denying the motion for
by certiorari to the Supreme Court. The new rule reconsideration. Being procedural in
aims to regiment or make the appeal period nature, Neypes is deemed to be applicable to
uniform, to be counted from receipt of the order actions pending and undetermined at the time of
denying the motion for new trial, motion for its effectivity and is thus retroactive in that sense
and to that extent. [First Aqua Sugar v. BPI remedies are no longer available without the
(2007)] fault of the petitioner, the equitable and
extraordinary remedy of Petition for
Annulment of Judgment may be resorted to.
VI. Special Topic: Remedies from a Void When all else fails, there is a jurisprudence to
Judgment the effect that a patently void judgment may be 199
(Asked in the 2004 BAR EXAMS) dealt with by a Main Action for Injunction.
CIVIL PROCEDURE
1. What is a void judgment? Some Jurisprudential Basis
A void judgment is no judgment at all. It cannot Remedial Law Jurisprudence such as Spouses
be the source of any right nor of any obligation. Benatiro vs. Heirs of Cuyos, (G.R. No. 161220,
All acts performed pursuant to it and all claims July 30, 2008) and Agustin vs. Bacalan, (1985)
emanating from it have no legal effect. Hence, it on the matter of void judgment particularly refer
can never become final and any writ of to Rule 47 as a remedy against a void judgment.
execution based on it is void: "x x x it may be This remedy however should be availed of only
said to be a lawless thing which can be treated when the appropriate remedies are no longer
as an outlaw and slain at sight, or ignored available without fault on the part of the
wherever and whenever it exhibits its head. petitioner.
A void judgment never acquires finality. A Although Section 2 of Rule 47 of the Rules of
void judgment is not entitled to the respect Court provides that annulment of a final
accorded to a valid judgment, but may be judgment or order of an RTC may be based
entirely disregarded or declared inoperative by "only on the grounds of extrinsic fraud and lack
any tribunal in which effect is sought to be given of jurisdiction," jurisprudence recognizes denial
to it. It is attended by none of the consequences of due process as additional ground therefore
of a valid adjudication. It has no legal or binding (Spouses Benatiro Case).
effect or efficacy for any purpose or at any
place. It cannot affect, impair or create rights. It In Montinola vs. Judge Gonzales (1989), the
is not entitled to enforcement and is, ordinarily, Supreme Court held: Petitioners' contention that
no protection to those who seek to enforce. All the decision of April 28, 1971, in Civil Case No.
proceedings founded on the void judgment are 6793, may not be annulled after it had become
themselves regarded as invalid. In other words, final is not well-taken, FOR A VOID JUDGMENT
a void judgment is regarded as a nullity, and the IS LIKE AN OUTLAW WHICH MAY BE SLAIN
situation is the same as it would be if there were AT SIGHT WHEREVER OR WHENEVER IT
no judgment. It, accordingly, leaves the parties EXHIBITS ITS HEAD. ". . . the proper remedy in
litigants in the same position they were in before such case, after the time for appeal or review
the trial. has passed, is for the aggrieved party to
bring an action to enjoin the judgment ... In
A judgment may be void for lack of due process every situation of this character an appropriate
of law. (Spouses Benatiro vs. Heirs of Cuyos, remedy is at hand ... We accordingly held that,
G.R. No. 161220, July 30, 2008) assuming the judgment to have been void as
alleged by the proponent of this motion, the
2. How do you attack a void judgment? proper remedy was by an original proceeding
and not by motion in the cause" (Banco Espanol
It may be assailed anytime, collaterally or in a vs. Palanca, 37 Phil. 921; p. 5). "A final
direct action or by resisting such judgment or judgment may be annulled on the ground of lack
final order in any action or proceeding of jurisdiction, fraud, or that it is contrary to law"
whenever it is invoked, unless barred by (Panlilio vs. Garcia, 119 SCRA 307)
laches. (Spouses Benatiro vs. Heirs of Cuyos,
G.R. No. 161220, July 30, 2008)
3. What are your remedies?
If the reglementary period for appeal has not yet

lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief,
and Other Appropriate Remedies such as
Certiorari may also be used. If the appropriate
REMEDIAL LAW REVIEWER Part 4: PROVISIONAL REMEDIES
N. IMPROPER IRREGULAR OR EXCESSIVE

Part 4: Provisional Remedies ATTACHMENT
(In the 1999 Bar Exam alone, three questions A. Definition

were asked in this area)
 A provisional remedy issued upon order of 200
I. DEFINITION
the court where an action is pending to be
CIVIL PROCEDURE
II. PRELIMINARY ATTACHMENT
III. PRELIMINARY INJUNCTION levied upon the property or properties of the
IV. TEMPORARY RESTRAINING ORDER (TRO) defendant therein, the same to be held
V. RECEIVERSHIP thereafter by the sheriff as security for the
VI. REPLEVIN satisfaction of whatever judgment might be
VII. SUPPORT PENDE LITE secured in said action by the attaching
creditor against the defendant. [Cuartero vs.
I. Definition CA, 1992]
 Writs and processes available during the B. Purposes

pendency of the action which may be
resorted to by a litigant for the preservation 1. To seize the property of the debtor in
or protection of their rights and interests advance of final judgment and to hold it for
therein pending rendition, and for purposes purposes of satisfying the said judgment.
of the ultimate effects, of a final judgment in 2. To enable the court to acquire jurisdiction
the case; also known as ancillary or auxiliary over the action by the actual or constructive
remedies. seizure of the property in those instances
 They are applied to a pending litigation, for where personal service of summons on the
the purpose of securing the judgment or creditor cannot be effected. [Quasha vs.
preserving the status quo, and in some Juan, 1982]
cases after judgment, for the purpose of
preserving or disposing of the subject C. Grounds
matter. [Calo vs. Roldan, 1946] [RULE 57.1]
 All inferior courts can grant appropriate (Asked in 2001 and 2005)
provisional remedies provided that the main
action is within their jurisdiction. [B.P. 129]
1. Action for recovery of a specified amount of
 Orders granting or denying provisional money or damages EXCEPT moral and
remedies are merely interlocutory and exemplary, on a cause of action against a
cannot be the subject of an appeal. They party who is about to depart from the
may however be challenged before a Philippines with intent to defraud his
superior court through a petition for certiorari
creditors;
under Rule 65. 2. Action for money or property embezzled or
II. Preliminary Attachment fraudulently misapplied or converted to his
(Asked in the 2002 Bar Exam) own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker,
A. DEFINITION agent, or clerk, in the course of his
B. PURPOSES employment as such, or by any other person
C. GROUNDS in a fiduciary capacity, or for a willful
D. STAGES IN THE GRANT OF PRELIMINARY violation of duty;
ATTACHMENT 3. Action to recover the possession of property
E. ISSUANCE AND CONTENTS OF ORDER OF unjustly or fraudulently taken, detained or
ATTACHMENT converted, when the property, or any part
F. CONTENTS OF AFFIDAVIT OF APPLICANT thereof, has been concealed, removed, or
G. CONDITION OF APPLICANT’S BOND
disposed of to prevent its being found or
H. MANNER OF ATTACHING PROPERTY
I. EFFECTS OF ATTACHMENT taken by the applicant or an authorized
J. SALE OF ATTACHED PROPERTY person;
K. DISHCARGE OF ATTACHMENT 4. Action against a party who has been guilty
L. PROCEEDINGS WHERE ATTACHED of a fraud in contracting the debt or incurring
PROPERTY CLAIMED BY THIRD PERSON the obligation upon which the action is
M. RECOVERY UPON THE COUNTER-BOND brought, or in the performance thereof;
DSIPOSITION OF DEPOSIT/ ATTACHED
PROPERTY AFTER JUDMENT
5. Action against a party who has removed or entitled to recover, is as much as the sum
disposed of his property, or is about to do for which the order is granted above all legal
so, with intent to defraud his creditors; or counterclaims.
6. Action against a party who does not reside  The affidavit and the bond must be filed with
and is not found in the Philippines, or on the court before the order issues.
whom summons may be served by 201
publication. G. Condition of Applicant's Bond
CIVIL PROCEDURE
[Rule 57.4]
D. Stages in the Grant of Preliminary
Attachment  Applicant must give a bond executed to the
adverse party in the amount fixed by the
1. The court issues the order granting the court in its order granting the issuance of the
application writ conditioned that the applicant will pay:
2. The writ of attachment issues pursuant to 1. all the costs which may be adjudged to
the order granting the writ the adverse party and
3. The writ is implemented 2. all damages which the adverse party
may sustain by reason of the
 For the first two stages, jurisdiction over the attachment if the court shall finally
person of the defendant is NOT necessary. adjudge that the applicant was not
 However, once the implementation of the entitled thereto.
writ commences, the court must have
acquired jurisdiction over the defendant. H. Manner of Attaching Property
[Cuartero, supra]
[Rule 57.5]
E. Issuance and Contents of Order of
Attachment  The sheriff enforcing the writ shall attach
only so much of the property in the
[RULE 57.2] Philippines of the adverse party not exempt
from execution as may be sufficient to
 may be issued ex parte upon motion with satisfy the applicant’s demand
notice and hearing by the court in which the  UNLESS
action is pending, or by the Court of Appeals 1. Party against whom writ is issued
or the Supreme Court. makes a deposit with the court from
 must require the sheriff of the court to attach which the writ is issued, or
so much of the property in the Philippines of 2. He gives a counter-bond executed to
the party against whom it is issued, not the applicant
exempt from execution, as may be sufficient  The levy on attachment shall be preceded or
to satisfy the applicant's demand contemporaneously accompanied by service
 EXCEPT if such party makes deposit or on the defendant within the Philippines of:
gives bond in an amount equal to that 1. summons
fixed in the order. Amount may be (a) 2. copy of complaint
sufficient to satisfy applicant’s demand, 3. application for attachment
or (b) the value of the property to be 4. affidavit and bond of applicant
attached, exclusive of costs. 5. order and writ of attachment.
 Several writs may be issued at the same
time to the sheriffs of the courts of different  EXCEPTIONS TO CONTEMPORANEOUS
judicial regions. SERVICE OF SUMMONS:
1. Summons could not be served
F. Contents of Affidavit of Applicant personally or by substituted service
[RULE 57.3] despite diligent efforts, or
2. Defendant is a resident of the
1. a sufficient cause of action exists Philippines temporarily absent
2. the case is one of those mentioned in sec. 1 therefrom, or
(grounds) 3. Defendant is a non-resident, or
3. there is no other sufficient security for the 4. The action is in rem or quasi in rem.
claim sought to be enforced by the action  Manner of attachment of real and personal
4. the amount due to the applicant or the value property [Rule 57.7]:
of the property the possession of which he is 1. Real property, or growing crops
thereon, or any interest therein representative of the decedent with

 by filing with the registry of deeds a a copy of the writ and notice that
copy of the order, together with a said interest is attached.
description of the property attached,  A copy of said writ of attachment
and a notice that it is attached, or and of said notice shall also be filed
that such real property and any in the office of the clerk of the court 202
interest therein held by or standing in which said estate is being settled
CIVIL PROCEDURE
in the name of such other person and served upon the heir, legatee or
are attached, devisee concerned.
 and by leaving a copy of such order,  If the property sought to be attached is in
description, and notice with the custodia legis, a copy of the writ of
occupant of the property, if any, or attachment shall be filed with the proper
with such other person or his agent court or quasi-judicial agency, and notice of
if found within the province. the attachment served upon the custodian of
 Where the property has been such property.
brought under the operation of  After enforcing the writ, the sheriff must
either the Land Registration Act or make a return thereon to the court from
the Property Registration Decree, which the writ issued, with (1) a full
the notice shall contain a reference statement of his proceedings under the writ,
to the number of the certificate of (2) a complete inventory of the property
title, the volume and page in the attached, (3) any counter-bond given by the
registration book where the party against whom attachment is issued,
certificate is registered, and the and serve copies thereof on the applicant.
registered owner or owners thereof. [Rule 57.6]
2. Personal property capable of manual
delivery - by taking and safely keeping I. Effects of Attachment
it in the sheriff’s custody, after issuing
the corresponding receipt therefor; 1. ATTACHMENT OF DEBTS, CREDITS AND
3. Stocks or shares, or an interest in ALL OTHER SIMILAR PERSONAL
stocks or shares, of any corporation PROPERTY [RULE 57.8] –
or company - by leaving with the  All persons (1) having in their possession or
president or managing agent thereof, (1) under their control any credits or other
a copy of the writ, and (2) a notice similar personal property belonging to the
stating that the stock or interest of the adverse party, or (2) owing any debts to him,
party against whom the attachment is at the time of service upon them of the copy
issued is attached in pursuance of such of the writ of attachment and notice shall be
writ; liable to the applicant for the amount of such
4. Debts and credits, including bank credits, debts or other similar personal
deposits, financial interest, royalties, property, until the attachment is discharged,
commissions, and other personal or any judgment recovered by him is
property not capable of manual satisfied, unless such property is delivered
delivery – or transferred, or such debts are paid, to the
by leaving with the person owing such clerk, sheriff, or other proper officer of the
debts, or having in his possession or court issuing the attachment.
under his control, such credits or other  Garnishment - a species of attachment for
personal property, or with his agent, (1) reaching the property or credits pertaining or
a copy of the writ, (2) and notice that the payable to a judgment debtor (asked in the
debts owing by him to the party against 1999 Bar Exams in comparison with
whom attachment is issued, and the Attachment). It is a warning to a person who
credits and other personal property in has in possession property or credits of the
his possession, or under his control, judgment debtor not to pay the money nor
belonging to said party, are attached in deliver the property to latter but to appear
pursuance of such writ; and answer the plaintiff’s suit.
5. Interest of the party whom  Service of summons upon the garnishee is
attachment is issued in property not necessary. All that is necessary is the
belonging to the estate of the service upon him of the writ of garnishment,
decedent – as a consequence of which he becomes a
 by serving the executor or
administrator or other personal
virtual party or a forced intervenor in the [Rule 57.13];

case. [Perla Compania v. Ramolete, 1991] 4. Property attached is exempt from
execution [Rules 57.2 and 57.5];
2. ATTACHMENT OF INTEREST IN 5. Judgment is rendered against the
PROPERTY BELONGING TO THE attaching creditor [Rule 57.19].
ESTATE OF A DECEDENT [RULE 57.9] – 203
 The attachment of the interest of an heir, L. Proceedings Where Attached
CIVIL PROCEDURE
legatee, or devisee in the property belonging Property Claimed By Third Person
to the estate of a decedent shall not impair
the power of the executor, administrator, or [RULE 57.14]
other personal representative of the
decedent over such property for the purpose  The same procedure as Rule 39.16
of administration. (execution).
 When any petition for distribution is filed,
such personal representative shall report the
attachment to the court, and in the order M. Recovery Upon the Counter-Bond;
made upon such petition, distribution may Disposition of Deposit/ Attached
be awarded to such heir, legatee, or Property After Judgment
devisee, but the property attached shall be
ordered delivered to the sheriff making the  When the judgment has become executory,
levy, subject to the claim of such heir, the surety or sureties on any counter-bond
legatee, or devisee, or any person claiming given to secure the payment of the judgment
under him. shall become charged on such counter-bond
and bound to pay the judgment obligee upon
J. Sale of Attached Property demand the amount due under the
judgment, which amount may be recovered
 Whenever it shall be made to appear to the from such surety or sureties after notice and
court in which the action is pending, upon summary hearing in the same action. [Rule
hearing with notice to both parties, that 57.17]
(1) the party attached is perishable, or that  Where the party against whom attachment
(2) the interests of all the parties to the had been issued has deposited money
action will be will be subserved by the instead of giving counter-bond, it shall be
sale thereof, applied under the direction of the court to
the court may order such property to be sold the satisfaction of any judgment rendered in
at public auction in such manner as it may favor of the attaching party, and after
direct, and the proceeds of such sale to be satisfying the judgment the balance shall be
deposited in court to abide the judgment in refunded to the depositor or his assignee.
the action. [Rule 57.11]  If the judgment is in favor of the party
against whom attachment was issued, the
K. Discharge of Attachment whole sum deposited must be refunded to
him or his assignee. [Rule 57.18]
 If judgment be rendered against the
 After a writ of attachment has been attaching party, all the proceeds of sales
enforced, the party whose property has and money collected or received by the
been attached, or the person appearing on sheriff, under the order of attachment, and
his behalf, may move for the discharge of all property attached remaining in any such
the attachment wholly or in part on the officer's hands, shall be delivered to the
security given. party against whom attachment was issued,
 Grounds for discharge: and the order of attachment discharged.
1. Debtor has posted a counter-bond or [Rule 57.19]
has made the requisite cash deposit
[Rule 57.12];
2. Attachment was improperly or irregularly
N. Improper, Irregular or Excessive
issued [Rule 57.13] as where there is no Attachment
ground for attachment, or affidavit (Asked in the 2008 bar exam)
and/or bond filed therefore are defective  An application for damages must be filed
or insufficient; before the trial, or before appeal is
3. Attachment is excessive but the perfected, or before the judgment becomes
discharge shall be limited to the excess executory.
 Such damages may be awarded only after 2. To restrain the sale of conjugal
hearing and shall be included in the properties where the claim can be
judgment on the main case. [Rule 57.20] annotated on the title as a lien, such as
 Procedure for claiming damages is the husband’s obligation to give support.
EXCLUSIVE. Such claims for damages (Saavedra vs Estrada, 1931)
cannot be the subject of an independent 3. To restrain a mayor proclaimed as duly 204
action. elected from assuming his office.
CIVIL PROCEDURE
 EXCEPTIONS: (Cereno vs Dictado, 1988)
1. Where the principal case was dismissed 4. To restrain registered owners of the
for lack of jurisdiction by the trial court property from selling, disposing and
without giving opportunity to the party encumbering their property just because
whose property was attached to apply the respondents had executed Deeds of
for and prove his claim; and Assignment in favor of petitioner. (Tayag
2. Where the damages by reason of the vs. Lacson, 2004)
attachment was sustained by a third 5. Against consummated acts. (PNB vs
person who was not a party to the action Adi; Rivera v. Florendo, 1986; Ramos,
wherein such writ was issued. [Santos v. Sr. v. CA, 1989; Zabal vs CA)
CA, 95 Phil 360]  EXCEPTION: If the act is of
continuing nature and in derogation
of plaintiff’s right at the outset.
III. Preliminary Injunction 6. Against disposing of the case on the
merits (Ortigas and Company Limited
A. DEFINITION Partnership vs CA, 1988)
B. CLASSES 7. To stop the execution of judgment
C. PURPOSE
where the judgment was already
D. GROUNDS
E. REQUIREMENTS
executed. (Meneses vs Dinglasan)
F. RULE 58 PROVIDES FOR BOTH A MAIN 8. But where the lower court enforced its
ACTION FOR INJUNCTION AND AN judgment before a party against whom
ANCILLARY WRIT OF PRELIMINARY the execution was enforced could
INJUNCTION elevate her appeal in an injunction suit,
which was instituted to prevent said
A. Definition execution, an independent petition for
injunction in the Court of Appeals is
justified. (Manila Surety and Fidelity vs
 An order granted by the court where the Teodoro, 1967)
action/proceeding is pending at any stage of
9. The CFI has no power to issue a writ of
an action/proceeding prior to the judgment
injunction against the Register of Deeds
requiring a party or a court, agency or a
if its effect is to render nugatory a writ of
person
execution issued by the National Labor
(1) to refrain from a particular act or acts, or Relations Commission. (Ambrosio vs
(2) to perform a particular act or acts. [Rule
Salvador, 1978)
58.1](asked in the 2001, 2002, 2005 Bar
10. Transfer of possession of property to
Exams)
party with disputed legal title via
 A suit for injunction is an action in personam
preliminary injunction
(asked in the 2009 Bar Exams)
 EXCEPTIONS:
B. Classes a) Forcible entry and unlawful detainer
1. Preliminary preventive injunction cases in which the court may issue
preliminary mandatory injunction [Rule
– prohibits the performance of a particular 70.15]
act or acts b) Property covered by Torrens Title when
there is a clear finding of ownership and
 When preventive injunction does not lie: possession of the land. (GSIS vs
1. To restrain collection of taxes (Valley Florendo)
Trading vs CA), except where there are
special circumstances that bear the
existence of irreparable injury. (Churchill 2. Preliminary mandatory injunction
& Tait vs Rafferty, 1915) – requires the performance of a particular
act or acts
2. Commission, continuance or non-

 Requisites of mandatory injunction: performance of the acts complained of
1. Invasion of the right is material and during the litigation would probably work
substantial injustice to the applicant; or
2. Right of the complainant is clear and 3. A party, court, agency or a person is doing,
unmistakable threatening, or is attempting to do, or is 205
3. Urgent and paramount necessity for the procuring or suffering to be done, some act
CIVIL PROCEDURE
writ to prevent serious damages or acts probably in violation of the rights of
[Bautista v. Barcelona, 100 Phil 1078] the applicant respecting the subject of the
4. The effect would not be to create a new action or proceeding, and tending to render
relation between the parties [Alvaro v. the judgment ineffectual. [Rule 58.3]
Zapata, 1982]
 Mandatory injunction does not lie in the E. Requirements
following instances:
1. to compel cohabitation [Arroyo v. (Asked in the 2006 Bar Exam)
Vasquez,1921]
2. cancellation of attachment [Levy 1) The application for injunction must be
Hermanos v. Lacson, 1940] verified, and must show facts entitling the
3. release imported goods pending hearing applicant to the relief demanded;
before the Commissioner of Customs. 2) Unless exempted by the court, the applicant
[Commissioner of Customs v. Cloribel, must file with the court where the
1967] action/proceeding is pending a bond
4. to take property out of the possession or executed to the party or person enjoined, in
control of one party and place it into that an amount to be fixed by the court. [Rule
of another whose title has not clearly 58.4]
been established [Pio v. Marcos, 1974] (asked in the 2006 Bar exam)
3) Prior notice and hearing for the party/person
INJUNCTION PROHIBITION sought to be enjoined.
Generally directed Directed against a  EXCEPTIONS:
against a party in the court/tribunal/person a) Great or irreparable injury would result
action exercising judicial powers to the applicant before the matter can be
Does not involve the may be on the ground heard on notice.
court’s jurisdiction that the court against i) The court may issue a TRO
whom the writ is sought effective for 20 days from service on
acted without/in excess
the party sought to be enjoined.
of jurisdiction
May be the main action Always a main action
ii) Injury is “irreparable” if it is of such
itself, or just a provisional constant and frequent recurrence
remedy in the main that no fair or reasonable redress
action can be had therefore in court of law
or where there is no standard by
C. Purpose which their amount can be
measured with reasonable
accuracy.
 To prevent future injury and maintain the b) Matter is of extreme urgency and the
status quo (i.e. the last actual, peaceable, applicant will suffer grave injustice and
uncontested status which preceded the irreparable injury
pending controversy.) [Kencht vs CA, 1993] i) Judge may issue ex parte a TRO
effective for 72 hours from issuance.
D. Grounds ii) Within 72 hours, judge shall conduct
a summary hearing to determine
whether the TRO shall be extended
until the application for preliminary
1. Applicant is entitled to the relief demanded,
injunction can be heard.
and the relief consists in
iii) Maximum period of effectivity of
 restraining the commission or
TRO=20 days (including 72 hrs)
continuance of the acts or acts
complained of, or  If the application for preliminary
 in requiring performance of an act or injunction is denied or not resolved
acts; within said period, the TRO is deemed
automatically vacated.
 The effectivity of a TRO is not B. OBJECTION TO/MOTION FOR DISSOLUTION

extendible and no court shall have OF INJUNCTION/ RESTRAINING ORDER
authority to extend or renew the same C. GLOBAL INJUNCTION OF A FOREIGN COURT
on the same ground for which it was
issued.  TRO vs. Injunction. A TRO is intended as a
 However, if issued by the Court of restraint upon the defendant until the 206
Appeals or a member thereof, the TRO propriety of granting an injunction pendente
CIVIL PROCEDURE
shall be effective for 60 days from lite can be determined, and it goes no
service on the party or person sought to further than to preserve the status quo until
be enjoined. such determination. [Anglo-Fil Trading v.
 A TRO issued by the Supreme Court or Lazaro, 1983]
a member thereof shall be effective until  Same requirements for application as
further orders. [Rule 58.5] preliminary injunction.
 An application for a TRO shall be acted
upon only after all parties are heard in a
F. Rule 58 Provides for both a Main summary hearing, which shall be conducted
Action for Injunction and an Ancillary within 24 hours after the sheriff's return of
Writ of Preliminary Injunction service and/or the records are received by
(Asked In The 2006 Bar Exam) the branch selected by raffle. [Rule 58.4]
INJUNCTION PRELIMINARY A. Status Quo Order vs. Injunction

INJUNCTION (Asked in the 2006 bar exams)
Main action Ancillary; exists only as
part or incident of an
 There have been instances when the
independent action or
proceeding Supreme Court has issued a status quo
seeks a judgment sole object of which is to order which is merely intended to maintain
embodying a final preserve the status quo the last, actual, peaceable and
injunction until the merits can be uncontested state of things which
heard preceded the controversy.
Based on all evidence based solely on initial  This was resorted to when the projected
gathered by court to and incomplete evidence proceedings in the case made the
determine main action conservation of the status quo desirable or
essential, but the affected party neither
 As a matter of course, in an action for sought such relief nor did the allegations in
injunction, the auxiliary remedy of his pleading sufficiently make out a case for
preliminary injunction, whether prohibitory or a temporary restraining order.
mandatory, may issue.  The status quo order was thus issued motu
 The evidence submitted during the hearing propio on equitable considerations.
on an application for a writ of preliminary  Also, unlike a temporary restraining order or
injunction is not conclusive or complete for a preliminary injunction, a status quo order
only a “sampling” is needed to give the trial is more in the nature of a cease and desist
court an idea of the justification for the order, since it does not direct the doing or
preliminary injunction pending the decision undoing of acts as in the case of prohibitory
of the case on the merits. or mandatory injunctive relief.
 There are vital facts that have yet to be  The further distinction is provided by the
presented during the trial which may not be present amendment in the sense that, unlike
obtained or presented during the hearing on the amended rule on restraining orders, a
the application for the injunctive writ. The status quo order does not require the
trial court needs to conduct substantial posting of a bond. (AF Development Corp
proceedings in order to put the main vs. Judge Cajigal, CA decision citing Justice
controversy to rest. Regalado)”
 It does not necessarily proceed that when a
writ of preliminary injunction is issued, a final
B. Objection to/Motion for Dissolution of
injunction will follow (Urbanes vs. CA, 2001)
Injunction/ Restraining Order
IV. Temporary Restraining Order (TRO)  Grounds:

1. Insufficiency of application
A. STATUS QUO ORDER VS. INJUNCTION
2. other grounds (e.g. applicant’s bond is purpose of preserving and conserving the
insufficient/defective), upon affidavits of property in litigation and prevent its possible
the party or person enjoined destruction or dissipation, if it were left in the
3. if it appears after hearing that although possession of any of the parties.
the applicant is entitled to the injunction  The appointment of a receiver is not a
or restraining order, the issuance or matter of absolute right. It depends upon the 207
continuance thereof would cause sound discretion of the court and is based
CIVIL PROCEDURE
irreparable damage to the party/person on facts and circumstances of each
enjoined, while the applicant can be fully particular case.
compensated for such damages as he  The guiding principle is the prevention of
may suffer, provided the former files a imminent danger to the property. If an action
bond by its nature, does not require such
 If it appears that the extent of the preliminary protection or preservation, said remedy
injunction or restraining order granted is too cannot be applied for and granted.
great, it may be modified. [Rule 58.6] (Commodities Storage v. CA, 1997)
 Receivership is aimed at the preservation of,
C. Global Injunction of a Foreign Court and at making more secure, existing rights;
it cannot be used as an instrument for the
destruction of those rights. (Arranza v. B.F.
Homes, 2000)
 A global injunction issued by a foreign court
to prevent dissipation of funds against the
defendant who has assets in the Philippines B. Appointment of Receiver
may be enforced in our jurisdiction, subject
to our procedural laws (Suggested Answers 1. REQUIREMENTS:
to the 2007 Bar Exam, UP Law Center) a. verified application [Rule 59.1]
b. bond [Rule 59.2 and 59.5]
 As a general rule, no sovereign is bound to
give effect within its dominion to a judgment 2. WHO APPOINTS:
or order of a tribunal of another country. a. court where the action is pending
b. CA
 However, under the rules of comity, utility c. SC
and convenience, nations have established d. During the pendency of an appeal, the
a usage among civilized states by which appellate court may allow an application
final judgments of foreign courts of for the appointment of a receiver to be
competent jurisdiction are reciprocally filed in and decided by the court of
respected and rendered efficacious under origin. [Rule 59.1]
certain conditions that may vary in different
countries. (St. Aviation Services vs. Grand 3. WHEN RECEIVER CAN BE APPOINTED:
International Airways, 2006) a. When it appears from the verified
application and other proof that the
Note: In Pangalangan and Coquia’s book on applicant has an interest in the property
Conflict of Laws (2000),citing Cheshire, state or fund which is the subject of the action
that an interlocutory or provisional judgment of a or proceeding, and that such property or
foreign court, creates no obligation on the forum fund is in danger of being lost, removed,
court to enforce it (p. 545). or materially injured unless a receiver be
appointed to administer and preserve it;
V. Receivership b. When it appears in an action by the
(Asked in the 2001 Bar Exam) mortgagee for the foreclosure of a
mortgage that the property is in danger
A. NATURE of being wasted or dissipated or
B. APPOINTMENT OF RECEIVER materially injured, and that its value is
C. TERMINATION probably insufficient to discharge the
mortgage debt, or that the parties have
A. Nature so stipulated in the contract of
mortgage;
 Receiver: person appointed by the court in
behalf of all the parties to the action for the
c. After judgment, to preserve the property a. If the appointment sought or granted is

during the pendency of an appeal, or to without sufficient cause
dispose of it according to the judgment, b. Adverse party files a sufficient bond to
or to aid execution when the execution answer for damages [Rule 59.3]
has been returned unsatisfied or the c. Bond posted by the applicant for grant
judgment obligor refuses to apply his of receivership is insufficient 208
property in satisfaction of the judgment, d. Bond of receiver is insufficient
CIVIL PROCEDURE
or otherwise to carry the judgment into
effect; 6. GENERAL POWERS OF RECEIVER
a. Bring and defend in such capacity
d. Whenever in other cases it appears that actions in his own name with leave of
the appointment of a receiver is the court
most convenient and feasible means of b. Take and keep possession of the
preserving, administering, or disposing property in controversy
of the property in litigation. [Rule 59.1] c. Receive rents
d. Collect debts due to himself as receiver
4. SPECIFIC SITUATIONS WHEN A or to the fund, property, estate, person,
RECEIVER MAY BE APPOINTED or corporation of which he is the
a. If a spouse without just cause abandons receiver
the other or fails to comply with his/her e. Compound for and compromise the
obligations to the family, the aggrieved same
spouse may petition the court for f. Make transfers
receivership. [Family Code, Article 101] g. Pay outstanding debts
b. The court may appoint a receiver of the h. Divide the money and other property
property of the judgment obligor; and it that shall remain among the persons
may also forbid a transfer or other legally entitled to receive the same’
disposition of, or any interference with, i. Generally, to do such acts respecting
the property of the judgment obligor not the property as the court may authorize
exempt from execution. [Rule 39.41] j. Invest funds in his hands, ONLY by
c. After the perfection of an appeal, the order of the court upon the written
trial court retains jurisdiction to appoint a consent of all the parties. [Rule 59.6]
receiver of the property under litigation
since this matter does not touch upon 7. LIABILITY FOR REFUSAL OR NEGLECT
the subject of the appeal. [Rule 41.9; TO DELIVER PROPERTY TO RECEIVER
Acuña v. Caluag, 1957] b. Contempt; and
d. After final judgment, a receiver may be c. Be liable to the receiver for the money
appointed as an aid to the execution of or the value of the property and other
judgment. (Philippine Trust Company v. things so refused or neglected to be
Santamaria, 1929) surrendered together with all damages
e. Appointment of a receiver over the that may have been sustained by the
property in custodia legis may be party or parties entitled thereto as a
allowed when it is justified by special consequence of such refusal or
circumstances, as when it is reasonably neglect. [Rule 59.7]
necessary to secure and protect the
rights of the real owner. (Dolar v. C. Termination of Receivership
Sundiam, 1971)
 Ground: the necessity for a receiver no
 The general rule is that neither party to the
longer exists
litigation should be appointed as a receiver
 Procedure:
without the consent of the other because a
(1) motu proprio or on motion of either party
receiver is supposed to be an impartial and
(2) notice to all interested parties and
disinterested person. (Alcantara v. Abbas,
hearing [Rule 59.8]
1963)
 Effect:
 A clerk of court should not be appointed as a
(1) Settle accounts of receiver
receiver as he is already burdened with his
(2) Delivery of funds to person entitled
official duties. (Abrigo v. Kayanan, 1983).
(3) Discharge of receiver
5. DENIAL OF APPLICATION OR
DISCHARGE OF RECEIVER
VI. Replevin B. Requirements

a. Application
A. NATURE 1) Who may apply: party praying for the
B. REQUIREMENTS recovery of possession of personal
C. ORDER OF REPLEVIN property. [Rule 60.1]
209
D. DISPOSITION OF PROPERTY BY SHERIFF
2) When:
CIVIL PROCEDURE
E. WHERE PROPERTY CLAIMED BY THIRD
PERSON (1) at the commencement of the action
or
(2) before the answer [unlike
A. Nature attachment, injunction and support
pendent elite (anytime before final
 AVAILABLE WHERE THE PRINCIPAL judgment) and receivership (anytime
ACTION IS TO RECOVER POSSESSION even after final judgment)].
OF PERSONAL PROPERTY. 3) The applicant must show by his own
affidavit or that of some other person
REPLEVIN PRELIMINARY who personally knows the facts:
ATTACHMENT  That the applicant is the owner of
Available only where the Available even if the
the property claimed, particularly
principal relief sought in recovery of personal
the action is recovery of property is only an
describing it, or is entitled to the
personal property, the incidental relief sought in possession thereof;
other reliefs (e.g. the action.  That the property is wrongfully
damages) being merely detained by the adverse party,
incidental thereto. alleging the cause of detention
Can be sought only May be resorted to even thereof according to the best of his
where the defendant is if the personalty is in the knowledge, information, and belief;
in actual or constructive custody of a third  That the property has not been
possession of the person.
personalty involved.
distrained or taken for a tax
Extends only to personal Extends to all kinds of assessment or a fine pursuant to
property capable of property, whether real, law, or seized under a writ of
manual delivery. personal or incorporeal. execution or preliminary attachment,
Available to recover To recover the or otherwise placed under custodia
personal property even if possession of personal legis, or if so seized, that it is
the same is not property unjustly exempt from such seizure or
concealed, removed or detained (presupposed custody; and
disposed of. that the same is being  The actual market value of the
concealed, removed or
property. [Rule 60.2]
disposed of to prevent
its being found or taken
by the applicant. b. Bond
Cannot be availed of if Can still be resorted to 1) The applicant must also give a bond,
the property is in even if the property is in executed to the adverse party in double
custodia legis (e.g. custodia legis. the value of the property as stated in the
under attachment, affidavit. [Rule 60.2]
seized under a search
warrant).
EXCEPT: C. Order of Replevin
a. when the seizure is
illegal; (Bagalihog v. 1) Upon the filing of affidavit and approval of
Fernandez, 1991) the bond, the court shall issue an order and
and the corresponding writ of replevin describing
b. where there is
the personal property alleged to be
reason to believe
that the seizure will wrongfully detained and requiring the sheriff
not anymore be forthwith to take such property into his
followed by the filing custody. [Rule 60.3]
of the criminal 2) A writ of replevin may be served anywhere
action in court or in the Philippines.
there are conflicting
claims. (Chua v.
CA, 1993)
D. Disposition of Property by Sheriff  The right to support is of such nature that its
allowance is essentially provisional; for
during the entire period that a needy party is
1) The sheriff shall retain the property for 5
entitled to support, his or her alimony may
days. The adverse party may object to the
be modified or altered, in accordance with
sufficiency of the bond or surety or he may
file a redelivery bond.
his increased or decreased needs, and with 210
the means of the giver. It cannot be
2) If after 5 days and the adverse party failed to
CIVIL PROCEDURE
regarded as subject to final determination.
object or his redelivery bond is insufficient,
(Lam v. Chua, 2004)
the sheriff shall deliver the property to the
applicant. [Rule 60.6]
3) The defendant is entitled to the return of the B. Requirements
property under a writ of replevin if:
a. He seasonably posts a redelivery bond 1. VERIFIED APPLICATION [RULE 61.1]
[Rule 60.5]  Who may apply: any party
b. Plaintiff’s bond is found to be insufficient  When: (1) at the commencement of the
or defective and is not replaced with proper action or proceeding, or (2) at any
proper bond time prior to the judgment or final order
c. Property is not delivered to the plaintiff  Contents:
for any reason [Rule 60.6]  Grounds for the claim
 Financial conditions of both parties
 Affidavits, depositions or other authentic
E. Where Property Claimed by Third documents in support thereof.
Person
 The same procedure as Rules 39.16 C. Verified Comment
(execution) and 57.14 (preliminary [RULE 61.2]
attachment).
 A copy of the application and all supporting
documents shall be served upon the
VII. Support Pendente Lite
adverse party, who shall have 5 days to
comment thereon, unless a different period
A. NATURE is fixed by the court upon his motion.
B. REQUIREMENTS
C. VERIFIED COMMENT
D. HEARING D. Hearing
E. ORDER OF SUPPORT [RULE 61.3]
F. REMEDIES OF A PARTY WHO WAS
ERRONEOUSLY COMPELLED TO GIVE
 Within 3 days after the comment is filed or
SUPPORT
after the expiration of the period for its filing.
A. Nature
E. Order of Support
(Asked in 1999 and 2001 bar exams)
 If the application is granted, the court shall
1. SUPPORT PENDENTE LITE CAN BE
fix the amount of money to be provisionally
GRANTED BY THE COURT IN TWO (2)
paid or such other forms of support as
INSTANCES:
should be provided, taking into account the
1) Civil action for support; and
necessities of the applicant and the
2) Criminal action where civil liability
resources or means of the adverse party,
includes support for the offspring as a
and the terms of payment or mode for
consequence of the crime.
providing the support.
 If the application is denied, the principal
 Where the right to support is put in issue by
case shall be tried and decided as early as
the pleadings or the fact from which the right
possible. [Rule 61.4]
to support arises is in controversy or has not
 If the adverse party fails to comply with an
been established, the court cannot grant
order granting support pendente lite, the
support pendente lite (Francisco v.
court shall, motu proprio or upon motion,
Zandueta, 1929)
issue an order of execution against him,
 Judgment for support does not become
without prejudice to his liability for contempt.
final.
 When the person ordered to give support

pendente lite refuses or fails to do so, any
third person who furnished that support to
the applicant may, after due notice and
hearing in the same case, obtain a writ of
execution to enforce his right of 211
reimbursement against the person ordered
CIVIL PROCEDURE
to provide such support. [Rule 61.5]
F. Remedies of a Party Who Was

Erroneously Compelled to Give
Support
 Apply for an order for such reimbursement
by the recipient on motion in the trial court in
the same case, unless such restitution is
already included in the judgment, or
 Failing therein, file a separate action for
reimbursement against the person legally
obliged to give support. [Rule 61.7]
REMEDIAL LAW REVIEWER Part 5: SPECIAL CIVIL ACTIONS
I. Interpleader
Part 5: Special Civil Actions
A. DEFINITION
I. INTERPLEADER
B. PURPOSE
II. DECLARATORY RELIEF
C. WHEN PROPER
III. REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE
D. PROCEDURE 212
COMELEC AND COA
CIVIL PROCEDURE
IV. CERTIORARI, PROHIBITION AND A. Definition
MANDAMUS
V. QUO WARRANTO
 A remedy whereby a person who has
VI. EXPROPRIATION
VII. FORECLOSURE OF REAL ESTATE property in his possession or has an
MORTGAGE obligation to render wholly or partially,
VIII. PARTITION  without claiming any right in both,
IX. FORCIBLE ENTRY AND UNLAWFUL  comes to court and asks that the
DETAINER defendants who have made conflicting
X. CONTEMPT claims upon the same property or who
consider themselves entitled to demand
 Rules on ordinary civil actions shall apply compliance with the obligation
to special civil actions insofar as they are  be required to litigate among themselves
not inconsistent with or may supplement in order to determine who is entitled to the
the rules governing the latter. [Rule 1.3] property or payment or the obligation
[Beltran v. PHHC, 1969]
 How commenced:
1. COMPLAINT B. Purpose
a. interpleader
b. expropriation
c. foreclosure of real estate  To compel conflicting claimants to
mortgage interplead and litigate their several claims
d. partition among themselves. [Rule 62.1]
e. forcible entry and unlawful  To protect a person against double
detainer vexation in respect of one liability [Beltran,
2. PETITION supra]
a. declaratory relief
b. review of adjudications of C. When Proper
Constitutional commissions
c. certiorari  Whenever conflicting claims upon the
d. prohibition same subject matter are or may be made
e. mandamus against a person who claims no interest in
f. quo warranto the subject matter or an interest which is
g. contempt not disputed by the claimants. [Rule 62.1]
 Cannot be availed of to resolve the issue
 Venue is governed by the general rules on of breach of undertakings made by
venue, except as otherwise indicated in defendants, which should be resolved in
the particular rules for special civil actions. an ordinary action for specific performance
or other relief [Beltran, supra].
 Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas D. Procedure
corpus issued by RTCs are enforceable
within their respective judicial regions.
[B.P. 129]  Complaint filed by the person against
whom conflicting claims are or may be
 3 special civil actions within the jurisdiction made. [ibid]
of inferior courts:  The docket and other lawful fees paid
1. interpleader, provided the amount by the complainant, and costs and
involved is within its jurisdiction litigation expenses shall constitute a
[Makati Development Corp. v. lien or charge upon the subject matter
Tanjuatco, 1969] of the action, unless otherwise
2. ejectment suits [Rule 70] ordered by the court. [R62.7]
3. contempt [Rule 71]
 Court order requiring the conflicting b. the terms of said documents and the
claimants to interplead with one another. If validity thereof are doubtful and require
the interests of justice so require, the court judicial construction [Santos v. Aquino, 94
may direct that the subject matter be paid Phil 65]
or delivered to the court. [Rule 62.2] c. no breach of the documents in question.
 Summons, copy of complaint and order [Reparations Commission v. Northern 213
served upon the conflicting claimants. Lines, 1970] Otherwise, an ordinary civil
CIVIL PROCEDURE
[Rule 62.3] action is the remedy.
 Each claimant shall file his answer within  Concept of a cause of action in
15 days from service of the summons, ordinary civil actions does not apply.
serving a copy thereof upon each of the  If before the final termination of the
other conflicting claimants, who may file case, a breach or violation of an
their reply thereto. instrument or a statute, etc. should
a) If claimant fails to plead within the take place, the action may be
time herein fixed, the court may, on converted into an ordinary action.
motion, declare him in default and [Rule 63.6]
render judgment barring him from any d. actual justiciable controversy [Velarde v
claim in respect to the subject matter. SJS, 2004]
b) Within the time for filing an answer, e. adverse interests between the parties
each claimant may file a motion to  A declaratory relief is not available for
dismiss. a declaration of citizenship (Villa-
 Grounds: Abrille vs. Republic, 1956) or
a. impropriety of the interpleader  the validity of a registration certificate
action, or (Obiles vs. Republic, 1953) as they
b. other appropriate grounds are unilateral in nature and without
specified in Rule 16. conflicting adverse interests.
 The period to file the answer shall f. issue must be ripe for judicial
be tolled. determination [Velarde v SJS, 2004]
 If the motion is denied, an answer g. adequate relief is not available through
may be filed within the remaining other means or other forms of action or
period, in no case less than 5 proceedings. [Ollada v. Central Bank,
days (reckoned from notice of 1962]
denial) [Rule 62.4].  A court decision cannot be the subject
 The parties may file counterclaims, cross- of a declaratory relief since there
claims, third-party complaints and exists other remedies, i.e., appeal or a
responsive pleadings thereto. [Rule 62.5] motion for clarificatory judgment
 Pre-trial (Tanda vs. Aldaya, 1956)
 Court shall determine conflicting
claimants’ respective rights and adjudicate B. Who May File
their several claims. [Rule 62.6]
a. a person interested under a deed, will,
II. Declaratory Relief contract or other written instrument
b. a person whose rights are affected by a
A. REQUISITES statute, executive order or regulation,
B. WHO MAY FILE ordinance or any other governmental
C. PARTIES regulation [Rule 63.1]
D. WHERE FILED
E. WHEN COURT MAY REFUSE TO DECLARE
RIGHTS/CONSTRUE INSTRUMENTS
C. Parties
F. SIMILAR REMEDIES COVERED BY RULE 63
 all persons who have or claim any interest
A. Requisites which would be affected by the declaration
[Rule 63.2]
 If action involves the validity of a
a. subject matter of the controversy must be statute/executive order/regulation/other
a deed, will, contract or other written governmental regulation, the Solicitor
instrument, statute, executive order or General shall be notified. [Rule 63.3]
regulation, or ordinance [Rule 63.1];
 If action involves the validity of a local
government ordinance, the
prosecutor/attorney of the LGU involved

shall be notified. [Rule 63.4] III. Review of Judgments and Final
Orders or Resolutions of the
Subject Matter Notice Given To COMELEC and COA
Validity of a statute, EO or Sol Gen
regulation, or any A. SCOPE 214
governmental regulation B. PROCEDURE
CIVIL PROCEDURE
Validity of a local Prosecutor or attorney
government ordinance of the LGU
Constitutionality of a local Sol Gen A. Scope
government ordinance
 Applicable only to judgments and final
 Non-joinder of interested persons is not a orders of the COMELEC and COA [Rule
jurisdictional defect; but persons not 64.1]
joined shall not be prejudiced in their  Judgments/orders of the Civil Service
interests unless otherwise provided by the Commission are now reviewable by the
Rules (R63.2; Baguio Citizens Action vs. Court of Appeals under Rule 43,
CityCouncil of Baguio, 1983) eliminating recourse to the Supreme Court
 third-party complaint not available in a (SC). [RA 7902; SC Revised
declaratory relief (Commission of Customs Administrative Circular No. 1-95]
vs. Cloribel, 1977); but a compulsory  An aggrieved party may bring the
counterclaim may be set up (Visayan questioned judgment, etc. directly to the
Packing vs. Reparations Commission, SC on certiorari under Rule 65. [Rule 64.2]
1987)
o such petition for certiorari shall not
D. Where Filed stay the execution of the judgment,
etc. sought to be reviewed unless
otherwise directed by the Supreme
 in the proper RTC [Rule 63.1]
Court [Rule 64.8]
 not within the original jurisdiction of the
Supreme Court, even if pure questions of
law are involved. [Remotigue vs. Osmeña, B. Procedure
1967]
a. File petition for review.
E. When Court May Refuse to Declare  When [Rule 64.3]:
Rights/Construe Instruments  Within 30 days from notice of
judgment/final order/resolution sought
to be reviewed
1. where a decision would not terminate the  Filing of motion for
uncertainty or controversy which gave rise reconsideration/new trial with
to the action, or Constitutional commission interrupts
2. where the declaration or construction is the 30-day period. If motion is denied,
not necessary and proper under the aggrieved party may file petition within
circumstances. [Rule 63.5] remaining period, which shall not be
less than 5 days from notice of denial.
F. Similar Remedies Covered by Rule  Form [Rule 64.5]:
63  verified and accompanied by
(annexes):
1. Action to quiet title (Arts. 476-481 Civil 1) a clearly legible duplicate original
Code) or certified true copy of the subject
2. Action for reformation of instrument (Arts. judgment, etc.
1359-1369 Civil Code) 2) certified true copies of such
3. Action to consolidate ownership (Art. 1607 material portions of the record
Civil Code) [Rule 63.1 par. 2] referred to in the petition
3) other documents relevant and
pertinent to the petition
4) proof of service of a copy of the
petition on the Commission and
the adverse party
5) proof of the timely payment of the 1) Petition not sufficient in form and
docket and other lawful fees substance
 18 legible copies (containing plain 2) Petition was filed manifestly for delay
copies of all documents attached to 3) the questions raised are too
the original copy of the petition) unsubstantial to warrant further
 Contents [Rule 64.5]: proceedings. 215
1) name of aggrieved party (petitioner)
CIVIL PROCEDURE
2) respondents: Commission concerned c. Comments of Respondents [Rule 64.7]
and person(s) interested in sustaining  Requirements:
the judgment a quo  original copy with
3) facts 1) certified true copies of such
4) issues involved material portions of the record as
5) grounds and brief arguments relied are referred to in the comment
upon for review 2) certified true copies of other
6) prayer for judgment annulling or supporting papers
modifying the question judgment, etc.  18 legible copies with plain copies of
7) material dates showing that it was all documents attached to the original.
filed on time  a copy of the comment shall be served on
8) certification against non-forum the petitioner.
shopping
 Findings of fact of the Commission d. Decision [Rule 64.9]
supported by substantial evidence shall be  Case is deemed submitted for decision
final and non-reviewable. upon:
 Failure to comply with foregoing 1) filing of the comments on the petition,
requirements shall be sufficient ground for and such other pleadings or papers as
dismissal. may be required or allowed.
2) expiration of the period to file the
b. Order to Comment [Rule 64.6] pleadings.
 If the SC finds the petition sufficient in  EXCEPTIONS: SC sets case for oral
form and substance, it shall order the argument or requires parties to submit
respondents to file their comments on the memoranda,
petition within 10 days from notice thereof.
 Grounds for dismissal:
IV. Certiorari, Prohibition, and

Mandamus
Certiorari Prohibition Mandamus

(Asked in the 2000 and 2006 Bar (Asked in the 2006 Bar Exam)
Exams)
GROUNDS
 When any tribunal, board or  When the proceedings of any  When any tribunal, corporation,
officer exercising judicial or tribunal, corporation, board, board, officer or person
quasi-judicial functions has officer or person, whether  unlawfully neglects the
acted: exercising judicial, quasi- performance of an act which
 without or in excess of its judicial, or ministerial functions, the law specifically enjoins as a
jurisdiction; or are duty resulting from an office,
 with grave abuse of  without or in excess of its trust or station; or
discretion amounting to or his jurisdiction; or  unlawfully excludes another
lack or excess of its or  with grave abuse of from the use and enjoyment of
1
his jurisdiction discretion amounting to a right or office to which such
lack or excess of its or his other is entitled
Without jurisdiction If respondent do not have the legal power to determine the case
Excess of jurisdiction If respondent has the legal power to determine the case but oversteps such power
Grave abuse of discretion If respondent has the legal power to determine the case but acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of his judgment
 AND there is no appeal, or jurisdiction

any plain, speedy, and
2
adequate remedy in the
 AND there is no other plain, speedy
ordinary course of law
 AND there is no appeal or any and adequate remedy in the
(R65.1)
other plain, speedy, and ordinary course of law
adequate remedy in the (R65.3) 216
ordinary course of law
CIVIL PROCEDURE
(R65.2)
PURPOSE
To correct an act performed by the To prevent the commission or To compel the performance of the act
respondent carrying out of an act desired
ACT SOUGHT TO BE CONTROLLED
Discretionary acts Discretionary and ministerial acts Ministerial acts
PETITIONER
Aggrieved person Aggrieved person Aggrieved person
RESPONDENT3
Those exercising judicial or quasi- Those exercising judicial and/or Those exercising judicial and/or non-
judicial functions non-judicial functions judicial functions
FORM OF PETITION
 verified  verified  verified
 alleging the facts with  alleging the facts with certainty  alleging the facts with certainty
certainty  PRAYER: that judgment be  PRAYER: that judgment be
 PRAYER: that judgment be rendered commanding the rendered commanding the
rendered annulling / respondent to desist from respondent, immediately or some
modifying the proceedings of further proceedings in the action other time to be specified by the
such tribunal, etc., and or matter specified therein, or court, to do the act required to be
granting such incidental otherwise granting such done to protect the rights of the
reliefs as law and justice may incidental reliefs as law and petitioner, and to pay the damages
require. justice may require. sustained by the petitioner by
 accompanied by a certified  accompanied by a certified true reason of the wrongful acts of the
true copy of the subject copy of the subject judgment, respondent.
judgment, etc., copies of all etc., copies of all relevant  contains a certificate of non-forum
relevant pleadings and pleadings and documents, and shopping.
documents, and a certification a certification of non-forum
of non-forum shopping. shopping.
2
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the
acts of the lower court or agency. (Silvestre vs. Torres, 1946)
3
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer
or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or
persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and
defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties.
However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule
65.5]
 The original action of certiorari not a  Findings of fact of CA are not binding
substitute for appeal (Lobite vs. Sundiam upon SC in an original action for certiorari
1983). (Medran vs. CA, 1949)
Exceptions:  Prohibition is a preventive remedy.
a. the appeal is not a speedy and  However, to prevent the respondent from
adequate remedy (Salvadores vs. performing the act sought to be prevented 217
Pajarillo 1947) during the pendency of the proceedings
CIVIL PROCEDURE
b. the orders were issued either in for the writ, the petitioner should obtain a
excess of or without jurisdiction restraining order and/or writ of preliminary
(Aguilar vs. Tan 1970) injuction. [Regalado]
c. special considerations, i.e., public  Prohibition is the remedy where a motion
welfare or public policy (Jose vs. to dismiss is improperly denied. [Enriquez
Zulueta 1961) v. Macadaeg, 84 Phil 674]
d. the order is a patent nullity (Marcelo  A writ of mandamus will not issue to
vs. De Guzman 1982) control the exercise of official discretion or
e. the decision in the certiorari case will judgment, or to alter or review the action
avoid future litigations (St. Peter taken in the proper exercise of the
Memorial Park vs. Campos 1975) discretion of judgment, for the writ cannot
be used as a writ of error or other mode of
NOTE: In the 2005 and 2008 Bar Exams, bar direct review.
examinees were asked to compare Petition for  However, in extreme situations generally
review on Certiorari and Certiorari. in criminal cases, mandamus lies to
compel the performance of the fiscal of
 A motion for reconsideration must first be discretionary functions where his
availed of before certiorari – to enable the actuations are tantamount to a wilful
lower court to correct its mistakes without refusal to perform a required duty.
the intervention of the lower courts (BA [Regalado]
Finance vs. Pineda 1982)  General Rule: In the performance of an
 Exceptions: official duty or act involving discretion,
a. the order is a patent nullity (Vigan Elec. such official can only be directed by
Light vs. Public Service Commission mandamus to act but not to act in one way
1964) or the other.
b. the questions raised in the certiorari  EXCEPTION: gross abuse of discretion,
have been duly raised and passed manifest injustice, palpable excess of
upon by the lower court (Fortich- authority [Kant Wong v. PCGG, 1987]
Celdran vs. Celdran 1967) or are the  Mandamus can be availed of only by the
same as those raised and passed party who has direct legal interest in the
upon in the lower court (Pajo vs. Ago right sought to be enforced. HOWEVER, if
1960) the question is one of public right, it is
c. there is an urgent necessity for the sufficient to show that the petitioner is a
resolution of the question and delay citizen. [Tanada v. Tuvera, 1985]
would prejudice the interests of the
government (Vivo vs.Cloribel 1966) A. Procedure
d. the MR would be useless (People vs.
Palacio 1960)
1. FILE PETITION FOR CERTIORARI /
e. the petitioner was deprived of due
PROHIBITION / MANDAMUS.
process and there is extreme urgency
 When filed:
for relief (Luzon Surety vs. Marbella
1960)  Not later than 60 days from notice of
f. the proceeding was ex parte in which judgment/order/resolution
the petitioner had no opportunity to  If a motion for reconsideration/new
object (Republic vs. Maglanoc 1963) trial is filed, the 60-day period shall be
g. the issue raised is purely a question of counted from notice of denial of
law or where the public interest is motion.
involved (PALEA vs. PAL 1982)  Extension may be granted for
 Questions of fact cannot be raised in an compelling reasons, not exceeding 15
original action for certiorari. Only days. [Rule 65.4]
established or admitted facts may be  Where filed:
considered. [Suarez v. NLRC, 1998] 1) Supreme Court
2) Court of Appeals
 If it involves the acts of a quasi-
V. Quo Warranto
judicial agency, the petition shall
be filed only in the CA, unless A. HOW COMENCED
otherwise provided by law or the B. BY WHOM/AGAINST WHOM
Rules.
C.
D.
CONTENTS OF PETITION
VENUE
218
3) Regional Trial Court, if it relates to E. WHEN FILED
CIVIL PROCEDURE
acts / omissions of a lower court / F. JUDGMENT
corporation / board / officer / person.
4) Sandiganbayan, if it is in aid of its  Quo warranto is the remedy to try disputes
appellate jurisdiction. [Rule 65.4] with respect to the title to a public office.
2. ORDER TO COMMENT QUO WARRANTO ELECTION CONTEST
 If the petition is sufficient in form and Basis: the occupant is Challenges the right of a
substance to justify such process, the disqualified from person to hold office on
court shall issue an order requiring the holding the office by the ground of
respondent(s) to comment on the petition reason of ineligibility or irregularities in the
within 10 days from receipt of a copy disloyalty conduct of the elections
thereof. If proceeding succeeds, Successful protestant
 Such order shall be served on the respondent will be will assume the office if
ousted but petitioner he obtained a plurality of
respondents in such manner as the court will not assume the the valid votes
may direct, together with a copy of the office
petition and any annexes thereto. [Rule
65.6] QUO WARRANTO ACTIONS
ELECTIVE OFFICE APPOINTIVE OFFICE
3. HEARING OR MEMORANDA Issue: eligibility of the Issue: validity of the
 After the comment or other pleadings respondent appointment
required by the court are filed, or the time Occupant declared Court will oust the
for the filing thereof has expired, the court ineligible/disloyal will be person illegally
may hear the case or require the parties to unseated but petitioner appointed and will order
submit memoranda. [Rule 65.8] will not be declared the the seating of the person
rightful occupant of the who was legally
office appointed and entitled to
4. JUDGMENT
the office.
 If after such hearing or submission of
memoranda or the expiration of the period DIFFERENCE BETWEEN MANDAMUS AND QUO
for the filing thereof, the court finds that WARRANTO
the allegations of the petition are true, it (ASKED IN THE 2001 BAR EXAM)
shall render judgment for the relief prayed While quo warranto and mandamus are often
for or to which the petitioner is entitled. concurrent remedies, however, there exists a clear
 The court, however, may dismiss the distinction between the two. (Lota vs. CA, 1961)
petition if it finds the same to be (1) The authorities are Mandamus only lies to
patently without merit, (2) prosecuted agreed that quo enforce clear legal
manifestly for delay, or that (3) the warranto is the remedy duties, not to try
questions raised therein are too to try the right to an disputed titles (to an
office or franchise and office), 38 C.J. 546; 2
unsubstantial to require consideration.
to oust the holder from Moran, Comments on
[Rule 65.8] its enjoyment. Where the Rules of Court, 1957
there is usurpation or ed., 200; and that where
5. SERVICE AND ENFORCEMENT OF intrusion into an office, the respondent, without
ORDER OR JUDGMENT quo warranto is the claiming any right to an
 A certified copy of the judgment rendered proper remedy, Lino Office, excludes the
shall be served upon the court, quasi- Luna vs. Rodriguez, 36 petitioner therefrom, he
judicial agency, tribunal, corporation, Phil. 491, remedy is mandamus,
board, officer or person concerned in such not quo warranto.
Manalo vs. Sevilla, 24
manner as the court may direct, and
Phil. 609)
disobedience thereto shall be punished as
contempt.
 An execution may issue for any damages A. How Commenced
or costs awarded in accordance with  By a verified petition [Rule 66.1]
section 1 of Rule 39. [Rule 65.9]
B. By Whom/Against Whom D. Venue
 By Government, brought in the name of  Supreme Court

the Republic of the Philippines, against:  Court of Appeals
a. A person who usurps, intrudes into, or  RTC exercising jurisdiction over the
unlawfully holds or exercises a public territorial area where the respondent or
219
office, position or franchise any of the respondents resides
CIVIL PROCEDURE
b. A public officer who does not or  Where Sol Gen commences action– RTC
suffers an act which, by the provision in Manila, CA or SC [Rule 66.7]
of law, constitutes a ground for the
forfeiture of his office E. When Filed
c. An association which acts as a
 action against a public officer or employee
corporation within the Phils without
for his ouster from office – within one
being legally incorporated or without
year after the cause of such ouster, or the
lawfully authority so to act [Rule 66.1]
right of the petitioner to hold office or
 When Solicitor General or public
position, arose
prosecutor MUST commence action:
 action for damages sustained by reason of
o when directed by the President of
usurpation – within one year after the
the Phils.
entry of the judgment establishing the
o when upon complaint or
petitioner’s right to the office in question
otherwise, he has good reason to
[Rule 66.11]
believe that any case specified in
 The one-year period is not interrupted by
Sec. 1 can be established by
the prosecution of any administrative
proof. [Rule 66.1]
remedy as, in quo warranto proceedings,
o at the request and upon the
no one is compelled to resort to
relation if another person (ex
administrative remedies since public
relatione), but leave of court must
interest requires that the right to public
first be obtained. [Rule 66.3]
office should be determined as speedily
 When Solicitor General or public as possible. [Fernandez v. Dela Paz,
prosecutor MAY commence action: 1988]
o with permission of the court
o at the request and upon the
relation of another person F. Judgment
o officer bringing such action may
first require an indemnity for the  When the respondent is found guilty of
expenses and costs of the action usurping, intruding into, or unlawfully
in an amount approved by and holding or exercising a public office,
deposited in court. [Rule 66.3] position or franchise, judgment shall be
 By a person claiming to be entitled to a rendered that such respondent be ousted
public office or position, brought in his and altogether excluded therefrom, and
own name, against another who usurped that the petitioner or relator recover his
or unlawfully held or exercised such public costs. [Rule 66.9]
office or position [Rule 66.5]  If judgment be rendered in favor of the
person averred in the complaint to be
C. Contents of Petition entitled to the public office he may, after
taking the oath of office and executing any
 Action against a person for usurping a official bond required by law, take upon
public office, position or franchise himself the execution of the office, and
(1) name of the person who claims to be may immediately thereafter demand of the
entitled thereto respondent all the books and papers in
(2) averment of his right to the same and the respondent's custody or control
that the respondent is unlawfully in appertaining to the office to which the
possession thereof. judgment relates.
 All persons who claim to be entitled to the  The person adjudged entitled to the office
public office/position/franchise may be may also bring action against the
made parties. [Rule 66.6] respondent to recover the damages
sustained by such person by reason of the
usurpation. [Rule 66.10]
 There is taking when the owner is actually

VI. Expropriation deprived or dispossessed of his property;
when there is a practical destruction or a
A. CONCEPT AND BASIS OF EXPROPRIATION material impairment of the value of his
B. TWO STAGES IN EXPROPRIATION property or when he is deprived of the
C.
PROCEEDINGS
PROCEDURE
ordinary use thereof. (Ansaldo v. Tantuico, 220
1990)
CIVIL PROCEDURE
 An expropriation suit is incapable of
A. Concept and Basis of Expropriation pecuniary estimation. Accordingly, it falls
within the jurisdiction of RTCs, regardless
 Eminent domain is defined as the power of of the value of the subject property.
the nation or a sovereign state to take, or (Bardillon v. Bgy. Masili, 2003)
to authorize the taking of, private property
for a public use without the owner’s C. Procedure
consent, conditioned upon payment of just
(See APPENDIX 4.)
compensation.
 The exercise of the power of eminent
1. COMPLAINT FOR EXPROPRIATION
domain is constrained by two
 The complaint for expropriation must be
constitutional provisions:
VERIFIED.
(1) that private property shall not be taken
 CONTENTS:
for public use without just
1) The right and purpose of expropriation
compensation under Article III (Bill of
2) Description of the real or personal
Rights), Section 9; and
property sought to be expropriated;
(2) that no person shall be deprived of
3) The complaint shall join as defendants
his/her life, liberty, or property without
all persons owning or claiming to own,
due process of law under Art. III, Sec.
or occupying any part thereof or any
1. (Barangay Sindalan etc. et al. v. CA
interest therein, showing as far as
et al., 2007)
practicable the separate interest of
 Rule 67 primarily governs the exercise of
each defendant.
the right of eminent by the State acting
4) The following must be clearly stated in
through the national government.
the complaint , if applicable:
(Regalado) Expropriation by local
a. If the title to any property sought
government units is governed by the Local
to be expropriated appears to be
Government Code of 1991 (R.A. 7160)
in the Republic of the Philippines,
although occupied by private
B. Two Stages in Expropriation individuals;
Proceedings: b. If the title is otherwise obscure or
doubtful so that the plaintiff cannot
a. Determination of the authority of the with accuracy or certainty specify
plaintiff to exercise the power of eminent who are the real owners. [Rule
domain and the propriety of its exercise in 67.1]
the context of the facts.
 This stage is terminated by either an 2. ENTRY OF PLAINTIFF UPON
order of dismissal of the action or PROPERTY
order of the condemnation declaring  The plaintiff shall have the right to take or
that expropriation is proper and legal. enter upon the possession of the real
These orders are final and therefore property involved upon:
appealable. (Municipality of Biñan v. 1. filing of complaint for expropriation
Garcia, 1989) 2. service of notice to the defendant
b. Determination of just compensation. 3. Deposit with the authorized
 This is done with the assistance of not government depositary an amount
more than three (3) commissioners. equivalent to the assessed value of
 The order fixing just compensation is the property for purposes of taxation
also final and appealable. (Ibid). Just to be held by such bank subject to the
compensation is to be determined as orders of the court.
of the date of the taking of the 4. Deposits shall be in money (legal
propriety or the filing of the complaint, tender) or, if the court authorizes it,
whichever comes first. certificate of deposit of a government
bank payable on demand to the property, and he may share in the

authorized government depositary. distribution of the award.
 If personal property is involved, its value  The answer to the complaint for
shall be provisionally ascertained and the expropriation shall:
amount to be deposited shall be promptly 1) Specifically designate or identify the
fixed by the court. property in which he claims to have an 221
 After deposit, the court shall order the interest;
CIVIL PROCEDURE
sheriff or other proper officer to place the 2) State the nature and extent of the
plaintiff in possession of the property and interest claimed; and
promptly submit a report thereof to the 3) Adduce all of defendant’s objections
court with service of copies to the parties. or defenses to the taking of his
[Rule 67.2] property
 If the ownership of the property taken is  No counterclaim, cross-claim or third-party
uncertain, or there are conflicting claims to complaint shall be alleged or allowed in
any part thereof, the court may order any the answer or any subsequent pleading.
sum(s) awarded as compensation for the [Rule 67.3]
property to be paid to the court for the
benefit of the person adjudged in the 4. ORDER OF EXPROPRIATION
same proceeding to be entitled thereto.  It declares that the plaintiff has a lawful
 But the judgment shall require the right to take the property sought to be
payment of the sum(s) awarded to either expropriated for the public use or purpose
the defendant or the court before the described in the complaint, upon payment
plaintiff can enter upon the property, or of just compensation to be determined as
retain it for the public use or purpose if of the date of the taking of the property or
entry has already been made. [Rule 67.9] the filing of the complaint whichever is
earlier.
3. ANSWER  It is issued by the court in which the
complaint for expropriation is filed when:
IF THE PLAINTIFF HAS IF THE PLAINTIFF HAS  objections or defenses of the
NO OBJECTION OR OBJECTION OR defendant have been overruled, or
DEFENSE TO THE DEFENSE TO THE  the defendant raised no such defense
EXPROPRIATION OR EXPROPRIATION OR
TAKING OF THE TAKING OF THE
or objection, or
PROPERTY PROPERTY  no party appears to defend. [Rule
Defendant may file and Defendant shall serve his 67.4]
serve notice of ANSWER within the time
appearance and a stated in the summons. 5. COMPENSATION
manifestation that he has  Just compensation is defined as the full
no objection or defense, and fair equivalent of the property taken
specifically designating or from its owner by the expropriator.
identifying the property in  The measure is not the taker’s gain, but
which he claims to be
the owner’s loss. To compensate is to
interested within the time
stated in the summons. render something which is equal in value
Thereafter, the defendant to that taken or received.
shall be entitled to notice  The word “just” is used to intensify the
of all proceedings meaning of the word “compensation”; to
affecting the same. convey the idea that the equivalent to be
rendered for the property taken shall be
 GENERAL RULE: All defenses or real, substantial, full, ample.
objections not alleged in the answer are  In eminent domain or expropriation
deemed waived. proceedings, the general rule is that the
 EXCEPTION: The court, in the interest of just compensation which the owner of
justice, may allow the answer to be condemned property is entitled to is the
amended not later than 10 days from market value.
filing.  Market value is “that sum of money which
 At the trial of the issue of compensation, a person desirous but not compelled to
whether or not the defendant has buy, and an owner willing but not
previously appeared or answered, he compelled to sell, would agree on as a
may present evidence as to the amount of price to be given and received therefor.”
the compensation to be paid for his (BPI v. CA, 2004)
 Upon the rendition of the order of  ACCEPT the report IN PART and
expropriation, the court shall appoint not REJECT it IN PART;
more than 3 competent and disinterested  Make such order or render judgment s
persons as commissioners to ascertain shall secure to the plaintiff the
and report to the court the just property essential to the exercise of
compensation for the property sought to his right of expropriation and to the 222
be taken. [Rule 67.5] defendant just compensation for the
CIVIL PROCEDURE
 Powers and duties of commissioners: property so taken. [Rule 67.8]
 Parties can present evidence before
the commissioners and the latter have 6. JUDGMENT
the power to administer oaths or  The judgment entered in expropriation
hearings before them; proceedings shall state definitely, by an
 They can, after due notice to the adequate description, the particular
parties to attend, view and examine property or interest therein expropriated,
the property sought to be expropriated and the nature of the public use or
and its surroundings and may purpose for which it is expropriated.
measure the same;  When real estate is expropriated, a
EXCEPTION: when the parties agrees certified copy of such judgment shall be
otherwise, the commissioners cannot recorded in the registry of deeds of the
view and examine the property place in which the property is situated, and
 The commissioners shall assess the its effect shall be to vest in the plaintiff the
consequential damages to the title to the real estate so described for
property taken and deduct from such such public use or purpose. [Rule 67.13]
consequential damages the  Upon payment by the plaintiff to the
consequential benefits derived by the defendant of the compensation fixed by
owner from the public use or purpose the judgment, with legal interest thereon
of the property taken, the operation of from the taking of the possession of the
its franchise by the corporation or property, or after tender to him of the
person taking the property. amount so fixed and payment of the costs,
 In no case shall the consequential  the plaintiff shall have the right to enter
benefits assessed exceed the upon the property expropriated and to
consequential damages assessed, or appropriate it for the public use or purpose
the owner be deprived of the actual defined in the judgment, or to retain it
value of his property so taken. [Rule should he have taken immediate
67.6] possession thereof under Sec. 2. [Rule
 The commissioners shall make full and 67.10]
accurate report to the court of all their  The right of the plaintiff to enter upon the
proceedings. property of the defendant and appropriate
 The report shall be filed within 60 days the same for public use or purpose shall
from the date the commissioners were not be delayed by an appeal from the
notified of their appointment. judgment.
 Upon filing of the report, the clerk of  But if the appellate court determines that
court shall serve copies thereof on all plaintiff has no right of expropriation,
interested parties, with notice that they judgment shall be rendered ordering the
are allowed ten (10) days within which RTC to forthwith enforce the restoration to
to file objections to the findings of the the defendant of the possession of the
report, if the parties desire. [Rule 67.7] property, and to determine the damages
 After the 10-day period for objecting to the which the defendant sustained and may
commissioners’ report, the court, after recover by reason of the possession taken
hearing, may: by the plaintiff. [Rule 67.11]
 ACCEPT the report and render
JUDGMENT in accordance therewith;
 RECOMMIT the report to the
commissioners for further report of
facts;
 SET ASIDE the report and APPOINT
new commissioners;
VII. Foreclosure of Real Estate costs, and shall render judgment for the
Mortgage sum so found due and order that the same
(Asked in the 2003 Bar Exam) be paid to the court or to the judgment
obligee within a period of not less than
A. COMPLAINT’S CONTENTS
90 days nor more than 120 days from
B. JUDGMENT the entry of judgment (“equity of 223
C. DISPOSITION OF THE PROCEEDS OF THE redemption”).
CIVIL PROCEDURE
SALE  In default of such payment the property
D. DEFICIENCY JUDGMENT shall be sold at public auction to satisfy
E. REGISTRATION the judgment. [Rule 68.2]
 When the defendant, after being directed
 The cause of action in a foreclosure suit is to do so, fails to pay the amount of the
generally the non-payment of the judgment within the period specified
mortgage loan, but it may be on other therein, the court, upon motion, shall order
grounds which under the contract warrant the property to be sold in the manner and
the foreclosure, such as the violation of under the provisions of Rule 39 and other
the other conditions therein. regulations governing sales of real estate
 Foreclosure may be made: under execution.
1. judicially – governed by Rule 68  Such sale shall not affect the rights of
2. extrajudicially – proper only when so persons holding prior encumbrances upon
provided in contracts in accordance the property or a part thereof, and when
with Act. No. 3135; governed by A.M. confirmed by an order of the court, also
No. 99-10-05-0. upon motion,
 A foreclosure action must be brought in  it shall operate to divest the rights in the
the RTC of the province where the land or property of all the parties to the action and
any part thereof is situated. to vest their rights in the purchaser,
 If a mortgage contract covers several subject to such rights of redemption as
distinct parcels of land situated in different may be allowed by law.
provinces, the action may be brought in  Upon the finality of the order of
the RTC of any of the provinces and the confirmation or upon the expiration of the
judgment will be enforceable against any period of redemption when allowed by law,
of the parcels of land involved. [Monte de the purchaser at the auction sale or last
Piedad v. Rodrigo, 56 Phil 301] redemptioner, if any, shall be entitled to
the possession of the property, unless a
A. Complaint’s Contents third party is actually holding the same
adversely to the judgment obligor.
a. Date and due execution of the mortgage;
 The said purchaser or last redemptioner
b. Date of assignment of mortgage, if any;
may secure a writ of possession, upon
c. The names and residences of the
motion, from the court which ordered the
mortgagor and mortgagee;
foreclosure. [Rule 68.3]
d. Description of the mortgaged property;
e. Statement of the date of the note or other
documentary evidence of the obligation C. Disposition of the Proceeds of the
secured by the mortgage; Sale
f. Amount claimed to be unpaid;  Claims to be satisfied by the proceeds of
g. The names and residences of all persons the public sale of mortgaged property (in
having or claiming an interest in the order):
property subordinate in right to that of the  Costs incurred in the sale of property
holder of the mortgage, all of whom shall  Claim of the person foreclosing the
be made defendants in the action. [Rule property
68.1]  Claims of junior encumbrancers in the
order of their priority
B. Judgment  If proceeds of the sale exceeds the cost
 If upon the trial, the court shall find the of the sale as well as the claims of the
facts set forth in the complaint to be true, it person foreclosing the property and junior
shall ascertain the amount due to the encumbrancers, if any  the residual
plaintiff upon the mortgage debt or amount shall be given to the mortgagor or
obligation, including interest and other his agent, or to the person entitled to it.
charges as approved by the court, and [Rule 68.4]
 If the proceeds of the sale is less than the shall be made by the
amount of the claims to be satisfied Registrar of Deeds
 the person foreclosing the property upon the certificate of
may move for a DEFICIENCY title
JUDGMENT from the court confirming
the foreclosure sale, to recover the IF THE PROPERTY IS
REDEEMED
IF THE PROPERTY IS
NOT REDEEMED
224
amount of the deficiency in his claim.
CIVIL PROCEDURE
The Deed of The FINAL Deed of
Redemption shall be Sale executed by the
D. Deficiency Judgment registered with the sheriff in favor of the
 Definition. A judgment against a debtor for Registry of Deeds and a purchaser at the
brief memorandum foreclosure sale shall
the unpaid balance of the debt if a thereof shall be made be registered with the
foreclosure sale or a sale of repossessed by the Registrar of Registry of Deeds.
personal property fails to yield the full Deeds on said
amount of the debt due; also termed a certificate of title.
deficiency decree. (Black’s Law The Certificate of
Dictionary) Title in the name of
 Sec. 6 provides for a deficiency judgment the mortgagor shall
which shall be rendered, on motion, when be cancelled and a
the foreclosure sale did not produce new one shall be
proceeds sufficient to satisfy the judgment. issued in the name of
 In extrajudicial foreclosure, the the purchaser.
mortgagee can also recover by action
any deficiency in the mortgage  Right of redemption is the right granted to
account which was not realized in the the debtor-mortgagor, his successor-in-
foreclosure sale. [PNB v. CA, 1999] interest or any judicial creditor of said
 A motion for deficiency judgment may be debtor-mortgagor or any person having a
made only after the sale and after it lien in the property subsequent to its
becomes known that a deficiency exists. mortgage or deed of trust, under which the
(Governor of the Philippine Islands v. property is sold, to redeem the property
Torralba Vda. de Santos, 1935) within one (1) year from the registration of
 No deficiency judgment may be rendered the sheriff’s certificate of foreclosure sale.
against the owner who is not a mortgagor (De Castro v. Intermediate Appellate
and has not assumed personal liability for Court, 1988)
the debt. The remedy is an ordinary action  The right of redemption in relation to a
against the debtor. (Philippine Trust Co. v. mortgage is understood in the sense of a
Echaus Tan Siua, 1929) prerogative to re-acquire mortgaged
 If the debtor dies, the deficiency may be property after registration of the
filed as a claim against his estate. (Rule foreclosure sale.
86.7)  It exists only in the case of the
extrajudicial foreclosure of the mortgage.
 No such right is recognized in a judicial
E. Registration
foreclosure, except only where the
[Rule 68.7] mortgagee is the Philippine National Bank
or a bank or banking institution. (Huerta
 A CERTIFIED COPY of the final order Alba Resort, Inc. v. CA, 2000) However,
confirming the sale shall be registered in the mortgagor has the “equity of
the Registry of Deeds. redemption.”
 Equity of Redemption is the right of the
IF NO RIGHT OF IF A RIGHT OF defendant mortgagor to extinguish the
REDEMPTION EXISTS REDEMPTION mortgage and retain ownership of the
EXISTS
property by paying the amount fixed in the
The Certificate of Title in The Certificate of Title
the name of the in the name of the decision of the court within 90 to 120 days
mortgagor shall be mortgagor shall NOT after entry of judgment or even after the
cancelled, and a new be cancelled, but the foreclosure sale but prior to its
one issued in the name Certificate of Sale and confirmation. (Limpin v. Intermediate
of the purchaser. the order confirming Appellate Court, 1988)
the sale shall be
registered and a brief
memorandum thereof
VIII. Partition  All persons considered as co-owners and

interested in the property to be partitioned
A. COMPLAINT are indispensable parties to the action and
B. VENUE must be impleaded. (Sepulveda v. Pelaez,
C. WHEN TO FILE 2005)
D. ORDER OF PARTITION  Parties to a partition proceeding, who 225
E. PARTITION BY AGREEMENT elected to take under partition, and who
CIVIL PROCEDURE
F. PARTITION BY COMMISSIONERS took possession of the portion allotted to
G. JUDGMENT them, are estopped to question title to
portion allotted to another party.
 Partition of property may be:  A person cannot claim both under and
 Extrajudicial – by agreement against the same instrument. In other
 Judicial – compulsory; governed by words, they accepted the lands awarded
Rule 69 them by its provisions, and they cannot
 Even if the parties resorted to judicial accept the decree in part, and repudiate it
partition, they may still make an amicable in part.
partition of the property. [Secs. 2 and 12]  They must accept all or none. Parties who
 Rule 69 applicable to partitions of estates had received the property assigned to
composed of personal property, or of both them are precluded from subsequently
real and personal property. [Sec. 13] attacking its validity of any part of it.
 Stages in an Action for Partition: (Maglucot-aw et al. v. Maglucot et al.,
1. Determination of the propriety of 2000)
partition.  Partition may be inferred from
 This involves a determination of circumstances sufficiently strong to
whether the subject property is owned support the presumption. Thus, after a
in common and whether all the co- long possession in severalty, a deed of
owners are made parties in the case. partition may be presumed.
 The order may also require an  It has been held that recitals in deeds,
accounting of rents and profits possession and occupation of land,
recovered by the defendant. This improvements made thereon for a long
order of partition is appealable. series of years, and acquiescence for 60
(Miranda v. Court of Appeals, 1976) years, furnish sufficient evidence that
 If not appealed, then the parties may there was an actual partition of land either
partition the common property in the by deed or by proceedings in the probate
way they want. If they cannot agree, court, which had been lost and were not
then the case goes into the second recorded.
stage. However, the order of  And where a tract of land held in common
accounting may in the meantime be has been subdivided into lots, and one of
executed. (De Mesa v. CA, 1994) the lots has long been known and called
2. The actual partitioning of the by the name of one of the tenants in
subject property. common, and there is no evidence of any
 This is also a complete proceeding subsequent claim of a tenancy in
and the order or decision is common, it may fairly be inferred that
appealable. there has been a partition and that such
 When there was a prior partition, the lot was set off to him whose name it bears.
fact that the share of each co-heir has (Maglucot-aw et al. v. Maglucot et al.,
not been technically described and the supra)
title over the whole lot remains
uncancelled does not negate such A. Complaint
partition.
 There can be no partition again  Filed by person having the right to compel
because there is no more common the partition of real estate.
property. (Noceda v. CA, 1999)  Contents:
a. Nature and extent of the
 Oral partition of land when the same is complainant’s title
fully consummated is valid and binding b. Adequate description of the real
upon the parties thereto. (Crucillo v. IAC, estate of which the partition is
1999) demanded
c. All other persons interested in the  A party shall recover from another his just
property must be impleaded. [Rule share of rents and profits received by such
69.1] other party from the real estate in
question, and the judgment shall include
B. Venue an allowance for such rents and profits.
[Rule 69.8] 226
 A final order decreeing partition and

CIVIL PROCEDURE
Actions for partition should be filed in the
accounting may be appealed by any party
RTC of the province where the property or
aggrieved thereby. [Rule 69.2]
part thereof is situated.
 If several distinct parcels of land are
situated in different provinces, venue may F. Partition by Commissioners
be laid in the RTC of any of said
provinces. [Pancho v. Villanueva, 99 Phil  If the parties are unable to agree upon the
611] partition, the court shall appoint not more
than 3 competent and disinterested
C. When to File persons as commissioners to make the
partition, commanding them to set off to
the plaintiff and to each party in interest
 The right of action to demand partition
such part and proportion of the property
does not prescribe [De Castro v. Echarri,
as the court shall direct. [Rule 69.3]
20 Phil 23], EXCEPT where one of the
 Duties of Commissioners [Rule 69.4]:
interested parties openly and adversely
1. view and examine the real estate,
occupies the property without recognizing
after due notice to the parties to
the co-ownership [Cordova v. Cordova,
attend at such view and examination
102 Phil 1182] in which case, acquisitive
2. hear the parties as to their preference
prescription may set in.
in the portion of the property to be set
 If a co-owner repudiates the co-ownership
apart to them and the comparative
and makes known such repudiation to the
value thereof
other co-owners, then partition is no
3. set apart the same to the parties in
longer a proper remedy of the aggrieved
lots or parcels as will be most
co-owner. He should file an accion
advantageous and equitable, having
reivindicatoria, which is prescriptible.
due regard to the improvements,
(Roque v. IAC, 1988)
situation and quality of the different
parts thereof.
D. Order of Partition  If the commissioners should determine
that the real estate cannot be divided
 After trial, if the court finds that the plaintiff without prejudice to the interests of the
has the right to the property subject of parties, the court may order that the
partition, it shall issue an order demanding property be assigned to one of the parties
the partition of the real estate among all willing to take the same PROVIDED he
the parties in interest. pays to the other parties such amounts as
the commissioners deem equitable
E. Partition by Agreement  EXCEPTION: if one of the parties asks
that the property be sold instead of being
so assigned, then the court shall ORDER
After the issuance of the order of partition, the
the commissioners to sell the real estate
parties will then be asked if they agree to make
partition of the property among themselves. at pubic sale under such conditions and
within such time as the court may
If they agree, proper instruments of conveyance will determine. [Rule 69.5]
be executed to effect the partition.  The commissioners shall make a full and
accurate report to the court of all their
After the execution of instruments of conveyance, proceedings as to the partition, or the
the court shall confirm the partition through a final assignment of real estate to one of the
order. parties or the sale of the same.
 Upon filing the report, the clerk of court
The final order of partition and the instruments of shall serve copies thereof on all interested
conveyance shall be registered with the Registry of parties with notice that they are allowed 10
Deeds where the property is situated. [Rule 69.2]
days within which to file objections to the IF Judgment Judgment shall

findings of the report, if they so desire. PROPERTY shall state the vest the real
 No proceeding had before or conducted IS SOLD AND name of the estate in the
by the commissioners shall pass the title SALE IS purchaser or purchaser(s),
CONFIRMED purchasers making the
to the property or bind the parties until the
BY THE and a definite payment(s)
court accepts the commissioners’ report COURT description of free from the 227
and rendered judgment thereon. [Rule the parcels of claims of any
CIVIL PROCEDURE
69.6] real estate parties to the
 Upon the expiration of the 10-day period, sold to each action.
or even before the expiration of such purchaser
period but after the interested parties filed
their objections to the report/statement of  A certified copy of the judgment shall in
agreement, the court, upon hearing, may: either case be recorded in the registry of
1. ACCEPT the commissioners’ report deeds of the place in which the real estate
and render JUDGMENT based upon is situated. [Rule 69.11]
it.
2. RECOMMIT the report to the
commissioners for further report of IX. Forcible Entry and Unlawful
facts if there is cause to do the same Detainer
3. SET ASIDE the report and APPOINT (Asked in the 2000 Bar Exam in
new commissioners Relation to a Pending Action for
4. ACCEPT the report IN PART and Specific Performance)
REJECT it IN PART
5. Make such order and render such A. ACTIONS FOR THE RECOVERY OF
judgment as shall effectuate a fair and POSSESSION OF REAL PROPERTY
just partition of the real estate or of its B. FORCIBLE ENTRY
C. UNLAWFUL DETAINER
value, if the property is assigned or
D. PLEADINGS
sold between the several owners E. PROCEDURE
thereof. [Rule 69.7] F. PRELIMINARY INJUNCTION
G. MATTERS NOT CONSTITUTING
G. Judgment PREJUDICIAL QUESTION TO EJECTMENT
CONTENTS EFFECTS OF A. Actions for the Recovery of

OF JUDGMENT Possession of Real Property
JUDGMENT
IF ACTUAL Judgment Judgment shall 1. Accion Interdictal
PARTITION IS shall state vest in each
PROPERLY definitely, by party to the
 the summary action for forcible entry
MADE metes and action in (detentacion)
bounds and severalty the  where the defendant’s possession of
adequate portion of the property is illegal ab initio, or
description, real estate  the summary action for unlawful
the particular assigned to detainer (desahucio) where the
portion of the him. defendant’s possession was originally
real estate
lawful
assigned to
each party.  but ceased to be so by the expiration
IF THE Judgment Judgment shall of his right to possess,
WHOLE shall state the vest in the  both of which must be brought within
PROPERTY fact of such party making one year from the date of actual entry
IS ASSIGNED payment and the payment to the land, in case of forcible entry,
TO ONE OF of the the whole of and from the date of last demand, in
THE PARTIES assignment of the real estate case of unlawful detainer,
AFTER the real estate free from any
 in the proper municipal trial court or
PAYMENT to the party interest on the
making the part of the metropolitan trial court.
payment. other parties.  Nature:
a. special civil action involving realty;
b. subject to the Rules on Summary
Procedure; [Rule 70.3]
c. under the original exclusive termination of the right to hold possession

jurisdiction of first level courts; by virtue of an express or implied contract.
d. nature of the action is determined by  may also be brought by the legal
the allegation of the complaint and the representative or assigns of any such
character of the relief sought; (Abrin v. lessor, vendor, vendee, or other persons.
Campos, 1991)  must be brought at any time within 1 year 228
e. one co-owner may institute the action. after the unlawful withholding of
CIVIL PROCEDURE
possession in the proper Municipal Trial
Court against the person unlawfully
2. Accion Publiciana withholding possession or persons
 is a plenary action for recovery of the claiming under them.
right to possess and which should be  action must be for the restitution of
brought in the proper regional trial possession of property together with
court when the dispossession has damages and costs. [Rule 70.1]
lasted for more than one year.  commenced by lessor only after:
 (1) demand to pay or comply with the
conditions of the lease and to vacate
3. Accion Reivindicatoria is made upon the lessee, or
 or accion de reivindicacion, seeks the  (2) by serving written notice of such
recovery of ownership and includes demand upon the person found on the
the jus utendi and the jus fruendi, premises, or
which must be brought in the proper  (3) by posting such notice on the
regional trial court. premises if no person be found
 It is thus an action whereby plaintiff thereon, and the lessee fails to comply
alleges ownership over a parcel of therewith after 15 days in the case of
land and seeks recovery of its full land or 5 days in the case of buildings.
possession. [Javier v. Veridiano, [Rule 70.2]
1994]  EXCEPTIONS (prior demand not
required):
B. Forcible Entry a. Where purpose of the action is to
terminate the lease by reason of the
 Resorted to when a person is deprived of expiry of its term, and is not for failure
possession of any land or building by (1) to pay rentals or comply with the
force, (2) intimidation, (3) strategy, (4) terms of the lease contract. [De
threat, or (5) stealth. (fists) Santos v. Vivas, 96 Phil 538]
 Must be brought at any time within 1 year b. When the purpose of the suit is not for
after such unlawful deprivation in the ejectment but for the enforcement of
proper municipal trial court against the the terms of the contract. [Guanson v.
person unlawfully depriving him of Ban, 77 Phil 7]
possession or against any person or c. When the defendant is not a tenant
persons claiming under them. but a mere intruder. [id]
 Action must be for the restitution of  Demand upon a tenant may be oral.
possession of property together with (Jakihaca v. Aquino, 1990)
damages and costs. [Rule 70.1]  A person who occupies the land of
 The owners of a property have no another at the latter's tolerance or
authority to use force and violence to eject permission, without any contract between
alleged usurpers who were in prior them is necessarily bound by an implied
physical possession of it. promise that he will vacate upon demand,
 They must file the appropriate action in failing which, an action for unlawful
court and should not take the law into their detainer may be instituted against him.
own hands. (Laurora v. Sterling (Dakudao v. Consolacion, 1983)
Technopark, 2003)  This rule as to tolerance does not hold
true in a case where there was forcible
C. Unlawful Detainer entry at the start, but the lawful possessor
 resorted to when a lessor, vendor, did not attempt to oust the intruder for over
vendee, or other person against whom the 1 year, and only thereafter filed forcible
possession of any land or building is entry suit following demand to vacate.
unlawfully withheld, after the expiration or (Muñoz v. CA, 1992)
 Tolerance must be presented right from possession of the

the start of possession sought to be premises until deprived
recovered to categorize a cause of action thereof.
as one of unlawful detainer. (Refugia v. 1-year period counted 1-year period counted
CA, 1996) from date of actual entry from date of last
on the land. demand or last letter of
 When failure to pay rent or comply with demand. 229
the condition of lease is the ground for
CIVIL PROCEDURE
ejectment, plaintiff should give 2 demands
(which may be embodied in 1 demand D. Pleadings
letter):  Must be verified. [Rule 70.4]
1. demand to pay rental or comply with  Allowed pleadings [Rule 70.4]:
conditions of the lease, and if this is a. Complaint
not complied with, b. Compulsory Counterclaim pleaded in
2. demand to vacate (Zobel v. Abreu, the answer
1956) c. Cross-claim pleaded in the answer
 Notice and demand to vacate is required d. Answer
on a lease on a month-to-month period to  Prohibited pleadings and motions [Rule
render effective the termination of the 70.13]:
lease upon the expiration of the month,  Motion to dismiss
and prevent an implied renewal of the  EXCEPTIONS:
lease. (Rivera v. Florendo; Yap v. Cruz, a. Motion to dismiss based on lack of
1992) jurisdiction over the subject-matter
 An alternative demand to either renew the b. Motion to dismiss for failure to
expired lease contract at a higher rental comply with section 12 (referral to
rate or vacate is not a definite demand to conciliation)
vacate and therefore, insufficient basis for  Motion for a Bill of Particulars
the filing of an action for unlawful detainer.  Motion for New Trial
(Penas, Jr. v. CA, 1994)  Motion for reconsideration of a
 Refusal to collect or accept rentals is not a judgment
defense. There must be consignation. (Uy  Motion for reopening of trial
v. CA, 1989)  Petition for relief from judgment
 Motion for extension to file pleadings,
UNLAWFUL
FORCIBLE ENTRY
DETAINER
affidavits or other papers
Possession becomes Possession was lawful  Memoranda
unlawful right from the at first but later  Petition for Certiorari, Mandamus or
very start (i.e. from the becomes illegal, as Prohibition against any interlocutory
time of entry) as he when the lease contract order issued by the court
acquires possession by has expired and the  Motion to declare defendant in default
FISTS. lessee refuses to  Dilatory motion for postponement
vacate the premises
despite demand.  Reply
The deprivation of The unlawful  Third-party complaints
physical possession of withholding of  Interventions
land and building is possession is made
effected through force, after the expiration or E. Procedure
intimidation, strategy, termination of the right
threat or stealth (FISTS). to hold possession
under any contract, 1. Filing of complaint.
express or implied.
The issue centers on The issue centers on 2. After the court has examined the
who was in prior whether the allegations in the complaint and
possession de facto. defendant’s right to supporting evidence attached to the same,
possess has expired or the court may:
not.
a. DISMISS the case outright based on
Previous demand upon Previous demand to the grounds for dismissal for ordinary
defendant to vacate not vacate required civil actions apparent in the complaint,
required. (jurisdictional). or
The plaintiff must allege The plaintiff need not
b. ISSUE SUMMONS, if the no ground
and prove that he was in be in prior physical
prior physical possession.
for dismissal is found. [Rule 70.5]
 Cases requiring referral to conciliation, It shall be a cause for

where there is no showing of the dismissal of his
compliance with such requirement, complaint.
shall be dismissed without prejudice, All cross-claims shall
be dismissed.
and may be revived only after that
The defendant who The plaintiff shall be
requirement have been complied with. appears in the entitled to judgment. 230
[Rule 70.12] absence of the (This is true when there
CIVIL PROCEDURE
plaintiff shall be is only one defendant or
3. The defendant shall file his ANSWER entitled to the when all of the
and serve a copy of it to the plaintiff within judgment on his defendants did not
10 days from service of summons. [Rule counterclaim. appear.)
70.6]
 Failure of the defendant to answer  GENERAL RULE: No postponement
within the period provided above shall of the preliminary conference shall be
give power to the court, motu propio granted.
or on motion, to render judgment as  EXCEPTION: Highly meritorious
may be warranted by the facts alleged grounds and without prejudice to such
in the complaint and limited to what is sanctions as the court in the exercise
prayed for therein. [Rule 70.7] of sound discretion may impose on
 Affirmative and negative defenses not the movant. [Rule 70.8]
pleaded in the answer are deemed
waived. 5. The court shall issue an ORDER stating
o EXCEPTION: lack of jurisdiction matters taken up during the preliminary
over the subject matter. conference within 5 days after the
 Cross-claims and compulsory termination of the same.
counterclaims not pleaded in the  Contents of the Order:
answer shall be barred. a. Whether the parties have arrived
o Answers to the counterclaims or at an amicable settlement, and if
cross-claims shall be served and so, terms thereof;
filed within 10 days from service of b. The stipulations or admissions
the answer in which they are entered into by the parties;
pleaded. c. Whether, on the basis of the
 When the defendant raises the pleadings and the stipulations and
defense of ownership in his pleadings, admissions made by the parties,
and the question of possession cannot judgment may be rendered
be resolved without deciding the issue without the need of further
of ownership, the issue of ownership proceedings, in which event the
shall be resolved ONLY to determine judgment shall b rendered within
the issue of possession. [Rule 70.16] 30 days from issuance of the
 Where there is a defense of tenancy, order;
there must be a preliminary hearing d. A clear specification of material
on the question of tenancy relations. facts which remain controverted;
(Bayog v. Natino, 1996) If there is a e. Such other matters intended to
prima facie showing of tenancy, the expedite the disposition of the
court should dismiss the case for lack case. [Rule 70.9]
of jurisdiction (jurisdiction belongs to
the DARAB). (Baranda v. Padios, 6. The parties shall submit affidavits of their
1987) witnesses and other evidence on the
factual issues defined in the order,
4. Not later than 30 days after the last together with their position papers setting
answer is filed, a PRELIMINARY forth the law and the facts relied upon by
CONFERENCE shall be held. them within 10 days from receipt of the
 Rule 18 applicable. order. [Rule 70.10]
 Effects of failure to appear:  Affidavits required to be submitted
shall state only facts of direct
WHEN THE WHEN THE personal knowledge of the affiants
PLAINTIFF DOES DEFENDANT DOES which are admissible in evidence, and
NOT APPEAR NOT APPEAR shall show their competence to testify
to the matters stated therein.
 Violation of this requirement may 8. Execution of judgment

subject the party or the counsel who  GENERAL RULE: If judgment is
submits the same to disciplinary rendered against a defendant,
action and shall be cause to expunge execution shall issue immediately.
the inadmissible affidavit or portion [Rule 70.19 and 70.21]
thereof from the records. [Rule 70.14]  EXCEPTION: Appeal has been duly 231
perfected by the defendant and bond
CIVIL PROCEDURE
7. Judgment has been posted.
 GENERAL RULE: The court shall  Although immediately executory, the
render judgment within 30 days from judge should not order immediate
the date of its receipt of the affidavits execution in his decision. (Lu v.
and position papers OR the expiration Siapno, 2000) There must be notice of
of the period for filing the same. [Rule the judgment (Dy v. CA, 1991) and a
70.11] motion with notice to the adverse
 EXCEPTION: Should the court find it party. (Kaw v. Anunciacion, 1995)
necessary to clarify certain material  Procedure for staying the execution of
facts, it may during the 30-day period judgment:
issue an ORDER specifying the a. defendant perfects his appeal in
matters to be clarified and require the due time;
parties to submit affidavits or other b. defendant files a sufficient
evidence on the said matters within 10 supersedeas bond approved by
days from receipt of said order. the Municipal Trial Court; and
Judgment shall be rendered within 15 c. during the pendency of the
days after receipt of the last affidavit appeal, he deposits with the
or the expiration of the period for filing appellate court the amount of rent
the same. [Ibid.] due from time to time under the
 The court shall not resort to the contract, if any, on or before the
foregoing procedure just to gain time 10th day of each succeeding
for the rendition of the judgment. [Id.] month. [Rule 70.19]
 If the trial court finds that the  BUT upon motion of the plaintiff within
allegations of the complaint are 10 days from the perfection of the
TRUE, it shall render judgment in appeal to the RTC, the court may still
favor of the plaintiff for the: issue a preliminary mandatory
a. restitution of the premises, injunction to restore the plaintiff in
b. the just sum due as arrears of rent possession if the court is satisfied that
or reasonable compensation for the defendant’s appeal is frivolous or
the use and occupation of the dilatory, or that the appeal of the
premises. plaintiff is prima facie meritorious.
c. attorney’s fees and costs. [Rule [Rule 70.20]
70.17]
 If the court finds that the allegations of F. Preliminary Injunction
the plaintiffs are NOT TRUE, it shall
 The court may grant preliminary injunction
render judgment for the defendant to
in accordance with Rule 58 to prevent the
recover his costs. [Ibid.]
defendant from committing further acts of
 The judgment rendered in an action dispossession against the plaintiff.
for forcible entry shall be conclusive  A possessor deprived of his possession
with respect to the possession may moved for a preliminary mandatory
only, and it shall not in any way affect injunction within 5 days to restore him in
the title or ownership of the land or hi possession of the property. The court
building. Hence, such judgment shall then shall decide the motion within 30
not bar an action between the same days from the filing thereof. [Rule 70.15]
parties with respect to the title of the
land or building.
 The judgment or final order shall be G. Matters Not Constituting Prejudicial
appealable to the appropriate RTC. Question to Ejectment
[Rule 70.18] (Arcal vs. Court of Appeals, 1998)
 Injunction suits instituted in the RTC by

defendants in ejectment actions in the
municipal trial courts or other courts of the

first level (Nacorda v. Yatco, 17 SCRA 920 X. Contempt
[1996] do not abate the latter, and neither
do proceedings on consignation of rentals A. Definition
(Lim Si v. Lim, 98 Phil. 868 [1956]
 An ‘accion publiciana’ does not suspend  Contempt of court is a defiance of the 232
an ejectment suit against the plaintiff in authority, justice or dignity of the court,
CIVIL PROCEDURE
the former (Ramirez v. Bleza, 106 SCRA such conduct as tends to bring the
187 [1981]. authority and administration of the law into
 A ‘writ of possession case’ where disrespect of, to interfere with, or prejudice
ownership is concededly the principal parties litigant or their witnesses during
issue before the Regional Trial Court does litigation.
not preclude nor bar the execution of the  It is defined as a disobedience to the court
judgment in an unlawful detainer suit by setting up an opposition to its authority,
where the only issue involved is the justice and dignity.
material possession or possession de  It signifies not only a willful disregard or
facto of the premises (heirs of F. Guballa, disobedience to the court’s order but such
Sr. v, C.A., 168 SCRA 139 [1988]. conduct as tends to bring the authority of
 An action for quieting of title to the the court and the administration of law into
property is not a bar to an ejectment suit disrepute or in some manner to impede
involving the same property (Quimpo v. de the due administration of justice. (Heirs of
la Victoria, 46 SCRA 139 [1972]. Trinidad de Leon Vda. de Ramos v. Court
 Suit for specific performance with of Appeals, 2004)
damages do not affect ejectment actions
(e.g., to compel renewal of lease contract)  Direct Contempt (Contempt In Facie
(Desamito v. Cuyegkeng, 18 SCRA 1184 Curiae) – a misbehavior committed in the
[1966]; (Asked in the 2000 Bar Exam) presence of or so near a court or judge so
 An action for reformation of instrument as to obstruct or interrupt the proceedings
(e.g. from deed of absolute sale to one of before the same, including:
sale with pacto de retro ) does not
 disrespect toward the court
suspend an ejectment suit between the
 offensive personalities toward others
same parties (Judith v. Abragan, 66 SCRA
600 [1975].  refusal to be sworn or to answer as a
witness or to subscribe an
 An action for reconveyance of property or
affidavit/deposition when lawfully
‘accion reivindicatoria’ also has no effect
required to do so.
on ejectment suits regarding the same
property (Del Rosario v. Jimenez, 8 SCRA  can be punished summarily without
549 [1963 hearing.
 Neither do suits for annulment of sale, or  It is conduct directed against or
title, or document affecting property assailing the authority and dignity of
operate to abate ejectment actions the court or a judge, or in the doing of
respecting the same property (Salinas v. a forbidden act. [Encinas v. National
Navarro [annulment of deed of sale with Bookstore, 2005; Rule 71.1]
assumption of mortgage and/or to declare
the same an equitable mortgage], 126  Indirect Contempt (Constructive
SCRA 167 [1983]; Ang ping v. RTC Contempt)
[annulment of sale of title], 154 SCRA 153  a misbehavior perpetrated outside of
[1987]; Caparros v. C.A. [annulment of the sitting of the court [Patricio v.
title], 170 SCRA 758 (1989]; Dante v. Suplico, 1991];
Sison [annulment of sale with damages]  Acts of indirect contempt:
174 SCRA 517; Galgala v. Benguet  Misbehavior of an officer of the court
Consolidated, Inc. [annulment of in the performance of his official duties
document], 177 SCRA 288 [1989]). or in his official transactions;
 Disobedience of or resistance to a
lawful writ, process, order, or
judgment of a court, including the act
of a person who, after being
dispossessed or ejected from any real
property by the judgment or process
of any court of competent jurisdiction,  Any improper conduct tending, directly

enters or attempts to or induces or indirectly, to impede, obstruct or
another to enter into or upon such degrade the administration of justice;
real property, for the purpose of  Assuming to be an attorney or an
executing acts of ownership or officer of the court, and acting as such
possession, or in any manner disturbs without authority; 233
the possession given to the person  Failure to obey a subpoena duly
CIVIL PROCEDURE
adjudged to be entitled thereto; served;
 Any abuse of or any unlawful  The rescue or attempted rescue, of a
interference with the processes or person or property in the custody of
proceedings of a court not constituting an officer by virtue of an order or
direct contempt; process of a court held by him. [Rule
71.3]
DIRECT CONTEMPT INDIRECT CONTEMPT

How  Can be committed only in the  Can be committed anywhere as long
Committed presence of or so near a court or as the acts mentioned in Sec. 3 are
judge. done.
Nature of  The person guilty of misbehavior is  The person guilty of misbehavior may
Proceedings summarily adjudged by the court be punished only after charge in
against which the contempt was writing has been filed, and an
committed at the very moment of the opportunity given to the accused to be
perpetration. heard by himself or counsel
[Rule 71.1] [Rule 71.3]
Punishment  If the contempt is directed against an  If the contempt is directed against an
RTC, a court of equivalent or higher RTC, a court of equivalent or higher
rank: rank:
 FINE = not exceeding P2,000; or  FINE = not exceeding P30,000; or
 IMPRISONMENT = not exceeding 10  IMPRISONMENT = not exceeding 6
days; or both months; or both
 If the contempt is directed against a  If contempt is directed against a lower
lower court: court:
 FINE = not exceeding P200; or  FINE = not exceeding P5,000; or
 IMPRISONMENT = not exceeding 1  IMPRISONMENT = not exceeding 1
day; or both month; or both
[Rule 71.1] [Rule 71.7]
How  Summarily adjudged by the court  By the court motu propio thru an
proceedings against which the contempt is directed ORDER or any FORMAL CHARGE
commenced and punished there and then.  In all other cases, by a VERIFIED
[Rule 71.1] PETITION.
 (If the contempt charges arose out of
or are related to a principal action
pending in the court, the petition for
contempt shall allege that fact, but
said petition shall be docketed, heard
and decided separately, unless the
court in its discretion orders the
consolidation of the contempt charge
and the principal action for joint
hearing and decision.)
[Rule 71.4]
 Remedy  No appeal, but subject to certiorari or  May be appealed to the proper court
prohibition. as in criminal cases, but execution
[Rule 71.2] shall not be suspended until BOND is
filed.
[Rule 71.11]
Procedure for Indirect Contempt

[Secs. 4-6]
WHO COURT MOTU PROPIO PARTY
INITIATES
How it is  By ORDER or any WRITTEN  By a VERIFIED PETITION with supporting
initiated CHARGE requiring particulars and certified true copy of documents 234
respondent to show cause or papers involved and full compliance with the
CIVIL PROCEDURE
why he should not be held in requirements for filing initiatory pleadings in
contempt. ordinary civil actions.
Where it is  When the contempt is directed against an RTC or equivalent or higher rank:
initiated  Same court
 When the contempt is directed against a lower court:

(1) RTC of the place where the lower court is sitting; or
(2) in same lower court subject to appeal to higher court
Hearing and  If hearing is not immediately conducted, respondent may be released upon filing of
Bail BOND in the amount fixed by the court.
Appeal  Appeal may be taken in proper courts as in criminal cases.
Execution of  Execution of judgment shall not be suspended even by appeal UNLESS bond is filed
Judgment conditioned upon the performance by the respondent of that judgment should it be
decided against him on appeal.
 TWO ASPECTS OF CONTEMPT OF dignity of the court, the solemnity of the

COURT: proceedings therein and the administration
a. Civil Contempt is the failure to do of justice.
something ordered to be done by a  But this must be wielded sparingly. For this
court or a judge for the benefit of the power should be exercised on the
opposing party therein. [People v. preservative and not on the vindictive
Godoy, 1995]; principle.
b. Remedial or Compensatory in nature;  Only occasionally should the court invoke its
instituted for the benefit of private party. inherent power in order to retain that respect
c. Criminal Contempt is conduct directed without which the administration of justice
against the authority and dignity of a must falter or fail. [Panado v. CA, 1998]
court or of a judge, as in unlawfully  Only the court which rendered the order
assailing or discrediting the authority commanding the doing of a certain act is
and dignity of a court or a judge or in vested with the right to determine whether or
doing a forbidden act [People v. Godoy, not the order has been complied with, or
1995]; punitive in nature, thus, the whether a sufficient reason has been given
proceedings are to be conducted in for non-compliance, and, therefore, whether
accordance with the principles and rules a contempt has been committed.
applicable to criminal cases [SEC v.  The power to determine the existence of
Recto, 1999]. contempt of court rests exclusively with the
 The violation of a TRO issued by the SEC or court contemned. No court is authorized to
any quasi-judicial tribunal is criminal punish a contempt against another. [Igot v.
contempt so that acquittal of the Meralco, 200)]
respondents is unappealable. [SEC v.  Quasi-judicial agencies that have the power
Recto, 1999] to cite persons for indirect contempt
 A writ of execution issued by a court after 5 pursuant to Rule 71 can only do so by
years from entry of final judgment is void, initiating them in the proper RTC. It is not
and disobedience thereto does not within their jurisdiction and competence to
constitute indirect contempt. [Crucillo v. IAC, decide the indirect contempt cases. These
1999] matters are still within the province of the
 The power to declare a person in contempt RTCs. [LandBank v. Listana, 2003]
of court serves to protect and preserve the
REMEDIAL LAW REVIEWER APPENDICES
APPENDIX 1: Service of Summons upon Different Entities
1. Service on person associated in If sued under the name by which they are commonly known – Serve upon
an either:
entity without juridical personality 1) Any/all the defendants;
235
[Rule 14, Sec. 8] 2) Person in charge of the office
CIVIL PROCEDURE
The service does not bind individually any person whose connection with the
entity was already severed before the service
2. Service upon minors and Serve upon the minor/incompetent and on his legal guardian.
incompetents [Rule 14, Sec. 10]  If there is no guardian, plaintiff may apply for the appointment of a guardian
ad litem.
 If minor, may serve on his parents.
3. Service upon prisoner [Rule 14, Serve upon the officer having management of the jail/prison
Sec. 9]
4. Service upon domestic private Serve upon either the:
juridical entity [Rule 14, Sec. 11] 1) President
2) Managing partner
3) General manager
4) Corporate secretary
5) Treasurer
6) In-house counsel
5. Service upon foreign private Serve upon the resident agent;
juridical entity Otherwise, upon either:
[Rule 14, Sec. 12] 1) Government official designated by law;
2) Any officer or agent of the corporation within the Philippines
6. Service upon public If the defendant is the Republic of the Philippines – Serve upon the OSG
corporations If the defendant is a province/city/municipality or like public corporations –
[Rule 14, Sec. 13] Serve upon the executive head or other officers as the law/court may
direct
7. Extraterritorial service Requisites: (Asked in the 1997 and 2008 Bar Exam)
[Rule 14, Sec. 15] 1) Defendant does not reside or is not found in the Philippines;
2) Action either:
a) Affects the plaintiff’s personal status;
b) Relates to or the subject matter of which is property within the
Philippines in which defendant has a lien/interest;
c) Demands a relief which consists wholly/partially in excluding the
defendant from any interest in any property within the
Philippines;
d) Has defendant’s property in the Philippines, attached.
Modes of service:
1) With leave of court, serve outside the Philippines by personal
service; or
2) With leave of court, serve by publication in a newspaper of general
circulation, in which case copy of the summons and order of the
court must also be sent by registered mail to the defendant’s last
known address;
3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period of at
least 60 days within which the defendant must answer.
8. Service upon a resident With leave of court, may serve extraterritorially
temporarily out of the
Philippines
[Rule 14, Sec. 16]
9. Service upon a defendant With leave of court, by publication in a newspaper of general circulation
whose identity or whereabouts
are unknown [Rule 14, Sec. 14]
APPENDIX 2: Subpoena Duces Tecum and Order for the Production or Inspection
SUBPOENA DUCES TECUM ORDER FOR THE PRODUCTION OR

INSPECTION
NATURE Process requiring a person to bring with order any party to produce and permit the
him any books, documents, documents, or inspection and copying or photographing, 236
other things under his control or by or on behalf of the moving party,
CIVIL PROCEDURE
possession.  of any designated documents,
papers, books, accounts, letters,
photographs, objects or tangible
things, not privileged,
 which constitute or contain evidence
material to any matter involved in the
action and which are in his
possession, custody or control, or
order any party to permit entry upon

designated land or other property in his
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon.
TO WHOM DIRECTED To any person Only to a party
WHEN IT MAY BE Only during trial Before and/or during trial
ASKED
Issued by a court before whom the witness Issued by the court where the action is
ISSUED BY WHOM is required to attend, or court where the pending
deposition is to be taken or clerk or body
authorized by law or any justice of the
Supreme Court or CA in any case or
investigation pending within the Philippines
WHEN ISSUED Issued upon request Issued upon motion
(Request to the clerk, no notice) (application with notice to the other party)
WHETHER IT IS NO YES
NECESSARY TO SHOW
GOOD CAUSE
GROUNDS FOR Unreasonable, oppressive, irrelevant, or No good cause shown
QUASHAL
The person in whose behalf the subpoena
is issued fails to advance the reasonable
costs of the production thereof
CONSEQUENCE OF Constitutes contempt of the court from See Section 3, Rule 29
DISOBEDIENCE which the subpoena is issued.
APPENDIX 3: Consequences of Refusal under Rule 29
PROVISION HIGHLIGHTS APPLICABILITY

Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses PARTY OR DEPONENT /WITNESS IN
to answer any question upon oral examination,  RULE 23 (depositions de bene
a. the examination may be completed on other matters or esse), 237
b. adjourned as the proponent of the question may prefer.  RULE 24 (depositions in perpetuam
CIVIL PROCEDURE
c. The proponent may thereafter apply (i.e., by MOTION FOR THE rei memoriam)
ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the  RULE 25. INTERROGATORIES TO
proper court of the place where the deposition is being taken, for an PARTIES
order to compel an answer.
IF THE APPLICATION IS GRANTED, the court shall require the refusing

party or deponent to answer the question or interrogatory and if it also
finds that the refusal to answer was without substantial justification,
 it may require the refusing party or deponent or the counsel advising
the refusal, or both of them, to pay the proponent the amount of the
reasonable expenses incurred in obtaining the order, including
attorney's fees.
IF THE APPLICATION IS DENIED and the court finds that it was filed
without substantial justification, the court may require the proponent or
the counsel advising the filing of the application, or both of them, to pay
to the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness PARTY OR WITNESS IN
 RULE 23 (depositions de bene
refuses to BE SWORN OR esse),
refuses to answer any question after being directed to do so  RULE 24 (depositions in perpetuam
rei memoriam)
by the court of the place in which the deposition is being taken, the
refusal may be considered a contempt of that court.
Section 3. Other consequences PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY IN
AGGRIEVED PARTY MAY APPLY FOR: 23, 24, 25 IN RELATION TO RULE 29.1
 An order that the matters regarding which the questions were asked, ON ORDER TO COMPEL AN ANSWER
or the character or description of the thing or land, or the contents of PARTY IN 27, 28
the paper, or the physical or mental condition of the party,  RULE 23 (depositions de bene
 or any other designated facts shall be taken to be established for the esse),
purposes of the action in accordance with the claim of the party  RULE 24 (depositions in perpetuam
obtaining the order; rei memoriam)
 RULE 25 (Interrogatories to parties)
An order  RULE 27 (Motion for production or
a. refusing to allow the disobedient party to support or oppose inspection of documents or things)
designated claims or defenses or  RULE 28 (Physical and mental
b. prohibiting him from introducing in evidence designated documents examination of persons)
or things or items of testimony, or (APPLIES TO all modes of discovery
c. from introducing evidence of physical or mental condition; except RULE 26 ON REQUEST FOR
ADMISSION BY AN ADVERSE PARTY)
An order
a. striking out pleadings or parts thereof, or
b. staying further proceedings until the order is obeyed, or
c. dismissing the action or proceeding or any part thereof,
d. or rendering a judgment by default against the disobedient
party; and
IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION

THERETO,
an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a physical or
mental examination.
Section 4. Expenses on refusal to admit. PARTY SERVED WITH A REQUEST
 RULE 26 ADMISSION BY AN
If a party after being served with a request under Rule 26 to admit the ADVERSE PARTY
genuineness of any document or the truth of any matter of fact
PROVISION HIGHLIGHTS APPLICABILITY
Serves a sworn denial thereof and
If the party requesting the admissions thereafter proves the genuineness

of such document or the truth of any such matter of fact,
238
he may apply to the court for an order requiring the other party to pay him
CIVIL PROCEDURE
the reasonable expenses incurred in making such proof, including
attorney's fees.
Unless the court finds THAT THERE WERE GOOD REASONS FOR
THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO
SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY
If a party or an officer or managing agent of a party  RULE 23 (depositions de bene
a. wilfully fails to appear before the officer who is to take his deposition, esse),
after being served with a proper notice, or  RULE 24 (depositions in perpetuam
b. fails to serve answers to interrogatories submitted under Rule 25 rei memoriam)
after proper service of such interrogatories,  RULE 25 INTERROGATORIES TO
PARTIES
The court on motion and notice, may
a. strike out all or any part of any pleading of that party, or
b. dismiss the action or proceeding or any part thereof, or
c. enter a judgment by default against that party,
d. and in its discretion, order him to pay reasonable expenses incurred
by the other, including attorney's fees
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE Applies to all provisions in Rule 29
PHILIPPINES. requiring a noncompliant party or witness
(who represents the Republic in an
Expenses and attorney's fees are not to be imposed upon the Republic of official capacity) to pay.
the Philippines under this Rule
APPENDIX 4: Procedure for Expropriation
All sales of property under execution must be made at public auction, to

the highest bidder, to start at the exact time fixed in the notice. The 239
judgment obligor, if present at the sale, may direct the order in whic h
CIVIL PROCEDURE
property, real or personal shall be sold, when such property consists of
several known lots or parcels which can be sold to advantage
.separately.
When the sale is of real When the sale is of

property, consis ting of several personal property capable of
know n lots, they must be sold manual delivery, it must be
separately ; or,when a portion sold w ithin view of those
of such real property is claimed attending the same and in
by a third person, he may such parcels as are likely to
require it to be sold separately bring the highest price
After suffic ient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authoriz ed
representative, unless otherw is e directed by the judgment or order of
the court.
Section 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by
him for property struck off to him at a sale under execution , the officer may again sell the
property to the highest bidder and shall not be responsible for any loss occasioned
thereby; but the court may (1) order the refusing purchaser to pay into the court the
amount of such loss1, w ith costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benefit of the person entitled to the
proceeds of the execution, unless the execution has been fully satisfied, in which event
such proceeds shall be for the benefit of the judgment obligor. (2) The officer may
Section 24. CONVEYANCE TO PURCHASER OF Section 23. CONVEYANCE TO PURCHASER

PERSONAL PROPERTY NOT CAPABLE OF OF PERSONAL PROPERTY CAPABLE OF
MANUAL DELIVERY. When the purchaser of any MANUAL DELIVERY. When the purchaser of
personal property, not capable of manual delivery, any personal property, capable of manual
pays the purchase pric e, the officer making the sale delivery, pays the purchase price, the offic er
must execute and deliver to the purchaser a making the sale must deliver the property to the
certif icate of sale. Such certif icate conveys to the purchaser and, if desired, execute and deliver to
purchaser all the rights whic h the judgment obligor him a certificate of sale. The sale conveys to the
had in such property as of the date of the levy on purchaser all the rights whic h the judgment
obligor had in such property as of the date of the
execution or preliminary attachment
levy on execution or preliminary attachment .
- end of Civil Procedure -

SPECIAL PROCEEDINGS
Table of Contents
Preliminary Matters......................................242 II. Duty of court; when petition sufficient281

A. Special proceedings..........................242 III. Court shall adjudge that the estate shall
B. Applicable Rules ...............................242 escheat ...................................................... 281
C. Venues and Jurisdictions for Special IV. Period to appeal and claim the estate 241
Proceedings ...............................................243 281
SPECIAL PROCEEDINGS
V. Other actions for escheat.................. 281
Chapter 1: General Provisions ...................244
I. Subject Matter and Applicability of Chapter 4: Special Rules Implementing the
General Rules ............................................244 Family Courts ............................................... 282
II. Difference Between Action and Special I. Guardianship ....................................... 282
Proceeding.................................................244 II. Adoption............................................... 291
III. Rules on Custody of Children (Rule 99,
Chapter 2: Settlement of Estate of Deceased Secs. 6 and 7) ............................................... 299
Persons .........................................................245 IV. Custody of Minors and Writ of Habeas
I. Venue and Process .............................245 Corpus in Relation to Custody of Minors
II. Summary Settlement of Estate ..........246 (A.M. No. 03-04-04-SC)................................. 300
III. Production of Will. Allowance of Will V. Commitment of Children (A.M. No. 02-1-
Necessary .....................................................249 19-SC)............................................................ 304
IV. Allowance or Disallowance of Will ....250
V. Allowance of Will Proved Outside of Chapter 5: Other Special Proceedings ...... 310
Philippines and Administration of Estate I. Hospitalization of Insane Persons (Rule
Thereunder....................................................253 101) 310
VI. Letters Testamentary and of II. Declaration of Absence (RULE 107) and
Administration, When and to Whom Issued of Presumptive Death (ARTS. 390-392, CC)
254 310
VII. Opposing Issuance Of Letters III. Change of Name and Cancellation or
Testamentary, Petition and Contest For Correction of Entries in the Civil Registry 312
Letters Of Administration............................255 IV. Voluntary Dissolution of Corporations
VIII. Rule 80 – Special Administrator (SA) 317
256 V. Naturalization....................................... 317
IX. Bond of Executors and Administrators
257 Chapter 6: Appeals in Special Proceedings
X. Revocation of Administration, Death, ....................................................................... 320
Resignation, and Removal of Executors or
Administrators..............................................258 Chapter 7: The Writs.................................... 321
XI. Inventory and Appraisal. Provision for I. Writ of Habeas Corpus........................ 321
Support of Family.........................................259 II. Writ of Amparo .................................... 326
XII. General Powers and Duties of III. Writ of Habeas Data ........................ 331
Executors and Administrators....................259 IV. Writ Matrix ....................................... 334
XIII. Accountability and Compensation of
Executors and Administrators....................260 Chapter 8: Corporate Rehabilitation .......... 340
XIV. Claims Against Estate ....................262
XV. Actions By and Against Executors
and Administrators ......................................266
XVI. Payment of the Debts of the Estate
269
XVII. Sales, Mortgages, and Other
Encumbrances of Property of Decedent ...271
estate 274
XIX. Trustees ...........................................276
Chapter 3: Escheats.....................................280
I. When Allowed ...................................280
REMEDIAL LAW REVIEWER PRELIMINARY MATTERS
Preliminary Matters
SPECIAL PROCEEDINGS TEAM
SPECIAL PROCEEDINGS
Prof Theodore O Te A. SPECIAL PROCEEDINGS
Faculty Editor
B. APPLICABLE RULES
Rachelle Anne T. Mayuga C. VENUES AND JURISDICTIONS FOR
Lead Writer
SPECIAL PROCEEDINGS
Charisse Mae V. Mendoza
Paul Angelo D. Obmina
Ana Sofia Biason
Anisah Azis A. Special proceedings 242
Writers
SPECIAL PROCEEDINGS
 A remedy by which a party seeks to
REMEDIAL LAW establish a status, right or a particular fact
Jo Blanca P.B. Labay (Rule 1, Sec. 3(c)).
Subject Editor
ACADEMICS COMMITTEE B. Applicable Rules

Kristine Bongcaron  If special rules are provided, they shall
Michelle Dy
apply. But in the absence of such special
Patrich Leccio
Editors-in-Chief provisions, the rules applicable in special
proceedings shall be applied (Rule 72, Sec.
PRINTING & DISTRIBUTION 2).
Kae Guerrero  There are special proceedings which are not
part of the ROC (e.g. Writs of amparo and
DESIGN & LAYOUT habeas data).
Pat Hernandez  The State has an overriding interest in each
Viktor Fontanilla special proceeding, and the matter is not a
Romualdo Menzon Jr. controversy between private parties purely
Rania Joya (Bautista).
LECTURES COMMITTEE  The distinction between final and
interlocutory orders in civil actions for
Michelle Arias purposes of determining the issue of
Camille Maranan applicability, is not strictly applicable to
Angela Sandalo
Heads
orders in special proceedings; Rule 109
specifies the orders from which appeals may
be taken (Regalado).
Arianne Cerezo Marcrese Banaag  Rule 33 regarding judgment on demurrer to
Volunteers evidence is applicable to special
proceedings (Matute v. CA (1969)).
MOCK BAR COMMITTEE
Lilibeth Perez
BAR CANDIDATES WELFARE

Dahlia Salamat
LOGISTICS
Charisse Mendoza
SECRETARIAT COMMITTEE
Jill Hernandez
Head
Loraine Mendoza Faye Celso
Members
REMEDIAL LAW REVIEWER PRELIMINARY MATTERS
C. Venues and Jurisdictions for Special Proceedings

(Asked in the 1997 Bar Examinations)
Special Proceeding Venue Jurisdiction
Settlement of the Estate Residence of the decedent MTC if gross value of the estate
of a Deceased Person If non-resident, place where he had an estate does not exceed P300,000, or
does not exceed P400,000 in
Metro Manila;
otherwise, RTC
Escheat Person dies intestate leaving no heir – Residence RTC 243
of the decedent or if non-resident, place where he
SPECIAL PROCEEDINGS
had estate
Reversion – where land lies in whole or in part RTC
Unclaimed Balances Act – where deposits are RTC
located
Appointment of Where minor resides Family Court
Guardians Where incompetent resides RTC
Appointment of Trustees Where will was allowed; or RTC
Where the property or portion thereof affected by
the trust is situated
Adoption Domestic – where adopter resides Family Court
Inter-country Adoption – ICAB; or, where adoptee ICAB or Family Court
resides if filed with the Family Court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case there is
no RTC judge;
Sandiganbayan, only in aid of its
appellate jurisdiction
For the custody of minors, where petitioner resides Family Court, CA, SC
or where minor may be found
Habeas Data Where the petitioner or respondent resides, or that RTC generally
which has jurisdiction over the place where the If concerning public data files or
data or information is gathered, collected, or government offices, SC, CA or
stored, at the option of the petitioner Sandigabayan
Amparo Where the threat, act or omission was committed RTC, Sandiganbayan, CA, SC or
or any of its elements occurred any justice thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/ Philippine

 Local civil registry where the record sought to consulate
be changed is kept
 Local civil registry of the place of residence of
the interested party (only if petitioner migrated
to another place in the Philippines and it is
impractical to file where records sought to be
changed are kept)
 Philippine consulates only for non-resident
citizen
Appointment of Where Absentee resides before his disappearance RTC

Representative of
Absentee/ Declaration of
Absence
Cancellation / Correction Judicial - Where corresponding civil registry is RTC

of Entries in Civil located
Registries Administrative - Same as change of name Local Civil Registry/ Philippine
consulate
Petition for declaration Where petitioner or respondent has been residing Family Court
of nullity, annulment, for at least 6 months prior to the date of filing
legal separation If non-resident petitioner, where he may be found
at the election of the petitioner
REMEDIAL LAW REVIEWER Chapter 1: GENERAL PROVISIONS
Chapter 1: General Provisions
I. SUBJECT MATTER AND APPLICABILITY OF

GENERAL RULES
II. DIFFERENCE BETWEEN ACTION AND
SPECIAL PROCEEDING
I. Subject Matter and Applicability of

244
General Rules
SPECIAL PROCEEDINGS
 Rules of special proceedings are provided
for in the following cases:
1. Settlement of estate of deceased persons;
2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas corpus;
9. Change of name;
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition of
minor natural children;
12. Constitution of family home;
13. Declaration of absence and death;
14. Cancellation of correction of entries in the
civil registry.
 In the absence of special provisions, the
rules provided for in ordinary actions shall
be, as far as practicable, applicable in
special proceedings.
II. Difference Between Action and

Special Proceeding
 Action - formal demand of one’s right in a
court of justice in the manner prescribed by
the court or by the law (Herrera).
 Special proceeding - application or
proceeding to establish the status or right of
a party, or particular fact. No formal
pleadings are required, unless the statute
expressly so provides (Herrera).
Ordinary Action Special Proceeding

To protect/enforce a To establish a
right or prevent/ redress right/status/fact
a wrong
Involves 2 or more May involve only 1 party
parties
Governed by ordinary Governed by special rules,
rules supplemented by supplemented by ordinary
special rules rules
Initiated by pleading, Initiated by petition,
and parties respond parties respond through
through an answer an opposition
REMEDIAL LAW REVIEWER Chapter 2: SETTLEMENT of ESTATE of DECEASED PERSONS
 The jurisdiction assumed by a court, so far

Chapter 2: Settlement of Estate of as it depends on the place of residence of
Deceased Persons the decedent, or of the location of his estate,
shall not be contested in a suit or
I. VENUE AND PROCESS proceeding, except:
II. SUMMARY SETTLEMENT OF ESTATE In an appeal from that court, in the original case,
III. PRODUCTION OF WILL. ALLOWANCE OF OR
WILL NECESSARY When the want of jurisdiction appears on the
IV. ALLOWANCE OR DISALLOWANCE OF WILL record.
V. RULE 77 ALLOWANCE OF WILL PROVED 245
OUTSIDE OF PHILIPPINES AND  Conversion of an intestate into testate
SPECIAL PROCEEDINGS
ADMINISTRATION OF ESTATE THEREUNDER
proceeding
VI. LETTERS TESTAMENTARY AND OF
A matter of form and lies within the sound
ADMINISTRATION, WHEN AND TO WHOM
discretion of the court.
ISSUED
VII. RULE 79 OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY. PETITION AND CONTEST 1. Jurisdiction of MTCs
FOR LETTERS OF ADMINISTRATION
VIII. RULE 80 SPECIAL ADMINISTRATOR  When the value of the estate does not
IX. RULE 81 BOND OF EXECUTORS AND exceed P300,000 or P400,000 in Metro
ADMINISTRATORS Manila.
X. REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF
EXECUTORS OR ADMINISTRATORS 2. Rule 73 relates to venue and not to
XI. INVENTORY AND APPRAISAL. PROVISION jurisdiction
FOR SUPPORT OF FAMILY
XII. GENERAL POWERS AND DUTIES OF  The place of residence of the deceased in
EXECUTORS AND ADMINISTRATORS settlement of estates, probate of will, and
XIII. ACCOUNTABILITY AND COMPENSATION OF issuance of letters of administration does not
EXECUTORS AND ADMINISTRATORS constitute an element of jurisdiction over the
XIV. CLAIMS AGAINST ESTATE subject matter. It is only constitutive of
XV. ACTIONS BY AND AGAINST EXECUTORS venue.
AND ADMINISTRATORS
XVI. PAYMENT OF THE DEBTS OF THE ESTATE
XVII. SALES, MORTGAGES, AND OTHER 3. Meaning of term “resides”
ENCUMBRANCES OF PROPERTY OF
DECEDENT  Resides - in the section is viewed in its
XVIII. DISTRIBUTION AND PARTITION OF THE popular sense, meaning, the personal,
ESTATE actual or physical habitation of a person,
XIX. TRUSTEES actual residence of place of abode.
I. Venue and Process 4. Probate court is of limited jurisdiction

 General rule: When questions arise as to
A. WHERE ESTATE OF DECEASED PERSONS
SETTLED
ownership of property alleged to be part of
B. WHERE ESTATE SETTLED UPON the estate of the deceased but claimed by
DISSOLUTION OF MARRIAGE some other person to be his property, not by
C. PROCESS virtue of any right of inheritance from the
D. PRESUMPTION OF DEATH deceased but by title adverse to that of the
deceased and his estate, such questions
A. Where Estate of Deceased Persons cannot be determined in the courts of
Settled administration proceedings. It must be
settled in a separate action.
 If decedent is:  For the purpose of determining whether a
Inhabitant of the Philippines at time of death
certain property should or should not be
(citizen/alien)  RTC of the province in
which he resides
included in the inventory of the estate
Inhabitant of foreign country  RTC of any proceeding, the probate court may pass
province in which he had estate upon the title thereto, but such determination
 Jurisdiction: court first taking cognizance is provisional, not conclusive, and is subject
shall exercise jurisdiction to the exclusion of to final decision.
all other courts.  Exception: Questions to title to any property
apparently still belonging to the estate of the
deceased may be passed upon in the

probate court, with consent of all the parties, II. Summary Settlement of Estate
without prejudice to third persons (Trinidad
v. CA) A. EXTRAJUDICIAL SETTLEMENT BY
AGREEMENT BETWEEN HEIRS
B. SUMMARY SETTLEMENT OF SMALL VALUE
5. Nature of proceedings: In rem. C. BOND TO BE FILED BY DISTRIBUTEES
D. LIABILITY OF DISTRIBUTEES AND ESTATE
E. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON 246
B. Where Estate Settled upon
SPECIAL PROCEEDINGS
Dissolution of Marriage A. Extrajudicial Settlement by
Agreement between Heirs
a. If one spouse died: the community property (Asked in the 2005 Bar Examinations)
shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the
1. Procedure:
testate or intestate proceedings of the
deceased spouse. a. Death of the decedent
b. If both spouses have died: the conjugal b. Division of estate in public instrument or
partnership shall be liquidated in the testate affidavit of adjudication
or intestate proceedings of either. c. The public instrument or affidavit of
adjudication must be filed with the proper
Registry of Deeds
C. Process d. Publication of notice of the fact of
extrajudicial settlement once a week for 3
 RTC may issue: consecutive weeks in a newspaper of
a. Warrants and process necessary: general circulation
i. To compel attendance of witnesses e. Filing of bond equivalent to the value of
ii. To carry into effect their orders and personal property
judgments
b. All other powers granted by law
c. Warrant for the apprehension and 2. Requisites:
imprisonment if a person does not perform a. No will
an order or judgment rendered by the court b. No debts
until he performs or is released.
o However, it is enough to meet the
requirement of no debts if the heirs have
already paid such at the time of partition
D. Presumption of Death c. Heirs are all of age or the minors are
represented by their judicial or legal
 Presumption of death - if absent or unheard representatives
of for the periods fixed in CC
 If proven to be alive:
a. He shall be entitled to the balance of estate.
3. If there is no disagreement between the
b. Recovered by motion in the same heirs –
proceeding.  The parties may divide the estate among
 For purposes of settlement of his estate only themselves by means of a public instrument
 No independent action for declaration of filed in the office of register of deeds
presumption of death.
4. If there is disagreement –
 They may divide the estate in an ordinary
action of partition.
5. If only 1 heir –
 He may adjudicate to himself the entire
estate by means of affidavit filed in the office
of register of deeds
6. Requirement common to all instances  In such case the judicial administration and
– the appointment of an administrator are
superfluous and unnecessary proceedings.
 File a bond equal to the value of the  There must be good reason to warrant
personal property involved as certified to judicial administration. Among those NOT
under oath by the parties, conditioned upon good reasons:
the payment of any just claim that may be
 Dispute among heirs;
filed
 Multiplicity of suits;
 It shall be presumed that the decedent left
no debts if no creditor files a petition for
 To have legal capacity to appear. 247
letters of administration within 2 years after
SPECIAL PROCEEDINGS
the death of the decedent. 12. Validity of oral partition
 VALID, because there is no law that requires
7. Publication – partition among heirs to be in writing to be
valid
 Fact of the extrajudicial settlement or
administration shall be published in a
newspaper of general circulation 3 times a 13. Validity of Compromise agreement
week, once each week;
 VALID, binding upon the parties as
individuals, upon the perfection of the
8. Not binding on any person who: contract, even without previous authority of
the court to enter into such agreement.
a. Has not participated in the extrajudicial
settlement.
b. Had no notice thereof.
B. Summary Settlement of Small Value
9. Judicial Administration
 This shall be applicable to testate or
 General Rule: when a person dies leaving intestate proceedings
property, the same should be judicially
administered and the competent court
1. Procedure:
should appoint a qualified administrator, in
the order established in Sec 6. of Rule 78, in a. Death of the decedent
case the deceased left no will, or in case he b. An application for summary settlement with
had left one, should he fail to name an an allegation that the gross value of the
executor therein. estate does not exceed P10K
 Exception: Summary settlement of estate. c. Publication of notice of the fact of
extrajudicial settlement once a week for 3
consecutive weeks in a newspaper of
10. Different modes of settlement of estate
general circulation (the court may also order
of deceased:
notice to be given to other persons as such
a. Extrajudicial settlement of estate court may direct)
b. Partition d. Hearing to be held not less than 1 month nor
c. Summary settlement of estates of small more than 3 months from the date of the last
value publication of notice
d. Probate of will e. Court to proceed summarily, without
e. Petition for letters of administration in appointing an executor/administrator (e/a),
intestacy. and to make orders as may be necessary
f. Grant allowance of the will, if any
g. Determine persons entitled to estate
11. Judicial administration not favored
h. Pay debts of estate which are due
 When a person dies without leaving pending i. Filling of bond fixed by the court
obligations to be paid, his heirs, whether of j. Partition of estate.
age of not, are not bound to submit the
property to a judicial administration, which is 2. Requisites:
always long and costly, or to apply for the
appointment of an administrator by the a. Gross value of estate: x < P10,000 (now x <
court. P300,000 outside Metro Manila and x <
400,000 in Metro Manila)
b. Fact is made to appear to the RTC C. Bond to Be Filed by Distributees

c. Through petition of an interested person
d. Upon hearing 1. Optional bond by distributees
i. Held not less than 1 month nor more  Before allowing partition
than 3 months  For those movables/ personal properties
ii. Counted from the date of the last forming the estate
publication of a notice  Conditioned for the payment of any just
e. Notice claim which may be filed.
i. Which shall be published once a week 248
for 3 consecutive weeks
SPECIAL PROCEEDINGS
ii. In a newspaper of general circulation in
the province
D. Liability of Distributees and Estate
iii. Note that it is not required that
publication be for a complete 21 days.  If it shall appear within 2 years after the
What is required is that it be published settlement and distribution (summary
for once a week for 3 consecutive settlement):
weeks.  An heir or other person
f. Notice to interested persons as the court  Has been unduly deprived of his lawful
may direct. participation in the estate
o He shall have a right to compel the
 Upon fulfillment of the requisites, the court settlement of the estate in the courts
may proceed summarily for the purpose of satisfying such
 Without the appointment of an e/a lawful participation
 Without delay,  There are debts outstanding which have not
 To grant, if proper, allowance of the will, been paid.
if any there be,  An heir or other person has been unduly
deprived of his lawful participation payable
in money
3. Court will:  The court having jurisdiction of the
 Determine who are the persons legally estate may,
entitled to participate in the estate,  by order for that purpose,
 Apportion and divide it among them  after hearing,
after the payment of such debts of the  settle the amount of such debts or lawful
estate as the court shall then find to be participation, and
due  order how much and in what manner
each distributee shall contribute in the
 Afterwards, the heirs shall be entitled to payment thereof, and
receive and enter into the possession of the  may issue execution, if circumstances
portions of the estate so awarded to them require, against the bond provided in the
respectively. preceding section or against the real
 There is no requirement regarding the lack estate belonging to the deceased, or
of debts (unlike extrajudicial partition) in both.
summary settlement of estates of small  Such bond and real estate shall remain
value since the court will make provisions for charged with a liability to creditor, heirs or
such in its resolution of the proceedings other persons for the full period of 2 years
after such distribution, notwithstanding any
transfers of real estate that may have been
4. Recording: made.
 Orders and judgments  clerk of court
 Order of partition or award of real estate 
1. Duty of the court:
registrar’s office
 Hear the case
 Settle the amount
 Order how much and in what manner each
distribute shall contribute in the payment
thereof
 If circumstances require, issue execution
against the bond, or the real estate
belonging to the deceased, or both
2. Bond and real estate remain charged Torrens title does not furnish a shield for
fraud.
 with a liability to creditors, heirs, or other
persons for the full period of 2 years after
such distribution, notwithstanding any 6. Rescission
transfers of real estate that may have been  is the proper remedy for preterition.
made
3. Rule not applicable: E. Period for Claim of Minor or 249

a. To persons who have participated or taken Incapacitated Person
SPECIAL PROCEEDINGS
part or had notice of the extrajudicial
partition  If on the date of the expiration of the period
b. When the provisions of Sec. 1 of Rule 74 of 2 years prescribed in the preceding
have been strictly complied with (all persons section the person authorized to file a claim
or heirs of the decedent have taken part in is:
the extrajudicial settlement or are  a minor or mentally incapacitated, or is
represented by themselves or through in prison or
guardians)  outside the Philippines,
 This is only a Bar against the parties  he may present his claim within 1 year after
who had taken part in the extrajudicial such disability is removed.
proceedings, but not against third
persons not parties thereto
III. Production of Will. Allowance of Will
4. Prescriptive period Necessary
 Action to annul a deed of extrajudicial (Asked in the 2002 Bar Examinations)
settlement upon the ground of fraud may be
filed within 4 years from the discovery of the A. ALLOWANCE NECESSARY. CONCLUSIVE AS
fraud (deemed to have taken place when TO EXECUTION
said instrument was filed with the Register of B. CUSTODIAN OF WILL TO DELIVER
C. EXECUTOR TO PRESENT WILL AND ACCEPT
Deeds and new certificates of title were
OR REFUSE TRUST
issued in the name of respondents D. CUSTODIAN AND EXECUTOR SUBJECT TO
respectively). FINE FOR NEGLECT
 However in Amerol v. BagumBaran (154 E. PERSON RETAINING WILL MAY BE
SCRA 396), the Court applied the New Civil COMMITTED
Code. Under Article 1144 (NCC), the
following actions must be brought within 10 A. Allowance Necessary. Conclusive as
years from the time the right of action
to Execution
accrues: (1) upon a written contract; (2)
upon an obligation created by law; (3) upon  No will shall pass either real or personal
a judgment. estate unless it is proved and allowed in the
 Since implied or constructive trusts are proper court.
obligations created by law, then the  Subject to the right of appeal, such
prescriptive period to enforce the same allowance of the will shall be conclusive as
prescribes in 10 years. Thus, an action for to its due execution.
reconveyance based on an implied or  Probate of will is mandatory.
constructive trust must perforce prescribe in
10 years and not otherwise. 1. Procedure:
a. Death of the decedent;
5. Exception: b. Petition for probate of the will, if any;
 Prescriptive period for the filling of the action c. Court order fixing the time and place for
for reconveyance based on implied trust probate;
should be reckoned from the actual d. The court shall cause notice of such time
discovery of the fraud where the registration and place to be published 3 weeks
where there was bad faith in securing the successively in a newspaper of general
certificates of titles and, is therefore a holder circulation. Notice shall also be given to the
of the said certificate in bad faith. The designated/known heirs, legatees and
devisees, and the executor if the one
petitioning for allowance of the will is not the  The Executor named in will:
testator; Within 20 days of
e. Issuance of letters testamentary/ o Knowledge of death
administration; o Or knowledge that he is named as
f. Filling of claims; executor
g. Payment of claims; sale/mortgage/ Present such will to the court
encumbrance of estate properties; o Unless the will is already with the court
h. Distribution of remainder, if any (but can be Signify in writing WON he accept the trust or
made before payment if bond is filled by the refuse it 250
heirs).
SPECIAL PROCEEDINGS
2. Probate does not look into intrinsic D. Custodian and Executor Subject to
validity Fine for Neglect
 Fine for negligence of duties (S2 and S3)
 Probate is merely the determination of
without excuse  x < P1,000
whether or not the testator, being of sound
mind, freely executed the will in accordance
with the formalities prescribed by law
 Exception: Under exceptional E. Person Retaining Will May Be
circumstances, the probate court is not Committed
powerless to do what the situation  Imprisonment for custodian - when he
constrains it to do and pass upon certain neglects to deliver when ordered to do so
provisions of the will. It may pass upon the
intrinsic validity of the will because there is
apparent defect in its face – this is also IV. Allowance or Disallowance of Will
known as the principle of practical (Asked in the 2003, 2005, and 2006 Bar
consideration (Nepomuceno v. CA). Examinations)
 Example: on the face of the will the
petitioner appears to be preterited A. WHO MAY PETITION FOR THE ALLOWANCE
 But remedy of certiorari is available, where OF WILL
B. CONTENTS OF THE PETITION
the grounds for dismissal are indubitable
C. COURT TO APPOINT TIME FOR PROVING
(e.g. grave abuse of discretion of the judge WILL. NOTICE THEREOF TO BE PUBLISHED
when there is clearly preterition and the said D. HEIRS, DEVISEES, LEGATEES, AND
judge still continues the probate EXECUTORS TO BE NOTIFIED BY MAIL OR
proceedings) PERSONALLY
 Decree of probate is conclusive as to its due E. PROOF AT HEARING. WHAT SUFFICIENT IN
execution ABSENCE OF CONTEST
 Suit for forgery of a will, which has been F. PROOF OF LOST OR DESTROYED WILL.
CERTIFICATE THEREUPON
duly probated and such order becoming
G. PROOF WHEN WITNESSES DO NOT RESIDE
final, Bars such suit because the will is IN PROVINCE
conclusively deemed as duly executed. H. PROOF WHEN WITNESSES DEAD OR INSANE
OR DO NOT RESIDE IN THE PHILIPPINES
I. GROUNDS FOR DISALLOWANCE OF WILL
B. Custodian of Will to Deliver J. CONTESTANT TO FILE GROUNDS FOR
CONTEST
1. Custodian of will K. SUBSCRIBING WITNESSES PRODUCED OR
ACCOUNTED FOR WHERE WILL CONTESTED
 Within 20 days after knowledge of death. L. PROOF WHERE TESTATOR PETITIONS FOR
 Deliver the will to the court or the executor ALLOWANCE OF HOLOGRAPHIC WILL
named in the will. M. CERTIFICATE OF ALLOWANCE ATTACHED
 Failure to attach original of will to petition not TO PROVE WILL. TO BE RECORDED IN THE
critical where will itself was adduced in OFFICE OF REGISTER OF DEEDS
evidence. It is not necessary to attach
original will to petition for probate. A. Who May Petition for the Allowance
of Will
 Petitioner for the allowance of the will
C. Executor to Present Will and Accept a. Executor
or Refuse Trust b. Devisee
c. legatee
d. other person interested in the estate  Which notice to be published 3 weeks

e. testator himself, during his lifetime successively previous to the time
appointed in newspaper of general
1. Meaning of interest in estate circulation in the province
o No publication needed - petition for
 In order that a person may be allowed to probate has been filed by the
intervene in a probate proceeding he must testator himself
have an interest in the estate, or in the will,
or in the property to be affected by it either
2. Notice requirement 251
as executor or as a claimant of the estate
SPECIAL PROCEEDINGS
and an interested party is one who would be  The requirement of law for allowance of will
benefited by the estate such as an heir or was not satisfied by mere publication of
one who has claim against the estate like a notice of hearing. Notice of hearing to the
creditor. designated heirs, legatees and devisees is
required.
2. Jurisdiction, how acquired:
 Attaching a mere copy of will; or D. Heirs, Devisees, Legatees, and
 Delivery of will, even if no petition is filed; or Executors to Be Notified by Mail or
 Filing of the original petition and compliance
Personally
with Sec 3-4 Rule 76.
 It is the duty of the court to cause copies of
the notice to be addressed to the:
B. Contents of the Petition  Designated or other known heirs,
legatees and devisees of the testator
a. Jurisdictional facts resident in the Philippines
b. Names, ages, and residences of the heirs,
 Notice to be deposited in the post office
legatees, and devisees of the testator or
postage prepaid
decedent
 At least 20 days before hearing
c. Probable value and character of the property
of the estate  If such residence is known
d. Name of the person for whom letters are  Executor, if he be not the petitioner
prayed  Co-executor not petitioning
e. If the will has not been delivered to the  If residence known
court, the name of the person having  Personal service - equal to mailing,
custody of it. provided done 10 days before hearing.
 Testator as petitioner - notice shall be sent
only to his compulsory heirs.
1. Defect in petition –
 will not void the allowance of the will, or the
issuance of letters testamentary or of E. Proof at Hearing. What Sufficient in
administration with the will annexed. Absence of Contest
 During hearing:
2. Jurisdictional facts: Before introduction of will
o Compliance with notice requirement
 Death of the decedent must be shown before introduction of
 Residence at the time of death in the will
province where the probate court is sitting o Testimony taken under oath and
 Or if he is an inhabitant of a foreign country, reduced to writing.
his leaving his estate in such province  No contest - Court will allow:
o On the testimony of 1 witness
o In absence of such, expert testimony
C. Court to Appoint Time for Proving may be resorted to.
Will. Notice Thereof to Be Published
1. Duty of court having jurisdiction
 Fix a time and place for proving the will
 Cause notice of such time and place
F. Proof of Lost or Destroyed Will. 2. If the testator was insane, or otherwise

Certificate Thereupon mentally incapable to make a will, at the
time of its execution;
1. Proof of lost or destroyed will. 3. If executed under duress, or the influence of
(Asked in the 1999 Bar Examinations) fear, or threats;
4. If procured by undue and improper pressure
and influence, on the part of the beneficiary,
2. Establish or of some other person for his benefit;
 The execution and validity of the will 5. If the signature of the testator was procured 252
 That such has been existence the time of by fraud or trick, and he did not intend that
SPECIAL PROCEEDINGS
death or shown to be fraudulently or the instrument should be his will at the time
accidently destroyed in the lifetime of of fixing his signature thereto
testator without his knowledge
 Provisions are clearly and distinctly proved  The grounds for disallowance of will are
by a least 2 credible witnesses exclusive.
 When a lost will is proved, the provisions  Separate wills may be probated jointly.
thereof must be distinctly stated and certified
by the judge, under the seal of the court,
and the certificate must be filed and J. Contestant to File Grounds for
recorded as other wills are filed and Contest
recorded
1. Duty of contestant:
G. Proof When Witnesses Do Not Reside  State in writing the grounds for opposition
in Province  Serve a copy thereof on the petitioner and
other parties interested in the estate
1. Depositions, when made:
 None of the subscribing witnesses resides in K. Subscribing Witnesses Produced or
the province Accounted for Where Will Contested
 But the deposition of one or more of them
can be taken elsewhere 1. With contest
 Court may direct deposition to be taken and  Witnesses present and not insane
authorize:  All the subscribing witnesses and the
 Photocopy of the will made and notary must be produced and examined
presented to the witness on his  Death, absence, or insanity of any of
examination them must be satisfactorily shown to the
court
 All or some of such witnesses present in the
H. Proof When Witnesses Dead or Philippines but outside the province -
Insane or Do Not Reside in the deposition must be taken.
Philippines  Any or all of them testify against due
execution or do not remember having
1. Subscribing witnesses dead, insane or attested to it, or are otherwise of doubtful
outside the Philippines: credibility - allowed, provided court is
 Court may admit the testimony of other satisfied from the testimony of other
witnesses to prove the witnesses and from all evidence presented
 sanity of testator, that the will was executed and attested in
 due execution of the will, accordance with law
 proof of handwriting of testator and of
subscribing witnesses 2. Holographic will –
 Allowed if 3 witnesses who know the
handwriting of the testator testify to such;
I. Grounds for Disallowance of Will expert testimony may also be resorted to,
nut both still needs be to the satisfaction of
1. If not executed and attested as required by the courts.
law;
L. Proof Where Testator Petitions for B. Requisites for Allowance

Allowance of Holographic Will
1. Copy of the will
 Petition by testator himself of holographic 2. Order or decree of the allowance in foreign
will country
3. Filed with a petition for allowance in the
1. If there are no contests in holographic Philippines by executor or other person
wills – interested
 The fact that the affirms that the holographic 4. Court shall fix a time and place for the 253
hearing
SPECIAL PROCEEDINGS
will and the signature are in his own
handwriting, shall be sufficient evidence of 5. Cause notice thereof to be given as in case
the genuineness and due execution thereof of an original will presented for allowance.
2. If with contest – C. When Will Allowed, and Effect

 the burden of disproving the genuineness Thereof
and due execution thereof shall be on the
1. Such will allowed:
contestant
 Certificate of allowance:
Signed by judge
M. Certificate of Allowance Attached to Attested by the seal of the court
 Attached to the copy of the will
Prove Will. To Be Recorded in the
 Filed and recorded by the clerk
Office of Register of Deeds  The will shall have the same effect as
originally proven and allowed by such court
1. When will allowed –
 Court will issue certificate of allowance D. Estate, How Administered
 Signed by judge
 Attested by the seal of the court  Court shall grant letters testamentary or
 Attached to the will letters of administration
 Will and certificate filed and recorded by Which shall extend to all the estate of the testator
the clerk in the Philippines
 If real estate is involved, both will  Such estate shall be disposed of according
and certificate shall be recorder in to such will (after payment of debts and
the register of deeds in the province expenses of administration)
where the real estate is.  The residue shall be disposed of as is
provided by law in cases of estates in the
Philippines belonging to persons who are
V. Allowance of Will Proved Outside of
inhabitants of another state or country.
Philippines and Administration of
Estate Thereunder
1. Territorial limits of administration
A. WILL PROVED OUTSIDE THE PHILIPPINES  Administration extends only to the assets of
B. REQUISITES FOR ALLOWANCE: the decedent found within the state or
C. WHEN WILL ALLOWED, AND EFFECT
THEREOF
country where it was granted, so that an
D. ESTATE, HOW ADMINISTERED administrator appointed in one state or
country has no power over property in
another state or country.
A. Will Proved Outside The Philippines
 Wills proved and allowed in a foreign 2. Need for ancillary administration

country, according to the laws of such  When a person dies owning property in the
country, may be allowed, filed, and recorded country of his domicile as well as in foreign
by the proper Court of First Instance in the country, administration shall be had in both
Philippines. countries.
 That which is granted in the jurisdiction of
the decedent’s domicile is termed the
principal administration, while any other E. Where Some Co-Executors

administration is termed ancillary Disqualified, Others May Act
administration.
 When all of the executors named cannot act
VI. Letters Testamentary and of because of
Administration, When and to Whom a. incompetency,
Issued b. refusal to accept the trust, or
c. failure to give a bond, on the part of one
(Asked in the 1998, 2002, and 2005 Bar
or more of them, 254
Examinations)
 letters testamentary may issue to such of
SPECIAL PROCEEDINGS
A. WHO CANNOT SERVE AS EXECUTORS OR them as are competent, accept and give
ADMINISTRATORS bond, and they may perform the duties and
B. THE EXECUTOR OF AN EXECUTOR SHALL discharge the trust required by the will
NOT, AS SUCH, ADMINISTER THE ESTATE OF
THE FIRST TESTATOR.
C. MARRIED WOMAN MAY SERVE F. When and to Whom Letters of
D. LETTERS TESTAMENTARY ISSUED WHEN
WILL ALLOWED Administration Granted
E. WHERE SOME CO-EXECUTORS 1. Requisites:
DISQUALIFIED OTHERS MAY ACT
F. WHEN AND TO WHOM LETTERS OF  No executor named; or
ADMINISTRATION GRANTED  Executor or executors are incompetent,
refuse the trust, or fail to give bond; or
A. Who Cannot Serve as E/A:  Or person dies intestate.
1. Minor;
2. Not a resident of the Philippines; and 2. Administration shall be granted to:
3. In the opinion of the court unfit to execute
the duties of the trust by reason of a. Surviving spouse or next of kin, or both,
drunkenness, improvidence, or want of or to such person as the surviving spouse,
understanding or integrity, or by reason of or next of kin requests to have appointed, if
conviction of an offense involving moral competent and willing to serve.
turpitude. b. If those in (a) be incompetent or unwilling, or
if the husband or widow, or next of kin,
neglects for 30 days after the death of the
person to apply for administration or to
B. The executor of an executor shall request that administration be granted to
not, as such, administer the estate of some other person, it may be granted to one
the first testator. or more of the principal creditors, if
competent and willing to serve.
c. If no (b), it may be granted to such other
C. Married Woman May Serve person as the court may select.
 A married woman may serve as e/a, and the
marriage of a single woman shall not affect 3. Reason for order of preference
her authority so to serve under a previous  Those who would reap the benefit of a wise,
appointment. speedy and economical administration of the
estate, or, on the other hand, suffer the
consequences of waste, improvidence or
D. Letters Testamentary Issued When mismanagement, have the highest interest
Will Allowed and most influential motive to administer the
1. Letters testamentary, when issued: estate correctly.
 Mere failure to apply for letters of
 Will has been proved and allowed administration does not remove preference.
 The court shall issue letters testamentary
thereon to the person named as executor
4. 30-day period may be waived
therein,
 if he is competent, accepts the trust, and  Just as the order of preference is not
gives bond as required by these rules absolute and may be disregarded for valid
cause, so may the 30-day period be likewise
waived under the permissive tone in 4. Name of the person for whom letters of
paragraph (b) of said rule which merely administration are prayed.
provides that said letters as an alternative,
“may be granted to one or more of the  But no defect in the petition shall render void
principal creditors.” the issuance of letters of administration.
 Co-administrators may be appointed.
 Court may reject order of preference when
circumstances warrant. C. Court to Set Time for Hearing. Notice
Thereof 255
SPECIAL PROCEEDINGS
1. Duty of court
VII. Opposing Issuance Of Letters
Testamentary, Petition and Contest a. To fix a time and place for hearing such
For Letters Of Administration petition
b. Cause notice thereof to be given to known
heirs and creditors and to any other persons
A. OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY believed to have an interest
B. CONTENTS OF PETITION FOR LETTERS OF
ADMINISTRATION
2. Notice requirement is jurisdictional
C. COURT TO SET TIME FOR HEARING. NOTICE
THEREOF  The probate court must cause notice
D. OPPOSITION TO PETITION FOR through publication of the petition after it
ADMINISTRATION receives the same
E. HEARING AND ORDER FOR LETTERS TO
ISSUE  Where no notice has been given to
F. WHEN LETTERS OF ADMINISTRATION persons believed to have an interest in
GRANTED TO ANY APPLICANT the estate, the proceedings for the
settlement of the estate is void and
should be annulled.
A. Opposition to Issuance of Letters
Testamentary
D. Opposition to Petition for
 Any person interested in will; Administration
 State in writing the grounds;
 Then the court shall hear. 1. Contest to such petition
 A petition may, at the time, be filed for letters
 Any interested person may file a written
of administration with the will annexed.
opposition to contest the petition
 Lack of interest in the proceedings is equal
to lack of legal capacity to institute
proceedings. 2. Grounds:
a. Incompetency of the person for whom letters
1. But issue of lack of interest may be are prayed, or
Barred by estoppel under the Omibus b. contestant’s own right to the administration
Motion rule.
 He may pray that letters issue to himself, or
 Example: When respondent did not file a to any competent person or person named
Motion to Dismiss on the ground of lack of in the opposition.
capacity to sue, but instead filed an
Opposition.
E. Hearing and Order for Letters to
B. Contents of Petition for Letters of Issue
Administration 1. Hearing of the petition
1. Jurisdictional facts;  Show that notice has been given as
2. Names, ages, and residences of the heirs, hereinabove required, and thereafter the
and the names and residences of the court shall hear the proofs of the parties in
creditors, of the decedent; support of their respective allegations, and if
3. Probable value and character of the property a. Satisfied that the decedent left no will, or
of the estate; b. That there is no competent and willing
executor,
 It shall order the issuance of letters of on the removal of an e/a, or in cases where
administration to the party best entitled the parties cannot agree among themselves.
 The phrase “by any cause” includes those
incidents clearly showing that there is a
F. When Letters of Administration delay in the probate of the will and that the
Granted to Any Applicant granting of letters testamentary will
consequently be prolonged necessitating the
 Letters of administration may be granted to
immediate appointment of a special
any qualified applicant, though it appears
that there are other competent persons
administrator 256
having better right to the administration, if
SPECIAL PROCEEDINGS
such persons fail to appear when notified 5. Duty to submit an inventory
and claim the issuance of letters to
 SA is also duty bound to submit an inventory
themselves
of the estate
VIII. Rule 80 – Special Administrator 6. Nature of appointment of SA

(SA)
 An order appointing a special administrator
A. APPOINTMENT OF SPECIAL ADMINISTRATOR is interlocutory in nature, a mere incident to
B. POWERS AND DUTIES OF SPECIAL the judicial proceedings. No appeal lies
ADMINISTRATOR herein
C. WHEN SPECIAL ADMINISTRATOR CEASES;
DUTIES
B. Powers and Duties of SA
A. Appointment of SA  Take possession and charge of the goods,
1. SA will be appointed: chattels, rights, credits, and estate of the
deceased and
 When there is delay in granting letters  Preserve the same for the e/a afterwards
testamentary or administration; or appointed,
 By any cause, including an appeal from  and for that purpose may commence and
allowance or disallowance of a will. maintain suits as administrator.
 May sell only such perishable and other
2. Special administrator: property as the court orders sold.
 Not liable - to pay any debts of the
 Will take possession and charge of the deceased unless so ordered by the court.
estate
 Until:
 the questions causing the delay are C. When Special Administrator Ceases;
decided and Duties
 e/a appointed
 When letters testamentary/ administration
3. There must first be notice and are granted on the estate of the deceased
publication  He shall deliver to the e/a the goods,
 Notice through publication of the petition is a chattels, money, and estate of the
jurisdictional requirement even in the deceased in his hands.
appointment of a SA.  The e/a may prosecute to final judgment
 Appointment of special administrator lies suits commenced by such SA.
entirely in the sound discretion of the court.
4. Order of appointment is discretionary

 The basis for appointing a special
administrator is broad enough to include any
cause or reason for delay in granting letters
testamentary or of administration as where a
contest as to the will is being carried on in
the same or in another court, or where there
is an appeal pending as to the proceeding
IX. Bond of Executors and B. Bond of Executor Where Directed in

Administrators Will. When Further Bond Required
 Testator directs that executor served without
A. BOND TO BE GIVEN ISSUANCE OF LETTERS. bond or only his individual bond  executor
AMOUNT. CONDITIONS. may be allowed by the court to give bond in
B. BOND OF EXECUTOR WHERE DIRECTED IN such sum and with such surety as the court
WILL. WHEN FURTHER BOND REQUIRED approves
C. BONDS OF JOINT EXECUTORS & Condition - only to pay the debts of the testator
ADMINISTRATORS  Court may require of the executor a further 257
D. BOND FOR SPECIAL ADMINISTRATOR bond
SPECIAL PROCEEDINGS
 In case of a change in his circumstance,
A. Bond to Be Given Issuance of or
Letters. Amount. Conditions.  For other sufficient case,
 With the 4 conditions named in the last
 Before an e/a enters upon the execution of preceding section.
his trust, and letters testamentary or
administration issue, he shall give a bond, in
such sum as the court directs conditioned as C. Bonds of Joint Executors and
follows: Administrators
1. Inventory - To make and return to the  When two or more persons are appointed
court, within 3 months, a true and e/a the court may take a separate bond from
complete inventory of all goods, each, or a joint bond from all
chattels, rights, credits, and estate
(GCRCE) of the deceased which shall
come to his possession, knowledge, or
D. Bond for Special Administrator
to the possession of any other person
for him;  Before entering upon his duties
2. Administer - To administer according  In such sum as the court directs
to these rules, and, if an executor,  Conditions
according to the will of the testator, all  Make and return a true inventory of the
GCRCE which shall at any time come to goods, chattels, rights, credits, and
his possession or to the possession of estate of the deceased which come to
any other person for him, and from the his possession or knowledge
proceeds to pay and discharge all  Truly account for such as are received
debts, legacies, and charges on the by him when required by the court
same, or such dividends thereon as  Deliver the same to the person
shall be decreed by the court; appointed e/a, or to such other person
3. Accounting - To render a true and just as may be authorized to receive them
account of his administration to the court
within 1 year, and at any other time
when required by the court;
4. Perform court orders
 Administrator’s bond
 Terms and effectivity of bond does not
depend on payment of premium and
does not expire until the
administration is closed.
 As long as the probate court retains
jurisdiction of the estate, the bond
contemplates a continuing liability.
3. Purpose of administration
X. Revocation of Administration, Death,
Resignation, and Removal of  Liquidation of the estate and distribution of
Executors or Administrators the residue among the heirs and legatees.
A. ADMINISTRATION REVOKED IF WILL 4. Liquidation

DISCOVER. PROCEEDINGS THEREUPON
B. COURT MAY REMOVE OR ACCEPT  means the determination of all the assets of
RESIGNATION OF EXECUTOR OR the estate and payment of all debts and
ADMINISTRATOR. PROCEEDINGS UPON expenses. Approval of the project of partition
258
DEATH, RESIGNATION OR REMOVAL does not necessarily terminate
SPECIAL PROCEEDINGS
C. ACTS BEFORE REVOCATION, RESIGNATION, administration.
OR REMOVAL TO BE VALID
D. POWERS OF NEW EXECUTOR OR
ADMINISTRATOR 5. Degree of care expected of
administrator
A. Administration Revoked if Will
 The administrator is required to exercise
Discovered. Proceedings Thereupon reasonable diligence and act in entire good
1. Administration revoked faith in the performance of that trust.
 Although not a guarantor or insurer of the
 When testator’s will is discovered and safety of the estate nor expected to be
proved and allowed infallible, yet the same degree of prudence,
 Administration shall be revoked and all care and judgment which a person of a fair
powers cease average capacity and ability exercises in
 The administrator shall surrender the similar transactions of his own, serves as
letters of administration to the court the standard by which his conduct is to be
 Render his account judged.
 Discretion to remove administrator lies with
the court’s discretion.
B. Court May Remove or Accept  Grounds enumerated are not exclusive
Resignation of e/a. Proceedings upon
Death, resignation or Removal
C. Acts Before Revocation, Resignation,
1. Removal or resignation of executor or
administrator or Removal to Be Valid
 The lawful acts of an e/a before the
 Neglects to: revocation of his letters testamentary or of
 Render his account administration, or before his resignation or
 Settle the estate according to law removal – remains valid
 Perform an order or judgment of the
court, or a duty expressly provided by
these rules; or D. Powers of New (The Replacement for
 Absconds; or the Removed) Executor or
 Becomes insane; or
Administrator
 Becomes incapable or unsuitable to
discharge the trust.  Like powers to collect and settle the estate
not administered that the former e/a had;
and
2. Effect  May prosecute or defend actions
 The remaining e/a may administer the trust commenced by or against the former e/a;
alone and
 Unless the court grants letters to  Have execution on judgments recovered in
someone to act with him. the name of such former e/a.
 If there is no remaining e/a, administration  An authority granted by the court to the
may be to any suitable person. former e/a for the sale or mortgage of real
estate may be renewed in favor of such
person without further notice or hearing.
XI. Inventory and Appraisal. Provision XII. General Powers and Duties of
for Support of Family Executors and Administrators
A. INVENTORY AND APPRAISAL TO BE A. EXECUTOR OR ADMINISTRATOR TO HAVE

RETURNED WITHIN 3 MONTHS ACCESS TO PARTNERSHIP BOOKS &
B. ARTICLES NOT TO BE INVENTORIED PROPERTY. HOW RIGHT ENFORCED
C. ALLOWANCE TO WIDOW & FAMILY B. KEEP BUILDINGS IN TENANTABLE REPAIR
D. PROVISION FOR SUPPORT C. RIGHT TO POSSESSION & MANAGEMENT OF
THE REAL & PERSONAL PROPERTIES
259
A. Inventory and Appraisal to Be
SPECIAL PROCEEDINGS
Returned Within 3 Months A. Executor or Administrator to Have
Access to Partnership Books and
1. Inventory and appraisal – Property. How Right Enforced
 Within 3 months after his appointment every
1. Access to partnership books and
e/a shall return to the court a true inventory
property
and appraisal of all real and personal estate
of the deceased which has come into his  At all times:
possession or knowledge.  have access to, and may examine and
 In the appraisement, the court may order take copies of, books and papers
one or more of the inheritance tax relating to the partnership business,
appraisers to give his or their assistance  Make examine and make invoices of the
property belonging to such partnership;
2. Period not mandatory  The surviving partner or partners, on
request, shall exhibit to him all such
 3-month period is not mandatory. The fact books, papers, and property in their
that an inventory was filed after the 3-month hands or control.
period would not deprive the probate court
of jurisdiction to approve it.
2. Court duty –
 Order any such surviving partner or partners
B. Articles Not to Be Inventoried: to freely permit the exercise of the rights,
 Wearing apparel of the surviving husband or and to exhibit the books, papers, and
wife and minor children property, as in this section provided, and
 The marriage bed and bedding, may punish any partner failing to do so for
 Such provisions and other articles as will contempt.
necessarily be consumed in the subsistence
of the family of the deceased
B. Keep Buildings in Tenantable Repair
 Houses and other structures and fences
C. Allowance to Widow and Family belonging to the estate, and
 The widow and minor or incapacitated  Deliver the same in such repair to the heirs
children of a deceased person, during the or devisees when directed so to do by the
settlement of the estate, shall receive, under court.
the direction of the court, such allowance as
are provided by law
C. Right to Possession and
Management of the Real and
D. Provision for Support Personal Properties
 This includes support even for children who  So long as it is necessary for the payment of
are of age (Family Code Art 133), but does the debts and the expenses of
not include grandchildren. administration
 Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of
the other co-owners since this is not within
the powers of administrator.
 When the estate of a deceased is already  If sold for less, not responsible for loss, if in
subject of a testate or intestate proceeding, good faith
the administrator cannot enter into any  If settled claim for less - He is entitled to
transaction involving it without any prior charge in his account only the amount he
approval of the Court. actually paid on the settlement
 The right of an e/a to the possession and
management of the real and personal
properties of the deceased is not absolute C. When Not Accountable
and can only be exercised so long as it is  For debts due the deceased which remain 260
necessary for the payment of the debts and
uncollected without his fault
SPECIAL PROCEEDINGS
expenses of administration
XIII. Accountability and Compensation D. Accountable for Income from Realty

of Executors and Administrators Used by Him
A. EXECUTOR OR ADMINISTRATOR 1. Accountable –

CHARGEABLE WITH ALL ESTATE & INCOME  If the e/a uses or occupies any part of the
B. NOT TO PROFIT BY INCREASE OR LOSE BY
real estate himself, he shall account for it as
DECREASE IN VALUE
C. WHEN NOT ACCOUNTABLE
may be agreed upon between him and the
D. ACCOUNTABLE FOR INCOME FROM REALTY parties interested, or adjusted by the court
USED BY HIM with their assent; and if the parties do not
E. ACCOUNTABLE IF HE NEGLECTS OR agree upon the sum to be allowed, the same
DELAYS TO RAISE OR PAY MONEY may be ascertained by the court, whose
F. WHEN ALLOWED MONEY PAID AS COSTS determination in this respect shall be final
G. WHAT EXPENSES & FEES ALLOWED
EXECUTOR OR ADMINISTRATOR. NOT TO
CHARGE FOR SERVICES AS ATTORNEY.
COMPENSATION PROVIDED BY WILL E. Accountable if He Neglects or Delays
CONTROLS UNLESS RENOUNCED. to Raise or Pay Money
H. WHEN EXECUTOR OR ADMINISTRATOR TO
RENDER ACCOUNT 1. Accountable if:
I. EXAMINATION ON OATH BY COURT  Neglects or unreasonably delays to raise
J. ACCOUNT TO BE SETTLED ON NOTICE money, by collecting the debts or selling the
K. SURETY ON BOND MAY BE PARTY TO
real or personal estate of the deceased, or
ACCOUNTING
 Neglects to pay over the money he has in
his hands, and the value of the estate is
A. Executor or Administrator thereby lessened or unnecessary cost or
Chargeable with all Estate and interest accrues, or the persons interested
Income suffer loss.
 Chargeable in his account with the whole of  A/E’s responsibility for damages incurred
the estate which has come into his cannot be shifted to the intestate estate.
possession, at the value of the
appraisement contained in the inventory:
 With all the interest, F. When Allowed Money Paid as Costs
 Profit, and  The amount paid by an e/a for costs
 Income of such estate; and awarded against him shall be allowed in his
 With the proceeds of as much of the administration account
estate as is sold by him, at the price at  Unless it appears that the action or
which it was sold. proceeding in which the costs are taxed
was prosecuted or resisted without just
cause, and not in good faith.
B. Not to Profit by Increase or Lose by
Decrease in Value 1. Necessary expenses
 No e/a shall profit by the increase, or suffer
 Such expenses as are entailed for the
loss by the decrease or destruction, without
preservation and productivity of the estate
his fault, of any part of the estate
and for its management for purpose of
 Account for the excess (when sold for more)
liquidation, payment of debts, and
distribution of the residue among persons  1% as exceeds P5,000 – P30,000

entitled thereto  ½ % P31,000 – P100,000
 Special case - When estate is large, and
the settlement has been attended with great
2. Not necessary expenses
difficulty, and has required a high degree of
a. Expenses for death anniversary; capacity on the part of the e/a, a greater
b. Expenses incurred by a presumptive heir for sum may be allowed.
her appearance and that of her witnesses at  If objection to the fees allowed be taken, the
the trial to oppose the probate of an alleged allowance may be re-examined on appeal. 261
will;
SPECIAL PROCEEDINGS
c. Expenses for the settlement of the question
2. 2 or more executors –
as who are entitled to the estate left by the
deceased;  The compensation shall be apportioned
d. Expenses incurred by the e/a to procure a among them by the court according to the
bond services actually rendered by them
e. Personal expenses of the occupant of the respectively.
heir of the family residence;
f. Expenses for stenographic notes,
3. Executor/administrator also an
unexplained representation expenses.
attorney –
3. Attorney’s fees  He shall not charge against the estate any

professional fees for legal services rendered
 Administrator may not recover attorney’s by him.
fees from estate
4. Compensation provided in will –
4. Procedure for collection of attorney’s
 That provision shall be a full satisfaction for
fees:
his services unless by a written instrument
 Counsel must request the administrator to filed in the court he renounces all claims to
make payment and file an action against him the compensation provided by the will.
in his personal capacity and not as an
administrator, should he fail.
 If judgment is rendered against the H. When Executor or Administrator to
administrator and he pays, he may include Render Account
the fees so paid in his account to the court.
 Attorney may also file a petition in the 1. Accounting –
testate or intestate proceeding and ask the  Within 1 year from the time of receiving
court, after notice to all persons interested, letters testamentary or of administration
to allow his claim and direct the  Unless the court otherwise directs because
administrator to pay it as an expense of of extensions of time for presenting claims
administration. against, or paying the debts of, the estate, or
 The award of the court is appealable by for disposing of the estate;
Record on Appeal.
2. Further accounts - If court requires

G. What Expenses and Fees Allowed  The rendering of an accounting by an
e/a; Not to Charge for Services as administrator of his administration within 1
Attorney; Compensation Provided by year from his appointment is mandatory.
Will Controls Unless Renounced. The only exception is when the court
otherwise directs because of extensions of
1. Compensation time for presenting claims against the estate
 P4/per day or for paying the debts or disposing the
 Or a commission upon the value of so much assets of the estate
of the estate as comes into his possession  The fact that the heirs of the estate have
and is finally disposed by him in the entered into an extrajudicial settlement and
payment of debts, expenses, legacies, or partition in order to put an end to their
distributive shares differences cannot in any way be interpreted
 Or 2% of the first P5,000 of such value as a waiver of the objections of the heirs to
the accounts submitted by the administrator
not only because to so hold would be a

derogation of the pertinent rules but also XIV. Claims Against Estate
because there is nothing provided in said
partition that the aforesaid accounts shall be A. NOTICE TO CREDITORS TO BE ISSUED BY
deemed waived or condoned. COURT
B. TIME WITHIN WHICH CLAIMS SHALL BE
FILED
C. PUBLICATION OF NOTICE TO CREDITORS
I. Examination on Oath by Court D. FILING COPY OF PRINTED NOTICE
 As to the correctness of his account before E. CLAIMS WHICH MUST BE FILED UNDER THE 262
NOTICE. IF NOT FILED, BARRED;
the same is allowed, except when no
SPECIAL PROCEEDINGS
EXCEPTIONS
objection is made to the allowance of the F. SOLIDARY OBLIGATION OF DECEDENT
account and its correctness is satisfactorily G. MORTGAGE DEBT DUE FROM ESTATE
established by competent proof H. CLAIM OF EXECUTOR OR ADMINISTRATOR
 The heirs, legatees, distributees, and AGAINST AN ESTATE
creditors of the estate shall have the same I. HOW TO FILE A CLAIM. CONTENTS
privilege as the e/a of being examined on THEREOF. NOTICE TO EXECUTOR OR
oath on any matter relating to an ADMINISTRATOR
administration account J. ANSWER TO THE CLAIM BY EXECUTOR OR
ADMINISTRATOR. OFFSETS
K. DISPOSITION OF ADMITTED CLAIM
L. TRIAL OF CONTESTED CLAIM
J. Account to Be Settled on Notice M. JUDGMENT APPEALABLE
 Notice requirement - Before the account of N. COSTS
an e/a is allowed, notice shall be given to
persons interested of the time and place of A. Notice to Creditors to Be Issued by
examining and allowing the same; Court
 Such notice may be given personally to
1. Duty of court after granting letters
such persons interested or by
advertisement in a newspaper or testamentary
newspapers, or both, as the court  Issue a notice requiring all persons having
directs. money claims against the decedent to file
them in the office of the clerk of said court.
K. Surety on Bond May Be Party to 2. Estate burdened with lien of creditors

Accounting
 Upon the settlement of the account of an  Upon the death of the person, all his
e/a, a person liable as surety in respect to property is burdened with all his debts, his
such account may, upon application, be debts creating an equitable lien thereon for
admitted as party to such accounting. the benefit of the creditors.
 And such lien continues until the debts are
extinguished either by the payment,
prescription, or satisfaction in one of the
modes recognized by law
3. Purpose of presentation of claims

against estate
 To protect the estate of the deceased.
 That way, the e/a will be able to examine
each claim, determine whether it is a proper
one which should be allowed.
 Further the primary object of the provisions
requiring presentation is to appraise the
administrator and the probate court of the
existence of the claim so that a proper and
timely arrangement may be made for its
payment in full or by pro-rata portion in the
due course of the administration, inasmuch
as upon the death of a person, his entire
estate is burdened with the payment of his D. Filing Copy of Printed Notice
debts and no creditor shall enjoy any
 Filed or cause to be filed in the court a
preference or priority; all of them shall share
printed copy of the notice
pro-rata in the liquidation of the estate of the
together with affidavit setting forth:
deceased
o dates of the first and last publication and
o name of newspaper
within 10 days after notice has been
B. Time Within Which Claims Shall Be published
Filed 263
SPECIAL PROCEEDINGS
 State the time for the filing of claims, which E. Claims Which Must Be Filed Under
shall not be more than 12 not less than 6 the Notice. If Not Filed, Barred;
months after the date of the first publication Exceptions
of the notice
 Failure to meet period, court may allow; 1. Statute of non-claims –
requisites  Must be filed within the time limited in the
 Before order of distribution is entered notice, covering:
 Within a time not exceeding 1 month  Claims for money against the decedent
 This exception is called the rule on arising from contract
belated claims.  Express or implied
 Due or not
1. Statute of non-claims  Contingent or not;
 Claims for funeral expenses;
 Purpose: to settle the estate with dispatch,
 Expenses for the last sickness;
so that the residue may be delivered to the
 Judgment for money against the decedent.
persons entitled thereto without their being
afterwards called upon to respond in actions
for claims, which, under the ordinary statute 2. Effect of non-claim - forever Barred;
of limitations have not yet prescribed.
 Exception: When set forth as counterclaims
 The period, once fixed by the courts, is
in any action that the e/a may bring against
mandatory
the claimants
2. Discretion to allow contingent claims

3. If the decedent is creditor and executor
 The law gives the probate court discretion to or administrator commences an action
allow claims presented beyond the period or continues the action:
previously fixed provided they are filed
within 1 month from the expiration of such  The debtor may set forth by answer the
period but in no case beyond the date of claims he has against the decedent, instead
entry of the order of distribution. of presenting them independently to the
 The presentation of money claim may be court.
waived.  Mutual claims may be set off against each
other in such action.
C. Publication of Notice to Creditors 4. Favorable judgment for debtor –

1. Duty of executor or administrator after  Amount shall be considered the true balance
notice is issued against the estate, as though the claim had
been presented directly before the court in
 Cause the notice to be published 3 weeks
the administration proceedings
successively in a newspaper of general
 Claims not yet due, or contingent, may be
circulation in the province, and to be posted
approved at their present value
for the same period in four public places in
the province and in two public places in the
municipality where the decedent last
resided.
 If there is no notice, creditors will not be
Barred from filing beyond the period stated
in the statue of non-claims
F. Solidary Obligation of Decedent  The above rule strictly requires the prompt
presentation and disposition of claims
1. Solidary obligation – against the decedent’s estate in order to
 The claim shall be filed against the decedent settle the affairs of the estate as soon as
as if he were the only debtor, without possible, pay off its debts and distribute the
prejudice to the right of the estate to recover residue.
contribution from other debtors.
8. Charges against conjugal property
264
2. Joint obligation –  Same rules apply for debts contracted
SPECIAL PROCEEDINGS
 The claim shall be confined to the portion chargeable against the conjugal property.
belonging to him.
9. Meaning of contingent claim
3. Claims required to be filed  One by which, by its nature is necessarily
 Money claims (including debts or interest dependent upon an uncertain event for its
thereon)  only those which are proper existence and claim, and its validity and
against the decedent – claims upon a enforceability depending upon an uncertain
liability contracted before death. event.
 Period runs against all claimants -  Contingency refers to uncertainty of liability,
residents, non-residents, infant, insane. not collection.
4. Support claims G. Mortgage Debt Due From Estate

 Claim for support should not be granted, but
must wait until all claims against the estate
have been settled (Gutierrez Jr. v. 1. Options of creditor holding a credit
Macandog (1087)) secured by mortgage or other collateral
security (Which are alternative, not
successive):
5. Execution of final judgment not proper
remedy but filing of claim a. Waive the mortgage and claim the entire
debt from the estate of mortgagor as an
 While the judgment in a civil case may have ordinary claim; or
become final and executory, execution is not b. Foreclose the mortgage judicially and prove
the proper remedy to enforce payment the deficiency as an ordinary claim; or
thereof. c. Rely on the mortgage exclusively, or other
 The ordinary procedure by which to settle security and foreclose the same at anytime,
claims of indebtedness against the estate is before it is Barred by prescription, without
for the claimant to present a claim before the the right to file claim for deficiency.
probate court.
2. Right of executor or administrator –
6. Mandamus not available
 Redeem the property, by paying the debt,
 In absence of any showing that judge had under the direction of the court, if the court
already allowed the administrator to dispose shall adjudge it to be for the best interest of
the estate and pay the debts and legacies of the estate that such redemption shall be
the deceased, a writ of mandamus will not made
issue to compel him to order payment of
petitioner’s claim
H. Claim of Executor or Administrator
7. This rule is mandatory against an Estate
 The requirement is for the purpose of 1. If executor or administrator has claim
protecting the estate of deceased. The e/a is against the estate
informed of claims against it, thus enabling
him to examine each claim and to determine  He shall give notice thereof to the court
whether it is a proper one which should be  Court shall appoint a special administrator
allowed.  Who will have the same power and
liability, in the adjustment claims
 Court may order e/a to pay the special whom the services have been rendered and
administrator necessary funds to defend not against the estate of the decedent.
such claim (one of the 2 instances of
appointment of special administrators in the
Rules, the other regarding delay in J. Answer to the Claim by E/A. Offsets
proceedings, supra)
 Filed within 15 days after receipt of copy
 He must admit or deny the claim and set
I. How to File a Claim. Contents forth the substance of the matters which are 265
Thereof. Notice to e/a relied upon in admission or denial
SPECIAL PROCEEDINGS
 Deliver the claim
 With the necessary vouchers to the clerk of 1. If he has no knowledge sufficient to
court admit or deny –
 Serving a copy on the e/a
 state such want of knowledge
 Allege also any offset claims which the
1. If founded on a bond, bill, note, or
decedent before death had against the
other instrument - Original need not be claimant, and his failure to do so shall Bar
filed the claim forever.
 Only a copy with all endorsements shall be  A copy of the answer shall be served by the
attached with the claim e/a on the claimant.
 Subject to exhibition of original on demand .
 If original lost or destroyed - Claimant 2. Extension of time - court discretion.
must accompany his claim with affidavit
containing a copy OR description and
stating its loss or destruction
K. Disposition of Admitted Claim
1. Admitted claim - Court has option to:
2. When the claim is due, it must be  Approve the same without hearing
supported by affidavit stating:  Order that known heirs, legatees or
devisees be notified and heard, BEFORE
 The amount justly due
approving
 That no payments have been made thereon
which are not credited
 There are no offsets to the same, to the 2. If opposed –
knowledge of the affiant.
 Allow opposition 15 days to file an answer to
the claim in the manner prescribed.
3. If the claim is not due, or is contingent,
when filed, it must also be supported
by affidavits stating the particulars L. Trial of Contested Claim
thereof.
1. After answer or period for answer
 When the affidavit is made by a person expired –
other than the claimant, he must set forth
therein the reason why it is not made by the  Court shall set the claim for trial with notice
claimant. to both parties
 The claim once filed shall be attached to the  Refer the claim to a commissioner
record of the case in which the letters
testamentary or of administration were
issued, although the court in its discretion M. Judgment Appealable
and as a matter of convenience, may order
1. Court will rule on the claim
all the claims to be collected in a separate
folder.  Approve
 Pay, in due course of administration the
4. Attorney’s fees as expenses of amount due
administration  Such shall not create any lien on the
property of the estate or give judgment
 Fees of the lawyer representing the e/a are creditor payment priority.
directly chargeable against the client for  Disapprove
2. Judgment  Recover real or personal property or

interest therein;
 Filed, together with record of the
 Or to enforce a lien thereon; and
administration proceedings
 With notice to parties  Actions to recover damages for an injury
 Appealable as in ordinary cases to a person or property
1. Claims against the administrator may

N. Costs be presented in the administration 266
proceedings but not against third
1. Judgment creditor cannot recover
SPECIAL PROCEEDINGS
persons
cost:
 Administrator may not pull a third person
 When the e/a, in his answer, admits and
against his will into the administration
offers to pay part of a claim,
proceedings by mere motion for a demand
 And the claimant refuses to accept the
of rentals, but must do so in a separate
amount offered in satisfaction of his claim,
action
 If he fails to obtain a more favorable
judgment,
 He must pay to the e/a costs from the time
of the offer B. Executor or Administrator May Bring
 Where an action commenced against the or Defend Actions Which Survive
deceased for money has been discontinued 1. Actions to be defended or may be
and the claim embraced therein presented brought against –
as in this rule provided, the prevailing party
shall be allowed the costs of his action up to  For the recovery or protection of the
the time of its discontinuance. property or rights of the deceased actions
for causes which survive
XV.Actions By and Against Executors 2. Injury

and Administrators  Injury to property is not limited to injuries to
specific property, but extends to other
A. ACTIONS WHICH MAY & WHICH MAY NOT BE wrongs by which personal estate is injured
BROUGHT AGAINST EXECUTOR OR
or diminished.
ADMINISTRATOR
B. EXECUTOR OR ADMINISTRATOR MAY BRING  Maliciously causing a party to unnecessary
OR DEFEND ACTIONS WHICH SURVIVE expenses is certainly injury to the party’s
C. HEIR MAY NOT SUE UNTIL SHARE ASSIGNED property.
D. EXECUTOR OR ADMINISTRATOR MAY
COMPOUND WITH DEBTOR
E. MORTGAGE DUE ESTATE MAY BE C. Heir May Not Sue Until Share
FORECLOSED
F. PROCEEDINGS WHEN PROPERTY
Assigned
CONCEALED, EMBEZZLED OR 1. Not to sue on actions to recover title or
FRAUDULENTLY CONVEYED
possession to lands or damages to
G. POWERS ENTRUSTED WITH ESTATE
COMPELLED TO RENDER ACCOUNT lands
H. EMBEZZLEMENT BEFORE LETTERS ISSUED  Until there is an order of the court assigning
I. PROPERTY FRAUDULENTLY CONVEYED BY
such lands to such heir or devisee; or
DECEASED MAY BE RECOVERED. WHEN
EXECUTOR OR ADMINISTRATOR MUST
 Until the time allowed for paying debts has
BRING ACTION expired
J. WHEN CREDITOR MAY BRING ACTION. LIEN
FOR COSTS
2. Previous declaration of heirship not
necessary
A. Actions Which May and Which May
Not Be Brought against Executor or  In order that an heir may assert his right to
Administrator the property of a deceased, no previous
judicial declaration of heirship is necessary.
 Actions not to be brought against e/a- Claim
for the recovery of money or debt or interest
 Actions to be brought
3. Heirs may not sue administrator until the right, title, interest, or claim of the
their shares are assigned. deceased.
 Before distribution or before any residue is
known, the heirs have no cause of action 3. Duty of the court –
against the e/a.
 May cite such suspected person to appear
 This does not apply to a donation inter vivos
before it any may examine him on oath on
the matter of such complaint;
4. When heirs may act in place of  If refuses to appear or answer - Punish for 267
administration contempt and commit to prison until he
SPECIAL PROCEEDINGS
submits to the order
 Upon the commencement of the testate or  The interrogatories put any such person,
intestate proceedings, the heirs have no and his answers thereto, shall be in writing
standing in court actions for recovery or and shall be filed in the clerk's office.
protection of the property rights of
deceased, except when the e/a is unwilling
or fails or refuses to act, in which event the 4. Purpose of the rule
heirs may act in his place.  To elicit information or secure evidence, not
to decide WON the property belongs to the
deceased or persons examined (no power to
D. Executor or Administrator May adjudicate titles or determine controverted
Compound with Debtor rights).
 Compound with the debtor of deceased for a
debt due
 May give a discharge of such debt on G. Powers Entrusted with Estate
receiving a just dividend of the estate of Compelled to Render Account
debtor
1. Complainant - Executor or
administrator
E. Mortgage Due Estate May Be 2. Duty of court
Foreclosed
 May cite to appear before it a person
 He may foreclose the mortgage belonging to entrusted by an e/a with any part of the
the estate. estate of the deceased,
 There is no need of special authority from  May require such person to render a full
the court for the e/a to bring an action for account
foreclosure on behalf of the estate.  On oath, of the money, goods, chattels,
bonds, account, or other papers belonging
to such estate as came to his possession in
F. Proceedings When Property trust for such e/a, and of his proceedings
Concealed, Embezzled or thereon;
Fraudulently Conveyed
1. Complainant – 3. Refusal –
 Executor, administrator, heir, legatee,  May punish him for contempt as having
creditor, or other individual interested in the disobeyed a lawful order of the court.
estate of the deceased.
2. What: H. Embezzlement Before Letters Issued

 If a person before granting letters
 A person is suspected of having concealed, testamentary or administration
embezzled, or conveyed away any of the  Embezzles or alienates
money, goods, or chattels of the deceased;
 Any of the money, goods, chattels, or
or effects of such deceased
 That such person has in his possession or
has knowledge of any deed, conveyance,
bond, contract, or other writing which
contains evidence of or tends or discloses
1. Consequence – J. When Creditor May Bring Action.

 Such person shall be liable to an action in Lien for Costs
favor of the e/a of the estate for double the 1. If executor/administrator failed to
value of the property sold, embezzled, or commence such action
alienated, to be recovered for the benefit of
such estate.  With court permission
 Any creditor may commence and prosecute
to final judgment a like action for the
2. Double value rule does not apply recovery of the subject of the conveyance or 268
 The liability for double the value of the attempted conveyance
SPECIAL PROCEEDINGS
property does not apply to the manager of  In the name of the e/a
the company who carries on the business  Provided, he files a bond, conditioned to
after the death of the principal and applies indemnify the e/a against the cost and
the proceeds of sale to the payment of debts expenses incurred by such action
contracted in running the business.  Such creditor shall have a lien upon any
judgment recovered by him in the action for
such costs and other expenses incurred
I. Property Fraudulently Conveyed by therein as the court deems equitable.
Deceased May Be Recovered. When
Executor or Administrator Must Bring 2. If conveyance or attempt in favor of
Action executor/administrator –
1. Instances:  The action which a creditor may bring shall
be in the name of all the creditors,
a. There is deficiency of assets
No need for: (1) permission and (2) bond
b. Deceased in his lifetime had conveyed real
or personal property, right or interest therein,
or debt or credit 3. Administrator creditor cannot ask for
c. With intent to defraud his creditors or avoid preliminary attachment
any right, debt or duty
 The administrator of the estate, who is also
d. Or had so conveyed such property, right,
an alleged creditor of the estate cannot ask
interest, debt or credit
for the issuance of a writ of attachment.
e. That by law the conveyance would be void
 Money claim should be ventilated in the
as against the creditors
estate case
f. And the subject of the attempted
conveyance would be liable to attachment
by any of them in his lifetime.
2. Duty of executor/administrator
 May commence and prosecute to final
judgment an action for the recovery of such
property, right, interest, debt or credit for
benefit of the creditors
 Provided, creditors making the application
pay such part of the costs and expenses or
give security therefor.
XVI. Payment of the Debts of the B. Part of Estate from Which Debt Paid
Estate When Provision Made by Will
(Asked in the 2002 Bar Examinations) 1. Testator provided for payment of debt
A. DEBTS PAID IN FULL IF ESTATE SUFFICIENT  Expenses of administration, or family

B. PART OF ESTATE FROM WHICH DEBT PAID expenses shall be paid according to such
WHEN PROVISION MADE BY WILL provisions
C. PERSONALLY FIRST CHARGEABLE FOR
DEBTS, THEN REALTY 269
D. ESTATE TO BE RETAINED TO MEET
2. If not sufficient –
SPECIAL PROCEEDINGS
CONTINGENT CLAIMS  The part of the estate not disposed of by will
E. CONTINGENT CLAIM; WHEN ALLOWED shall be appropriated for the purpose
F. COURT TO FIX CONTRIBUTIVE SHARES
WHERE DEVISEES, LEGATES, OR HEIRS
HAVE BEEN IN POSSESSION
G. ORDER OF PAYMENT IF ESTATE IS C. Personally First Chargeable for
INSOLVENT Debts, Then Realty
H. DIVIDENDS TO BE PAID IN PROPORTION TO
CLAIMS 1. General Rule:
I. INSOLVENT NON-RESIDENT
J. INSOLVENT RESIDENT; FOREIGN
 Personal estate not disposed of by will shall
CREDITORS be FIRST chargeable
K. ORDER OF PAYMENT OF DEBTS
L. APPEAL TAKEN FROM A DECISION OF THE
2. Exception:
COURT CONCERNING THE CLAIM
M. TIME TO TIME FURTHER ORDERS OF  Not sufficient for the purpose
DISTRIBUTION  Its sale will redound to the detriment of the
N. CREDITORS TO BE PAID IN ACCORDANCE participants for the estate
WITH TERMS OF ORDER
O. COURT SHALL ALLOW EXECUTOR OR
ADMINISTRATOR A TIME FOR DISPOSING 3. in which case—
THE ESTATE ANY PAYING DEBTS &
LEGACIES  The whole of the real estate not dispose of
P. GROUND FOR EXTENSION by will, or so much thereof as is necessary,
may be sold, mortgaged, or otherwise
A. Debts Paid in Full If Estate Sufficient encumbered for that purpose by the e/a,
 Court approval obtained first
 Any deficiency shall be met by contributions
 After all money claims heard and
in accordance with the provisions of S6 of
ascertained
this rule.
 It appears that there are sufficient assets to
pay the debts
 E/A shall pay the same within the time
limited for that purpose. D. Estate to Be Retained to Meet
 The probate court may hold in abeyance Contingent Claims
intestate proceedings
 pending determination of a civil case  If court is satisfied that such claim is valid:
against the administratrix. The heirs of  It may order the e/a to retain in his
the estate may not demand the closing hands sufficient estate
of an intestate proceeding at anytime  For the purpose of paying the contingent
where there is a pending case against claim when such becomes absolute.
the administrator of the estate. The  If estate insolvent - Retain a portion equal
court can rightfully hold in abeyance to the dividend of the other creditors.
until the civil case is settled.
E. Contingent Claim; When Allowed

 When it becomes absolute
 Presented to the court or e/a within 2 years
from the time limited for other creditors to
present their claims
 Not disputed by e/a
1. If disputed – G. Order of Payment if Estate Is

 it may be proved and allowed or disallowed Insolvent
by the court as the facts may warrant  E/A pays the debts against the estate,
observing the provisions of Articles 1059
and 2239 to 2251 of the Civil Code.
2. Court ruling:
(Preference of credits)
 Allowance of contingent claim or
Disallowance
 If allowed - Creditor shall receive payment H. Dividends to Be Paid in Proportion to
270
to the same extent as the other creditors if
SPECIAL PROCEEDINGS
Claims
the estate retained by the e/a is sufficient.
 Each creditor within such class shall be paid
 Claim not presented after becoming dividend in proportion to his claim.
absolute and allowed within 2 year  No creditor of any one class shall receive
period any payment until those of the preceding
 The assets retained in the hands of the class are paid.
e/a, not exhausted in the payment of
claims, shall be distributed by the order
of the court to the persons entitled;
 But the assets so distributed may still be
I. Insolvent Non-Resident
applied to the payment of the claim  His estate found in the Philippines shall be
when established, and the creditor so disposed of that his creditors here and
may maintain an action against the elsewhere may receive each an equal
distributees to recover the debt, and share, in proportion to their respective
such distributees and their estates shall credits.
be liable for the debt in proportion to the
estate they have respectively received.
J. Insolvent Resident; Foreign Creditors
1. Foreign claims proven in another country
F. Court to Fix Contributive Shares 2. E/A in the Philippines had knowledge of
Where Devisees, Legates, or Heirs the presentation of such claims in such
Have Been in Possession country
3. E/A had opportunity to contest such
1. Possession before debts and expenses allowance
paid:  The court shall:
 Court shall hear  Receive a certified list of such claims,
 and settle the amount of their several when perfected in such country,
liabilities  And add the same to the list of claims
 Order how much and in what manner each proved against the deceased person in
shall contribute the Philippines
 May issue execution as circumstances  So that a just distribution of the whole
require. estate may be made equally among all
its creditors;
 But the benefit of this and the preceding
2. Liability of heirs and distributes
sections shall not be extended to the
 Heirs are not required to respond with their creditors in another country if the
own property for the debts of their deceased property of such deceased person there
ancestors. found is not equally apportioned to the
 But after partition of an estate, the heirs and creditors residing in the Philippines and
distributees are liable individually for the the other creditor, according to their
payment of all lawful outstanding claims respective claims.
against the estate in proportion to the
amount or value of the property they have
respectively received from the estate K. Order of Payment of Debts
 Before the expiration of the time limited for
the payment of the debts
 The court shall order the payment
thereof, and the distribution of the
assets received by the e/a for that  Notice must be given as to time and place of
purpose among the creditors, hearing
 As the circumstances of the estate  Court must hear it
require and in accordance with the
provisions of this rule
P. Ground for Extension
 Original e/a dies
L. Appeal Taken From a Decision of the  New administrator appointed
Court Concerning the Claim  The court may extend the time allowed 271
 Court may suspend the order for the for the payment of the debts or legacies
SPECIAL PROCEEDINGS
payment beyond the time allowed to the original
 And may order the distribution among e/a
creditors whose claims are definitely allowed  x < 6 months
 Leaving in the hands of e/a sufficient assets  Not exceeding 6 months at a time and
to pay the claim disputed and appealed. not exceeding 6 months beyond the
 When a disputed claim is finally settled  time which the court might have allowed
court shall order the claim to be paid out of to such original e/a
the assets retained to the same extent and  Notice shall be given of the time and place
in the same proportion with the claims of for hearing such application, as required in
other creditors. the last preceding section.
M. Time to Time Further Orders of XVII. Sales, Mortgages, and Other

Distribution Encumbrances of Property of
 Whole of the debts not paid on first Decedent
distribution
 And if the whole assets not distributed A. SALE OF PERSONAL ESTATE;
 Or other assets afterwards come to the REQUIREMENTS
hands of e/a. B. SALE, MORTGAGE, OR ENCUMBRANCE
(S/M/E) OF REAL PROPERTY
C. REQUISITES FOR DISALLOWING S/M/E REAL
OR PERSONAL
N. Creditors to Be Paid in Accordance D. SALE OF WHOLE OR PART OF PERSONAL
With Terms of Order OR REAL ESTATE
 Creditors to be paid in accordance with E. PERSONAL/REAL S/M/E IS NOT NECESSARY
terms of order, as soon as the time of TO PAY DEBTS, EXPENSES OF
payment arrives, pay the creditors the ADMINISTRATION OR LEGACIES IN THE
PHILIPPINES
amounts of their claims, or the dividend
F. COURT AUTHORIZE S/M/E OF REALTY
thereon, in accordance with the terms of ACQUIRED ON EXECUTION OR
such order. FORECLOSURE
G. REGULATIONS FOR AUTHORIZING S/M/E:
H. WHEN COURT MAY AUTHORIZE
O. Court Shall Allow Executor or CONVEYANCE OF REALTY WHICH
DECEASED CONTRACTED TO CONVEY
Administrator a Time for Disposing
I. WHERE THE DECEASED IN HIS LIFETIME
the Estate Any Paying Debts and HELD REAL PROPERTY IN TRUST FOR
Legacies ANOTHER PERSON
1. Period:
A. Sale of personal Estate;
 x < 1 year Requirements
 Court may extend the time to x < 6 months
per extension  Application of e/a
Whole period to the original e/a MUST be  Written notice to heirs and other persons
only x < 2 years interested
 Court may order the sale of the
 whole or part of personal estate.
2. Requisites
 E/A must apply
1. When:  Notice to heirs, devisees, legatees,

interested persons
 If necessary for the purpose of paying debts,  Court may authorize e/a to sell the whole or
expenses of administration or legacies or part of estate
 Preservation of property
 Although not necessary to pay debts,
expenses of administration, legacies
B. Sale, Mortgage, or Encumbrance
(s/m/e) of Real Property Proper 1. Will not be granted - If inconsistent
with the provisions of a will. 272
When:
SPECIAL PROCEEDINGS
 When personal estate not sufficient to pay  In case of such sale, the proceeds shall be
debts, expenses of administration and assigned to the persons entitled to the
legacies estate in the proper proportions.
 When sale of personal property may injure
the estate 2. Requisites are mandatory
 Where the testator has not made sufficient
provision for payment  The requirements of written notice of the
application as well as the time and place of
hearing to be served upon the heirs,
1. Requisites devisees and legatees residing in the
 E/A to apply with court Philippines is mandatory. Without such
 Written notice to the heirs, devisees and notice, the sale, mortgage or encumbrance
legatees residing in the Philippines made is void.
 Authorize so much as may be  Notice to parents of minor is not sufficient.
necessary of the real estate, in lieu of  Notice to counsel or guardian ad litem is
personal estate sufficient.
 For the purpose of paying such
 Provided, if it clearly appears that 3. Reason for mandatory requirements
such sale, mortgage or
encumbrance is beneficial to the  The heirs are the presumptive owners.
persons interested Since they succeed to all the rights and
obligations of the deceased from the
2. If part cannot be s/m/e, without injury moment of the latter’s death, they are the
to those interested in the remainder – persons directly affected by the sale or
mortgage and therefore cannot be deprived
3. Authority for s/m/e of the whole, or so
of the property except in the manner
much necessary or beneficial under the provided by law
circumstances
E. Personal/Real s/m/e Is Not Necessary

C. Requisites for Disallowing s/m/e Real to Pay Debts, Expenses of
or Personal Administration or Legacies in the
 Any person interested in the estate gives a Philippines
bond in fixed by the court
 Conditioned to pay the debts, expenses of  But if it appears from records and
administration and legacies proceedings of a probate court in foreign
 Within such time the court directs country
 Bond shall be for the security of the creditors  The estate of deceased in foreign country is
and e/a, which may be prosecuted for the not sufficient
benefit of either.  Court here may authorize the e/a to s/m/e
 In same manner as for payment of debts
or legacies in the Philippines
D. Sale of Whole or Part of Personal or
Real Estate
 When sale will be beneficial to heirs,
devisees, legatees and other interested
persons
 E/A application
F. Court Authorize S/M/E of Realty certified copy of the order of the court,
Acquired on Execution or together with the deed of the e/a for such
Foreclosure real estate, which shall be as valid as if the
deed had been executed by the deceased in
 Same circumstances and under the same his lifetime
regulations as prescribed in this rule for the
sale, mortgage, or other encumbrance of
other real estate 7. Regulations are mandatory
 The regulations provided in this section 273
apply to both testate and intestate
SPECIAL PROCEEDINGS
G. Regulations for Authorizing S/M/E: proceeding and are mandatory. An order of
1. Executor/administrator file a written sale not issued in accordance with such
regulations is void and the sale made is also
petition setting forth:
void
a. Debts due from deceased, expenses of
administration, legacies;
8. Estoppel to question regularity of sale
b. Value of personal estate;
c. Situation of the estate to be s/m/e;  But where a party did not object to the order
d. Such other facts that show s/m/e is of the court decreeing the sale of property
necessary or beneficial. belonging to the estate by sealed bids and
even participated therein by submitting his
own bid, party is estopped from
2. Court to—
subsequently questioning the regularity of
 Fix a time and place for hearing such the sale to highest bidder.
petition, and
 Cause notice stating the nature of the
9. Need for approval of sale by court
petition, the reasons for the same, and the
time and place of hearing, to be given  A sale of land under judicial administration is
personally or by mail to the persons not effective until approved by the court, and
interested, and may cause such further although leave of court to sell the property
notice to be given, by publication or has been obtained, a purported sale which
otherwise, as it shall deem proper. has not been approved and which varies
materially from the authority granted cannot
be made on the basis of an action by the
3. E/A gives additional bond, conditioned
purchaser for specific performance.
that such e/a will account for the
proceeds of the s/m/e.
10. Power of probate court to nullify
unauthorized sale
4. Court
 The probate court can declare null and void
a. If 1 – 3 complied with the disposition of property under
b. Authorize s/m/e such part of estate as is administration, made by administrator, the
deemed necessary same having been effected without authority
c. Sale - either public or private whichever from said court.
most beneficial
d. E/A shall be furnished with a certified copy 11. Authority of court to approve sale of
of such order property by prospective heir
 The intestate court has the power to execute
5. Sale through public auction –
its order with regard to the nullity of an
 The mode of giving notice of the time and unauthorized sale of estate property,
place of the sale shall be governed by the otherwise its power to annul the
provisions concerning notice of execution unauthorized or fraudulent disposition of
sale estate property would be meaningless
 The sale of an immovable property
belonging to an estate of a decedent in a
6. Recording –
special proceeding needs court approval.
 In the registry of deeds of the province in  But the court has no jurisdiction to make
which the real estate s/m/e together with a pronouncement regarding the existence or
non-existence of encumbrances or to cancel  Court may order the execution of such trust,
a mortgage on real property in its order whether created by deed or law
approving the sale of the estate under
administration
1. Effect of sales executed by heirs
 A contract of sale is not invalidated by the
12. Right of heirs to dispose of ideal share
fact that it is subject to probate court
 The sale made by an heir of his share in an approval.
inheritance, subject to the result of the 274
pending administration is valid and in no
2. Legal personality of special
SPECIAL PROCEEDINGS
way stands in the way of such
administrator to seek review
administration.
 There is no provision of law which prohibits  Not being a party in the proceedings below,
a co-heir from selling to a stranger his share the special administratrix does not have any
of an estate held in common before the legal personality to seek a review by the
partition of the property is approved by the Supreme Court of the decisions of the SEC
court. and the CA.

H. When Court May Authorize
estate
Conveyance of Realty Which
Deceased Contracted to Convey A. WHEN ORDER FOR DISTRIBUTION OF
 Deceased in his lifetime under valid contract RESIDUE MADE
to deed real property, or an interest therein, B. QUESTIONS AS TO ADVANCEMENT MADE,
 On application OR ALLEGED TO HAVE BEEN MADE, BY THE
 The court will authorize the e/a to convey DECEASED TO ANY HEIR
such property according to such contract, or C. EXPENSES OF PARTITION
D. RECORDING OF THE ORDER OF PARTITION
with such modifications as are agreed upon OF ESTATE
by the parties and approved by the court; E. EFFECT OF FINAL DECREE OF
 If the contract is to convey real property to DISTRIBUTION
the e/a, the clerk of court shall execute the
deed.
A. When Order for Distribution of
 The deed executed by such executor,
administrator, or clerk of court shall be as Residue Made
effectual to convey the property as if  General Rule: The following must be paid
executed by the deceased in his lifetime; before distribution:
 Debts;
 Funeral charges;
1. Not authorized
 Expenses of administration;
 But no such conveyance shall be authorized  Allowance to the widow;
until notice of the application for that  Inheritance tax.
purpose has been given personally or by  Exception: The distributees give a bond
mail to all persons interested, and such conditioned on the payment of above
further notice has been given, by publication obligations
or otherwise, as the court deems proper;
 Nor if the assets in the hands of the e/a will
thereby be reduced so as to prevent a 1. Duty of the court
creditor from receiving his full debt or  On application of e/a or person interested in
diminish his dividend. the estate
 Notice
 Hearing
I. Where the Deceased in His Lifetime  Court shall assign the residue of the estate
Held Real Property in Trust for to the persons entitled to the same,
Another Person  Naming them and the proportions, or parts,
to which each is entitled,
 Same notice requirement
 Such persons may demand and recover
 Court may authorize the e/a to deed such
their respective shares from the e/a, or any
property to the person or HIS e/a
other person having the same in his  A project of partition is merely a proposal for
possession. the distribution of the hereditary estate
 If there is a controversy as to who are heirs which the court may accept or reject.
or shares  heard and decided as in  It is the court that makes that distribution of
ordinary cases. the estate and determine the persons
entitled thereto
2. The approval of a project of partition
does not necessarily terminate 6. When may proceedings be closed
administration. 275
 It is the order of distribution directing the
SPECIAL PROCEEDINGS
 Before a court can make a partition and delivery of the residue of the estate to the
distribution of the estate of a deceased, it persons entitled thereto that brings to a
must first settle the estate in a special close the intestate proceedings, puts an end
proceeding instituted for the purpose. to the administration and thus far relieves
 Trial courts trying an ordinary action cannot the administrator from his duties
resolve to perform acts pertaining to a
special proceeding because it is subject to
specific prescribed rules. B. Questions as to Advancement Made,
or Alleged to Have Been Made, by the
3. Proceedings for the settlement of Deceased to Any Heir
estate is deemed ready for final closure  There must be a hearing and final order of
when: the court thereon shall be binding on the
person raising the questions and on the heir.
a. There should have been issued already an
order of distribution or assignment of the
estate of the decedent among or to those
C. Expenses of Partition
entitled thereto by will or by law, but
b. Such order shall not be issued until it is  Paid by e/a when he has retained sufficient
shown that the “debts, funeral expenses and effects in his hands
expenses of administration, allowances,  Will be paid when it appears equitable to
taxes, etc., chargeable to the estate” have the court
been paid, which is but logical and proper,  And not inconsistent with the intention of
c. Besides, such an order is usually proper and the testator
specific application for the purpose of the  Otherwise, paid by the parties in proportion
interested party or parties, and not of the to their respective shares or interest
court.  The apportionment shall be settled and
allowed by the court, and, if any person
interested in the partition does not pay
4. Before there could be a distribution of
his proportion or share, the court may
estate, the following stages must be issue an execution in the name of the
followed: e/a against the party not paying the sum
a. Payment of obligations (liquidation of estate) assessed.
b. Declaration of heirs  to determine to whom
the residue of the estate should be
distributed. Afterwards, the residue may be D. Recording of the Order of Partition of
distributed and delivered to the heirs. Estate
o Determination the right of a natural child  Certified copies of final orders and
o Determination of proportionate shares of judgments of the court relating to the real
distributes. estate or the partition thereof shall be
recorded in the registry of deeds of the
5. Project of partition – province where the property is situated.
 the e/a has no duty to prepare and present
the same under the Rules.
 The court may, however, require him to E. Effect of Final Decree of Distribution:
present such project to better inform itself of 1. Nature of proceedings –
the condition of the estate.
 In rem, which is binding against the whole
world.
 All persons having interest in the subject 5. Instances when probate court may
matter involved, whether they are notified or issue writ of execution:
not, are equally bound.
 The court acquires jurisdiction over all a. To satisfy the contributive shares of
persons interested, through the publication devisees, legatees and heirs in possession
of the notice prescribed and any order that of the decedent’s assets
may be entered therein is binding against all b. To enforce payment of expenses of partition
of them. c. To satisfy the costs when a person is cited
 for examination in probate proceedings
The only instance where a party interested 276
in a probate proceeding may have a final
SPECIAL PROCEEDINGS
liquidation set aside is when he is left out by XIX. Trustees
reason of circumstances beyond his control
or through mistake or inadvertence not A. WHERE TRUSTEE APPOINTED
imputable to negligence. B. APPOINTMENT AND POWERS OF TRUSTEE
 Even then, the better practice to secure UNDER WILL. EXECUTOR OF FORMER
relief is reopening of the same case by TRUSTEE NEED NOT ADMINISTER TRUST
proper motion within reglamentary period, C. NEW TRUSTEE
instead of an independent action, the effect D. TRUSTEE APPOINTED ABROAD
of which, if successful, would be for another E. TRUSTEE MUST FILE BOND BEFORE
PERFORMING DUTIES
court or judge to throw out a decision or F. CONDITIONS OF THE BOND
order already final and executed and G. APPRAISAL AND COMPENSATION OF
reshuffle properties long ago distributed and TRUSTEE
disposed of. H. REMOVAL OR RESIGNATION OF TRUSTEE
I. IF SALE OR ENCUMBRANCE OF TRUST
ESTATE NECESSARY OR EXPEDIENT
2. Prohibition against interference by
other courts
A. Where Trustee Appointed
 General Rule: a court should not interfere
 A trustee necessary to carry into effect the
with probate proceedings pending in a co-
provisions of a will on written instrument
equal court.
shall be appointed by the RTC in which the
 A separate action (example: to allow a
will was allowed, if it be a will allowed in the
spurious child to present evidence on his
Philippines, otherwise by the RTC of the
filiation and to claim his share in the
province in which the property, or some
decedent’s estate) is not allowed. It is the
portion thereof, affected by the trust is
probate court that has exclusive jurisdiction
situated.
to make a just and legal distribution of the
estate.
1. Procedure
3. Order is appealable a. Allowance of the instrument creating the
trust
 An order which determines the distributive
b. Petition by the e/a or the person appointed
shares of the heirs of a deceased person is
as trustee in the instrument
appealable. If not appealed within the
c. Appointment of trustee by the court
reglamentary period, it becomes final.
d. Notice to all interested parties
e. Filling of bond by the trustee
4. Writ of execution
 The probate court generally cannot issue a 2. Discretion of the Court in the
writ of execution because its orders usually appointment of a trustee
refer to the adjudication of claims against
 The power to appoint a trustee is
the estate which the e/a may satisfy without
discretionary with the court before whom
the necessity of resorting to a writ of
application is made, and the appellate court
execution.
will decline to interfere except in cases of
clear abuse.
B. Appointment and Powers of Trustee necessary or proper to vest the trust estate
Under Will. Executor of Former in the new trustee, either or jointly with the
Trustee Need Not Administer Trust others
 Testator has omitted in his will to appoint a
trustee 2. Non-acceptance by trustee not
 A trustee is necessary to carry into effect the sufficient for failure of trust
provisions of the will
 A trust will never fail for want of a trustee
and a court will always appoint a trustee 277
1. Duty of court where necessary to the administration of a
SPECIAL PROCEEDINGS
trust or to prevent failure of the trust, where
 Notice to persons interested the necessity arises from failure of
 Appoint a trustee appointment, from non-acceptance or
 No person succeeding to a trust as e/a of a disqualification of a trustee or from other
former trustee shall be required to accept cause; or the court will execute the trust by
such trust. its officers or otherwise effect its
accomplishment.
2. Notice and consent of beneficiary are
not essential for the creation of trust
D. Trustee Appointed Abroad
 This is because the acceptance by the
beneficiary is presumed 1. Requisites
 Land in the Philippines held in trust
3. Creation of trust through an  In favor of persons resident of Philippines
inoperative will  A trustee appointed abroad
 A written instrument though inoperative as a
will from want of compliance with statutory 2. Procedure:
requisitions, may yet operate as a
a. Philippine land is held in trust for Philippine
declaration of trust.
residents, by a trustee who derives authority
 But such writing must state the fiduciary
from outside the Philippines
relation and the terms and conditions of the
b. Petition filed in the RTC of the province
trust with sufficient certainty and it must be
where the land is situated
of such nature that the party must have
c. Notice to all interested parties
intended it as a declaration of a trust
d. Trustee is ordered by the court to apply for
appointment.
C. New Trustee
 Original trustee under a written instrument
3. Duty of such trustee
declines, resigns, dies or removed  Petition the CFI of province where land is
 Before the objects of the trust are situated
accomplish  Notify all persons interested
 And no adequate provision is made in the  Apply to the court for appointment as such
instrument for supplying vacancy
 Court - notice to all persons interested,
appoint a new one to act alone or jointly 4. Failure to do these –
 Court will declare such trust vacant and shall
1. Power of new trustee – appoint new trustee.
 Have and exercise the same powers, right,

and duties as if he had been originally 5. Territoriality of authority of trustee
appointed, and the trust estate shall vest in  The powers of a trustee appointed by a
him in like manner as it had vested or would Philippine court cannot extend beyond the
have vested, in the trustee in whose place confines of the territory of the Republic.
he is substituted and the court may order  This is based on the principle that his
such conveyance to be made by the former authority cannot extend beyond the
trustee or his representatives, or by the jurisdiction of the Republic, under whose
other remaining trustees, as may be courts he was appointed.
E. Trustee Must File Bond Before 4. Settlement of account and deliver

Performing Duties estate –
 Filed in the clerk of court  That at the expiration of his trust he will
 Amount fixed by the judge settle his account in court and pay over and
 Payable to the government of Philippines deliver all the estate remaining in his hands,
 Sufficient and available for the protection of or due from him on such settlement, to the
any party in interest person or persons entitled to thereto.
278
1. Failure to give bond - Considered to 5. Exemption of inventory
SPECIAL PROCEEDINGS
have declined or resigned the trust.
 When trustee is not the original trustee
2. Exemption by court from filing of bond appointed
 Court’s discretion
 When testator has directed such exemption
 If an inventory has already been filed
 All persons beneficially interested in the
trust, request also such exemption
 Exemption may be cancelled at any time 6. Duties of trustee vis-à-vis executor or
administrator
3. Effect of failure to file a bond  A trustee, like an e/a, holds an office of trust,
particularly when the trustee acts as such
 If the trustee fails to furnish a bond as
under judicial authority.
required by the court, he fails to qualify as
 The duties of e/a rare however, fixed and/or
such. Nonetheless the trust is not defeated
limited by law whereas those of the trustee
by such a failure to give bond
of an express trust are, usually governed by
the intention of the trustor or the parties, if
established by contract.
F. Conditions of the Bond  Besides, the duties of trustees may cover a
1. Inventory – wider range than those of e/a of the estate
of deceased persons (Araneta v. Perez
 That the trustee will make and return to the (1962))
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the 7. Nature of possession by trustee
time of the making of such inventory shall  The possession of the property by the
have come to his possession or knowledge; trustee is not an adverse possession, but
only a possession in the name and in behalf
2. Faithful management – of the owner of the same.
 A trustee may acquire the trust estate by
 That he will manage and dispose of all such prescription provided there is a repudiation
estate, and faithfully discharge his trust in of the trust, such repudiation being open,
relation thereto, according to law and the will clear and unequivocal, known to the cestui
of the testator or the provisions of the que trust (Salinas v. Tuazon).
instrument or order under which he is
appointed;
G. Appraisal and Compensation of
3. Accounting – Trustee
 That he will render upon oath at least once a 1. Appraisal –
year until his trust is fulfilled, unless he is
 When inventory is necessary and court may
excused in any year by the court, a true
require inheritance tax appraisers to assist.
account of the property in his hands and the
management and disposition thereof, and
will render such other accounts as the court 2. Compensation of trustee –
may order;
 According to the trust instrument; if none it
shall be fixed by the court
3. Factors affecting trustee’s

compensation
a. The character and powers of the trusteeship
b. The risk and responsibility
c. Time
d. Labor and skill required in the administrator
of the trust, as well as the care and
management of the estate.
279
SPECIAL PROCEEDINGS
H. Removal or Resignation of Trustee
 Petition by parties beneficially interested
 Due notice to the trustee
 Hearing
1. Grounds for removal

 Removal appears essential in the interest of
petitioner
 Trustee is insane or
 otherwise incapable of discharging his trust
or
 evidently unsuitable
2. Resignation –
 He may resign; court will determine if proper
I. If Sale or Encumbrance of Trust

Estate Necessary or Expedient
 Petition
 Notice
 Hearing
 Court may order such to be made
 And the re-investment and application of the
proceeds thereof in such manner as will best
effect the objects of the trust
 The petition, notice, hearing, order of sale or
encumbrance, and record of proceedings,
shall conform as nearly as may be to the
provisions concerning the sale or
encumbrance by guardians of the property
of minors or other wards
1. Requirement of judicial order for sale

or encumbrance of trust estate
 it is of a perishable or transitory nature and
then only to convert it into substantial,
enduring and revenue-producing
investment.
 If a change be deemed necessary, or for the
interest of the beneficiary, the permission or
sanction of the court should be obtained
REMEDIAL LAW REVIEWER Chapter 3: ESCHEATS
income from the property shall be

Chapter 3: Escheats used.
(Asked in the 2002 Bar Examinations)
I. WHEN ALLOWED 2. Who may file:

II. DUTY OF COURT; WHEN PETITION
 Solicitor General or his representative
SUFFICIENT
III. COURT SHALL ADJUDGE THAT THE
ESTATE SHALL ESCHEAT 3. Where to file:
IV. PERIOD TO APPEAL AND CLAIM THE 280
ESTATE  CFI of the province where deceased last
SPECIAL PROCEEDINGS
V. OTHER ACTIONS FOR ESCHEAT resided OR which he had estate
I. When Allowed 4. Nature of escheat

 Person dies intestate  Is not an ordinary civil action but a special
 Seized of real property in the Philippines proceeding that should be commenced
 Leaves no heir or person by law entitled to not by complaint but by petition.
the same  It is an incident or attribute of sovereignty
and rests on the principle of ultimate
1. Procedure ownership by the state of all property
within its jurisdiction.
a. Solicitor General or his representative in  It is a substantial right of the state and is
behalf of the Republic of the Philippines to not a claim based on charity, gratuity or
file the petition unearned benefit.
b. In the RTC of the province where the
deceased last resided or in which he had
estate, if he resided out of the Philippines 5. Parties
c. If petition is sufficient in form and  It must be initiated by the Government
substance, the court shall fix a date and through the Solicitor General.
place for the hearing  All interested parties, especially the actual
o Which date shall not be more than 6 occupants and adjacent lot owners shall
months after the entry of the order be personally notified of the proceeding
d. The court shall direct a copy of the order and given the opportunity to present their
to be published before the hearing at valid claims
least once a week for 6 consecutive  Any person alleging to have a direct right
weeks in some newspaper of general or interest in the property sought to be
circulation published in the province, as escheated, likewise an interested and
the court shall deem best necessary party, may properly oppose the
e. The court shall hear the case and judge petition for escheat or file claim thereto
whether or not the estate shall escheat with the court within the period provided in
f. If the court rules in favor of the Republic, the Rule.
o It shall assign the personal estate to
the municipality or city where the
deceased last resided, and the real 6. Requisites for filing:
estate to the municipalities or cities, a. A person died intestate
respectively, in which the same is b. He left no heirs or persons by law entitled
situated. to the same
o If the deceased never resided in the c. Deceased left properties
Philippines, the whole estate may be
assigned to the respective
municipalities or cities where the 7. Proceedings in escheat cannot be
same is located. converted into settlement of the
o Such estate shall be for the benefit of estate.
public schools, and public charitable
 Proceedings in escheat cannot be
institutions and centers in said
converted into settlement of the estate.
municipalities or cities.
 The escheat court does not have the
o It may also order the establishment of
power to order or proceed with, the
a permanent trust, so that only the
distribution of the estate of a decedent in
REMEDIAL LAW REVIEWER Chapter 3: ESCHEATS
escheat proceedings and adjudicate the to prove that the property in question is in
properties to the oppositors all respects liable to escheat.
II. Duty of court; when petition 5. Waiver

sufficient
 The right to escheat may be waived, either
 Fix a date and place for hearing expressly or impliedly.
 Date - x < 6 months after the entry of  Thus where the right to escheat claimed
the order
 Direct a copy of the order be published
by municipality has existed long prior to 281
the registration proceedings instituted by
SPECIAL PROCEEDINGS
before the hearing the Roman Catholic Archbishop of Manila
 At least once a week for 6 successive and the same has not been asserted in
weeks said proceedings, it is deemed to have
 Newspaper of general circulation in been completely waived.
the province
IV. Period to appeal and claim the

III. Court shall adjudge that the estate estate
shall escheat  Within 5 years from date of judgment;
 Date and time published otherwise, Barred forever
 Right of government proven in court
 Payment of just debts and charges
1. By whom:
1. Personal estate  goes to the  Devisee, legatee, heir, widow, widower, or

municipality or city of last residence other person entitled to such estate
appears
 Such person shall have possession of and
2. Real estate  goes to the title to the same, or if sold, the municipality
or city shall be accountable to him for the
municipality or city where same is
proceeds after deducting reasonable
situated
charges for the care of the estate
 If the deceased never resided in the
Philippines, the whole estate may be 2. Period for filing claim –
assigned to the respective municipalities
or cities where the same is located.  5 years from date the property was
 Such estate shall be for the benefit of delivered to the state.
public schools, and public charitable
institutions and centers in said
municipalities or cities. V. Other actions for escheat
 The court, at the instance of an interested  Until otherwise provided by law, actions
party, or on its own motion, may order the reversion or escheat of properties
establishment of a permanent trust, so alienated in violation of the Constitution or
that the only income from the property of any statute shall be governed by this
shall be used rule, except that the action shall be
 instituted in the province where the land
3. Conclusiveness of judgment of lies in whole or in part.
escheat
 Conclusive upon persons notified by
advertisement to all persons interested.
4. Evidence required
 Escheats and forfeitures are not favored
by law, and the modern rule under
statutes regulating escheat proceedings is
that the burden of proof rests on the state
REMEDIAL LAW REVIEWER Chapter 4: SPECIAL RULES IMPLEMENTING the FAMILY COURTS
3. Nature
Chapter 4: Special Rules Implementing
the Family Courts  A trust relation of the most sacred character
(Herrera).
I. GUARDIANSHIP
II. ADOPTION 4. Purpose
III. RULES ON CUSTODY OF CHILDREN (RULE
99, SECS. 6 AND 7)  To safeguard the right and interests of
IV. CUSTODY OF MINORS AND WRIT OF minors and incompetent persons.
HABEAS CORPUS IN RELATION TO 282
CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
SPECIAL PROCEEDINGS
V. COMMITMENT OF CHILDREN (A.M. NO. 02-1- 5. Basis: Parens Patriae
19-SC)
 It is the State’s duty to protect the rights of
I. Guardianship persons/individuals who because of
age/incapacity are in an unfavourable
A. GUARDIANSHIP IN GENERAL position vis-à-vis other parties (Nery v.
B. GUARDIANSHIP OF MINORS Lorenzo, 1972).
1. PARENTS AS LEGAL GUARDIANS (ART.
225, FC) Kinds of Guardians (Regalado)
2. RULE ON GUARDIANSHIP OF MINORS 1. Legal Guardian – deemed as guardian by
(A.M. NO. 03-02-05-SC) provision of law, without need of court
a. SCOPE & APPLICABILITY appointment (Art. 320, CC; Art. 225, FC)
b. PETITION FOR APPOINTMENT OF 2. Guardian ad Litem – appointed by the court to
GUARDIAN prosecute or defend a minor, insane or person
c. THE GUARDIAN declared to be incompetent, in a court action.
d. SELLING & ENCUMBERING THE 3. Judicial Guardian – appointed by the court in
PROPERTY OF THE WARD pursuance to law, as guardians for insane
e. REMOVAL, RESIGNATION, & persons, prodigals, minor heirs of deceased war
TERMINATION OF GUARDIANSHIP veterans and other incompetent persons.
C. GUARDIANSHIP OF INCOMPETENTS (RULES a. Guardian over the person.
92-98) b. Guardian of the property.
1. SCOPE & APPLICABILITY c. General Guardian – has custody and care
2. PETITION FOR APPOINTMENT OF of the ward’s person and property.
GUARDIAN
3. THE GUARDIAN 6. Ancillary Guardianship –
4. SELLING & ENCUMBERING THE  guardianship in a state other than that in
PROPERTY OF THE WARD (RULE 95)
which guardianship is originally granted and
5. TERMINATION OF GUARDIANSHIP (RULE
97)
which is subservient and subsidiary to the
latter.
A. Guardianship In General
1. Guardianship – B. Guardianship of Minors
 the power of protective authority given by 1. Parents as Legal Guardians (Art. 225,
law and imposed on an individual who is FC)
free and in the enjoyment of his rights, over
 The father and the mother shall jointly
one whose weakness on account of his age
exercise legal guardianship over the
or other infirmity renders him unable to
property of their unemancipated common
protect himself (Herrera).
child without the necessity of a court
appointment.
2. Guardian –  Where the market value of the property or
the annual income of the child exceeds
 a person lawfully invested with power and
P50,000:
charged with the duty of taking care of a
person who for some peculiarity or status or  The parent concerned shall be required
defect of age, understanding or self-control to furnish a bond in such amount as the
is considered incapable of administering his court may determine, but not less than
own affairs (Herrera). 10% of the value of the property or
annual income.
 A verified petition for approval of the
bond shall be filed in the Family Court of
the place where the child resides, or if Grounds for filing:

the child resides in a foreign country, in 1. Death, continued absence, or incapacity
the proper court of the place where the of his parents;
property or any part thereof is situated. 2. Suspension, deprivation or termination
 In case of disagreement, the father’s of parental authority;
decision shall prevail, unless there is a 3. Remarriage of his surviving parent, if the
judicial order to the contrary. latter is found unsuitable to exercise
parental authority;
Bautista vs. Bautista: A father or mother, as the 4. When the best interests of the minor so 283
natural guardian of the minor under parental authority, require.
SPECIAL PROCEEDINGS
does not have the power to dispose or encumber the
property of the latter. Such power is granted by law
Contents of petition:
only to a judicial guardian of the ward’s property and
only with court’s approval. 1. Jurisdictional facts;
2. Name, age and residence of the
Valencia vs. Lagdameo: The remedy of vendees prospective ward;
prejudiced by the illegal transactions of a natural 3. Ground rendering the appointment
guardian involving the property of the minor child lies necessary or convenient;
only against the natural guardian, not however to 4. Death of the parents of the minor or the
recover ownership and possession of the properties termination, deprivation or suspension
sold but only to recover damages. of their parental authority;
5. Remarriage of the minor’s surviving
2. Rule on Guardianship of Minors (A.M. parent;
No. 03-02-05-SC) 6. Names, ages, and residences of
relatives within the 4th civil degree of
a. Scope and Applicability the minor, and of persons having him in
 The Rule on Guardianship of Minors their care and custody;
applies to petitions for guardianship over 7. Probable value, character and location
the person or property, or both, of a of the property of the minor;
minor. 8. Name, age and residence of the person
 The Rules on Guardianship (Rules 92- for whom letters of guardianship are
98, RoC) apply only to guardianship of prayed.
incompetents other than a minor.
 The petition shall be verified and
b. Petition for Appointment of Guardian accompanied by a certification against
forum shopping.
Who may file:  No defect in the petition or verification
 Resident minor shall render void the issuance of letters
1. Any relative or other person on of guardianship.
behalf of a minor;
2. The minor himself, if 14 years of age Opposition
or over;  Who may file:
3. The Secretary of DSWD or the 1. Any interested person;
Secretary of DOH, in the case of an 2. The social worker ordered to make
insane minor who needs to be the case study report, if he finds that
hospitalized. the petition for guardianship should
 Non-resident minor be denied (Sec. 9).
1. Any relative or friend of such minor;  How: By filing a written opposition.
2. Anyone interested in his property, in  Grounds for filing:
expectancy or otherwise. 1. Majority of the minor;
2. Unsuitability of the person for whom
Where to file: letters are prayed.
 Resident minor
Family Court of the province or city Procedure
where the minor actually resides. 1. Filing of petition.
 Non-resident minor 2. Court shall fix a time and place for
Family Court of the province or city hearing.
where his property or any part 3. Notice Requirement
thereof is situated. Court shall cause reasonable notice to
be given to:
a. The persons mentioned in the Qualifications

petition;  The court shall consider the guardian’s:
b. The minor if he is fourteen years 1. Moral character;
of age or over. 2. Physical, mental and psychological
For non-resident minors, notice shall be condition;
given to the minor by publication or 3. Financial status;
any other means as the court may 4. Relationship of trust with the minor;
deem proper. 5. Availability to exercise the powers
Court may also direct other general or and duties of a guardian for the full 284
special notice to be given. period of the guardianship;
SPECIAL PROCEEDINGS
4. Case Study Report – Court shall order 6. Lack of conflict of interest with the
a social worker to conduct a case study minor;
of the minor and all the prospective 7. Ability to manage the property of the
guardians and submit his report and minor.
recommendation to the court for its
guidance before the scheduled hearing. Powers and Duties
5. Hearing  In general
 Compliance with notice requirement  Guardian of resident minor: Care
must be shown. and custody of the person of his
 The prospective ward shall be ward and the management of his
presented to the court. If the minor is property, or only the management of
non-resident, the court may dispense his property.
with his presence.  Guardian of non-resident minor:
 At the discretion of the court, the Management of all his property
hearing on guardianship may be closed within the Philippines.
to the public.  Specific duties
 The records of the case shall not be 1. To pay the just debts of the ward out
released without court approval. of:
6. Issuance or denial of letters of a. Personal property and the
guardianship. income of the real property of
7. Service of final and executory judgment the ward, if the same is
or order upon the Local Civil Registrar of sufficient;
the municipality or city where the minor b. Real property of the ward upon
resides and the Register of Deeds of the obtaining an order for its sale or
place where his property or part thereof encumbrance.
is situated, who shall annotate the same 2. To settle all accounts of his ward;
in the corresponding title, and report to 3. To demand, sue for, receive all
the court their compliance within fifteen debts due him, or, with the approval
days from receipt of the order. of the court, compound for the same
and give discharges to the debtor on
c. The Guardian receiving a fair and just dividend of
the property and effects;
Order of Preference of Appointment (in 4. To appear for and represent the
default of parents or a court-approved ward in all actions and special
guardian) proceedings, unless another person
1. The surviving grandparent. In case is appointed for that purpose;
several grandparents survive, the court 5. To manage the property of the ward
shall select any of them taking into frugally and without waste, and
account all relevant considerations. apply the income and profits
2. The oldest brother or sister of the minor thereon, insofar as may be
over 21 years of age, unless unfit or necessary, to the comfortable and
disqualified. suitable maintenance of the ward. If
3. The actual custodian of the minor over such income and profits be
21 years of age, unless unfit or insufficient for that purpose, to sell
disqualified. or encumber the real or personal
4. Any other person, who in the sound property, upon being authorized by
discretion of the court, would serve the the court to do so;
best interests of the minor. 6. To consent to a partition of real or
personal property owned by the
ward jointly or in common with the same, at the time designated by

others, upon: this rule and such other times as the
a. Authority granted by the court court directs; and at the expiration of
after hearing; his trust, to settle his accounts with
b. Notice to relatives of the ward, the court and deliver and pay over
and; all the property, effects, and monies
c. A careful investigation as to the remaining in his hands, or due from
necessity and propriety of the him on such settlement, to the
proposed action. person lawfully entitled thereto; 285
7. To submit to the court a verified 4. To perform all orders of the court
SPECIAL PROCEEDINGS
inventory of the property of the and such other duties as may be
ward: required by law.
 Within three months after his
appointment;  Posting of new bond
 Annually, and;  Whenever necessary, the court may
 Whenever required upon the require the guardian to post a new
application of an interested bond and may discharge from
person. further liability the sureties on the
8. To report to the court any property old bond.
of the ward not included in the  Requirements:
inventory which is discovered, or 1. Due notice to interested persons;
succeeded to, or acquired by the 2. No injury must result to those
ward within 3 months after such interested in the property.
discovery, succession, or  Liability: In case of breach of any of its
acquisition; conditions, the guardian may be
9. To render to the court for its prosecuted in the same proceeding for
approval an accounting of the the benefit of the ward or of any other
property: person legally interested in the property.
 One year from his appointment;
 Every year thereafter, and; Reimbursement of Reasonable Expenses
 As often as may be required. and Payment of Compensation
 The court may authorize reimbursement
Bonds of Guardians to the guardian, other than a parent, of
 When filed: Before a guardian enters reasonable expenses incurred in the
upon the execution of his trust, or letters execution of his trust.
of guardianship issue.  The court may allow payment of
 Amount: As determined by the Court. compensation for his services as the
 Conditions: The guardian is: court may deem just, not exceeding
1. To make and return to the court, 10% of the net income of the ward, if
within three months after the any; otherwise, in such amount the court
issuance of his letters of determines to be a reasonable
guardianship, a true and complete compensation for his services.
inventory of all the real and personal
property of his ward which shall Embezzlement, Concealment, or
come to his possession or Conveyance of Ward’s Properties
knowledge or to the possession or  The court may require any person
knowledge of any other person in suspected of having embezzled,
his behalf; concealed, or disposed of any money,
2. To faithfully execute the duties of his goods or interest, or a written instrument
trust, to manage and dispose the belonging to the ward or his property to
property according to this rule for appear for examination concerning any
the best interests of the ward, and to thereof and issue such orders as would
provide for his proper care, custody secure the property against such
and education; embezzlement, concealment or
3. To render a true and just account of conveyance, upon complaint of:
all the property of the ward in his  The guardian or ward, or;
hands, and of all proceeds or  Any person having actual or prospective
interest derived from them, and of interest in the property of the ward.
the management and disposition of
d. Selling and Encumbering the Property property and effects, as

of the Ward circumstances may warrant.
 Grounds e. Removal, Resignation, and

When the income of a property under Termination of Guardianship
guardianship is insufficient to
maintain and educate the ward  Removal
When it is for the benefit of the ward that How: Upon reasonable notice to the
his personal or real property or any guardian. 286
part thereof be sold, mortgaged or Grounds: The guardian:
SPECIAL PROCEEDINGS
otherwise encumbered, and the 1. Becomes insane or otherwise
proceeds invested in safe and incapable of discharging his trust;
productive security, or in the 2. Is found to be unsuitable;
improvement or security of other 3. Wasted or mismanaged the property
real property. of the ward;
4. Failed to render an account or make
 How: Verified petition filed by the a return for thirty days after it is due.
guardian.
 Resignation
 Order to Show Cause Ground: Any justifiable cause.
a. The court shall order the ward’s next  Upon the removal or resignation of
of kin and all persons interested in the guardian, the court shall appoint
the property to appear at a a new one.
reasonable time and place and  No motion for removal or resignation
show cause why the petition should shall be granted unless the guardian
not be granted. has submitted the proper accounting
b. At the time and place designated in of the property of the ward and the
the order to show cause, the court court has approved the same.
shall hear the allegations and
evidence of the petitioner and next  Termination
of kin, and other persons interested, Grounds:
together with their witnesses, and 1. The ward has come of age;
grant or deny the petition as the 2. The ward has died.
best interests of the ward may How:
require. 1. Court motu propio terminates
guardianship;
 Order for Sale or Encumbrance 2. Upon verified motion of any person
Contents: allowed to file a petition for
a. Grounds for the sale or guardianship.
encumbrance;  The guardian shall notify the court of
b. Manner of sale (public or private); the fact of coming of age or death of
c. Time and manner of payment; the ward within 10 days of its
d. Security, if payment deferred; occurrence.
e. Additional bond from guardian, if  The final and executory judgment or
required. order removing a guardian or
Duration: Not more than 1 year, unless terminating the guardianship shall
renewed. be served upon the Local Civil
Registrar of the municipality or city
 Investment of Proceeds and where the minor resides and the
Management of Property Register of Deeds of the province or
 The court may authorize and require city where his property or any part
the guardian to invest the proceeds thereof is situated, who shall enter
of sales or encumbrances, and any the final and executory judgment or
other money of his ward in his order in the appropriate books in
hands, in real or personal property, their offices.
for the best interests of the ward.
 The court may make such other
orders for the management,
investment, and disposition of the
C. Guardianship of Incompetents property, if he has transferred thereto

his bona-fide residence.
(RULES 92-98)
 Contents
1. Scope and Applicability 1. Jurisdictional facts;
2. Incompetency rendering the
 The Rules on Guardianship (Rules 92-98, appointment necessary or convenient;
RoC) apply to guardianship over the person 3. Names, ages, and residence of the
or property, or both, of incompetents other
than a minor.
relatives of the incompetent, and of the 287
person having him in their care;
 The Rule on Guardianship of Minors (A.M.
SPECIAL PROCEEDINGS
4. Probable value and character of his
No. 03-02-05-SC) governs guardianship of estate;
minors. 5. Name of the person for whom letters of
guardianship are prayed.
 Incompetents
a. Persons suffering the penalty of civil
 The petition shall be verified.
interdiction;
 No defect in the petition or verification
b. Hospitalized lepers;
shall render void the issuance of letters
c. Prodigals;
of guardianship.
d. Deaf and dumb who are unable to read and
write;
 Opposition
e. Those who are of unsound mind, even
Who may file: Any interested person.
though they have lucid intervals;
How: By filing a written opposition.
f. Persons not being of unsound mind, but by
Grounds:
reason of age, disease, weak mind, and
1. Competency of the alleged incompetent;
other similar causes, cannot, without outside
2. Unsuitability of the person for whom
aid, take care of themselves and manage
letters are prayed.
their property, becoming thereby an easy
 Procedure
prey for deceit and exploitation.
1. Filing of petition for appointment of
guardian for an incompetent.
2. Petition for Appointment of Guardian 2. Court shall fix a time and place for
hearing the petition.
 Who may file:
3. Court shall cause reasonable notice of
For resident incompetents
hearing to be given to the persons
1. Any relative, friend, or other person on
mentioned in the petition residing in the
behalf of the incompetent who has no
province, including the incompetent
parent or lawful guardian;
himself, and may direct other general or
2. Health secretary, in favor of:
special notice to be given.
a. An insane person who should be
o If incompetent is a non-resident,
hospitalized;
notice shall be given to him in such
b. An isolated leper.
manner as the court deems proper,
For non-resident incompetents
by publication or otherwise (Rule 93,
1. Any relative or friend;
Sec. 6).
2. Anyone interested in the incompetent’s
4. Hearing
estate.
o The incompetent must be present, if
able to attend.
 Where to file:
o Fulfilment of notice requirement
 For resident incompetents: RTC of the must be shown.
province or MTC of the municipality or 5. Issuance of letters of appointment of a
chartered city where the incompetent guardian.
resides. 6. The final order or judgment shall be
 For non-resident incompetents: RTC of served upon the civil registrar of the
the province where the property of the municipality or city where the minor or
incompetent or part thereof is situated. incompetent person resides or where
 Transfer of Venue - The court taking his property or part thereof is situated
cognizance of a guardianship (Rule 93, Sec. 8).
proceeding may transfer the same to the
court of another province or municipality Yangco vs. CFI: Notice to the ward’s relatives is
wherein the ward has acquired real a jurisdictional requirement.
3. The Guardian 6. To consent to a partition of real or

personal property owned by the ward
 Considerations in the Choice of the jointly or in common with others, upon:
Guardian a. Authority granted by the court after
hearing;
Francisco vs. CA (1984): The court may consider the
b. Notice to relatives of the ward, and;
financial situation, the physical condition and sound
judgment, prudence and trustworthiness, the morals, c. A careful investigation as to the
character and conduct, and the present and past necessity and propriety of the
history of a prospective appointee, as well as the proposed action. 288
probability of his being able to exercise the powers 7. To submit to the court:
SPECIAL PROCEEDINGS
and duties of a guardian for the full period during a. An inventory of the estate of the
which guardianship will be necessary. ward, sworn to by the guardian;
i. Within three months after his
Guerrero vs. Tan: The courts should not appoint as a appointment;
guardian any person who is not personally subject to
1. The estate of the ward
their jurisdiction.
described in the first
Garchitorena vs. Sotelo: If the interested person is a inventory shall be
creditor and mortgagee of the ward’s estate, he appraised. In the
cannot be appointed guardian of the ward’s person appraisement the court may
and property. request the assistance of
one or more of the
 Powers and Duties (Rule 96) inheritance tax appraisers.
 In general ii. Annually after his appointment.
1. Guardian of resident incompetent: Care and;
and custody of the person of his ward, iii. Whenever required upon the
and the management of his estate, or application of an interested
the management of the estate only person.
2. Guardian of non-resident incompetent: a. An account of the estate of the
Management of all the estate of the ward, sworn to by the guardian:
ward within the Philippines. i. Annually after his appointment,
 Specific duties and;
1. To pay the just debts of the ward out of: ii. Whenever required upon the
a. Personal property and the income of application of an interested
the real property of the ward, if the person.
same is sufficient. 8. To report to the court any property of the
b. Real property of the ward upon ward not included in the inventory which
obtaining an order for its sale or is discovered, or succeeded to, or
encumbrance. acquired by the ward within 3 months
2. To settle all accounts of his ward; after such discovery, succession, or
3. To demand, sue for, receive all debts acquisition.
due him, or, with the approval of the
court, compound for the same and give Gorostiaga vs. Sarte: Jurisdiction over an
discharges to the debtor on receiving a incompetent’s person cannot be had unless a
fair and just dividend of the property and guardian was appointed upon whom summons and
notice of the proceedings may be served.
effects;
4. To appear for and represent the ward in Zafra-Sarte vs. CA (1970): The guardian’s
all actions and special proceedings, appointment is good until set aside. Despite an
unless another person is appointed for appeal, the guardian can do what is necessary (under
that purpose; court’s direction) for the protection of the ward and his
5. To manage the property of the ward estate.
frugally and without waste, and apply
the income and profits thereon, insofar  Bonds of Guardians (Rule 94)
as may be necessary, to the  When filed: Before a guardian enters
comfortable and suitable maintenance upon the execution of his trust, or letters
of the ward. If such income and profits of guardianship issue.
be insufficient for that purpose, to sell or  Where filed: In the office of the Clerk of
encumber the real or personal property, Court.
upon being authorized by the court;  Amount: As determined by the Court.
 Conditions - The guardian is:
1. To make and return to the court, reasonable care and discretion in the manner of
within 3 months, a true and selecting those whom he employs.
complete inventory of all the real
and personal estate of his ward Doronilla vs. Lopez: A guardian may be imprisoned
for failure to render his account and to deliver the
which shall come to his possession
estate upon order to his successor
or knowledge of any other person
for him;
 Reimbursement of Reasonable Expenses
2. To faithfully execute the duties of his
and Payment of Consideration (Rule 96,
trust, to manage and dispose of the
Sec. 8) 289
estate for the best interests of the
 The guardian, other than a parent, shall
SPECIAL PROCEEDINGS
ward, and to provide for the proper
be allowed the amount of his reasonable
care, custody, and education of the
expenses incurred in the execution of
ward;
his trust.
3. To render a true and just account of
all the estate of the ward in his  The guardian, other than a parent, shall
hands, and of all proceeds or also be allowed such compensation for
interest derived from them, and of his services as the court deems just, not
the management and disposition of exceeding 15% of the net income of the
the same, at the time designated ward.
and such other times as the courts
Ramos vs. PNB (1957): Extra allowance may be
directs, and at the expiration of his
made in each case as the importance and difficulty
trust to settle his accounts with the of the management of the estate may require.
court and deliver and pay over all
the estate, effects, and moneys  Embezzlement, Concealment or
remaining in his hands, or due from Conveyance of Ward’s Properties (Rule
him on such settlement, to the 96, Sec. 6)
person lawfully entitled thereto;
 The court may require any person
4. To perform all orders of the court by
suspected of having embezzled,
him to be performed.
concealed, or conveyed away any
money, goods or interest, or a written
Posting of new bond
instrument belonging to the ward or his
o Whenever it is deemed necessary, the
estate to appear for examination
court may require a new bond to be
touching such money, goods, interest,
given by the guardian, and may
or instrument, and make such orders as
discharge the sureties on the old bond
will secure the estate against such
from further liability.
embezzlement, concealment or
conveyance, upon complaint of:
Requirements:
a. The guardian or ward, or;
1. Due notice to interested persons;
b. Any person having actual or
2. No injury must result to those interested
prospective interest in the property
in the property.
of the ward as creditor, heir, or
otherwise.
Liability for breach:
In case of the breach of a condition of the
bond, the guardian may be prosecuted in 4. Selling and Encumbering the Property
the same proceeding or in a separate action of the Ward (Rule 95)
for the use and benefit of the ward or of any
other person legally interested in the estate.  Grounds
a. When the income of a property under
Guerrero vs. Teran: The bond of the guardian is a guardianship is insufficient to maintain
continuing one against the obligors and their estates the ward and his family;
until all of its conditions are fulfilled. The mere fact b. When it is for the benefit of the ward that
that the guardian was removed does not relieve her or his real estate or some part thereof be
her bondsmen from liability during the time she was sold, mortgaged or otherwise
duly acting as such guardian. encumbered, and the proceeds thereof
put out at an interest, or invested in
Zubaldia vs. Hermanos: If the guardian delegates his some productive security, or in the
duties to another, he shall be responsible for the
improvement or security of other real
other’s actions in the premises and for any resulting
loss. Exception: If the guardian shows that he used estate.
 How: Verified petition filed by the guardian

to the Court which appointed him. Margate vs. Rabacal (1963): Generally, in order that
 Order to Show Cause the sale of the ward’s property be valid, it is essential
 The court shall order the ward’s next of that the sale first be confirmed by the Court. However,
kin and all persons interested in the where the authority to sell did not impose the
condition that the deed of sale executed by the
estate to appear at a reasonable time guardian should be approved by the court, the
and place and show cause why the approval of the sale by the court would be merely pro
petition should not be granted. forma, where the sale was already fait accompli and
 At the time and place designated in the within the authority given by the court. 290
order to show cause, the court shall
SPECIAL PROCEEDINGS
hear the proofs and allegations of the The cancellation of the authority of the guardian to
petitioner and next of kin, and other sell the property of the ward did not and could not
persons interested, together with their affect the rights of the buyer, where at the time that
the order cancelling the authority to sell was entered,
witnesses, and grant or deny the petition
the guardian had already acted in accordance with
as the best interests of the ward may the authority and sold the property. The authority has
require. already been exhausted and there was nothing to
 Order for Sale or Encumbrance cancel.
 Contents
a. Grounds for the sale or There being a presumption that the sale of the ward’s
encumbrance; estate is valid, the same cannot be attacked
b. Manner of sale (public or private); collaterally in the registration proceedings. A separate
action to avoid or rescind the sale should be filed
c. Time and manner of payment;
d. Security, if payment deferred;
Soriano vs. Latono: Confirmation may not be
e. Additional bond from guardian, if
necessary where the court’s order expressly
required. authorized the guardian to execute and deliver to the
 Duration of Effect: Not more than 1 purchaser definitely named a deed of conveyance to
year, unless renewed. a parcel of land specifically described at a price
 The guardian cannot acquire by already fixed, and it was intended to be the approval
purchase, even at a public or judicial itself of the sale that was already perfected or agreed
auction, the property of his ward (Art. upon by the seller and the buyer, and the sale had
1491, CC). been made without departure from the terms of the
order.
 Investment of proceeds and Management Mendoza vs. Labrador: If the authority to sell was
of Property obtained under suspicious circumstances indicative of
 The court may authorize and require the fraud or collusion, the guardian’s sale may
guardian to invest the proceeds of sales subsequently be annulled by the court.
or encumbrances, and any other money
of his ward in his hands, in real estate or  Newly-acquired or Discovered Properties
otherwise, for the best interests of the (Rule 96, Sec. 7)
ward.  Whenever any property of the ward not
 The court may make such other orders included in an inventory already
for the management, investment, and rendered is discovered, or succeeded
disposition of the estate and effects, as to, or acquired by the ward, like
circumstances may warrant. proceedings shall be had for securing
an inventory and appraisement thereof
Inton vs. Quintana: The grounds for the sale and within 3 months after such discovery,
encumbrance of ward’s property are exclusive. No succession, or acquisition
order will be issued for another purpose not found in
the Rules. Sale of the ward’s realty without court
order is void. 5. Termination of Guardianship (Rule 97)
Singco vs. Longa: Notice to the next of kin is a  Grounds for Termination of Guardianship
jurisdictional requirement which may not be a. Death of the guardian or the ward;
dispensed with. b. Marriage or voluntary emancipation;
o Note: Voluntary emancipation is
Lopez vs. Teodoro (1950): The next of kin are those rendered obsolete by RA 6809,
relatives whose relationships are such as to entitle making emancipation attainable only
them to shares in the estate as distributes. by reaching the age of majority.
Appeal is the proper remedy against a court
c. Adjudgment of competency.
authorizing the sale of the ward’s property.
 Petition for Adjudgment of Competency Olarte vs. Enriquez (1960): An order removing a
(Rule 97, Sec. 1) guardian is an order constituting a final
 Who may file: determination of his rights. Hence, the guardian
o The person declared incompetent; may appeal.
o His guardian;
o His relative; II. Adoption
o His friend;
 How: Petition verified by oath and A. DOMESTIC ADOPTION
stating that the person is competent. 1. SCOPE & APPLICABILITY 291
 Procedure: 2. THE ADOPTER & THE ADOPTEE
SPECIAL PROCEEDINGS
o Filing of petition. 3. PETITION FOR ADOPTION
o Court shall fix a time for hearing. 4. RESCISSION OF ADOPTION OF THE
o Court shall cause reasonable notice ADOPTEE
of hearing to be given to the B. INTER-COUNTRY ADOPTION (RA 8043)
1. SCOPE & APPLICABILITY
guardian of the person declared 2. INTER-COUNTRY ADOPTION AS THE
incompetent, and to the ward. LAST RESORT
o Trial. The guardian or relatives of 3. PETITION FOR ADOPTION
the ward, and, in the discretion of
the court, any other person, may Adoption –
contest the right to the relief
demanded, and witnesses may be A juridical act which creates between two
called and examined by the parties persons a relation similar to that which results
or by the court on its own motion. from filiation (Prasnick vs. Republic).
o Adjudgment of competency.
Lahum vs. Sibulo (2003): Adoption is a privilege
Crisostomo vs. Endencia: The court which appointed governed by the state’s determination of what is for
the guardian is also the court competent to decide the the best welfare of the child.
petition for restoration of capacity.
A. Domestic Adoption
In Re Guardianship of the Incompetent Jose De
Encaustic: The required notice of hearing upon the 1. Scope and Applicability
ward and guardian is not intended as a personal
service. The manner in which the court procured  RA 8552 (Domestic Adoption Act) and the
service of the notice is of no importance. It is sufficient Rule on Adoption govern the domestic
that the notice was given. adoption of Filipino children.
 Grounds for Removal of Guardian

a. When the guardian becomes insane; 2. The Adopter and the Adoptee
b. When the guardian becomes incapable  Qualified Adopters
of discharging his trust or unsuitable; a. Any Filipino citizen;
c. When the guardian has wasted or  Of legal age;
mismanaged the estate;  In possession of full civil capacity
d. When the guardian failed for 30 days and legal rights;
after it is due to render an account or  Of good moral character;
make a return.
 Has not been convicted of any crime
involving moral turpitude;
 Ground for Resignation of Guardian:
 At least 16 years older than the
 When it appears proper to allow it. adoptee;
 Upon the guardian’s resignation or  This requirement may be
removal the court may appoint another waived when the adopter is the
in his place. biological parent of the adoptee
or is the spouse of the
 Service of Judgment adoptee’s parent.
 Final orders or judgments terminating or  Emotionally and psychologically
replacing a guardian shall be served capable of caring for children, and;
upon the civil registrar of the  Is in a position to support and care
municipality or city where the minor or
for his children in keeping with the
incompetent person resides or where
means of the family.
his property or part of it is situated.
b. Any alien;
 Possessing the same qualifications of PD No. 603 or judicially declared

as above-stated for Filipino available for adoption;
nationals; b. The legitimate child of one spouse, by
 His country has diplomatic relations the other spouse;
with the Republic of the Philippines; c. An illegitimate child, by a qualified
 Has been living in the Philippines for adopter to raise the status of the former
at least 3 continuous years prior to to that of legitimacy;
the filing of the petition for adoption d. A person of legal age regardless of civil
and maintains such residence until status, if, prior to the adoption, said 292
the adoption decree is entered; person has been consistently
SPECIAL PROCEEDINGS
 Has been certified by his diplomatic considered and treated by the adopters
or consular office or any appropriate as their own child since minority;
government agency to have the e. A child whose adoption has been
legal capacity to adopt in his previously rescinded;
country, and; f. A child whose biological or adoptive
 His government allows the adoptee parents have died, provided that no
to enter his country as his adopted proceedings shall be initiated within 6
child. months from the time of death of said
parents;.
 The requirements on residency and g. A child not otherwise disqualified by law
certification of the alien’s qualification to or these rules.
adopt in his country may be waived for the
following:  Child –
a. A former Filipino citizen who seeks to  one who is not more than 18 years old
adopt a relative within the fourth (4th) at the time of the filing of the petition for
degree of consanguinity or affinity; adoption.
b. One who seeks to adopt the legitimate  Child legally available for adoption
child of his Filipino spouse;  voluntarily or involuntarily committed to
c. One who is married to a Filipino citizen DSWD or to a duly licensed and
and seeks to adopt jointly with his accredited child-placing or child-caring
spouse a relative within the 4th degree agency, freed of the parental authority of
of consanguinity or affinity of the Filipino his biological parents, or in case of
spouse. rescission of adoption, his guardian or
 The guardian with respect to the ward after adopter/s.
the termination of the guardianship and  [Note (though might not be a part of
clearance of his financial accountabilities the Bar): RA 9523, signed into law as of
March 2009, amended the Domestic
 Joint Adoption of Spouses and Inter-country Adoption act to the
 General Rule: Husband and wife shall effect that the authority to declare a
jointly adopt. child abandoned and free for adoption
 Exceptions: has been transferred to the DSWD from
a. If one spouse seeks to adopt the the courts. Only a DSWD certification is
legitimate child of one spouse by the required to declare the child legally
other spouse; available for adoption.]
b. If one spouse seeks to adopt his own  Voluntarily committed child –
illegitimate child, provided that the other  one whose parents knowingly and
spouse has signified his consent; willingly relinquish parental authority
c. If the spouses are legally separated over him in favor of the DWSD.
from each other.
 In case husband and wife jointly adopt or  Involuntarily committed child –
one spouse adopts the illegitimate child of  one whose parents, known or unknown,
the other, joint parental authority shall be have been permanently and judicially
exercised by the spouses. deprived of parental authority over him
due to:
 Qualified Adoptees o Abandonment;
a. Any person below 18 years of age who o Substantial, continuous or repeated
has been voluntarily committed to the neglect and abuse;
DSWD under Articles 154, 155 and 156 o Incompetence to discharge parental
responsibilities.
 Foundling b. That the adoptee is not disqualified

 Deserted or abandoned infant or child by law to be adopted;
whose parents, guardian or relatives are c. Probable value and character of the
unknown. estate of the adoptee;
 A child committed to an orphanage or d. First name, surname or names by
charitable or similar institution with which the adoptee is to be known
unknown facts of birth and parentage and registered in the Civil Registry;
and registered in the Civil Register as a e. Certification of non-forum shopping.
“foundling.” o The petition shall be verified. 293
SPECIAL PROCEEDINGS
 Abandoned child  At the heading of the initiatory pleading,
 One who has no proper parental care or whether the petition contains:
guardianship. i. Application for change of name;
 One whose parents have deserted him ii. Rectification of simulated birth;
for a period of at least 6 continuous iii. Voluntary or involuntary
months and has been judicially declared commitment of children;
as such. iv. Declaration of child as abandoned,
dependent or neglected.
 Dependent child
 One who is without a parent, guardian  Additional allegations
or custodian. a. If the adopter is a Filipino citizen:
 One whose parents, guardian or other  Jurisdictional facts;
custodian for good cause desires to be  Adopter’s qualifications;
relieved of his care and custody and is  That the adopter has undergone
dependent upon the public for support. pre-adoption services.
b. If the adopter is an alien:
 Neglected child –  Jurisdictional facts;
 one whose basic needs have been  Alien adopter’s qualifications;
deliberately not attended to or  That the adopter has undergone
inadequately attended to, physically or pre-adoption services.
emotionally, by his parents or guardian. c. If the adopter is the legal guardian
 Physical neglect - when the child is of the adoptee, that the
malnourished, ill-clad and without guardianship had been terminated
proper shelter. and the guardian had cleared his
 Emotional neglect - when a child is financial accountabilities.
raped, seduced, maltreated, d. If the adoptee is a foundling:
exploited, overworked or made to  The entries which should
work under conditions not conducive appear in his birth certificate,
to good health or made to beg in the such as name of child, date of
streets or public places, or placed in birth, place of birth, if known;
moral danger, or exposed to drugs,  Sex, name and citizenship of
alcohol, gambling, prostitution and adoptive mother and father, and
other vices. the date and place of their
marriage.
e. If the petition prays for a change of
3. Petition for Adoption name:
 The cause or reason for the
 Where to file: Family Court of the province
change of name;
or city where the prospective adoptive
 The registered name of the
parents reside.
child;
 Aliases or other names by which
 Contents
the child has been known;
 Allegations common to all petitions  Full name by which the child is
a. First name, surname or names, age
to be known.
and residence of the adoptee, as
f. If petition seeks rectification of
shown by his record of birth,
simulated birth:
baptismal or foundling certificate  That petitioner is applying for
and school records;
rectification of a simulated birth;
 That the simulation of birth was c. The legitimate and adopted children
made prior to the date of of the adopter and of the adoptee, if
effectivity of RA 8552 (August any, who are 10 years of age or
22, 2002) and the application for over;
rectification of the birth d. The illegitimate children of the
registration and the petition for adopter living with him who are 10
adoption were filed within 5 years of age or over;
years from said date; e. The spouse, if any, of the adopter or
 That the petitioner made the adoptee. 294
simulation of birth for the best 3. Child study report on the adoptee and
SPECIAL PROCEEDINGS
interests of the adoptee; his biological parents;
 That the adoptee has been 4. If the petitioner is an alien, certification
consistently considered and by his diplomatic or consular office or
treated by petitioner as his own any appropriate government agency that
child. he has the legal capacity to adopt in his
g. If the adoptee is a foundling, an country and that his government allows
abandoned, dependent or neglected the adoptee to enter his country as his
child: own adopted child, unless exempted;
 Facts showing that the child is a 5. Home study report on the adopters;
foundling, abandoned,  If the adopter is an alien or residing
dependent or neglected; abroad but qualified to adopt, the
 Names of the parents, if known, home study report by a foreign
and their residence. If the child adoption agency duly accredited by
has no known or living parents, the Inter-Country Adoption Board
then the name and residence of (ICAB).
the guardian, if any; 6. Decree of annulment, nullity or legal
 Name of the duly licensed child- separation of the adopter as well as that
placement agency or individual of the biological parents of the adoptee,
under whose care the child is in if any.
custody;
 That the DSWD, child-  Consent Requirement
placement or child-caring
agency is authorized to give its Cang vs. CA (1998):
consent. General Rule: The written consent of the natural
parent is indispensable for the validity of the decree
 Pre-adoption Services - Psycho-social of adoption.
Exception: The requirement can be dispensed with
services provided by professionally-trained
if the parent:
social workers of DSWD, the social services
 Has abandoned the child;
units of local governments, private and
 Is insane or hopelessly intemperate.
government health facilities, Family Courts, Abandonment means neglect or refusal to perform
licensed and accredited child-caring and the natural and legal obligations of care and support
child-placement agencies and other which parents owe their children. Physical
individuals or entities involved in adoption as estrangement alone, without financial and moral
authorized by the DSWD. desertion, is not tantamount to abandonment.
 Annexes to the Petition  Procedure

1. Birth, baptismal or foundling certificate,
as the case may be, and school records 1. Filing of petition for adoption.
showing the name, age and residence
of the adoptee; 2. Order of Hearing by the Court
2. Affidavit of consent of: Issued if the petition and attachments
a. The adoptee, if 10 years of age or are sufficient in form and substance
over; Contents:
b. The biological parents of the child, if a. Registered name of the adoptee in
known, or the legal guardian, or the the birth certificate and the names
child-placement agency, child-caring by which the adoptee has been
agency, or the proper government known which shall be stated in the
instrumentality which has legal caption;
custody of the child; b. Purpose of the petition;
c. Complete name which the adoptee c. Establish that the child is legally
will use if the petition is granted; available for adoption and the
d. Date and place of hearing which supporting documents are valid and
shall be set within 6 months from authentic;
the date of the issuance of the d. Establish that the adopter has
order; sincere intentions and that the
e. A directive for the publication of a adoption shall inure to the best
copy of the order before the date of interests of the child;
hearing at least once a week for 3 e. If there are grounds to deny the 295
successive weeks in a newspaper of petition, make the proper
SPECIAL PROCEEDINGS
general circulation in the province or recommendation to the court,
city where the court is situated; furnishing a copy thereof to the
o In case of application for change petitioner.
of name, the date set for o If the adopter is an alien, the
hearing shall not be within 4 home study report must show:
months after the last publication  His legal capacity to adopt;
of the notice or within 30 days  That his government allows
prior to an election. the adoptee to enter his
o The newspaper shall be country as his adopted
selected by raffle under the child.
supervision of the Executive
Judge. 4. Hearing
f. A directive to the social worker of  Upon satisfactory proof that the
the court, the social service office of order of hearing has been published
the local government unit or any and jurisdictional requirements have
child-placing or child-caring agency, been complied with.
or the DSWD to prepare and submit  The petitioner and the adoptee must
child and home study reports before personally appear and the former
the hearing if such reports had not must testify before the court on the
been attached to the petition due to date set for hearing.
unavailability at the time of filing;  The court shall:
g. A directive to the social worker of a. Verify from the social worker
the court to conduct counseling and determine whether the
sessions with the biological parents biological parent has been
on the matter of adoption of the properly counseled against
adoptee and submit her report making hasty decisions caused
before the date of hearing; by strain or anxiety to give up
h. At the discretion of the court, copies the child;
of the order of hearing shall be b. Ensure that all measures to
furnished the OSG through the strengthen the family have been
provincial or city prosecutor, the exhausted;
DSWD and the biological parents of c. Ascertain if any prolonged stay
the adoptee, if known. of the child in his own home will
o If a change in the name of the be inimical to his welfare and
adoptee is prayed for in the interest.
petition, notice to the Solicitor
General shall be mandatory. 5. Supervised trial custody
 Trial custody given the adopter
3. Child and home study reports by the before issuance of the decree of
social worker adoption for a period of at least 6
The social worker shall: months within which the parties are
a. Verify with the Civil Registry the real expected to adjust psychologically
identity and registered name of the and emotionally to each other and
adoptee; establish a bonding relationship.
b. If the birth of the adoptee was not  Monitored by the social worker of
registered with the Civil Registry, the court, the DSWD, or the social
register the adoptee and secure a service of the local government unit,
certificate of foundling or late or the child-placement or child-
registration, as the case may be;
caring agency which submitted and 15-day reglementary period

prepared the case studies. within which to appeal;
 Temporary parental authority is c. An order to the adopter to
vested in the adopter. submit a certified true copy of
o The court may, motu proprio or the decree of adoption and the
upon motion of any party, certificate of finality to the Civil
reduce the period or exempt the Registrar where the child was
parties if it finds that the same originally registered within 30
shall be for the best interests of days from receipt of the 296
the adoptee. certificate of finality;
SPECIAL PROCEEDINGS
o General Rule: An alien adopter o In case of change of name,
must complete the 6-month trial the decree shall be
custody. submitted to the Civil
o Exceptions: Registrar where the court
a. A former Filipino citizen who issuing the same is situated.
seeks to adopt a relative d. An order to the Civil Registrar of
within the 4th degree of the place where the adoptee
consanguinity or affinity; was registered to:
b. One who seeks to adopt the o Annotate on the adoptee’s
legitimate child of his original certificate of birth
Filipino spouse; the decree of adoption
c. One who is married to a within 30 days from receipt
Filipino citizen and seeks to of the certificate of finality;
adopt jointly with his or her o Issue a certificate of birth
spouse the latter’s relative which shall not bear any
within the 4th degree of notation that it is a new or
consanguinity or affinity. amended certificate and
 If the child is below 7 years of age which shall show, among
and is placed with the prospective others, the following:
adopter through a pre-adoption a. Registry number;
placement authority issued by the b. Date of registration;
DSWD, the court shall order that the c. Name of child;
prospective adopter shall enjoy all d. Sex;
the benefits to which the biological e. Date of birth;
parent is entitled from the date the f. Place of birth;
adoptee is placed with him. g. Name;
 The social worker shall submit to the h. Citizenship of adoptive
court a report on the result of the mother and father;
trial custody within 2 weeks after its i. Date and place of their
termination. marriage.
o Seal the original certificate
6. Issuance of decree of adoption of birth in the civil registry
 If the supervised trial custody is records which can be
satisfactory to the parties and the opened only upon order of
court is convinced from the trial the court which issued the
custody report and the evidence decree of adoption;
adduced that the adoption shall o Submit to the court issuing
redound to the best interests of the the decree of adoption proof
adoptee. of compliance within 30
 Effectivity: As of the date the days from receipt of the
original petition was filed even if the decree;
petitioners die before its issuance o If the adoptee is a foundling,
 Contents: annotate the decree of
a. Name by which the child is to be adoption on the foundling
known and registered; certificate and prepare a
b. An order to the Clerk of Court to new birth certificate.
issue to the adopter a certificate
of finality upon expiration of the  Book of Adoptions
The Clerk of Court shall keep a book of  Procedure:

adoptions showing the date of issuance of 1. Filing of petition to rescind the adoption.
the decree in each case, compliance by the 2. Court shall issue an order requiring the
Civil Registrar with the court’s order, and all adverse party to answer the petition
incidents arising after the issuance of the within 15 days from receipt of a copy
decree. thereof.
3. The order and copy of the petition shall
 Confidentiality of Adoption Proceedings be served on the adverse party in such
 All hearings in adoption cases, after manner as the court may direct. 297
compliance with the jurisdictional 4. Judgment.
SPECIAL PROCEEDINGS
requirements shall be confidential and o If the court finds that the allegations
shall not be open to the public. of the petition are true, it shall
 If the court finds that the disclosure of render judgment ordering the
the information to a third person is rescission of adoption, with or
necessary for security reasons or for without costs, as justice requires.
purposes connected with or arising out o The court shall:
of the adoption and will be for the best a. Order that the parental authority
interests of the adoptee, the court may, of the biological parent of the
upon proper motion, order the adoptee, if known, or the legal
necessary information to be released, custody of DSWD be restored if
restricting the purposes for which it may the adoptee is still a minor or
be used. incapacitated and declare that
the reciprocal rights and
obligations of the adopter and
4. Rescission of Adoption of the Adoptee the adoptee to each other be
 Who may file: extinguished;
 Adoptee who is over 18 years of age; b. Declare that successional rights
 If the adoptee is a minor, with the revert to its status prior to
assistance of the DSWD; adoption, as of the date of
 If the adoptee is over 18 years of age judgment of judicial rescission.
but incapacitated, by his guardian or Vested rights acquired prior to
counsel. judicial rescission shall be
respected;
 Grounds: Committed by the adopter c. Order the adoptee to use the
1. Repeated physical and verbal name stated in his original birth
maltreatment despite having undergone or foundling certificate;
counseling; d. Order the Civil Registrar where
2. Attempt on the life of the adoptee; the adoption decree was
3. Sexual assault or violence; registered to cancel the new
4. Abandonment or failure to comply with birth certificate of the adoptee
parental obligations. and reinstate his original birth or
foundling certificate.
 Adoption, being in the best interests of
the child, shall not be subject to 5. Service of judgment
rescission by the adopter. o A certified true copy of the judgment
together with a certificate of finality
 However, the adopter may disinherit the
issued by the Branch Clerk of the
adoptee for causes provided in Article
Court which rendered the decision
919 of the Civil Code.
shall be served by the petitioner
upon the Civil Registrar concerned
 Where to file: Family Court of the city or
within 30 days from receipt of the
province where the adoptee resides.
certificate of finality.
o The Civil Registrar shall forthwith
 When to file:
enter the rescission decree in the
1. Within 5 years after reaching age of
register and submit proof of
majority;
compliance to the court issuing the
2. If he was incompetent at the time of the
decree and the Clerk of Court within
adoption, within 5 years after recovery
30 days from receipt of the decree.
from such incompetency.
authority under his national laws, and

B. Inter-Country Adoption (RA 8043) has undergone the appropriate
counselling from an accredited
1. Scope and Applicability counselor in his country;
 RA 8043 (Inter-country Adoption Act) d. Has not been convicted of a crime
governs the adoption of Filipino children by: involving moral turpitude;
1. Foreign nationals, and; e. Is eligible to adopt under his national
2. Filipino citizens permanently residing law;
abroad. f. Is in a position to provide the proper 298
care and support and to give the
SPECIAL PROCEEDINGS
necessary moral values and example to
2. Inter-country Adoption as the Last all his children, including the child to be
Resort adopted;
g. Agrees to uphold the basic rights of the
 Objectives of Inter-country Adoption
child as embodied under Philippine
1. To consider inter-country adoption as an
laws, the UN Convention on the Rights
alternative means of child care, if the
of the Child, and to abide by the rules
child cannot be placed in a foster or an
and regulations;
adoptive family or cannot, in any
h. Comes from a country with whom the
suitable manner, be cared for in the
Philippines has diplomatic relations and
Philippines;
whose government maintains a similarly
2. Ensure that the child subject of inter-
authorized and accredited agency and
country adoption enjoys the same
that adoption is allowed under his
protection accorded to children in
national laws;
domestic adoption;
i. Possesses all the qualifications and
3. Take all measures to ensure that the
none of the disqualifications provided in
placement arising from it does not result
the applicable Philippine laws.
in improper financial gain for those
involved.
 Where to file:
a. Family Court having jurisdiction over the
 The Inter-country Adoption Board (ICAB)
place where the child resides or may be
shall ensure that all possibilities for
found;
adoption of the child under the Family
b. Directly with the ICAB;
Code (domestic adoption) have been
c. To the ICAB, through an intermediate
exhausted and that inter-country adoption is
agency, whether governmental or an
in the best interest of the child (Sec. 7, RA
accredited agency, in the country of the
8043).
prospective adopters.
3. Petition for Adoption  Contents of petition

a. The adopter’s age and the age of the
 Who may be adopted: Only a child legally child to be adopted, showing that he is
available for domestic adoption. at least 27 years of age and at least 16
 Child - A person below 15 years of age years older than the child to be adopted
unless sooner emancipated by law. at the time of application, unless the
 Legally-free child - A child who has been petitioner is the parent by nature of the
voluntarily or involuntarily committed to the child to be adopted or the spouse of
DSWD. such parent;
 Who may adopt: An alien or a Filipino b. If married, the name of the spouse who
citizen permanently residing abroad if he: must be joined as co-petitioner except
a. Is at least 27 years of age and at least when the adoptee is a legitimate child of
16 years older than the child to be his spouse;
adopted, at the time of application c. That he has the capacity to act and
unless the adopter is the parent by assume all rights and responsibilities of
nature of the child to be adopted or the parental authority under his national
spouse of such parent; laws, and has undergone the
b. If married, his spouse must jointly file for appropriate counseling from an
the adoption; accredited counselor in his country;
c. Has the capacity to act and assume all d. That he has not been convicted of a
rights and responsibilities of parental crime involving moral turpitude;
e. That he is eligible to adopt under his c. Transmit the petition to the ICAB for
national law; appropriate action.
f. That he can provide the proper care and
support and instill the necessary moral
values and example to all his children, III. Rules on Custody of Children (Rule
including the child to be adopted; 99, Secs. 6 and 7)
g. That he agrees to uphold the basic
rights of the child, as embodied under A. PROCEEDINGS AS TO THE CHILD WHOSE
PARENTS ARE SEPARATED
Philippine laws and the U N Convention
(RULE 99, SEC. 6) 299
on the Rights of the Child, and to abide
B. PROCEEDINGS AS TO VAGRANT OR ABUSED
SPECIAL PROCEEDINGS
by the rules and regulations’ CHILD (RULE 99, SEC. 7)
h. That he comes from a country with
which the Philippines has diplomatic
relations and whose government
maintains a similarly authorized and
A. Proceedings as to the Child Whose
accredited agency and that adoption of Parents Are Separated (Rule 99, Sec.
a Filipino child is allowed under his 6)
national laws;  When applicable: When husband and wife
i. That he possesses all the qualifications are divorced or living separately and apart
and none of the disqualifications from each other, and the question as to the
provided in the applicable Philippine care, custody, and control of a child or
laws. children of their marriage is brought before a
RTC by petition or as an incident to any
 Annexes to the petition (written and other proceeding.
officially translated in English)  The court, upon hearing the pertinent
4. Birth certificate of petitioner; testimony, shall award the care, custody,
5. Marriage contract, if married, and, if and control of each such child as will be for
applicable, the divorce decree, or its best interest.
judgment dissolving the marriage;  If the child is over 10 years of age, the
6. Sworn statement of consent of court shall permit him to choose which
petitioner’s biological or adopted parent it prefers to live, unless the
children above 10 years of age; parent so chosen be unfit to take charge
7. Physical, medical and psychological of the child by the reason of:
evaluation of the petitioner certified by a 1. Moral depravity;
duly licensed physician and 2. Habitual drunkenness;
psychologist; 3. Incapacity;
8. Income tax returns or any authentic 4. Poverty.
document showing the current financial  No child under seven years of age shall
capability of the petitioner; be separated from its mother, unless
9. Police clearance of petitioner issued the court finds there are compelling
within 6 months before the filing of the reasons to do otherwise.
petition;  If both parents are improper persons
10. Character reference from the local to have the care, custody, and
church/minister, the petitioner’s control of the child, the court may
employer and a member of the either:
immediate community who have known 1. Designate to take charge of the
the petitioner for at least 5 years; child:
11. Full body postcard-size pictures of the a. The paternal or maternal
petitioner and his immediate family grandparent of the child;
taken at least 6 months before the filing b. His oldest brother or sister;
of the petition. c. Some reputable and discreet
 Procedure (when petition filed before the person.
Family Court) 2. Commit the child to any suitable
a. Filing of petition. asylum, children's home, or
b. Court shall determine whether or not benevolent society.
petition is sufficient in form and  The court may order either or both parents
substance and a proper case for inter- to support or help support the child,
country adoption. irrespective of who may be its custodian.
 The court may make any order that is just  Petition for Rightful Custody
and reasonable permitting the parent who is  Verified petition for the rightful custody
deprived of its care and custody to visit the of a minor may be filed by any person
child or have temporary custody over him. claiming such right.
 Either parent may appeal from the order of  Party against whom it may be filed shall
the court. be designated as the respondent.
 Filed with the Family Court of the
province or city where the petitioner
B. Proceedings as to Vagrant or Abused resides or where the minor may be 300
Child (Rule 99, Sec. 7) found.
SPECIAL PROCEEDINGS
 When applicable: When the parents of any
 Contents:
minor child:
a. The personal circumstances of the
a. Are dead;
petitioner and of the respondent;
b. Have abandoned the child by reason of
b. The name, age and present
long absence or legal or physical
whereabouts of the minor and his or her
disability;
relationship to the petitioner and the
c. Cannot support the child through
respondent;
vagrancy, negligence, or misconduct, or
c. The material operative facts constituting
neglect;
deprivation of custody;
d. Refuse to support it;
d. Such other matters which are relevant to
e. Treat it with excessive harshness or
the custody of the minor
give it corrupting orders, counsels, or
examples, or;  Verified and accompanied with a
f. Cause or allow it to engage in begging certificate against forum shopping
or to commit offenses against the law. signed by the petitioner personally.
 If court is satisfied that the petition is
 How: Upon petition filed by some reputable sufficient in form and substance, it shall
resident of the province. direct the clerk of court to issue
 RTC may issue an order requiring such summons, which shall be served
parents to show cause at a time and together with a copy of the petition
place fixed in the order why the child personally on the respondent.
should not be taken from its parents.
o If the parents are dead or cannot be  Answer to the Petition
found, the RTC shall require the  Motion to dismiss the petition is not
fiscal of the province to show cause. allowed. Any other ground that might
 If upon the hearing it appears that the warrant the dismissal of the petition may
allegations of the petition are true, and it be raised as an affirmative defense in
is for the best interest of the child, the the answer.
court may make an order taking the  Exception: On the ground of lack of
child from its parents, if living, and jurisdiction over the subject matter or
committing it to any suitable orphan over the parties.
asylum, children's home, or benevolent  Personally verified by him filed within 5
society or person to be ultimately days after service of summons.
placed, by adoption or otherwise, in a  Upon the filing of the verified answer or
home found for it by such asylum, the expiration of the period to file it, the
children's home, society, or person. court may order a social worker to make
a case study of the minor and the
parties and to submit to the court at
IV. Custody of Minors and Writ of least 3 days before pre-trial.
Habeas Corpus in Relation to
Custody of Minors (A.M. No. 03-04-  Mandatory pre-trial
04-SC)  Notice - 15 days after the filing of the
answer or the expiration of the period to
 Applicability file answer, the court shall issue an
 Applies to petitions for custody of minors order:
and writs of habeas corpus in relation a. Fixing a date for the pre-trial
thereto. conference;
 Rules of Court shall apply suppletorily.
b. Directing the parties to file and grandparent chosen by the minor

serve their respective pre-trial briefs; over 7 years of age and of sufficient
c. Requiring the respondent to present discernment;
the minor before the court. d. The eldest brother or sister over 21
o The notice of its order shall be years of age;
served separately on both the e. The actual custodian of the minor
parties and their respective over 21 years of age;
counsels. f. Any other person or institution the
 Pre-trial brief contains the following: court may deem suitable. 301
a. A statement of the willingness of the
SPECIAL PROCEEDINGS
parties to enter indicating its terms;  Interim Reliefs
b. A concise statement of their 1. Temporary visitation rights - court
respective claims; shall provide in its order awarding
c. Admitted facts and proposed provisional custody appropriate
stipulations of facts; visitation rights to the non-custodial
d. The disputed factual and legal parent or parents.
issues;  Unless the court finds said parent
e. All the evidence to be presented; or parents unfit or disqualified.
f. The number and names of the  The temporary custodian shall give
witnesses and their respective the court and non custodial parent
affidavits; or parents at least 5 days' notice of
g. Such other matters as the court may any plan to change the residence of
require to be included. the minor or take him out of his
o Failure to file the pre-trial brief or to residence for more than 3 days
comply with its required contents
has same effect as failure to appear 2. Hold Departure Order – the minor child
at the pre-trial. shall not be brought out of the country
o If the petitioner fails to appear without prior order from the court while
personally at the pre-trial, the case the petition is pending.
shall be dismissed.  Court, motu proprio or upon
o Unless his counsel or a duly application under oath, may issue
authorized representative appears ex parte a hold departure order,
in court and proves a valid excuse addressed to the Bureau of
for the non-appearance of the Immigration and Deportation (BID),
petitioner. directing it not to allow the departure
 If the respondent has filed his answer of the minor from the Philippines
but fails to appear at the pre-trial, the without court permission.
petitioner shall be allowed to present his  The Family Court issuing the hold
evidence ex parte. departure order shall furnish the
o Court shall then render judgment on DFA and the BID of the DOJ a copy
the basis of the pleadings and the of the hold departure order within 24
evidence thus presented. hours from its issuance.
 At the pre-trial, the parties may agree  The court may recall the hold
on the custody of the minor. departure order motu proprio or
o If the parties fail to agree, the court upon verified motion of any of the
may refer the matter to a mediator parties after summary hearing.
who shall have 5 days to effect an
agreement between the parties. 3. Protection Order (PO)- court may
o If the issue is not settled through issue a PO requiring any person:
mediation, the court shall proceed a. To stay away from the home,
with the pre-trial. school, business, or place of
 After an answer has been filed or after employment of the minor, other
expiration of the period to file it, the parent or any other party, or from
court may issue a provisional order any other specific place;
awarding custody of the minor to: b. To cease and desist from harassing,
a. Both parents jointly; intimidating, or threatening such
b. Either parent; minor or the other parent or any
c. The grandparent, or if there are person to whom custody of the
several grandparents, the minor is awarded;
c. To refrain from acts or omission that  Petition for Writ of Habeas Corpus
create an unreasonable risk to  A verified petition for a writ of habeas
minor; corpus involving custody of minors filed
d. To permit a parent, or a party with the Family Court.
entitled to visitation by a court order  The writ shall be enforceable within
or a separation agreement, to visit the judicial region the Family Court
the minor at stated periods; belongs.
e. To permit a designated party to  However, the petition may be filed with
enter the residence during a a regular court in the absence of the 302
specified period of time in order to presiding judge of the Family Court
SPECIAL PROCEEDINGS
take personal belongings not provided that the regular court shall
contested in a proceeding pending refer the case to the Family Court as
with the Family Court; soon as its presiding judge returns to
f. To comply with such other orders as duty.
are necessary for the protection of  Petition may also be filed with the
the minor. appropriate regular courts in places
where there are no Family Courts.
 Judgment  The petition may be filed with the SC,
 Court shall render judgment awarding CA, or with any of its members and shall
the custody of the minor to the proper be enforceable anywhere in the
party considering the best interests of Philippines. The writ may be made
the minor. returnable to a Family Court or to any
 If both parties are unfit to have the care regular court within the region where the
and custody of the minor, the court may petitioner resides or where the minor
designate either the paternal or may be found for hearing and decision
maternal grandparent of the minor, or on the merits.
his oldest brother or sister, or any  Upon return of the writ, the court shall
reputable person to take charge of such decide the issue on custody of minors.
minor, or commit him to any suitable
home.
 Court may order either or both parents
to give an amount necessary for the
support, maintenance and education of
the minor, irrespective of custodianship.
 The court may also issue any order that
is just and reasonable permitting the
parent who is deprived of the care and
custody of the minor to visit or have
temporary custody.
 Appeal
 Appeal from the decision shall be
allowed.
o Unless the appellant has filed a
motion for reconsideration or new
trial within 15 days from notice of
judgment.
 An aggrieved party may appeal from the
decision by filing a Notice of Appeal
within 15 days from notice of the denial
of the motion for reconsideration or new
trial and serving a copy on the adverse
parties.
COMPARATIVE TABLE ON HABEAS CORPUS

HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS
CORPUS FOR MINORS (A.M. 03-04-
04)
Rights involved  Right to liberty Petition for the rightful custody of a
 Rightful custody of the aggrieved minor
party
Situations applicable Actual violation of the aggrieved party’s Deprivation of rightful custody
right
Party authorized to file Party for whose relief it is intended or by 303
some person in his behalf
SPECIAL PROCEEDINGS
Respondents May or may not be an officer
Before which court or 1. RTC or any judge thereof A verified petition for a writ of habeas
judicial authority filed 2. CA or any member thereof in corpus involving custody of minors
instances authorized by law shall be filed with the Family Court.
3. SC or any member thereof The writ shall be enforceable within its
4. Special jurisdiction given to first judicial region to which the Family
level courts in the absence of RTC Court belongs.
judges in a province or city
(SECTION 35, BP 129) However, the petition may be filed with
5. In aid of appellate jurisdiction of the regular court in the absence of
the Sandiganbayan ( RA 8249 the presiding judge of the Family
further expanding its jurisdiction) Court, provided, however, that the
regular court shall refer the case to the
Family Court as soon as its presiding
judge returns to duty.
The petition may also be filed with the

appropriate regular courts in places
where there are no Family Courts.
Contents of the petition Signed, verified either by the party for The verified petition shall allege the
whose relief it is intended, or by some following: (PRMO)
person in his behalf and shall set forth:
(PDIC) (a) The personal circumstances of
(a) That the person in whose behalf the petitioner and of the respondent;
the application is made is imprisoned or (b) The name, age and present
restrained on his liberty; whereabouts of the minor and his or
her relationship to the petitioner
(b) The officer or name of the person and the respondent;
by whom he is so imprisoned or (c) The material operative facts
restrained; or, if both are unknown or constituting deprivation of custody; and
uncertain, such officer or person may be (d) Such other matters which are
described by an assumed appellation, relevant to the custody of the minor.
and the person who is served with the
writ shall be deemed the person
intended; The verified petition shall be
accompanied by a certificate against
(c) The place where he is so forum shopping, which the petitioner
imprisoned or restrained, if known; must sign personally.
(d) A copy of the commitment or
cause of detention of such person, if it
can be procured without impairing the
efficiency of the remedy; or, if the
imprisonment or restraint is without any
legal authority, such fact shall appear.
child-placement or child-caring agency

V. Commitment of Children (A.M. No. or individual to whose care the
02-1-19-SC) commitment of the child is sought to
be entrusted.
A. INVOLUNTARY COMMITMENT OF A
DEPENDENT, ABANDONED, OR  Summons
NEGLECTED CHILD
 If the court is satisfied that the petition
B. VOLUNTARY COMMITMENT OF A
DEPENDENT, ABANDONED, OR is sufficient in form and substance, it
NEGLECTED CHILD shall direct the clerk of court to 304
C. COMMITMENT OF A DISABLED CHILD immediately issue summons which
SPECIAL PROCEEDINGS
shall be served together with a copy of
A. Involuntary Commitment of a the petition and a notice of hearing,
not less than 5 days before the date of
Dependent, Abandoned, or
the hearing, upon:
Neglected Child 1. The parents or guardian of the
 Child - a person below 18 years of age. child;
 Dependent child - one who is without a 2. Office of the public prosecutor.
parent, guardian or custodian, or one  The office of the public prosecutor
whose parents, guardian or other shall be directed to immediately
custodian for good cause desires to be transmit the summons to the
relieved of his care and custody, and is prosecutor assigned to the Family
dependent upon the public for support. Court concerned.
 Abandoned child - one who has no  If it appears from the petition that both
proper parental care or guardianship, or parents of the child are dead or that
whose parents or guardian has deserted neither parent can be found in the
him for a period of at least 6 continuous province or city where the court is located
months. and the child has no guardian residing
 Neglected child - one whose basic needs therein, summons may not be issued and
have been deliberately unattended to or the court shall thereupon appoint a
inadequately attended to, physically or guardian ad litem and proceed with the
emotionally, by his parents or guardian. hearing of the case with due notice to the
 Who may file: provincial or city prosecutor.
1. The Secretary of DSWD;
2. His authorized representative;  Guardian Ad Litem of Child
3. Any duly licensed child-placement or When appointed
child-caring agency having knowledge 1. If neither of the parents nor the
of a child who appears to be guardian of the child can be located or
dependent, abandoned or neglected. does not appear in court despite due
 Where to file: Family Court of the notice;
province or city in which the parent or 2. If the court finds the parents or the
guardian resides or where the child is guardian of the child incompetent to
found. protect the best interests of the child.
 Contents of Verified Petition In making the appointment, the court shall
1. The names of the parents or guardian consider:
and their place of residence; 1. The background of the guardian ad
 If the child's parents are unknown, litem, and;
petitioner must allege that diligent 2. His familiarity with the judicial process,
efforts have been exerted to social service programs and child
locate them. development.
 If said parents are deceased, o A member of the Philippine Bar
petitioner shall attach a certified may be appointed guardian ad
true copy of their death certificate litem.
2. The facts showing that the child is
dependent, abandoned, or neglected;  Case Study Report
3. The facts showing who has custody of  The Court shall direct the social
the child at the time of the filing of the worker to submit, before the hearing,
petition; a case study report of the child to aid
4. The name, address and written it in evaluating whether said child
consent of DSWD or duly licensed should be committed to the care of
DSWD or any duly licensed child- guardian, subject to supervision and

placement or child-caring agency or direction of DSWD.
individual.
 The report shall bear the signature of  Visitation or Inspection
the social worker on every page.  Any duly licensed child-placement or child-
caring agency or individual to whom a
 Appointment of Counsel child has been committed by the court
 The court, upon request of the child shall be subject to visitation or inspection
capable of forming his own views or upon by a representative of the court or of the 305
request of his guardian ad litem, shall DSWD, as the case may be or of both, to
SPECIAL PROCEEDINGS
appoint a lawyer to represent him in the determine whether the welfare and
proceedings. interests of the child are being served.
 Hearing  Report of Person or Institution.

 The provincial or city prosecutor shall:  Any duly licensed child-placement or
o Appear for the State; child-caring agency or individual to
o Ascertain if there has been due whom a child has been committed by
notice to all parties concerned and judicial order may at any time be
that there is justification for the required by the court to submit a
declaration of dependency, report, containing all necessary
abandonment or neglect. information for determining whether
 The court shall: the welfare of the child is being
o Direct the person or agency which served.
has custody of the child to bring
the latter to the court on the date  Temporary Custody of Child.
of the hearing of the petition;  The duly licensed child-placement or
o Ascertain the facts and determine child-caring agency or individual to
whether the child is dependent, whom a child has been committed
abandoned, or neglected, and if may file a verified motion with the
so, the-cause and circumstances court which granted the petition for
of such condition. involuntary commitment of a child to
place him in the care of any suitable
 Judgment. person, upon the latter's request, for a
 If, after the hearing, the court shall find period not exceeding 1 month at a
the child to be dependent, abandoned, time.
or neglected, it shall render judgment  The court may order the social worker
committing him to the care and to submit a case study report to aid it
custody of DSWD or any duly licensed in evaluating whether such temporary
child-placement or child-caring agency custody shall be for the best interests
or individual until he reaches the age of the child.
of 18.  The period of temporary custody of
 If the child is committed to DSWD, it the child may be extended by the
shall notify the court within 30 days court for a period not exceeding 1
from the order of commitment, the month at a time upon motion of the
name and address of the duly duly licensed child-placement or child-
licensed and accredited child- caring agency or individual to which
placement or child-caring agency or the child has been committed.
individual where the child shall be  The court, mote propriety, or upon
placed. request of the child assisted by his
 The judgment shall likewise make guardian ad litem, or at the instance of
proper provisions for the custody of the agency or person to whom the
the property or money belonging to child was committed, after due notice
the committed child. and hearing, shall discontinue the
 If the court finds that the temporary custody of the child if it
abandonment or neglect of the child appears that he is not being given
may be remedied, the child may be proper care.
allowed to stay in his own home under  After 1 month from the date temporary
the care and control of his parents or custody of the child was given to
another suitable person, the agency or
individual shall submit to the court a to the custody of another duly licensed
verified report on whether the child-placement or child-caring agency
temporary custody of the child has or individual.
promoted his best interests.  The court may suspend or revoke the
license of the agency or individual
 Change of Custody found guilty of such neglect depending
 If the child is committed to the DSWD, upon the gravity or frequency of the
it shall have the authority to change offense.
the custody of a child it had placed 306
with any duly licensed child-placement Restoration of Parental Authority After
SPECIAL PROCEEDINGS
or child-caring agency or individual if it Involuntary Commitment
appears that such change is for the
best interests of the child.  Who may file petition; The parents or
 The DSWD shall notify the court of guardian of a child committed to the care
any change in custody of the child. of a person, agency or institution by
 When conflicting interests arise judicial order.
among child-placement or child-caring
agencies, the court which granted the  Where and how filed: By a verified
involuntary commitment of the child, motion for the restoration of his rights over
upon motion of the DSWD or any of the child with the court which granted the
the agencies concerned, shall order involuntary commitment.
the change of commitment of the
child.  Ground: The parent or guardian is now
able to take proper care and custody of
 Removal of Custody said child, provided that the child has not
 A motion to remove custody of a child yet been adopted.
may be filed by an authorized
representative of the DSWD with  Notice of Hearing.
knowledge of the facts against a child- The court shall:
placement or child-caring agency or o Fix the time and date for the hearing
individual to whose custody a child of the motion, which shall not be
has been committed by the court on earlier than 30 days nor later than 60
the ground of neglect of such child. days from the date of the filing of said
motion;
 Neglect o Cause notice of the hearing to be sent
 Physical neglect occurs when the at least 5 days before the date of
child is malnourished, ill-clad and hearing to:
without proper shelter. 1. The person, agency or institution
 Emotional neglect occurs when a to which the child has been
child is raped, seduced, mal-treated, committed;
exploited, overworked or made to 2. The public prosecutor;
work under conditions not conducive 3. The court-designated social
to good health; made to beg in the worker.
streets or public places, or when
placed in moral danger, or exposed to  Hearing
drugs, alcohol, gambling, prostitution  Any person may be allowed to
and other vices. intervene at the discretion of the court
 The court shall set the motion for to contest the right to the relief
hearing with notice to the public demanded.
prosecutor and the court-designated  Witnesses may be called and
social worker. examined by the parties or by the
 If the court finds after hearing that the court motu proprio.
allegations of the motion have been
established and that it is for the best  Resolution
interests and welfare of the child:  If it is found that the cause for the
 The court shall issue an order commitment of the child no longer
removing him from the custody of the exists and that the movant is already
person or agency and committing him able to take proper care and custody
of the child.
 Effects: 2. Facts showing that the child has been

 Terminates the parental authority of neglected by the agency or in cases
the person, agency or institution to where the voluntary commitment was
whom the child was committed by unjustified, that the parents of the child are
judicial order; actually capable of taking care and
 Restores parental authority to the custody of the child;
movant. 3. Name, address and written consent of the
duly licensed child-placement or child-
caring agency or individual to whose care 307
B. Voluntary Commitment of a the child may be transferred;
SPECIAL PROCEEDINGS
4. Facts showing that petitioner has
Dependent, Abandoned, or
exhausted the administrative remedies
Neglected Child available to him.
 The parent or guardian of a dependent,
abandoned or neglected child may Notice of Hearing
voluntarily commit him to the DSWD or  If the petition is sufficient in form and
any duly licensed child-placement or child- substance, the court shall set the same for
caring agency or individual. hearing with notice to:
 No child shall be committed unless he is 1. DSWD;
surrendered in writing by his parents or 2. The public prosecutor;
guardian stating such voluntary 3. The court-designated social worker;
commitment and specifically naming the 4. The agency or individual to whom the
office, agency, or individual to whose child has been committed;
custody the child is to be committed. 5. In appropriate cases, the parents of
 Such written instrument should be the child.
notarized and signed in the presence
of an authorized representative of the Judgment
DSWD after counselling and other  If after hearing the court finds that the
services have been made available to allegations of the petition have been
encourage the child's parents to keep established and that it is for the best
the child. interests and welfare of the child, it shall
issue an order:
Verified Petition for Removal of Custody  Removing the child from the custody
of the person or agency concerned;
Who may file  Committing him to the custody of
1. The parents or guardian who voluntarily another duly licensed child-placement
committed the child; or child-caring agency or individual;
2. In the absence or failure of the parents or  If proper, suspending or revoking the
guardian, any person with knowledge of license of the agency or individual
the facts. found guilty of such neglect depending
upon the gravity or frequency of the
Grounds offense.
1. Neglect of the child;
2. Voluntary commitment of the child was Restoration of Parental Authority After
unjustified. Voluntary Commitment
 The restoration of rights of the parent or
Venue: Family Court of the province or city guardian over the child who has been
where: voluntarily committed shall be governed by
1. The child-placement or child-caring the rules of the DSWD,
agency to which the child has been  Provided that the petition for
voluntarily committed is located ; restoration is filed within 6 months
2. The child may be found. from the date of voluntary
commitment.
Contents of Verified Petition  In case the DSWD refuses to grant legal
1. Name and address of the child-placement custody and parental authority to the
or child-caring agency or individual to parent or guardian over the child who has
whose custody the child has been been voluntarily committed to an agency
voluntarily committed; or individual, the parent or guardian may
file a petition in court for restoration of
parental authority (as in involuntary welfare and interests are at stake, by the
commitment). parents or guardian of the child.
Venue:
C. Commitment of a Disabled Child Family Court of the place where:
1. The parent or guardian resides, or;
2. The child is found.
Disabled child –
 includes mentally retarded, physically
handicapped, emotionally disturbed and
Contents of Verified Petition 308
1. The facts showing that the child appears
mentally ill children, children with cerebral
SPECIAL PROCEEDINGS
to be mentally retarded, physically
palsy and those with similar afflictions. handicapped, emotionally disturbed,
mentally ill, with cerebral palsy or with
Mentally retarded child - one who is: similar afflictions and needs institutional
1. Socially incompetent, that is, socially care;
inadequate, occupationally incompetent 2. The name of the parents and their
and unable to manage his own affairs; residence, if known, or if the child has no
2. Mentally subnormal; living parent, the name and residence of
3. Intellectually retarded from birth or early the guardian;
age; 3. The fact that the parents or guardian or
4. Retarded at maturity; any duly licensed disabled child-
5. Mentally deficient as a result of placement or child-caring agency has
constitutional origin through heredity or opposed the commitment of such child;
diseases; 4. The name and written conformity of the
6. Essentially incurable. institution where the child is to be
committed;
Physically handicapped child – 5. An estimate of the costs and other
one who is crippled, deaf-mute, blind, or expenses of maintaining the child in the
otherwise suffers from a defect which restricts institution.
his means of action or communication with The verified petition shall be sufficient if
others. based upon the personal knowledge
of the petitioner.
Emotionally disturbed child –
one who, although not afflicted with insanity or Order of Hearing
mental defect, is unable to maintain normal  If the petition filed is sufficient in form and
social relations with others and the community substance, the court, by an order
in general due to emotional problems or  reciting the purpose of the petition, shall
complexes. fix the date of the hearing
 A copy of such order shall be served on:
Mentally ill child – 1. The child alleged to be mentally
one with any behavioral disorder, whether retarded, physically handicapped,
functional or organic, which is of such a emotionally disturbed, mentally ill, with
degree of severity as to require professional cerebral palsy or with similar
help or hospitalization. afflictions;
2. The person having charge of him or
Who may file and when: any of his relatives residing in the
 Where a child appears to be mentally province or city as the court may
retarded physically handicapped, deem proper.
emotionally disturbed, mentally ill, with  The order shall also direct the sheriff or
cerebral palsy or with similar afflictions any other officer of the court to produce, if
and needs institutional care but his necessary, the alleged disabled child on
parents or guardians are opposed the date of the hearing.
thereto, by:
1. The DSWD; Hearing and Judgment
2. Any duly licensed child-placement or  The court shall:
child-caring agency or individual. 1. Order his commitment to the proper
 In case no immediate placement can be institution for disabled children;
arranged for the disabled child when his  The expense of maintaining a
disabled child in the institution to
which he has been committed shall be Discharge of Judicially Committed

borne primarily by the parents or Disabled Child
guardian and secondarily, by such  Upon motion of the parent, guardian or
disabled child, if he has property of his institution to which the child has been
own. judicially committed.
 In all cases where the expenses for  If it is established and certified by the
the maintenance of the disabled child DSWD that:
cannot be paid in accordance with 1. He is no longer a danger to himself
above, the DSWD shall bear the and the community; 309
expenses, or such part thereof as may 2. He has been sufficiently rehabilitated
SPECIAL PROCEEDINGS
remain unpaid. from his physical handicap or if of
2. Make proper provisions for the custody of working age, is already fit to engage in
the property or money belonging to the gainful occupation;
committed child; 3. He has been sufficiently relieved of his
3. Furnish the institution to which the child psychological, mental and emotional
has been committed with a copy of its problems and is ready to assume
judgment, together with all the reports and normal social relations.
other data pertinent to the case.
REMEDIAL LAW REVIEWER Chapter 5: OTHER SPECIAL PROCEEDINGS
Chapter 5: Other Special Proceedings  Procedure

1. Filing of petition.
I. HOSPITALIZATION OF INSANE PERSONS 2. If the petition is sufficient in form and
(RULE 101)
substance, the court, by an order reciting
A. PETITION FOR COMMITMENT
B. PETITION FOR DISCHARGE OF INSANE
the purpose of the petition, shall fix a date
II. DECLARATION OF ABSENCE (RULE 107) for the hearing.
AND OF PRESUMPTIVE DEATH (ARTS. 390- 3. A copy of such order shall be served on
392, CC) the person alleged to be insane, and to 310
A. ABSENCE the one having charge of him, or on such
SPECIAL PROCEEDINGS
B. PRESUMPTION OF DEATH of his relatives residing in the province or
III. CHANGE OF NAME AND CANCELLATION city as the judge may deem proper.
OR CORRECTION OF ENTRIES IN THE 4. The court shall order the sheriff to produce
CIVIL REGISTRY
the alleged insane person, if possible, on
A. CHANGE OF NAME (RULE 103)
B. CHANGE OF FIRST NAME OR
the date of the hearing.
NICKNAME AND CORRECTION OF 5. Hearing.
CLERICAL OR TYPOGRAPHICAL  The provincial or city fiscal shall
ERRORS IN ENTRIES IN THE CIVIL prepare the petition for the Director of
REGISTRY (RA 9048) Health and represent him in court in
1. SCOPE AND APPLICATION the proceedings.
2. RA 9048 AND RULE 103  The burden of proving insanity is on
COMPARED
the person who alleges it (Director of
3. THE PETITION
C. CANCELLATION OR CORRECTION OF
Health).
ENTRIES IN THE CIVIL REGISTRY 6. Order of commitment. The court shall
(RULE 108) make proper provisions for the custody of
IV. VOLUNTARY DISSOLUTION OF property or money belonging to the insane
CORPORATIONS until a guardian be properly appointed.
A. WHEN NO CREDITORS AFFECTED
(SEC. 118, CORPORATION CODE)
B. WHEN CREDITORS ARE AFFECTED
(SEC. 119, CORPORATION CODE) B. Petition for Discharge of Insane
V. NATURALIZATION  Who may file: Director of Health.
 When filed: When, in the opinion of the
Director of Health, the person ordered to
I. Hospitalization of Insane Persons
be committed to a hospital or other place
(Rule 101) for the insane:
1. Is temporarily or permanently cured;
Insanity – 2. May be released without danger.
Condition of the mind where it is so impaired
in function or so deranged as to induce Chin Ah Foo vs. Concepcion: The Health Secretary
deviation from normal conduct in the person cannot order release without the approval of the
so afflicted. RTC.
A. Petition for Commitment II. Declaration of Absence (RULE 107)

 When filed: When the hospitalization of and of Presumptive Death (ARTS.
the person, who in the judgment of the 390-392, CC)
Director of Health is insane, is for the
public welfare or for the welfare of said
person.  Scope and Applicability
Rule 107 is applicable only when the
 Requisite: The person allegedly insane or absentee has properties to be
the one having charge of him is opposed administered.
to his being taken to a hospital or other
place for the insane. A. Absence
 Petition for Appointment of a
 Who may file: Director of Health Representative
When filed: When a person:
 Where to file: RTC of the province where 1. Disappears from his domicile, his
the person alleged to be insane is found. whereabouts being unknown;
2. Has not left an agent to administer his 1. Filing of petition for appointment of
property or the power conferred upon representative or petition for
the agent has expired. declaration of absence.
2. Court shall fix a date and place for the
Who may file: hearing of the petition where all
1. Any interested party; concerned may appear to contest the
2. Relative; petition.
3. Friend; 3. Copies of the notice of the time and
Where to file: place fixed for the hearing shall be: 311
RTC of the place where the absentee a. Served upon the known heirs,
SPECIAL PROCEEDINGS
resided before his disappearance. legatees, devisees, creditors and
other interested persons, at least
 Petition for Declaration of Absence and 10 days before the day of the
Appointment of Trustee or hearing;
Administrator b. Published once a week for 3
When filed: consecutive weeks prior to the
1. After 2 years: time designated for the hearing, in
a. From the disappearance of and a newspaper of general circulation
without any news from the in the province or city where the
absentee, or; absentee resides, as the court
b. Since the receipt of the last news shall deem best.
about him. 4. Hearing.
2. After 5 years, if the absentee left an  Compliance with the notice and
administrator of his property. publication requirements must be
Who may file: shown.
1. Spouse present; 5. Issuance of order granting or denying
2. Heirs instituted in a will; the petition.
3. Relatives who will succeed by  The judge shall :
intestacy;  Take the necessary measures
4. Those who have over the property of to safeguard the rights and
the absentee some right subordinated interests of the absentee;
to the condition of his death.  Specify the powers,
obligations and remuneration
 Contents of Petitions of his representative, trustee
1. Jurisdictional facts; or administrator, regulating
2. Names, ages, and residences of the them by the rules concerning
heirs instituted in the will, copy of guardians.
which shall be presented, and of the 6. In case of declaration of absence, the
relatives who would succeed by the same shall not take effect until 6
law of intestacy; months after its publication in a
3. Names and residences of creditors newspaper of general circulation
and others who may have any designated by the court and in the
adverse interest over the property of Official Gazette.
the absentee;
4. Probable value, location and character Reyes vs. Alejandro: It is not necessary that a
of the property belonging to the declaration of absence be made in a proceeding
absentee. separate from and prior to a petition for
administration.
 Opposition
Anyone appearing to contest the petition  Who may be appointed Representative,
shall: Administrator, or Trustee
1. State in writing his grounds therefor; 1. The spouse present, who shall be
2. Serve a copy thereof on the petitioner preferred when there is no legal
and other interested parties on or separation;
before the date designated for the 2. Any competent person:
hearing. a. If the absentee left no spouse;
b. If the spouse present is a minor or
 Procedure otherwise incompetent.
 Termination of Administration Substantial changes in entries in the civil

1. When the absentee appears registry (other than name): Rule 108
personally or by means of an agent; Non-substantial changes in entries in the
2. When the death of the absentee is civil registry (i.e., changes in first
proved and his testate or intestate name or nickname and correction of
heirs appear; clerical or typographical errors) : RA
3. When a third person appears, 9048
showing by a proper document that he
has acquired the absentee's property A. Change of Name (Rule 103) 312
by purchase or other title.
 Who may file:
SPECIAL PROCEEDINGS
1. The person desiring to change his
name;
B. Presumption of Death 2. Some other person on his behalf.
 Periods
 For all purposes, except for  Where to file: RTC of the province in
succession – 7 years. which he resides.
 For the purpose of opening of
succession – 10 years. Ong Huan Tin vs. Republic (1967): An alien may
o If disappeared after the age of 75 petition for a change of name but he must be
years – 5 years. domiciled in the Philippines.
 Cases where there is danger of death, No Yao Siong vs. Republic (1966): The name that
for all purposes, including succession: can be changed is the name that appears in the
o A person on board a vessel lost civil register, and not in the baptismal certificate or
during a sea voyage, or an that by which the person is known in the
aeroplane which is missing - 4 community.
years since the loss of the vessel
or aeroplane.  Contents of Petition
o A person in the armed forces who 1. That the petitioner has been a bona
has taken part in war - 4 years. fide resident of the province where the
o A person who has been in danger petition is filed for at least 3 years
of death under other prior to the date of such filing;
circumstances - 4 years. 2. The cause for which the change of the
 For the purpose of remarriage – 4 petitioner's name is sought;
years. 3. The name asked for;
 In cases where there is danger of 4. All names by which the petitioner is
death – 2 years. known (Secan Kok vs. Republic
(1973); Go Chiu Beng vs. Republic
 Petition for Declaration of Presumptive (1972)).
Death The petition shall be signed and verified.
 No independent action is necessary
for the declaration of presumption of Go Chiung Beng vs. Republic (1972): All aliases of
death, except for purposes of the applicant must be set forth in the petition’s title.
Such defect is fatal, even if said aliases are
remarriage, where the present spouse
contained in the body of the petition.
must first file a summary proceeding
for the declaration of presumptive Oshito vs. Republic (1967): Verification is a formal,
death of the absent spouse before not a jurisdictional, requirement. The lack of
contracting a second marriage (Art. verification is not a ground for dismissing the
41, FC). petition. However, before setting the petition for
hearing, the court should have required the
petitioner to have the petition verified.
III. Change of Name and Cancellation
or Correction of Entries in the Civil  Valid grounds for filing
Registry 1. When the name is ridiculous,
(Asked in the 2005 and 2007 Bar dishonourable, or extremely difficult to
Examinations) write or pronounce;
2. Consequence of a change in status;
 Applicable Rules 3. To avoid confusion (Alfon vs.
Substantial changes in name: Rule 103 Republic, 1980);
4. Having continuously used and been the published order constitutes a substantial defect
known since childhood by a Filipino because it did not correctly identify the parties to
name, unaware of his alien parentage the proceedings. It renders the entire proceedings
(Ang Chay vs. Republic, 1970); null and void since the court has not acquired
jurisdiction
5. A sincere desire to adopt a Filipino
name to erase signs of former .
alienage, all in good faith and without B. Change of First Name or Nickname
prejudice to anyone (Uy vs. Republic, and Correction of Clerical Or
1965). Typographical Errors In Entries In 313
The Civil Registry (RA 9048)
SPECIAL PROCEEDINGS
Laperal vs. Republic (1962): Legal separation is not 1. Scope and Application
a ground for the female spouse to apply for a  RA 9048 governs non-substantial changes
change of name under Rule 103...
in entries in the civil registry, such as:
1. Clerical or typographical errors, and;
 Opposition 2. Changes of first name or nickname.
Who may file: Any interested person.
Procedure
1. Filing of petition for change of name. 2. RA 9048 AND Rule 103 Compared
2. Court shall promulgate an order fixing
RA 9048 RULE 103
a date and place for hearing the Nature of Administrative: Judicial
petition. The date set for the hearing Proceeding Petition is filed
shall not be: before the local
 Within 30 days prior to an civil registrar or,
election, and; for non-resident
 Within 4 months after the last citizens, the
publication of the notice. consul general
3. Court shall direct a copy of the order Scope Correction of Substantial
to be published before the hearing at clerical or changes in
typographical name,
least once a week for 3 successive
errors and including
weeks in some newspaper of general changes in first surname
circulation published in the province. name or
4. Hearing. nickname
o The Solicitor General or the
proper provincial or city fiscal shall  General Rule: No person can change his
appear on behalf of the name or surname without judicial authority
Government of the Republic. (Art. 376, CC).
5. Judgment granting or denying the  Exception: Changes of first name or
change of name. nickname under RA 9048.
6. Copy of judgments shall be furnished
 Clerical or Typographical Error – A
the civil registrar of the municipality or
mistake committed in the performance of
city where the court issuing the same
clerical work in writing, copying,
is situated, who shall forthwith enter
transcribing or typing an entry in the civil
the same in the civil register.
register that:
1. Is harmless and innocuous;
Secan Kok vs. Republic (1973): A change of name
granted by the court affects only a petitioner. A 2. Is visible to the eyes or obvious to the
separate petition for change of name must be filed understanding;
for his/her spouse and children. 3. Can be corrected or changed only by
reference to other existing record or
 Publication requirement records;
 A change in name is a proceeding in 4. Does not involve the change of
rem. As such, strict compliance with nationality, age, status or sex of the
all jurisdictional requirements, petitioner.
particularly on publication, is essential
in order to vest the court with 3. The Petition
jurisdiction (Regalado).
 Who may file: A natural person having
Jacobo vs. Republic: A discrepancy in the name
direct and personal interest in the
sought to be adopted as stated in the petition and in correction of a clerical or typographical
error in an entry or change of first name or reassignment. RA 9048 only allows correction of
nickname in the civil register. clerical or typographical errors. A correction in the
civil registry involving the change of sex is not a
 Where to file: mere clerical or typographical error. The birth
 General Rule: The local civil registry certificate of petitioner contained no error. All
office of the city or municipality where entries therein, including those corresponding to his
the record being sought to be first name and sex, were all correct. No correction
is necessary.
corrected or changed is kept.
 If the petitioner has already migrated 314
to another place in the country and it People vs. Cagandahan (2008): Intersexuality is a
SPECIAL PROCEEDINGS
would not be practical for him, in valid ground for change of name and change of
terms of transportation expenses, time entry of sex in the civil registry. Where the
and effort, to appear in person before person is biologically or naturally intersex the
the local civil registrar keeping the determining factor in his gender classification would
documents to be corrected or be what the individual, having reached the age of
changed: The local civil registrar of majority, with good reason, thinks of his sex. Sexual
the place where the interested party is development in cases of intersex persons makes
presently residing or domiciled. the gender classification at birth inconclusive. It is
at maturity that the gender of such persons is fixed.
o The two local civil registrars
concerned will communicate to Failure to implead the local civil registrar as well as
facilitate the processing of the all persons who have or claim any interest did not
petition. render the petition fatally defective. Cagandahan
 If the petitioner is a Filipino citizen furnished the local civil registrar a copy of the
presently residing or domiciled in petition, the order to publish, and all pleadings,
foreign countries: The nearest orders or processes in the course of the
Philippine Consulate. proceedings. There was therefore substantial
compliance of the provisions of Rules 103 and 108
 Grounds of the Rules of Court.
1. Petitioner finds the first name or
nickname to be ridiculous, tainted with  Form of petition
dishonor or extremely difficult to write 1. In the form of an affidavit;
or pronounce; 2. Verified, and;
2. The new first name or nickname has 3. Subscribed and sworn to before any
been habitually and continuously used person authorized by law to
by the petitioner and he has been administer oaths.
publicly known by the first name or
nickname in the community;  Contents of petition
3. The change will avoid confusion. 1. Facts necessary to establish the
merits of the petition;
 Number of changes of name of allowed 2. A showing that the petitioner is
 Petition for change of name or competent to testify to the matters
correction of clerical or typographical stated;
error can only be availed once. 3. Particular erroneous entry or entries
which are sought to be corrected
Silverio vs. Republic (2007): A person’s first name and/or the change sought to be made.
cannot be changed on the ground of sex
reassignment. RA 9048 does not sanction a
change of first name on the ground of sex  Supporting documents
reassignment. Before a person can legally change In correction of clerical or typographical
his given name, he must present proper or errors:
reasonable cause or any compelling reason 1. A certified true machine copy of the
justifying such change. In addition, he must show certificate or of the page or of the
that he will be prejudiced by the use of his true and registry book containing the entry or
official name. Silverio failed to show, or even allege, entries sought to be corrected or
any prejudice that he might suffer as a result of changed;
using his true and official name. Rather than
avoiding confusion, changing petitioner’s first name
2. At least 2 public or private documents
may only create grave complications in the civil showing the correct entry or entries
registry and the public interest. upon which the correction or change
shall be based;
No law allows the change of entry in the birth 3. Other documents which the petitioner
certificate as to sex on the ground of sex or the city or municipal civil registrar,
or the consul general may consider decision to the civil registrar

relevant and necessary for the general or file the appropriate
approval of the petition. petition with the proper court.
5. The Civil Registrar General shall,
In changes of first name or nickname: within 10 working days from receipt of
1. A certified true machine copy of the the decision granting a petition,
certificate or of the page or of the exercise the power to impugn such
registry book containing the entry or decision by way of an objection.
entries sought to be corrected or 315
changed;  Grounds for objection:
SPECIAL PROCEEDINGS
2. At least 2 public or private documents a. The error is not clerical or typographical;
showing the correct entry or entries b. The correction of an entry or entries in the
upon which the correction or change civil register is substantial or controversial
shall be based; as it affects the civil status of a person;
3. Other documents which the petitioner c. The basis used in changing the first name
or the city or municipal civil registrar, or nickname of a person does not fall
under one of the valid grounds.
or the consul general may consider
 If the civil registrar general fails to
relevant and necessary for the exercise his power to impugn the
approval of the petition; decision of the city or municipal
4. Certification from the appropriate law registrar or of the consul general
enforcement agencies that the within the period, such decision shall
petitioner has no pending case or no become final and executory.
criminal record.
6. The civil registrar general shall
 Procedure immediately notify the city or
1. Filing of petition. The petition and its municipal civil registrar or the consul
supporting papers shall be filed in 3 general of the action taken on the
copies to be distributed to: decision.
a. The concerned city or municipal 7. Upon receipt of the notice thereof, the
civil registrar or the consul city or municipal civil registrar or the
general; consul general shall notify the
b. The Office of the Civil Registrar petitioner of such action.
General; 8. Appeal. The petitioner may seek
c. The petitioner; reconsideration with the civil registrar
2. The City or Municipal Registrar or the general or file the appropriate petition
Consul General shall post the petition with the proper court.
in a conspicuous place for ten 10
consecutive days after he finds the
petition and its supporting documents C. Cancellation or Correction of
sufficient in form and substance. Entries in the Civil Registry (Rule
3. In case of change of first name or 108)
nickname, the petition shall be
published at least once a week for 2
consecutive weeks in a newspaper of  Scope
general circulation.
4. The City or Municipal Registrar or the Rule 108 governs substantial changes in
Consul General shall render a entries in the civil registry, excluding name
decision not later than 5 working days which is governed by Rule 103.
after the completion of the posting
and/or publication requirement. He Substantial Change – change that affects the
shall transmit a copy of his decision civil status, citizenship, or nationality of a
together with the records of the party.
proceedings to the Office of the Civil
Registrar General within 5 working Entries Subject to Cancellation or
days from the date of the decision. Correction
 Where the petition is denied by 1. Births;
the city or municipal civil registrar 2. Marriage;
or the consul general, the 3. Deaths;
petitioner may either appeal the 4. Legal separations;
5. Judgments of annulments of marriage; named in the

6. Judgments declaring marriages void from petition.
the beginning;
7. Legitimations; Republic vs. Valencia: The procedure recited in
8. Adoptions; Rule 103 regarding change of name and in Rule
9. Acknowledgments of natural children; 108 concerning the cancellation or correction of
10. Naturalization; entries in civil registry are separate and distinct.
They may not be substituted one for the other. If
11. Election, loss or recovery of citizenship;
both reliefs are to be sought in the same
12. Civil interdiction; proceedings all the requirements of Rule 103 and 316
13. Judicial determination of filiation; 108 must be complied with.
SPECIAL PROCEEDINGS
14. Voluntary emancipation of a minor;
15. Changes of name; Who may file:
Any person interested in any act, event, order,
Rule 108 Compared with Rule 103 and RA or decree concerning the civil status of
9048 persons which has been recorded in the civil
registry.
Rule 108 RA 9048
Nature of Judicial Administrative:
How:
Proceeding Petition is filed
with the local civil Verified petition.
registrar or, for
non-resident Where to file:
citizens, the RTC of the province where the corresponding
consul general civil registry is located.
Scope Substantial Correction of
changes in clerical or Who are made parties:
entries in the typographical 1. The civil registrar;
civil registry, errors and
2. All persons who have or claim any interest
other than changes in first
name name or
which could be affected.
nickname
Opposition
Rule 108 RULE 103  Who may file:
Nature of Judicial Judicial 1. The civil registrar;
Proceeding 2. Any person having or claiming any
Scope Substantial Substantial interest under the entry whose
changes in changes in cancellation or correction is sought
entries in the name,  When filed: within 15 days from notice of
civil registry, including the petition or from the last date of
other than name surname
publication of the notice.
Who may File Any person Person
interested in any desiring to
act, event, order, change his Procedure
or decree name or 1. Filing of the petition.
concerning the some other 2. The court shall, by an order, fix the time
civil status of person on his and place for the hearing of the petition.
persons. behalf 3. The court shall cause reasonable notice of
Where and Verified petition Petition filed the hearing to be given to the persons
How Filed filed in the RTC in the RTC named in the petition.
where the where the 4. The court shall cause the order to be
corresponding petitioner
published once a week for 3 consecutive
civil registry is resides
located weeks in a newspaper of general
Standing of Civil register Civil register circulation in the province.
Local Civil concerned is is not a party 5. Hearing.
Register made party to to the  The court may make orders expediting
the proceeding proceeding. the proceedings.
as a respondent.  The court may grant preliminary
Notice The court shall No mention injunction for the preservation of the
requirement cause of cause of rights of the parties pending such
reasonable notice to be
notice to be sent.
proceedings.
given to persons 6. Judgment.
 A certified copy of the judgment shall residence in the Philippines in his

be served upon the civil registrar relations with the constituted
concerned who shall annotate the government as well as the community
same in his record. in which he is living;
Dy Lam Go v. Republic (5 SCRA 915

IV. Voluntary Dissolution of (1962)): Proper and irreproachable
Corporations conduct imposes a higher standard of
morality than the term good moral
(Please refer to the Commercial Law
character. It requires moral character of 317
Reviewer)
the highest degree. Merely being a law-
SPECIAL PROCEEDINGS
abiding citizen is inadequate.
V. Naturalization Proper and irreproachable conduct must
be proven by competent evidence such as
testimony of 2 character witnesses who
 Naturalization – process that confers to must be well known in the community and
an alien a nationality after birth by any of enjoy a high reputation for probity.
the means provided by law.
4. He must own real estate in the
 Governing law- Commonwealth Act No. Philippines worth not less than
473, as amended by Republic Act No. P5,000, Philippine currency, or have
530. some lucrative trade, profession, or
lawful occupation;
 Qualifications  Lucrative trade, profession, or
1. The petitioner must not be less than lawful occupation means
21 years of age on the date of hearing substantial gainful employment or
the petition; the obtaining of tangible receipts;
2. He must have resided in the an appreciable margin of income
Philippines for a continuous period of over expenses in order to provide
not less than 10 years; for adequate support for himself
 Period may be reduced to 5 years and his family in case of sickness,
if the applicant: unemployment, or disability to
a. Honorably held office under work.
the Government of the 5. He must be able to speak and write
Philippines or under any of its English or Spanish, and any one of
provinces, cities, the principal Philippine languages;
municipalities, or political 6. He must have enrolled his minor
subdivisions; children of school age in any of the
b. Established a new industry or public schools or private schools
introduced a useful invention recognized by the Bureau of Private
in the Philippines; Schools where Philippine history,
c. Is married to a Filipino government, and civics are taught or
woman; prescribed as part of the school
d. Had been engaged as a curriculum during the entire period of
teacher in a public or the residence required of him, prior to
recognized private school not the hearing of his petition.
established for the exclusive
instruction of children of  Disqualifications
persons of a particular 1. Persons opposed to organized
nationality or race in any of government or affiliated with any
the branches of education or association or group of persons who
industry for a period of 2 uphold and teach doctrines opposing
years; all organized governments;
e. Was born in the Philippines. 2. Persons defending or teaching the
3. He must be of good moral character, necessity or propriety of violence,
and believe in the principles personal assault, or assassination for
underlying the Philippine Constitution, the success and predominance of
and must have conducted himself in a their ideas;
proper and irreproachable manner 3. Polygamists or believers in the
during the entire period of his practice of polygamy;
4. Persons convicted of crimes involving How: Petition in triplicate, signed by

moral turpitude; the applicant in his own
5. Persons suffering from mental handwriting
alienation or incurable contagious Contents:
diseases; a. Petitioner’s name and
6. Persons who, during the period of surname;
their residence in the Philippines, b. His present and former places
have not mingled socially with the of residence;
Filipinos, or who have not evinced a c. His occupation; 318
sincere desire to learn and embrace d. Place and date of his birth;
SPECIAL PROCEEDINGS
the customs, traditions, and ideals of e. His civil status;
the Filipinos; f. Names, ages, birthplaces and
7. Citizens or subjects of nations with residence of his wife and
whom the United States and the children;
Philippines are at war, during the g. Approximate date of his
period of such war; arrival in the Philippines, the
8. Citizens or subjects of a foreign name of the port of
country other than the United States debarkation, and, the name of
whose laws do not grant Filipinos the the ship on which he came;
right to become naturalized citizens or h. Declaration that he has the
subjects thereof. qualifications and none of the
 General Rule: Burden of proving disqualifications for
disqualification is upon the state. naturalization;
 Caveat: SC has held that i. Declaration of compliance
applicant must prove he has none with the declaration of
of disqualifications. The law must intention requirement;
be strictly construed against the j. Declaration that he will reside
applicant because naturalization is continuously in the Philippines
a privilege and not a right. from the date of the filing of
the petition up to the time of
 Procedure his admission to Philippine
1. Filing of declaration of intention to citizenship;
become a citizen; k. Affidavit of at least two
When: 1 year before petition is filed. credible persons, stating that
Where: Office of the Solicitor General. they are citizens of the
How: Declaration under oath. Philippines and personally
Exemptions: know the petitioner to be a
a. Persons born in the Philippines resident of the Philippines for
and who have received their the required period of time
primary and secondary education and a person of good repute
in public or private schools and morally irreproachable,
recognized by the Government, and that said petitioner has in
and not limited to any race or their opinion all the
nationality; qualifications necessary and
b. Those who have resided is not in any way disqualified
continuously in the Philippines for to become a citizen of the
a period of thirty years or more Philippines;
before filing their application; l. Names and post-office
c. The widow and minor children of addresses of witnesses the
an alien who declared his petitioner may desire to
intention to become a citizen of introduce at the hearing of the
the Philippines and dies before he case;
is actually naturalized. m. Certificate of arrival and the
2. Filing of petition for naturalization; declaration of intention;
Where: RTC of the province in which n. 2 photographs of the
the petitioner has resided at least petitioner.
one year immediately preceding 3. Publication at the petitioner’s expense
the filing of the petition once a week for three consecutive
weeks in the Official Gazette or
newspaper of general publication in

the province where the petitioner
resides of the petition;
4. Posting of copies of the petition and a
general notice of the hearing in a
public and conspicuous place;
5. Forwarding of copies of the petition,
the sentence, the naturalization
certificate, and other pertinent data to 319
the DILG, DOJ, the Provincial
SPECIAL PROCEEDINGS
Inspector of the Philippine
Constabulary of the province and the
MTC judge of the municipality wherein
the petitioner resides;
6. Hearing of petition;
No petition shall be heard within the
thirty days preceding any election
until after six months from the
publication of the application.
The hearing shall be public. The
Solicitor-General shall appear on
behalf of the Republic.
7. Approval or denial of petition and
issuance of the Certificate of
Naturalization;
8. Rehearing of petition 2 years after the
promulgation of the judgment ;
The decision shall not become
executory until the court finds that
during the intervening time the
applicant has:
a. Not left the Philippines;
b. Dedicated himself
continuously to a lawful calling
or profession;
c. Not been convicted of any
offense or violation of
Government promulgated
rules;
d. Not committed any act
prejudicial to the interest of
the nation or contrary to any
Government announced
policies.
9. Taking of the oath of allegiance to
support and defend the Constitution
and the laws of the Philippines.
 Appeal
Final decision appealable to SC, at the
instance of either of the parties.
REMEDIAL LAW REVIEWER Chapter 6: APPEALS in SPECIAL PROCEEDINGS
controversy/appeal be distributed,
Chapter 6: Appeals in Special upon compliance with Rule 90
Proceedings
 Appealable Orders and Judgments

1. If it dis/allows a will
2. If it wholly determines who are the
lawful heirs or the distributive shares
3. If it wholly or partially dis/allows a 320
claim against a decedent’s estate, or
SPECIAL PROCEEDINGS
any claim presented on the
decedent’s estate, or any claim
presented on the estate’s behalf on
offset to claim against it
4. If it settles the account of an
executor/administrator/trustee/guardia
n
5. If it constitutes a final determination in
the lower court of the rights of the
party appealing in proceedings
relating to estate settlement or
administration of a trustee/guardian
 Exception: Appointment of a special
administrator is not appealable
 Remedy: Petition for certiorari under
Rule 65, if there is grave abuse of
discretion.
 If it is the final order/judgment rendered in
the case, and affects the substantial rights
of the person appealing
 Exception: Orders granting/ denying
a MFR/MNT
 While some of the items in Rule 109. Sec.

1 may be considered as interlocutory
under ordinary special actions, the nature
of special proceedings declares them as
appealable as exceptions to Rule 41, Sec.
2
 Since multiple appeals are contemplated
under this provision, appeals in special
proceedings necessitate a record on
appeal as the original record should
remain in the trial court
 In a special proceeding, the period of
appeal is 30 days a notice of appeal and a
record on appeal being required. The
appeal period may be interrupted by the
filing of an MFR/MNT. Once the appeal
period expires without an appeal/MF/MNT,
the order becomes final
 Advance Distributions
 Notwithstanding a pending
controversy/appeal in estate
settlement proceedings, the court may
permit that the estate’s parts which
are not affected by the
REMEDIAL LAW REVIEWER Chapter 7: The WRITS
and to relieve a person if such restrain is

Chapter 7: The Writs illegal
 Can only be suspended in cases if in cases
I. WRIT OF HABEAS CORPUS or rebellion or invasion and when public
A. To What Habeas Corpus Extends interest requires it (Art. III Sec. 15)
B. Who May Grant the Writ
C. Requisites of Application
 Extends to all cases of illegal confinement or
D. When Writ not Allowed or Discharge detention by which any person any person is
Authorized deprived of his liberty, or by which the
E. When Writ Must be Granted and Issued rightful custody of any person is withheld 321
F. Aspects of the Return from the person entitled thereto
SPECIAL PROCEEDINGS
G. When person Lawfully Imprisoned  Prime specification of the application for a
Recommitted, and When let to Bail writ of habeas corpus is restraint of liberty
H. When Prisoner Discharged if no Appeal  Not an inquisition between private parties,
I. Penalties
but an inquisition by the government
J. Record of Writ, Fees and Costs
II. WRIT OF AMPARO proceedings in habeas corpus are separate
A. General principles and distinct from the main case from which
B. Aspects of Filing the proceedings spring
C. Issuance and Service of the Writ  Ex parte Bollman: the question whether
D. Aspects of the Return one shall be imprisoned is always
E. Hearing on the Writ distinct from the question of whether the
F. Allowable Reliefs individual shall be convicted or acquitted
G. Penalties of the charge on which he is tried, and
H. Burden of Proof
therefore these questions are separate,
I. Judgment and Appeal
J. Effect of Other Actions and may be decided in different courts
K. Other Matters  In the case if People v. Valte (1922), it was
III. WRIT OF HABEAS DATA stated that the writ of habeas corpus is not
A. General Principles designed to interrupt the orderly
B. Aspects of Filing administration of the laws by a competent
C. Issuance and Service court acting within the limits of its
D. Aspects of Return jurisdiction, but is available only for the
E. Hearing on the Writ purpose relieving from illegal restraint
F. Penalties
G. Judgment and Appeal  Proceedings on habeas corpus to obtain
H. Return of Judgment, Hearing thereon release from custody under final
I. Effects of Other Actions judgment being in the nature of
J. Other Matters collateral attack, the writ deals only with
IV. WRIT MATRIX such radical defects as render the
proceeding or judgment absolutely void,
and cannot have the effect of appeal,
I. Writ of Habeas Corpus
writ of error or certiorari, for the purpose
(Asked in the 1993, 1998, and 2003 Bar of reviewing mere error and irregularities
Examinations) in the proceedings
 A release that renders a petition for a writ of
A. To What Habeas Corpus Extends habeas corpus moot and academic must be
one which is free from involuntary restraint
Sec. 1 Except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all In Moncupa v. Enrile (1986), it was held that
cases of illegal confinement or detention by which any (a) where a person continues to be unlawfully denied
person is deprived of his liberty, or by which the one or more of his constitutional freedoms,
rightful custody of any person is withheld from the (b) where there is present denial of due process,
person entitled thereto. (c) where the restraints not merely involuntary but
appear to be unnecessary, and
 Vital purposes: (d) where a deprivation of freedom originally valid
has, in light of subsequent developments,
 To obtain relief from illegal confinement become arbitrary,
 To liberate those who may be the person concerned or those applying in his behalf
imprisoned without sufficient cause may still avail themselves of the privileges of the writ
 To deliver them from unlawful custody
 Essentially a writ of inquiry, granted to test  General Rule: the release, whether
the right under which a person is detained, permanent or temporary, of a detained
person renders the petition for HC moot and purpose, and although deficient in form,
academic may be entertained so long as they are
 Exceptions: Unless there are restraints sufficient in substance (de Guzman v.
attached to his release which precludes Vinario, 1994)
freedom of action in which case the Court
can still inquire into the nature of his  The WHC is the proper legal remedy :
involuntary restraints  To enable parents to regain custody of a
 E.g. In the aforementioned Moncupa minor daughter, even though the latter
case, the restrictions imposed by the be in the custody of a third person of her 322
military on the temporary release of the own free will
SPECIAL PROCEEDINGS
petitioner constitute restraints which limit  To resolve questions of custody of a
the freedom of movement on said minor
petitioner (not travel outside Manila, o The underlying rationale is not the
regular reporting to the military, no press illegality if the restraint but the right
interviews). It is not physical restraint of custody
alone which is inquired into by the WHC
 In contrast, Villavicencio v. Lukban  Requisites:
(1919), the women who had been 1. Petitioner has the right to the custody of
illegally seized and transported against the minor
their will were no longer in any restraint 2. The rightful custody of the minor is
because, unlike in Moncupa, they were being withheld by the respondent
free to change their domicile without 3. That it is the best interest of the minor
asking for official permission concerned to be in the custody of
 For denial of a constitutional right to the petitioner and not that of respondent
accused, the hearing tribunal may lose its  While a writ of right, WHC it will not issue as
jurisdiction to conduct further proceedings, a matter of course or as a mere perfunctory
and HC may lie to obtain release of the operation on the filing of the petition
accused  Judicial discretion is exercised, and
 Void judgment of conviction due to whether or not the petition is sufficient in
disregard of constitutional rights may be form and substance, writ should issue if
challenged by collateral attack, which is the petition complies with the legal
the precise function of WHC requirements and its averments make a
 Failure by the accused to perfect his prima facie case for relief
appeal before the Court of Appeals does  WHC may be used with writ of certiorari for
not preclude recourse to the writ purposes of review
 However, it is only where:  The two writs may be ancillary to each
1. there is no proof whatever to sustain other where necessary to give effect to
the order, or the supervisory powers of higher courts
2. where no fair hearing was granted,  WHC reaches the body of the
or jurisdictional matters, but not the record.
3. where there was an arbitrary Writ of certiorari reaches the record but
disregard of the conceded or not the body
undisputed facts,  While generally, the WHC will not be
that a WHC will issue granted when there is and adequate
 While an excessive sentence or penalty remedy like writ of error, appeal, or
imposed by final judgment may be corrected certiorari, it may still be available in
by HC, the cases where such ruling was exceptional cases
applied involved penalties that could not be  Generally, WHC is not the proper
imposed under any circumstances for the remedy for the correction of errors of
crime for which the prisoner was convicted fact or law
 Correlatively, WHC may be applied to o Exception: Error affects court’s
persons sentenced to life imprisonment for jurisdiction (making the judgment
violations of Dangerous Drugs Law the void)
penalty for which was later on reduced after  WHC does not lie where the petitioner
the maximum of the applicable penalties has the remedy of appeal or certiorari
newly prescribed by the Indeterminate  WHC is not proper:
Sentence Law. o To assert or vindicate denial of right
 All courts of competent jurisdiction may to bail
entertain petitions for HC for this
o For correcting errors in appreciation set forth:

of fact or law (a) That the person in whose behalf the application is
 HC and not prohibition is the proper remedy made is imprisoned or restrained of his liberty;
for reviewing proceedings for deportation of (b) The officer or name of the person by whom he is
so imprisoned or retrained; or if both are
aliens
unknown or uncertain, such officer or person may
be described by an assumed appellation, and the
person who is served with the writ shall be
B. Who May Grant the Writ deemed the person intended;
(c) The place where he is so imprisoned or 323
restrained, if known;
Sec. 2 The WHC may be granted by the SC, or any
SPECIAL PROCEEDINGS
(d) A copy of the commitment or cause of detention
member thereof, on any day at any time, or by the CA
of such person, if it can be procured without any
or any member thereof in the instances authorized by
legal authority, such fact shall appear.
law, and if so granted it shall be enforceable
anywhere in the Philippines, and may be made
returnable before the court or any member thereof, or  A common law spouse has the personality
before a RTC, or any judge thereof for hearing and to institute on behalf of her common law
decision on the merits. It may also be granted by a husband the HC aspect of the petition, as
RTC, or a judge thereof, on any day and at any time, she falls under the purview of the term
and returnable before himself enforceable only within “some person”
his judicial district.  Some person – any person who has a
legally justified interest in the freedom of
 The SC,CA, and RTC have concurrent the person whose liberty is restrained or
jurisdiction to issue WHC who shoes some authorization to make
 In the absence of all RTC judges in a the application
province or city, municipal trial court judges
 Where an application is made in a
may hear and decide petitions for a WHC
person’s behalf, and the person for
(BP 129 Sec.9)
whose behalf it is taken repudiates, the
 It is only when the writ is issued by the SC
writ will be denied
or CA that it is enforceable anywhere in the
Philippines
 Under the Family Court’s Act, family courts
have jurisdiction to hear petitions for custody D. When Writ Not Allowed or Discharge
of minors and the issuance of the WHC in Authorized
relation to custody of minors
 Petitions may still be filed with regular Sec. 4 If it appears that the person alleged to be
courts in the absence of the presiding restrained of his liberty is in the custody of an officer
judge of the family court, provided that under process issued by a court or judge or by virtue
of a judgment or order of a court of record, and that
regular courts shall refer the case to the the court or judge had jurisdiction to issue the
family court a soon as its presiding process, render the judgment; or make the order, the
judge returns to duty writ shall not be allowed; or if the jurisdiction appears
 Petition may also be filed with after the writ is allowed, the person shall not be
appropriate regular courts in place discharged by reason of any informality or defect in
where there are no family courts the process, judgment, or order. Nor shall anything in
 Matters pertaining to the guardianship of an this rule be held to authorize the discharge of a
infant must be determined in courts person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment
established for such matters; however, this
under lawful judgment.
does not preclude the rendition of an order
awarding temporary custody of a child in
 General Rule: WHC will not issue where
habeas corpus proceedings. Such
the person alleged to be restrained of his
continues in force until a court with
liberty is in custody of an officer under a
jurisdiction over the guardianship appoints a
process issued by the court which has
guardian of his person
jurisdiction to do so
 Even if the arrest of a person is illegal,
supervening events may Bar his release or
C. Requisites of Application discharge form custody
 The legality of the detention is inquired
Sec. 3 Application for the writ shall be by petition into at the earliest, the application for a
signed and verified by the party for whose relief it is WHC
intended, or by some person on his behalf, and shall
 Among the supervening events is the person not an officer, the writ shall be directed to an
issuance of a judicial process (defined officer, and shall command him to take and have the
as a writ, warrant, subpoena, or other body of the person restrained of his liberty before the
formal writing issued by authority of law) court or judge designated in the writ at the time and
place therein specified, and to summon the person by
 Another supervening event is the filing whom he is restrained then and there to appear
before a trial court a complaint which before said court or judge to show the cause of the
issued a hold departure order and imprisonment or restraint.
denied motion to dismiss and to grant
bail (Velasco v. CA,1995) Sec. 7. How prisoner designated and writ served. 324
 Filing of an information for the offense - The person to be produced should be designated in
SPECIAL PROCEEDINGS
for which the accused is detained Bars the writ by his name, if known, but if his name is not
known he may be otherwise described or identified.
the availability of WHC
The writ may be served in any province by the sheriff
 Improper arrest or lack of preliminary or other proper officer, or by a person deputed by the
investigation is not a valid ground for the court or judge. Service of the writ shall be made by
issuance of WHC leaving the original with the person to whom it is
 Proper remedy is a motion to quash directed and preserving a copy on which to make
warrant of arrest and/or information return or service. If that person cannot be found, or
before the trial court has not the prisoner in his custody, then the service
 Posting of a bail is not a waiver of the right shall be made on any other person having or
to challenge the validity of the arrest, and exercising such custody.
therefore the right to resort to WHC Sec. 8. How writ executed and returned. - The
(Revised Rules of Crim Pro Sec. 26) officer to whom the writ is directed shall convey the
 A person discharged on bail is not entitled to person so imprisoned or restrained, and named in the
WHC, because such person is not writ, before the judge allowing the writ, or in case of
imprisoned or restrained of his liberty in his absence or disability, before some other judge of
such a way as to entitle him to the WHC the same court, on the day specified in the writ,
unless, from sickness or infirmity of the person
directed to be produced, such person cannot, without
danger, be bought before the court or judge; and the
E. When Writ Must Be Granted and officer shall make due return of the writ, together with
Issued the day and the cause of the caption and restraint of
such person according to the command thereof.
Sec. 5. A court or judge authorized to grant the writ
must, when a petition therefor is presented and it Sec. 9. Defect of form. - No writ of habeas corpus
appears that the writ ought to issue, grant the same can be disobeyed for defect of form, if it sufficiently
forthwith, and immediately thereupon the clerk of the appears therefrom in whose custody or under whose
court shall issue the writ under the seal of the court; restraint the party imprisoned or restrained is held and
or in the case of emergency, the judge may issue the the court or judge before whom he is to be bought.
writ under his own hand, and may depute any officer
or person to serve it.  Preliminary citation – requires the
respondent to appear and show cause why
 The operative act is detention or restraint the peremptory writ should not be granted
(whether or not physical). If there is none, no  Peremptory writ – unconditionally
WHC will issue despite the possibility of commands the respondent to gave the body
respondent being liable to civil, criminal, or of the detained person before the court at a
administrative action time and place therein specified
 Judicial discretion is exercised in issuance
of the writ, and will not issue as a matter of Sec. 10. Contents of return. - When the person to
course be produced is imprisoned or restrained by an officer,
the person who makes the return shall state therein,
and in other cases the person in whose custody the
prisoner is found shall state, in writing to the court or
F. Aspects of the Return judge before whom the writ is returnable, plainly and
unequivocably:
Sec. 6. To whom writ directed, and what to (a) Whether he has or has not the party in his
require. - In case of imprisonment or restraint by an custody or power, or under restraint;
officer, the writ shall be directed to him, and shall (b) If he has the party in his custody or power, or
command him to have the body of the person under restraint, the authority and the true and
restrained of his liberty before the court or judge whole cause thereof, set forth at large, with a
designated in the writ at the time and place therein copy of the writ, order execution, or other
specified. In case of imprisonment or restraint by a process, if any, upon which the party is held;
(c) If the party is in his custody or power or is
restrained by him, and is not produced, G. When Person Lawfully Imprisoned

particularly the nature and gravity of the sickness
or infirmity of such party by reason of which he
Recommitted, and When Let to Bail
cannot, without danger, be bought before the
court or judge; Sec. 14. If it appears that the prisoner was lawfully
(d) If he has had the party in his custody or power, or committed, and is plainly and specifically charged in
under restraint, and has transferred such custody the warrant of commitment with an offense punishable
or restraint to another, particularly to whom, at by death, he shall not be released, discharged, or
what time, for what cause, and by what authority bailed. If he is lawfully imprisoned or restrained on a
such transfer was made. charge of having committed an offense not so 325
punishable, he may be recommitted to imprisonment
SPECIAL PROCEEDINGS
Sec. 11. Return to be signed and sworn to. - The or admitted to bail in the discretion of the court or
return or statement shall be signed by the person who judge. If he be admitted to bail, he shall forthwith file a
makes it; and shall also be sworn by him if the bond in such sum as the court or judge deems
prisoner is not produced, and in all other cases unless reasonable, considering the circumstances of the
the return is made and signed by a sworn public prisoner and the nature of the offense charged,
officer in his official capacity. conditioned for his appearance before the court where
the offense is properly cognizable to abide its order of
Sec. 12. Hearing on return. Adjournments. - judgment; and the court or judge shall certify the
When the writ is returned before one judge, at a time proceedings, together with the bond, forthwith to the
when the court is in session, he may forthwith adjourn proper court. If such bond is not so filed, the prisoner
the case into the court, there to be heard and shall be recommitted to confinement.
determined. The court or judge before whom the writ
is returned or adjourned must immediately proceed to  WHC would not lie after the Warrant of
hear and examine the return, and such other matters Commitment was issued by the court on the
as are properly submitted for consideration, unless for basis of the Information filed against the
good cause shown the hearing is adjourned, in which
accused
event the court or judge shall make such order for the
safekeeping of the person imprisoned or restrained as
the nature of the case requires. If the person
imprisoned or restrained is not produced because of H. When Prisoner Discharged If No
his alleged sickness or infirmity, the court or judge Appeal
must be satisfied that it is so grave that such person
cannot be produced without danger, before
proceeding to hear and dispose of the matter. On the Sec. 15. When the court or judge has examined into
hearing the court or judge shall disregard matters of the cause of caption and restraint of the prisoner, and
form and technicalities in respect to any warrant or is satisfied that he is unlawfully imprisoned or
order of commitment of a court or officer authorized to restrained, he shall forthwith order his discharge from
commit by law. confinement, but such discharge shall not be effective
until a copy of the order has been served on the
Sec. 13. When the return evidence, and when only officer or person detaining the prisoner. If the officer
a plea. - If it appears that the prisoner is in custody or person detaining the prisoner does not desire to
under a warrant of commitment in pursuance of law, appeal, the prisoner shall be forthwith released.
the return shall be considered prima facie evidence of
the cause of restraint, but if he is restrained of his  BP 129 Sec. 39 states that appeals in
liberty by any alleged private authority, the return shall habeas corpus cases shall be 48 hours from
be considered only as a plea of the facts therein set notice of the judgment appealed from
forth, and the party claiming the custody must prove  Sec. 15 of Rule 102 provides the order for
such facts. the discharge of a prisoner shall be effective
only if the office detaining the prisoner does
 Failure of petitioners to file a reply to the not appeal
return of the writ warrants dismissal of the  in the case of Saulo v. Brig Gen Cruz
petition (2001), it was held that the 48 hours for
 In consonance with the rule that unless appeal is not only mandatory but also
the allegations in the return are jurisdictional – therefore the court has no
controverted, they are deemed true or alternative but to dismiss appeal filed out of
admitted time
 appeal to the SC if pure questions of law
while to the CA if it involves factual
questions (Medina v. Yan, 1974)
I. Penalties advance of any fees to which he is entitled by virtue of

the proceedings. When a person confined under color
of proceedings in a criminal case is discharged, the
Sec. 16. A clerk of a court who refuses to issue the costs shall be taxed against the Republic of the
writ after allowance thereof and demand therefor, or a Philippines, and paid out of its Treasury; when a
person to whom a writ is directed, who neglects or person in custody by virtue or under color of
refuses to obey or make return of the same according proceedings in a civil case is discharged, the costs
to the command thereof, or makes false return shall be taxed against him, or against the person who
thereof, or who, upon demand made by or on behalf signed the application for the writ, or both, as the
of the prisoner, refuses to deliver to the person court shall direct. 326
demanding, within six (6) hours after the demand
SPECIAL PROCEEDINGS
therefor, a true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved the II. Writ of Amparo
sum of one thousand pesos, to be recorded in a
proper action, and may also be punished by the court
or judge as for contempt. A. General Principles
 Literally means to protect
Sec. 17. Person discharged not to be again  Came originally from Mexico and evolved
imprisoned. - A person who is set at liberty upon a
into may forms
writ of habeas corpus shall not be again imprisoned
for the same offense unless by the lawful order or  Amparo libertad – for protection of
process of a court having jurisdiction of the cause or personal freedom
offense; and a person who knowingly, contrary to the  Amparo contra leyes – for judicial review
provisions of this rule, recommits or imprisons, or of the constitutionality of statutes
causes to be committed or imprisoned, for the same  Amaparo casacion – judicial review of
offense, or pretended offense, any person so set at constitutionality and legality of judicial
liberty, or knowingly aids or assists therein, shall decisions
forfeit to the party aggrieved the sum of one thousand
pesos, to be recovered in a proper action,  Amparo agrario – for protection of
notwithstanding any colorable pretense or variation in peasants’ rights
the warrant of commitment, and may also be  In the Philippines, the Constitution does not
punished by the court or judge granting the writ as for explicitly provide for the writ of amparo but
contempt. some protection are available therein (e.g.
grave abuse clause, judicial review)
 The state cannot reserve the power to re-  AM No 7-9-12-SC (Rules on the Writ of
arrest a person for an offense after a court Amparo) was promulgated by the Supreme
of competent jurisdiction has absolved him Court by virtue of the 1987 Constitution
of the offense. stating that the SC has the power to
“[p]romulgate rules concerning the
Sec. 18. When prisoner may be removed from one protection and enforcement of constitutional
custody to another. - A person committed to prison, rights…” (Art VIII Sec. 5).
or in custody of an officer, for any criminal matter,  Interpreted as the additional power to
shall not be removed therefrom into the custody of
promulgate rules to protect and enforce
another unless by legal process, or the prisoner be
delivered to an inferior officer to carry to jail, or, by
rights guaranteed by the fundamental
order of the proper court or judge, be removed from law of the land.
one place to another within the Philippines for trial, or
in case of fire epidemic, insurrection, or other Sec. 1 The petition for a writ of amparo is a remedy
necessity or public calamity; and a person who, after available to any person whose right to life, liberty and
such commitment, makes signs, or counter-signs any security is violated or threatened with violation by an
order for such removal contrary to this section, shall unlawful act or omission of a public official or
forfeit to the party aggrieved the sum of one thousand employee, or of a private individual or entity.
pesos, to be recovered in a proper action. The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
Enumerates the constitutional rights

J. Record of Writ, Fees and Costs
protected by the writ, which is only the
right to life, liberty and security of
Sec. 19. The proceedings upon a writ of habeas persons
corpus shall be recorded by the clerk of the court, and  Limits the coverage because other
upon the final disposition of such proceedings the
court or judge shall make such order as to costs as
constitutional rights are already
the case requires. The fees of officers and witnesses protected through different remedies
shall be included in the costs taxed, but no officer or  However, the coverage is still broader
person shall have the right to demand payment in compared to other jurisdictions
 Philippine writ covers both actual and by an authorized party on behalf of the aggrieved
threatened violations of constitutional party suspends the right of all others, observing the
rights order established herein.
 Covers not only the public but also
private individual and entities  This provides for the order which must be
 Covers followed by those who can sue for the writ
extralegal killings (killings committed  Necessary for the prevention of
without due process of law) and indiscriminate and groundless filing of
 enforced disappearances (Sec. of National petitions for amparo which may even 327
Defense v. Manalo 2008), the elements of prejudice the right to life, liberty or
SPECIAL PROCEEDINGS
which are: security of the aggrieved party
 An arrest, detention or abduction of a  Untimely resort to the writ by a
person by a government official or nonmember of the family may endanger
organized groups or private individuals the life of the aggrieved party
acting with the direct or indirect  If authorized by (a) or (b), (c) may file
acquiescence of the government
 The refusal of the State to disclose the Sec. 3 Where to File. – The petition may be filed on
any day and at any time with the Regional Trial Court
fate or whereabouts of the person
of the place where the threat act or omission was
concerned or a refusal to acknowledge committed or any of its element s occurred, or with
the deprivation of liberty which places the Sandiganbayan, the CA, the SC, or any justice of
such persons outside the protection of such courts. The writ shall be enforceable anywhere
law in the Philippines.
 “right to security” as a guarantee of When issued by a RTC or any judge thereof the writ
protection by the government, is violated by shall be returnable before such court or judge.
the apparent threat to the life, liberty and When issued by the Sandiganbayan or the CA or any
security of their person. of their justices, it may be returnable before such
court or any justice thereof, or to any Regional Trial
Court of the place where the threat, act or omission
In Sec. of Justice v. Manalo (supra), it was held that was committed or any of its elements occurred.
even if the respondents have escaped from captivity When issued by the SC or any of its justices, it may
and are physically free, there is a continuing violation be returnable before such Court or a justice thereof,
of their right to security because there is a violation of or before the Sandiganbayan or the C or any of their
freedom from threat by the apparent threat to life, justices, or to any RTC of the place where the threat,
liberty and security of their person from the following act or omission was committed or any of its elements
facts: occurred.
 Threat of killing their families if they tried to
escape
 Failure of the military to protect them from  May be filed o any day, including Saturdays,
abduction Sundays, and holidays; from morning until
 Failure of the military to conduct effective evening
investigation  Includes Sandiganbayan, unlike the writ of
habeas corpus, because public officials and
employees will be respondents in amparo
B. Aspects of Filing petitions
Section 4 No Docket Fees. – The petitioner shall be

Sec. 2 Who may File. The petition may be filed by exempted from the payment of the docket and other
the aggrieved party or by any qualified person or lawful fees when filing the petition. The court, justice,
entity in the following order: or judge shall docket the petition and act upon it
(a) Any member of the immediate family namely: the immediately.
spouse, children and parents of the aggrieved
party; Section 5 Contents of the Petition. – The petition
(b) Any ascendant, descendant or collateral relative shall be signed and verified and shall allege the
of the aggrieved party within the fourth civil following:
degree of consanguinity or affinity, in default of (a) The personal circumstances of the petitioner;
those mentioned in the preceding paragraph; or (b) The name and personal circumstances of the
(c) Any concerned citizen, organization, association respondent responsible for the threat, actor
or institution if there is no known member of the omission or if the name is unknown or uncertain,
immediate family or relative of the aggrieved the respondent may be described by an assumed
party. appellation;
The filing of a petition by the aggrieved party (c) The right to life, liberty and security of the
suspends the right of all other authorized parties to aggrieved party violated or threatened with
file similar petitions. Likewise, the filing of the petition violation by an unlawful act or omission of the
respondent, and how such threat or violation is been or will still be taken[...].
committed with the attendant circumstances The return shall also state matters relevant to the
detailed in supporting affidavits; investigation, its resolution and the prosecution of the
(d) The investigation conducted, if any, specifying case.
the names, the personal circumstances and A general denial of the allegations in the petition shall
addresses of the investigating authority or not be allowed.
individuals, as well as the manner and conduct
of the investigation, together with any report;  No general denials are allowed, unlike the
(e) The actions and recourses taken by the petitioner writ of habeas corpus
to determine the fate or whereabouts of the
 Sec.3 points out the institutions where the 328
aggrieved party and the identity of the person
writ are returnable
SPECIAL PROCEEDINGS
responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other Section 10 Defenses not pleaded deemed waived.
just and equitable reliefs. – All defenses shall be raised in the return, otherwise,
they shall be deemed waived.
Section 12 Effect of failure to file return. – In case

C. Issuance and Service the respondent fails to file a return, the court, justice
or judge shall proceed to hear the petition ex parte.
Sec. 6. Issuance of the Writ. – Upon the filing of the
petition, the court justice or judge shall immediately
order the issuance of the writ if on its face it ought to E. Hearing on the Writ
issue. The clerk of court shall issue the writ under the
seal of the court; or in case of urgent necessity, the
justice or the judge may issue the writ in his or her Section 11 Prohibited pleadings and motions. –
own hand, and may deputize any officer or person to The following pleadings and motions are prohibited:
serve it. a. Motion to dismiss;
The writ shall also set the date and time for summary b. Motion for extension of time to file return,
hearing of the petition which shall not be later than opposition, affidavit, position paper and other
seven (7) days from the date of its issuance. pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
 Writ is issued as a matter of course when on
e. Counterclaim or cross-claim;
the face of the petition it ought to issue f. Third-party complaint;
g. Reply;
Sec. 8 How the Writ is Served. – The writ shall be h. Motion to declare respondent in default;
served upon the respondent by a judicial officer or by i. Intervention;
a person deputized by the court, justice or judge who j. Memorandum’
shall retain a copy on which to make a return of k. Motion for reconsideration of interlocutory orders
service. In case the writ cannot be served personally or interim relief orders; and
on the respondent, the rules in substituted service l. Petition for certiorari, mandamus or prohibition
shall apply. against any interlocutory order.
 Allows motion for new trial and petition for

D. Aspects of Return relief from judgment
Section 13 Summary Hearing. – The heating on the

Sec. 9 Return; Contents. – Within seventy-two (72) petition shall be summary. However, the court,
hours after service of the writ, the respondent shall file justice, or judge may call for a preliminary conference
a verified written return together with supporting to simplify the issues and determine the possibility of
affidavits which shall, among other things, contain the obtaining stipulations and admissions from the
following: parties.
(a) The lawful defenses to show that the respondent
did not violate or threaten with violation the right
to life, liberty and security of the aggrieved party,
through any act or omission; F. Allowable Reliefs
(b) The steps or actions taken by the respondent to
determine the fate or whereabouts of the
Section 14 Interim Reliefs. – Upon filing of the
aggrieved party and the person responsible for
petition or at any time before final judgment, the court,
the threat, act or omission;
justice, or judge may grant any of the following reliefs:
(c) All relevant information in the possession of the
(a) Temporary Protection Order. – The court,
respondent pertaining to the threat, act or
justice or judge, upon motion or motu propio, may
omission against the aggrieved party; and
order that the petitioner or the aggrieved party
(d) If the respondent is a public official or employee
and any member of the immediate family be
the return shall further state the actions that have
protected in a government agency or by an control of any designated documents, papers,

accredited person or private institution capable books, accounts, letters, photographs, objects or
of keeping and securing their safety. If the tangible things, or objects in digitized or
petitioner is an organization, association or electronic form which constitute or contain
institution referred to in Section 3(c) of this Rule, evidence relevant to the petition or the return, to
the protection may ne extended to the officers produce and permit their inspection, copying or
concerned. photographing by or on behalf of the movant.
The SC shall accredit the persons and The motion may be opposed on the ground
private institutions that shall extend temporary of national security or of the privileged nature of
protection to the petitioner or aggrieved party and the information, in which case the court, justice or 329
any member of the immediate family, in judge may conduct a hearing in chambers to
SPECIAL PROCEEDINGS
accordance to the guidelines which it shall issue. determine the merit of the opposition.
The accredited persons and private persons The court, justice or judge shall prescribe
and private institutions shall comply with the rules other conditions to protect the constitutional
and conditions that may be imposed by the court, rights of all the parties.
justice or judge.
 Only granted upon motion and hearing
 Different from the inspection and production  Not the same as search warrant for law
order in that the temporary protection order enforcement under Art. III, Sec. 2 of the
and the witness protection order do not need Constitution since the latter is a protection of
a verification and may be issued motu the people from unreasonable intrusion of
proprio or ex parte the government, not a protection of the
government from the demand of the people
(b) Inspection Order. – The court, justice or judge such as respondents
upon verified motion and after due hearing may  More similar to production of documents or
order any person in possession or control of a things under Sec. 1 Rule 27 of Rules of Civil
designated land or other property, to permit entry
Procedure
for the purpose of inspecting, measuring,
surveying, or photographing the property or any
(d) Witness Protection Order. – The court, justice
relevant object or operation thereon.
or judge, upon motion or motu propio, may refer
The motion shall state in detail the place or
the witnesses to the Department of Justice for
places to be inspected. It shall be supported by
admission to the Witness Protection, Security
affidavits or testimonies of witnesses having
and Benefit Program, pursuant to Republic Act
personal knowledge of the enforced
No. 6981.
disappearances or whereabouts of the aggrieved
The court, justice or judge may also refer the
party.
witnesses to other government agencies, or to
If the motion is opposed on the ground of
accredited persons or private institutions capable
national security or of the privileged nature of the
of keeping and securing their safety.
information, the court, justice or judge may
conduct a hearing in chambers to determine the
Section 15 Availability of Interim Reliefs to
merit of the opposition.
Respondent. – Upon verified motion of the
The movant must show that the inspection
respondent and after due heating, the court, justice or
order is necessary to establish the right of the
judge may issue an inspection order or production
aggrieved party alleged to be threatened or
order under paragraphs (b) and (c) of the preceding
violated.
section.
The inspection order shall specify the person
A motion for inspection order under this section shall
or persons authorized to make the inspection and
be supported by affidavits or testimonies of witnesses
the date, time, place and manner of making the
having personal knowledge of the defenses of the
inspection and may prescribe other conditions to
respondent.
protect the constitutional rights of all parties. The
order shall expire five (5) days after the day of its
issuance, unless extended for justifiable reasons.
G. Penalties
 Requires hearing, may be availed of both
the petitioner and the respondent Sec. 7 Panalty for Refusing to Issue or Serve the
 If the court, justice or judge gravely abuses Writ. – A clerk of court who refuses to issue the writ
his or her discretion in issuing the inspection after its allowance or a deputized person who refuses
order, the aggrieved party is not precluded to serve the same, shall be punished by the court,
from filing a petition for certiorari with the justice or judge for contempt without prejudice to
Supreme Court other disciplinary actions.
(c) Production Order. – The court, justice or judge,  Amparo proceedings enjoy priority and
upon verified motion and after due hearing may cannot be delayed
order any person in possession, custody or
Sec. 16 Contempt. – The court, justice or judge may  Rule 45 appeal herein is different because it
order the respondent who refuses to make a return, or allows questions not only of law but also of
who makes a false return, or any person who fact to be raised
otherwise disobeys or resists a lawful process or  Amparo proceedings essentially involves a
order of the court, to be punished for contempt. The
determination of facts considering that its
contemnor may be imprisoned or imposed a fine.
subject is extralegal killings or enforced
disappearances, therefore a review of errors
of fact should be allowed
H. Burden of Proof  Disposition of appeals shall be prioritized 330
like habeas corpus cases
SPECIAL PROCEEDINGS
Sec. 17 Burden of and Standard of Diligence
Required. – The parties shall establish their claims by Section 20 Archiving and Revival of Cases. – The
substantial evidence. court shall not dismiss the petition, but shall archive it,
if upon its determination it cannot proceed for a valid
The respondent who is a private individual or entity cause such as the failure of petitioner or witnesses to
must prove that ordinary diligence as required by appear due to threats on their lives.
applicable laws, rules and regulations was observed A periodic review of the archived cases shall be
in the performance of duty. made by the amparo court that shall, motu propio or
upon motion by any party, order their revival when
The respondent who is a public official or employee ready for further proceedings. The petition shall be
must prove that extraordinary diligence as required as dismissed with prejudice, upon failure to prosecute
required by the applicable laws, rules and regulations the case after the lapse of two (2) years from notice to
was observed in the performance of duty. the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of
The respondent public official or employee cannot the Court Administrator a consolidated list of archived
invoke the presumption that official duty has been cases under this Rule, not later than the first week of
regularly performed to evade responsibility or liability. January every year.
 Sec. of Justice v. Manalo (supra) states that  This is a liberalized rule on dismissal due to
with the secret nature of an enforced failure to prosecute
disappearance and the torture perpetrated  If the petitioner cannot proceed to prove
on the victim during detention, it logically their allegations for justifiable reason, the
holds that much of the information and court will not dismiss the petition but will
evidence of the ordeal will come from the archive it
victims themselves  Parties will be notified before the archiving,
 Their statements can be corroborated by as the reason has to be justified by a good
other evidence such as physical evidence reason, to be determined after hearing
left by the torture or landmarks where  Two years is reckoned from the date of
detained. notice
I. Judgment and Appeal J. Effects of Other Actions
Sec. 18 Judgment. – The court shall render Section 21 Institution of Separate Actions. – This
judgment within ten (10) days from the time the Rule shall not preclude the filing of separate criminal,
petition is submitted for decision. If the allegations in civil or administrative actions.
the petition are proven by substantial evidence the
court shall grant the privilege of the writ and such  The writ of amparo does not suspend the
reliefs as may be proper and appropriate; otherwise, filing of criminal, civil or administrative
the privilege shall be denied. actions
 Claim for damages should instead file in a
 Short period is demanded by the claim in a proper civil action
extraordinary nature of the writ.  If evidence so warrants, the amparo court
may refer the case to the Department of
Sec. 19 Appeal. – Any party may appeal from the
Justice for criminal prosecution,
final judgment or order to the SC under Rule 45. The
appeal may raise questions of fact or law or both.  because amparo proceeding is not
The period of appeal shall be five (5) working days criminal in nature and will not determine
from the date of notice of the adverse judgment. the criminal guilt of the respondent.
The appeal shall be given the same priority as habeas
corpus cases. Section 22. Effect of Filing of a Criminal Action. –
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The reliefs (c) Any concerned citizen, organization, association
under the writ shall be available by motion in a or institution if there is no known member of the
criminal case. immediate family or relative of the aggrieved
The procedure under this Rule shall govern the party.
disposition of the reliefs available under the writ of The filing of a petition by the aggrieved party
amparo. suspends the right of all other authorized parties to
file similar petitions. Likewise, the filing of the petition
Section 23 Consolidation. – When a criminal action by an authorized party on behalf of the aggrieved
is filed subsequent to the filing of a petition for the party suspends the right of all others, observing the
writ, the latter shall be consolidated with the criminal order established herein 331
action. After consolidation, the procedure under this Sec. 3 Where to File. – The petition may be filed
SPECIAL PROCEEDINGS
Rule shall continue to apply to the disposition of the with the RTC where the petitioner or respondent
reliefs on the petition. resides, or that which has jurisdiction over the place
where the data or information is gathered, collected or
 This Rule shall continue to govern the stored, at the option of the petitioner.
disposition of the reliefs for amparo after
consolidation. The petition may also be filed with the SC or CA or
the Sandiganbayan when the action concerns public
data files of the government offices.
K. Other Matters Sec. 5 Docket Fees. – No docket and other lawful

fees shall be required from an indigent petitioner. The
petition of the indigent shall be docked and acted
Section 24 Substantive Rights. – This Rule shall not
upon immediately without prejudice to subsequent
diminish, increase or modify substantive rights
submission of proof of indigency not later than fifteen
recognized and protected by the Constitution.
(15) days from the filing of the petition.
Sec. 6 Petition. – A certified written petition for a writ
Section 25 Suppletory Application of the Rules of
of habeas data should contain:
Court. – The Rules of Court shall apply suppletorily
(a) The personal circumstances of the petitioner and
insofar as it is not inconsistent with this Rule.
the respondent;
(b) The manner the right to privacy is violated or
Section 26 Applicability to Pending Cases. – This
threatened and how it affects the right to life,
Rule shall govern cases involving extralegal killings
liberty or security of the aggrieved party;
enforced disappearances or threats thereof pending
(c) The actions and recourses taken by the petitioner
in the trial and appellate courts.
to secure the data or information;
(d) The location of the files, register or databases,
the government office, and the person in charge,
III. Writ of Habeas Data in possession or in control of the data or
information, if known;
(e) The reliefs prayed form which may include the
A. General Principles updating, rectification, suppression or destruction
of the database or information or files kept by the
respondent. In case of threats, the relief may
Sec. 1 Habeas Data. – The writ of habeas data is a
include a prayer for an order enjoining the act
remedy available to any person whose right to privacy
complained of; and
in life, liberty or security is violated or threatened by
(f) Such other relevant reliefs as are just and
an unlawful act or omission of a public official or
equitable.
employee, or of a private individual or entity or
information regarding the person, family, home and
correspondence of the aggrieved party.
C. Issuance and Service
B. Aspects of Filing Sec. 7 Issuance of the Writ. - Upon the filing of the
petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought to
Sec. 2 Who May File. – Any aggrieved party may file
issue. The clerk of court shall issue the writ under the
a petition for the writ of habeas data. However, in
seal of the court and cause it to be served within three
cases of extralegal killings and enforced
(3) days from the issuance; or, in case of urgent
disappearance, the petition may be filed by:
necessity, the justice or judge may issue the writ
(a) Any member of the immediate family of the
under his or her own hand and may deputize any
aggrieved party, namely: the spouse, children
officer or person serve it.
and patents; or
The writ shall also set the date and time for summary
(b) Any ascendant, descendant or collateral relative
hearing of the petition which shall not be later than ten
of the aggrieved party within the fourth civil
(10) work days from the date of its issuance.
degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph; or
Sec. 9 How the Writ is Served. – The writ shall be shall compromise national security or state secrets, or
served upon the respondent by a judicial officer or by when the data or information cannot be divulged to
a person deputized by the court, justice or judge who the public due to its nature or privileged character.
shall retain a copy on which to make a return of
service. In case the writ cannot be served personally Sec. 13 Prohibited Pleadings and Motions. – The
on the respondent, the rules substituted service shall following pleadings and motions are prohibited:
apply. (a) Motion to dismiss;
(b) Motion for extension of time to file return,
opposition affidavit, position paper and other
D. Aspects of Return pleadings; 332
(c) Dilatory motion for a bill of particulars;
SPECIAL PROCEEDINGS
(d) Motion for a bill of particulars;
Sec. 4 Where Returnable; Enforceable. – When the (e) Counterclaim or cross-claim;
writ is issued by a RTC or any judge thereof, it shall (f) Third-party complaint;
be returnable before such court or judge. (g) Reply;
When issued by the CA or the SB or any of its (h) Motion to declare respondent in default;
justices, it may be returnable before such court or any (i) Intervention;
justice thereof, or to any RTC of the place where the (j) Memorandum;
petitioner or respondent resides, or that which has (k) Motion for reconsideration of interlocutory orders
jurisdiction over the place where the data or or interim relief orders; and
information is gathered, collected or stored. (l) Petition for certiorari, mandamus or prohibition
When issued by the SC or any of its justices, it may against any interlocutory order.
be returnable before such Court or any justice thereof,
or before the CA or the SB or any of its justices, or to Sec. 14 Summary Hearing. – The hearing on the
any RTC of the place where the petitioner or petition shall be summary. However, the court, justice
respondent resides, or that which has jurisdiction over or judge may call for a preliminary conference to
the place where the data or information is gathered, simplify the issues and determine the possibility of
collected or stored. obtaining stipulations and admissions from the
The writ of habeas data shall be enforceable parties.
anywhere in the Philippines.
Sec. 10 Return; Contents. – The respondent shall

file a verified written return together with supporting
F. Penalties
affidavits within five (5) working days from service of
the writ, which period may be reasonably extended by Sec. 8 Penalty for Refusing to Issue or Serve the
the Court for justifiable reasons. The return shall, Writ. – A clerk of court who refuses to the writ after its
among other things, contain the following: allowance , or a deputized person who refuses to
(a) The lawful defenses such as national security, serve the same, shall be punished by the court,
state secrets, privileged communications, justice or judge for contempt without prejudice to
confidentiality of the source of information of other disciplinary actions.
media and others;
(b) In case if respondent in charge, in possession or Sec. 11 Contempt. – The court, justice or judge may
in control of the data or information sunject of the punish with imprisonment or fine a respondent who
petition; commits contempt by making a false return, or
(i) A disclosure of the data or information about refusing to make a return; or any person who
the petitioner, the nature of such data or otherwise disobeys or resist a lawful process or order
information, and the purpose for its of the court.
collection;
(ii) The steps or actions taken by the Sec. 14 Return; Filing. – In case the respondent
respondent to ensure the security and fails to file a return, the court, justice or judge shall
confidentiality of the data or information; and proceed to hear the petition ex parte, granting the
(iii) The currency and accuracy of the data or petitioner such relief as the petition may warrant
information held; and, unless the court in its discretion requires the petitioner
(c) Other allegations relevant to the resolution of the to submit evidence.
proceedings. A general denial of the allegations
in the petition shall not be allowed.
G. Judgment and Appeal
E. Hearing on the Writ Sec, 16 Judgment. – The court shall render
judgment within ten (10) days from the time the
Sec. 12 When Defenses May be Heard in petition is submitted for decision. If the allegations in
Chambers. – A hearing in chambers may be the petition are proven by substantial evidence, the
conducted where the respondent invokes the defense court shall enjoin the act complained of, or order the
that the release of the data or information in question deletion, destruction, or rectification of the erroneous
data or information and grant other relevant reliefs as
may be just and equitable; otherwise, the privilege of disposition of the reliefs available under the writ of
the writ shall be denied. habeas data.
Upon its finality, the judgment shall be enforced by
the sheriff or any lawful officers as may be designated
by the court, justice or judge within five (5) working
days.
J. Other Matters
Sec. 19 Appeal. – Any party may appeal from the
final judgment or order to the Supreme Court under Sec. 24 Suppletory Application of the Rules of
Rule 45. The appeal may raise questions of fact or Court. – The Rules of Court shall apply suppletorily
law or both. insofar as it is not inconsistent with this Rule. 333
The period of appeal shall be five (5) working days
SPECIAL PROCEEDINGS
from the date of notice of the judgment or final order.
The appeal shall be given the same priority as in
habeas corpus and amparo cases.
Sec. 15 Return of Service. – The officer who

executed the final judgment shall, within three (3)
days from its enforcement, make a verified return to
the court. The return shall contain a fill statement of
the proceedings under the writ and a complete
inventory of the database or information, or
documents and articles inspected, updated, rectified,
or deleted with copies served on the petitioner and
the respondent.
The officer shall state in the return how the judgment
was enforced and complied with by the respondent,
as well as all objections of the parties regarding the
manner and regularity of the service of the writ.
H. Return of Judgment, Hearing

Thereon
Sec. 18 Hearing on Officer’s Return. - The court

shall set the return for hearing with due notice to the
parties and act accordingly.
I. Effects of Other Actions
Sec. 20 Institution of Separate Actions. – The filing

of a petition for the writ of habeas data shall not
preclude the filing of separate criminal, civil or
administrative actions.
Sec. 21 Consolidation. – When a criminal action is

filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal
action.
When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the
criminal action.
After consolidation, the procedure under this Rule
shall continue to govern the disposition of the reliefs
in the petition.
Sec. 22 Effect of Filing of a Criminal Action. –

When a criminal action has been commenced, no
separate petition for the writ shall be filed. The relief
under the writ shall be available to an aggrieved party
by motion in a criminal case.
The procedure under this Rule shall govern the
IV. Writ Matrix
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 334

Nature, scope, All cases of illegal Involves right to life, liberty Involves the right to privacy in
SPECIAL PROCEEDINGS
function confinement and detention and security violated or life, liberty or security of the
which any person is deprived threatened with violation by an aggrieved party and covers
of his liberty; or rightful unlawful act or omission of a extralegal killings and
custody of any person is public official or employee or a enforced disappearances
withheld from the person private individual or entity
entitled (102.1) It covers extralegal killings and
 Actual violation before writ enforced disappearances or
issues. Note Villavicencio threats thereof.
v. Lukban on applicability
of the writ in case of
constructive restraint
Limitations May be suspended in cases of Shall not diminish, increase or Shall not diminish, increase or
invasion or rebellion when modify substantive rights modify substantive rights
public safety requires it (RWA Sec. 23) (RWD Sec. 23)
(Consti. Art. III Sec. 15)
Who may file By a petition signed and Petition filed by the aggrieved Any aggrieved party may file a
verified by the party for whose party or by any qualified petition for the WHD
relief it is intended, or by some person or entity in the - However, in cases of
person on his behalf (102.3) following order: extralegal killings and
a) Any member of the enforced disappearances,
immediate family the petition may be filed by
b) Any ascendant, descendant (also successive):
or collateral relative of the a) Any member of the
th
aggrieved within the 4 civil immediate family of
degree of consanguinity or the aggrieved
affinity b) Any ascendant,
c) Any concerned citizen, descendant or
organization, association or collateral relative of
institution the aggrieved party
Filing by the aggrieved within the fourth civil
suspends the right of all others degree of
(RWA Sec. 2 ) consanguinity or
affinity, (RWD Sec. 2)
Where filed Granted by: Filed on any day and at any Petition may be filed with RTC
 SC or any member thereof, time: where the petitioner or
on any day and at any time  SB, CA, SC, or any justice respondent resides or that
 CA or any member thereof of such courts which has jurisdiction over the
in instances authorized by  RTC of place where the place where the data or
law threat, act, or omission was information is gathered,
 RTC or a judge thereof, on committed or any element collected or stored, at the
any day and at any time, occurred (RWA Sec. 4) option of petitioner
enforceable only within his If public data files of
judicial district (102.2) government offices, petition
 MTC OR FIRST LEVEL shall be filed with the SC, CA,
COURTS in the absence of or SB (RWD Sec. 3)
RTC judges in a judicial
region (section 35 BP 129)
Habeas Corpus Amparo Habeas Data

Where If SC or CA issued, anywhere Writ shall be enforceable Writ shall be enforceable
enforceable in the Philippines anywhere in the Philippines anywhere in the Philippines
(RWA Sec. 4) (RWD Sec. 3)
If granted by the RTC or judge
thereof, it is enforceable in any
part of the judicial region
(Section 21, BP 129 which
modified the term judicial
district in Section 2, Rule 102 335
into judicial region) where the
SPECIAL PROCEEDINGS
judge sits
Where If the one that granted the writ: If the one that granted the writ: If issued by:
returnable - Is the SC or CA, or a - Is the SC or any of its - The SC or any of its
member thereof, justices, before such court justices, before such Court
returnable before such or any justice thereof, or or any justice thereof, or
court or any member before the SB or CA or any CA or SB or any of its
thereof or an RTC of their justices, or to any justices, or the RTC of the
- An RTC, or a judge RTC of the place where the place where the petitioner
thereof, returnable before threat, act or omission was or respondent resides / has
himself (102.2) committed or any of its jurisdiction over the place
elements occurred where the data or
- The SB or CA or any of information is gathered,
their justices, before such stored or collected
court or any justice thereof, - The CA or SB or any of its
or to any RTC of the place justices, before such court
where the threat, act, or or any justice thereof, or
omission was committed or the RTC (same with
any of its elements occurred scenario: SC issued and
(RWA Sec. 3) then returned in RTC)
- RTC, returnable before
such court or judge (RWD
Sec. 4)
Docket Fees upon the final disposition of Petitioner shall be exempted None for indigent petitioner
such proceedings the court or from the payment of the Petition shall be docketed and
judge shall make such order docket and other lawful fees acted upon immediately, w/o
as to costs as the case - Court, justice or judge shall prejudice to subsequent
requires (102.19) docket the petition and act submission of proof of
upon it immediately (RWA indigency not later than 15
Sec 4) days from filing (RWD Sec. 5)
Essential Signed and verified either by Signed and verified and shall Verified and written petition
allegations/ the party for whose relief it is allege: shall contain:
Contents of intended or by some person a) The personal circumstances a) Personal circumstances of
petition on his behalf, setting forth: of the petitioner petitioner and respondent
a) The person in whose b) Name or appellation and b) Manner the right to privacy
behalf whose the circumstances of the is violated or threatened
application is made is respondent and its effects
imprisoned or restrained of c) The right to life, liberty, and c) Actions and recourses
his liberty security violated or taken by the petitioner to
b) Name of the person threatened with violation, secure the data or
detaining another or d) The investigation information
assumed appellation conducted, if any, plus d) The location of the files,
c) Place where he is circumstances of each registers, or databases, the
imprisoned or restrained of e) The actions and recourses government office, and the
his liberty taken by the petitioner person in charge or control
d) Cause of detention (102.3) f) Relief prayed for e) The reliefs prayed for
May include a general prayer Such other relevant reliefs as

for other just and equitable are just and equitable
reliefs (RWA Sec. 5) (RWD Sec. 6)

When proper Court or judge must, when a Upon the filing of the petition, Upon filing of the petition, the
petition is presented and it the court, justice, or judge court, justice, or judge shall
appears that it ought to issue, shall immediately order the immediately order the
grant the same and then: issuance of the writ if on its issuance of the writ if on its
 the clerk of court (CoC) face it ought to issue face it ought to issue.
shall issue the writ under  CoC shall issue the writ  CIC shall issue the writ
the seal of the court; or under the seal of the court; under the seal of the court
 in case of emergency, the or and cause it to be served
judge may issue the writ  In case of urgent necessity, within 3 days from issuance; 336
under his own hand, and the justice or the judge may or
SPECIAL PROCEEDINGS
may depute any officer or issue the writ under his or  In case of urgent necessity,
person to serve it (102.5) her own hand, and may the justice or judge may
deputize any officer or issue the writ under his or
Also proper to be issued when person to serve it her own hand, and may
the court or judge has deputize any officer or
examined into the cause of person to serve it (RWD
restraint of the prisoner, and Sec. 7)
is satisfied that he is
unlawfully imprisoned (102.5)
How and who Writ may be served in any The writ shall be served upon The writ shall be served upon
serves province by the (a) sheriff, (b) the respondent by a judicial the respondent by a judicial
other proper officer, or (c) or officer or by a person officer or by a person
person deputed by the court or deputized by the court, justice deputized by the court, justice
judge or judge who shall retain a or judge who shall retain a
Service is made by leaving the copy on which to make a copy on which to make a
original with the person to return of service return of service
whom it is directed and  In case the writ cannot be In case the writ cannot be
preserving a copy on which to served personally on the served personally on the
make return of service respondent, the rules on respondent, the rules on
 If that person cannot be substituted service shall substituted service shall apply
found, or has not the apply (RWA Sec. 8) (RWD Sec. 9)
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
(102.7)
Respondent May or may not be an officer Respondent is a public official A public official or employee or
or employee or private a private individual or entity
individual or entity engaged in gathering,
collecting or storing data
How executed The officer to whom the writ is Respondent files the return Respondent files the return
and returned directed shall convey the
person so imprisoned or
restrained before:
- the judge allowing the writ,
- or, in his absence or
disability, before some other
judge of the same court
on the day specified in the

writ,
 unless person directed to be
produced is sick or infirm,
and cannot, without 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 (102.8)
When to file On the day specified on the Within 5 working days after Same with WA
return writ service of the writ

Contents of When the person to be Within 5 working days after a) Lawful defenses such as
return produced is imprisoned or service of the writ, the national security, state
restrained by an officer the respondent shall file a verified secrets, privileged
person who makes the return written return together with communications,
shall state, and in other cases supporting affidavits which confidentiality of the source
the person in whose custody shall, , contain: of information of media etc.
the prisoner is found shall a) Lawful defenses b) In case of respondent in
state in writing to the court or b) The steps or actions taken charge, in possession or in
judge before whom the writ is to determine the fate or control of the data or 337
returnable: whereabouts of the information subject of the
SPECIAL PROCEEDINGS
a) Truth of custody/power aggrieved party petition:
over the aggrieved c) All relevant information in i. A disclosure of the data
b) If has custody or power, or the possession of the or information about the
under restraint, the respondent pertaining to the petitioner, the nature of
authority and the cause threat, act or omission such data or
thereof, with a copy of the against the aggrieved party information, and the
writ, order, execution or d) If the respondent is a public purpose for its collection
other process, if any upon official or employee, the ii. The steps or actions
which the party is held; return shall further state taken by the respondent
c) If the party is in his custody acts: to ensure the security
or power, and is not i. To verify identity of and confidentiality of
produced, particularly the aggrieved party the data or information
nature and gravity of the ii. To recover and preserve iii. The currency and
sickness or infirmity evidence accuracy of the data or
d) If he has had the party in iii. To identify and collect information held
his custody or power, and witness statements Other allegations relevant to
has transferred such iv. To determine cause, the resolution of the
custody or restraint to manner, location, and proceeding (RWD Sec.10)
another, particularly to time of death or
whom, at what time, for disappearance
what cause, and by what v. To identify and
authority such transfer was apprehend persons
made. (102.10) involved
vi. Bring suspected
offenders before a
competent court (RWA
Sec.9)
Formalities of Return or statement shall be … the respondent shall file a Respondent shall file a verified
return signed and sworn to by the verified written return together written return together with
person who makes it if the with supporting affidavits… supporting … (RWD Sec. 10)
prisoner is not produced, (RWA Sec. 9)
 Unless the return is made
and signed by a sworn
public officer in his official
capacity (102.11)

Penalties  CoC who refuses to issue  CoC who refuses to issue  COC who refuses to issue
the writ after allowance and the writ after its allowance, the writ after its allowance,
For refusing to demand, or or
issue or serve  Or a person to whom a writ  a deputized person who  a deputized person who
is directed, who: refuses to serve the same, refuses to serve the same,
 neglects/refuses to obey
or make return of the shall be punished by the court, shall be punished by the court,
same according to the justice or judge for contempt justice, or judge for contempt
command thereof, without prejudice to other without prejudice to other 338
 or makes false return, disciplinary actions (RWA Sec. disciplinary actions (RWD
SPECIAL PROCEEDINGS
For faulty  or upon demand made by 7) Sec. 8)
return or on behalf of the
prisoner, refuses to  The court, justice, or judge The court, justice, or judge
deliver to the person may order the respondent may punish with imprisonment
demanding, within 6 hours who refuses to make a or fine a respondent who
a true copy of the warrant return, or who makes a commits contempt by:
or order of commitment, false return, or any person  Making a false return or
who otherwise disobeys or  Refusing to make a return;
shall forfeit to the party resist a lawful process or or
aggrieved the sum of P1000, order of the court to be  Any person who otherwise
recoverable in a proper action, punished for contempt disobeys or resists a lawful
and may also be punished for  Contemnor may be process or order of the court
contempt (102.16) imprisoned or imposed a (RWD Sec. 11)
fine (RWA Sec. 16)
Is period of No, not even on highly Yes, by the court, for
return meritorious grounds. justifiable reasons (RWD Sec.
extendable? 10)
Is a general Yes. No prohibition in Rule. No, by virtue if A.M. No. 07-9- No, by virtue of RWD Sec. 10,
denial 12-SC last sentence.
allowed?
Defenses not If not raised in return deemed
pleaded waived (RWA Sec 10)
Effect of Court or justice shall proceed Court, judge, or justice shall
failure to file to hear the petition ex parte hear the motion ex parte,
return (RWA Sec. 12) granting the petitioner such
reliefs as the petition may
warrant
Unless the court in its
discretion requires the
petitioner to submit evidence
(RWD Sec. 14)
Nature of Summary. However, the Summary. With possibility of
Hearing court, justice, or judge may preliminary conference similar
call for a preliminary to the writ of amparo (RWD
conference to simplify the Sec. 14)
issues and look at possibility Hearing on chambers may be
of obtaining stipulations and conducted where respondent
admissions from the parties. invokes the defense of
 Hearing shall be from day national security or state
to day until completed; secrets, or the data is of public
same priority as petitions or privileged character (RWD
for WHC Sec. 12)
Date and time As specified in the writ Not later than 7 days from the Not later than 10 working days
of hearing issuance of the writ from the date of issuance writ

Prohibited Motion to dismiss, Motion for Same as writ of amparo (RWD
pleadings extension of time to file Sec. 13)
opposition, affidavit, position
paper and other pleadings,
Dilatory motion for
postponement, Motion for bill
of particulars, Counterclaims
or cross-claims, Third-party
complaint, Reply, Motion to 339
declare respondent in default,
SPECIAL PROCEEDINGS
Intervention, Memorandum,
Motion for reconsideration of
interlocutory orders or interim
relief orders, petition for
certiorari, mandamus, or
prohibition (RWA Sec.11)
Burden of Preponderance of evidence Establish claims by substantial Substantial evidence required
Proof evidence to prove the allegations in the
 if respondent is a private petition (RWD Sec. 16)
individual or entity, ordinary
diligence
 if public official or
employee, extraordinary
diligence
Presumption Yes. Consonant wit 102.13, Public official or employee
of Official duty stating that if warrant of cannot invoke the presumption
commitment is in pursuance that official duty has been
with law, serves as prima facie regularly performed (RWA
cause of restraint Sec. 17)
Judgment The court shall render Within 10 days from the time
judgment within 10 days from the petition is submitted for
the time the petition is decision (RWD Sec. 16)
submitted for decision
(RWA Sec. 18)
Appeals Within 48 hours from notice of 5 working days from the date 5 working days from the date
the judgment of final order of notice of adverse judgment; of notice of adverse judgment;
appealed Rule 45 filed with the SC Rule 45 filed with the SC
Consolidation May be consolidated with a May be consolidated with a
of actions criminal action filed criminal action filed
subsequent to the petition subsequent to the petition
(RWA Sec. 23) (RWD Sec. 21)
Effect of filing No more separate petition Same as WA
criminal action shall be filed. Reliefs
available by motion in the
criminal case (RWA Sec. 22)
REMEDIAL LAW REVIEWER Chapter 8: CORPORATE REHABILITATION
 General Rule: any pending petition

Chapter 8: Corporate Rehabilitation for rehabilitation that has not
undergone the initial hearing
I. PETITION FOR REHABILITATION prescribed under the Interim Rules of
II. STAY ORDER
III. HEARING
Procedure for Corporate
IV. CORPORATION PLAN OF REHABILITATION Rehabilitation (which are the rules
V. FINAL ORDERS AND APPEALS THEREFOM superseded by the current AM) at
the time of the effectivity (16 January
*this part covers only the general rules of corpo 2009) of this Rule shall be governed 340
rehab under AM No. 00-8-10 SC. There are more by these Rules (Rule 9, Sec. 2)
SPECIAL PROCEEDINGS
specific requirements for each of the three types  Exception: Unless the court orders
based on the party filing it, covered by Rules 4-6 of otherwise to prevent manifest
the said AM. injustice.
 Corporate rehabilitation is distinct and
 Procedure
separate from insolvency
1. Petition for rehabilitation with
 Rehabilitation shall mean the restoration
rehabilitation plan and pertinent
of the debtor to a position of successful
annexes included therein
operation and solvency, if it is shown that
2. Court issues Stay Order and appoints
its continuance of operation is
receiver (within 5 working days from
economically feasible and its creditors can
filing)
recover by way of the present value of
3. Publication (once a week for 2 weeks)
payments projected in the plan, more if the
and service of copy to creditors
corporation continues as a going concern
4. Creditors pass opposition (15 days
than if it is immediately liquidated.
before the date of initial hearing)
It is intended to enable a distressed
5. Initial Hearing (within 45-60 days from
corporation to gain a new lease on life
the filing of the petition)
and to continue its businesses as a
6. Approval of Rehabilitation plan (within
going concern
120 days of passing) and termination
Thrust the continuance of corporate life
of stay order
and activities in an effort to restore
7. Appeals / Termination of rehabilitation
and reinstate the corporation to its
proceedings
former position of successful
operation and solvency
Insolvency, on the other hand, is intended to
close and liquidate an insolvent corporation I. Petition for Rehabilitation
 Venue
Corpo Rehab Insolvency New Rules now explicitly provides (Rule 3,
To enable a distressed To close and liquidate Sec. 2):
corporation to gain a insolvent corporation 1. It should be the office specified in its
new lease on life and articles of incorporation or partnership.
continue business
2. Where the principal office of the
Only available to Intended to close
corporation, partnership or association
corporations, corporations but also
partnerships or available to individuals is registered in the SEC as “Metro
associations and natural persons Manila”, the action must be filed in the
RTC of the city or municipality where
 Jurisdiction over corporate rehabilitation the head office is located.
was vested in the SEC under PD 902-A, 3. A joint petition by a group of
as amended companies shall be filed in the RTC
 RA 8799 transferred this to regular which has jurisdiction over the
courts, and new Rules direct filing in principal office of the parent company,
the RTCs, depending on the operative as specified in its Articles of
venue Incorporation.
 Proceedings under this Rule shall be  The Interim Rules only cover
in rem and summary and non- rehabilitations that are:
adversarial. (1) Debtor-Rehabilitation (Rule 4)
(2) Creditor-Initiated (Rule 5)
 Effect on pending rehabilitation (3) Pre-Negotiated Rehabilitation (Rule 6)
proceedings
 The General Provisions (Rule 3, and what fees and reimbursement of expenses
is covered by this part) applies to all types. for such performance of duty
Also, certain provisions on Debtor-Initiated  Submits reports every 3 months or as
Rehabilitation (Sections 5-12 of Rule 4) often as the court requires
are expressly made applicable to Creditor-  Rehabilitation receiver shall be
Initiated Rehabilitation (Rule 5). considered as an officer of the court.
 Recognition of foreign proceedings: He shall be primarily tasked to study
 The provisions on Recognition of the best way to rehabilitate the debtor
Foreign Proceedings (Rule 7) are not and to ensure that the value of the 341
expressly provided in the Interim debtor's property is reasonably
SPECIAL PROCEEDINGS
Rules. maintained pending the determination
 Such recognition in new Rules is a of whether or not the debtor should be
new. Previously, the absence of rehabilitated, as well as implement the
express provisions gave rise to many rehabilitation plan after its approval
issues that only delayed the speedy  Receiver may be removed upon
resolution of the proceedings motion if he (a) fails to perform any of
 New rules on the recognition of his functions or on (b) any grounds for
foreign rehabilitation proceedings – removing a trustee
covers cases where assistance is
sought in Philippine court by a foreign  The additions to the required contents of
court in connection with a foreign state the Stay Order:
rehabilitation proceeding, or  New Rules have a proviso that states
assistance in both foreign and that “the stay order shall not cover
domestic proceedings taking place at claims against letters of credit and
the same time similar security arrangements issued
by a third party to secure the payment
of the debtor’s obligations; provided,
II. Stay Order further, that the stay order shall not
cover foreclosure by a creditor of
 If the petition is sufficient in form and
property not belonging to a debtor
substance, it will issue a Stay Order,
under corporate rehabilitation;
which shall include, among other things,
provided, however, that where the
the appointment of a Receiver and the
owner of such property sought to be
suspension of all pending claims against
foreclosed is also a guarantor or one
the corporation under rehabilitation
who is not solidarily liable, said owner
 Issued 5 days from petition, generally
shall be entitled to the benefit of
containing:
excussion as such guarantor”.
(a) appointing a rehabilitation receiver
and fixing his bond  Rules simply provide that the order
(b) staying enforcement of all claims shall prohibit the debtor from making
 The new Rules (Rule 3, Sec. 7) expressly any payment of its liabilities “except as
provide that the “issuance of a stay order provided in items (e), (f) and (g) of this
does not affect the right to commence Section or when ordered by the court
actions or proceedings insofar as it is pursuant to Section 10 of Rule 3.”
necessary to preserve a claim against the  “directing the payment of new loans or
debtor.” other forms of credit accommodations
 Management will keep control of the obtained for the rehabilitation of the
insolvent company but the receiver will debtor with prior court approval”
closely monitor its operations
 Consideration of moral character,  Stay order also directs the petitioner to
knowledge, expertise, lack of conflict publish the Order in a newspaper of
of interest, ability to file bond, general circulation in the Philippines once
independence, and integrity in the a week for two (2) consecutive weeks.
appointment of a receiver  Petitioner (also directed in stay order)
shall the furnish a copy of the petition and
 Upon receipt of stay order, receiver
its annexes, as well as the stay order, to
accepts/declines within 10 days
the creditors named in the petition and the
 Receiver must post bond before
appropriate regulatory agencies such as
entering his duties, and shall be
the Securities and Exchange Commission,
entitled to reasonable professional
the Bangko Sentral ng Pilipinas, the
Insurance Commission, the National  The following prohibited pleadings are

Telecommunications Commission, the added under Rule 3, Sec. 1 of the new
Housing and Land Use Regulatory Board Rules:
and the Energy Regulatory Commission 1. Motion to hear affirmative defenses;
 The time to file a verified comment by and
the creditors was increased to 15 days 2. Any pleading or motion which is
before the date of the first initial similar to or of like effect as any of the
hearing, from 10 days under the foregoing.
Interim Rules.  On the other hand, the following grounds 342
 Stay order does not affect the right to were removed from the list of prohibited
SPECIAL PROCEEDINGS
commence actions or proceedings insofar pleadings:
as it is necessary to preserve a claim 1. Petition for Relief
against a debtor 2. Memorandum
 Relief from, modification, or termination of 3. Reply or Rejoinder
Stay Order. 4. Motion for New Trial or
1. any of the allegations in the petition, Reconsideration. A party may file a
or any of the contents of any motion for reconsideration of any
attachment, or the verification thereof order issued by the court prior to the
has ceased to be true; approval of the rehabilitation plan.
2. a creditor does not have adequate (Rule 8, Sec. 1)
protection over property securing its
claim;
3. the debtor's secured obligation is IV. Corporation Plan of Rehabilitation
more than the fair market value of the
 Rehab plan must include the desired
property subject of the stay and such
business targets and the duration and
property is not necessary for the
coverage of its proposed implementation
rehabilitation of the debtor; or
 Must also lay down material financial
4. the property covered by the stay order
commitments to support the rehabilitation
is not essential or necessary to the
and the means for their execution
rehabilitation and the creditor’s failure
 The court may revoke such plan within 90
to enforce its claim will cause more
days from approval if it was procured
damage to the creditor than to the
through fraud
debtor.
 Court is given 120 days from the filing of
5. The “stay order shall be effective from
the petition to approve or reject the
the date of its issuance until the
rehabilitation plan
approval of the rehabilitation plan or
 An approved rehab plan may, upon
the dismissal of the petition” (Rule 3,
motion, be altered or modified if such is
Sec. 9)
necessary to achieve the desired targets
set forth therein
 Effects of rehab plan:
III. Hearing a. The plan and its provisions shall be
 Hearing (initial) shall then be conducted binding upon the debtor and all
not earlier than 45 days but not later than persons who may be affected thereby,
60 days from filing thereof including the creditors, whether or not
 Prohibited pleadings. such persons have participated in the
a. Motion to dismiss; proceedings or opposed the plan or
b. Motion for a bill of particulars; whether or not their claims have been
c. Petition for relief; scheduled;
d. Motion for extension; b. The debtor shall comply with the
e. Motion for postponement; provisions of the plan and shall take
f. Third-party complaint; all actions necessary to carry out the
g. Intervention; plan;
h. Motion to hear affirmative defenses; c. Payments shall be made to the
and creditors in accordance with the
i. Any pleading or motion which is provisions of the plan;
similar to or of like effect as any of the d. Contracts and other arrangements
foregoing. between the debtor and its creditors
shall be interpreted as continuing to
apply to the extent that they do not V. Final Orders and Appeals
conflict with the provisions of the plan; Therefrom
and
e. Any compromises on amounts or  Orders issued by the court under Rule
rescheduling of timing of payments by shall be immediately executory
the debtor shall be binding on  Petition for review of the order shall
creditors regardless of whether or not not stay the execution of such unless
the plan is successfully implemented. restrained or enjoined by the appellate
 court
Rehabilitation plan itself may be extended,
 Appeals shall be in accordance with the 343
provided the period should not extend
Rules of Court
SPECIAL PROCEEDINGS
beyond 15 years from the expiration of the
stipulated term existing at the time of filing  No relief can be extended to the party
the petition, as expressly stated in the aggrieved by the court’s order on the
Rules (Rule 3, Sec. 19) motion through a special civil action for
 The court shall, upon motion or upon certiorari under Rule 65 of the Rules of
recommendation of the rehabilitation Court. Such order can only be elevated to
receiver, terminate the proceeding in any the Court of Appeals (CA) as an assigned
of the following cases: error in the petition for review of the
a. Dismissal of the petition; decision or order approving or
b. Failure of the debtor to submit the disapproving the rehabilitation plan.
rehabilitation plan;  An order issued after the approval of the
c. Disapproval of the rehabilitation plan rehabilitation plan can be reviewed only
by the court; through a special civil action for certiorari
d. Failure to achieve the desired targets under Rule 65 of the Rules of Court. (Rule
or goals as set forth in the 8, Sec. 1)
rehabilitation plan;  Review of decision on Rehabilitation Plan.
e. Failure of the debtor to perform its  The new Rules now expressly provide
obligations under the plan; that an order approving or
f. Determination that the rehabilitation disapproving a rehabilitation plan can
plan may no longer be implemented in only be reviewed through a petition for
accordance with its terms, conditions, review to the CA under Rule 43 of the
restrictions or assumptions; or Rules of Court within 15 days from
g. Successful implementation of the notice of the decision or order. (Rule
rehabilitation plan. 8, Sec. 2)
 Under the Interim Rules, the court may,  Receiver then submits his final report after
motu propio or on its own initiative, termination of the rehabilitation
terminate the proceedings. proceedings
 New rules now requires  Reports - The new Rules now indicate that
motion/recommendation of receiver. the report “shall include, at the minimum,
 Deleted under the new Rules. (Rule 3, interim financial statements of the debtor.”
Sec. 23) Also, the same provision (Rule 3, Sec. 16)
expressly adds the “dismissal of the
petition” in the enumeration of
grounds for termination of the
proceedings.
- end of Special Proceedings -

EVIDENCE
Table of Contents
Chapter I. General Provisions.....................346

A. Definition ...........................................346
B. Scope ................................................346
C. Classification .....................................346
D. Admissibility vs. Relevancy ...............346
E. Competence......................................347
345
Chapter II. Which of the facts do not need
EVIDENCE
proof? ............................................................346
A. Judicial Notice ...................................346
B. Judicial Admissions...........................346
Chapter III. Who must prove these facts that

need to be proven? ......................................347
A. Burden of Proof .................................347
B. Presumptions ....................................347
Chapter IV. What degree of proof is needed?

.......................................................................349
A. Weight and Sufficiency of Evidence..349
B. Quantum of Evidence........................350
Chapter V. What available evidence is

needed to prove these facts? .....................351
A. Testimonial ........................................351
B. Documentary.....................................358
C. Object ................................................361
D. Circumstantial Evidence....................361
E. Extrajudicial Admissions ...................361
F. Electronic Evidence...........................363
Chapter VI. How do I present and offer the

evidence at trial?..........................................366
A. Order of Proof ...................................366
B. Form of Questions.............................367
C. Offer of Evidence ..............................367
D. Objections .........................................368
E. Tender of Excluded Evidence (R132,
s40) 368
F. Electronic Examination of Witness (R10,
s1, REE).....................................................369
G. Examination of a Child Witness ........369
Chapter VII. A.M. No. 06-11-5-SC (2007): Rule

on DNA Evidence .........................................372
REMEDIAL LAW REVIEWER Chapter I: GENERAL PROVISIONS
Chapter I: General Provisions

EVIDENCE TEAM
EVIDENCE
Prof Theodore O Te A. DEFINITION
Faculty Editor
B. SCOPE
Kristie Joy B. Montes C. CLASSIFICATION
Lead Writer D. ADMISSIBILITY V. RELEVANCY
Felman Gem L. Magcalas E. COMPETENCE
Giselle Angelica C. Muñoz
Michelle P. Mocorrro Sabitsana
Writers A. Definition
REMEDIAL LAW  The means, sanctioned by these rules, of

Jo Blanca P.B. Labay ascertaining in a judicial proceeding, the 346
Subject Editor truth respecting a matter of fact. [Rule 128,
EVIDENCE
ACADEMICS COMMITTEE Sec. 1]
Kristine Bongcaron
Michelle Dy
Patrich Jerome Leccio B. Scope
Editors-in-Chief
PRINTING & DISTRIBUTION  General Rule: Rules of evidence shall be the

same in all courts and in all trials and
Kae Guerrero hearings
DESIGN & LAYOUT  Exception: If otherwise provided by:
1) Law;
Pat Hernandez 2) ROC.
Malds Menzon
Rania Joya
LECTURES COMMITTEE C. Classification

Micha Arias
Cams Maranan  ADMISSIBILITY – Evidence that is both
Anj Sandalo relevant and not excluded by law or the
Heads
ROC. [Rule 128, Sec. 3]
Arianne Cerezo Marcrese Banaag  RELEVANCY – Evidence must have such a
Volunteers relation to the fact in issue as to induce
belief in its existence or non-existence. [Rule
BAR CANDIDATES WELFARE 128, Sec. 4]
Da Salamat  General rule: Evidence on collateral
matters (matters other than the fact in
LOGISTICS issue and which are offered as a basis
Cha Mendoza for inference as to the existence or non-
existence of the facts in issue) is NOT
SECRETARIAT COMMITTEE allowed.
Jill Hernandez  Exception: When it tends in any
Head reasonable degree to establish the
Loraine Mendoza Faye Celso
im/probability of fact in issue.
Members  MATERIALITY – Evidence directed to prove
a fact in issue as determined by the rules of
substantive law and pleading
D. Admissibility vs. Relevancy
 ADMISSIBILITY – Evidence that is both

relevant and not excluded by law or the
ROC. [Rule 128, Sec. 3]
REMEDIAL LAW REVIEWER Chapter I: GENERAL PROVISIONS
 RELEVANCY – Evidence must have such a hearing or investigation. [Sec. 1 & 4

relation to the fact in issue as to induce RA 4200 (Wire-Tapping Act)]
belief in its existence or non-existence. [Rule c) Rules on Electronic Evidence [Rule
128, Sec. 4] 9, Sec. 1]
 General rule: Evidence on collateral
matters (matters other than the fact in
issue and which are offered as a basis
for inference as to the existence or non-
existence of the facts in issue) is NOT
allowed.
 Exception: When it tends in any
reasonable degree to establish the 347
im/probability of fact in issue.
EVIDENCE
MATERIALITY – Evidence directed to prove a
fact in issue as determined by the rules of
substantive law and pleading
E. Competence
 Evidence not excluded by law or ROC.

 Exclusionary rules:
1) Constitutional:
a) Unreasonable searches and
seizures; privacy of communication
and correspondence. [Art. 3, Sec 2
& 3, Consti]
b) Miranda Rights: right to counsel,
prohibition of torture, force, violence,
threat, intimidation or other means
which vitiate the free will; prohibition
of secret detention places, solitary,
incommunicado. [Art. 3, Sec. 12,
Consti]
c) No person shall be compelled to be
a witness against himself. [Art. 3,
Sec. 17, Consti]
2) Statutory:
a) Lack of documentary stamp tax to
documents required to have one
makes such document inadmissible
as evidence in court until the
requisite stamp/s shall have been
affixed thereto and cancelled. [Sec.
201, NIRC]
b) Any communication obtained by a
person, not being authorized by all
the parties to any private
communication, by tapping any
wire/cable or using any other
device/arrangement to secretly
overhear/intercept/record such
information by using any device,
shall not be admissible in evidence
in any judicial/quasi-
judicial/legislative/ administrative
REMEDIAL LAW REVIEWER Chapter II: WHICH of the FACTS DO NOT NEED PROOF?
judges because of their judicial

Chapter II: Which of the facts do not functions.
need proof?
 WHEN HEARING IS NECESSARY [Rule
A. JUDICIAL NOTICE 129, Sec. 3]
B. JUDICIAL ADMISSIONS 1) During the trial: The court, on its own
initiative, or on request of a party, may
A. Judicial Notice announce its intention to take judicial
notice of any matter and allow the
 WHEN MANDATORY (without need of parties to be heard thereon on its own
introduction of evidence) [Rule 129, Sec. 1] initiative or on request of a party.
1) Existence and territorial extent of states; 2) After the trial and before judgment or on 346
2) Their political history; appeal: The proper court, on its own
EVIDENCE
3) Their forms of government; initiative or on request of a party, may
4) Their symbols of nationality; announce its intention to take judicial
5) The law of nations; notice of any matter that is decisive of a
6) Admiralty and maritime courts of the material issue in the case and allow the
world and their seals; parties to be heard thereon.
7) Political constitution and history of the
Philippines;
8) Official acts of the legislative, executive B. Judicial Admissions
and judicial departments of the
Philippines  Admissions, verbal or written, made by the
party in the course of the proceedings in the
 Courts cannot take judicial notice of foreign same case. It requires no proof. [Rule 129,
laws. [Yao-Kee v. Sy-Gonzales (1988) Sec. 4]
 Judicial admission may be contradicted only
 General rule: Courts are not mandated to by showing that:
take judicial notice of municipal ordinances. It was made through palpable mistake;
[City of Manila v. Garcia (1967)] No such admission was made.
 Exception: If the charter of the concerned  An original complaint, after being amended,
city provides for such judicial notice. loses its character as a judicial admission,
which would have required no proof. It
 General rule: Courts cannot take judicial becomes merely an extra-judicial admission
notice of the contents/records of other cases requiring a formal offer in order to be
even if both cases may have been tried or admissible. [Torres v. CA (1984)]
are pending before the same judge. [Prieto  An admission which constitutes a
v. Arroyo (1965)] “deliberate, clear and unequivocal”
 Exception: The case clearly referred to or statement; made as it was in the course of
the original or part of the records of the case judicial proceedings, qualifies as a judicial
are actually withdrawn from the archives of admission.
that case and admitted as part of the record  A party who judicially admits a fact cannot
of the case pending when: [Tabuena v. CA later challenge that fact as judicial
(1991)] admissions are a waiver of proof; production
a) There is no objection from adverse party of evidence is dispensed with. [Alfelor v.
even with his knowledge thereof; Halasan (2006]
b) It is at the request or with the consent of
the parties.
9) Laws of nature;
10) Measure of time;
11) Geographical divisions.
 WHEN DISCRETIONARY [Rule 129, Sec. 2]

1) Matters of public knowledge;
2) Matters capable of unquestionable
demonstration;
3) Matters which ought to be known to
REMEDIAL LAW REVIEWER Chapter III: WHO MUST PROVE these FACTS that NEED to be PROVEN?
commencement of the relation of landlord

Chapter III: Who must prove these facts and tenant between them.
that need to be proven?
 DISPUTABLE PRESUMPTIONS [Rule 131,
A. BURDEN OF PROOF Sec. 3]
B. PRESUMPTIONS 1) Person is innocent of a crime or wrong;
2) Unlawful act is done with an unlawful
A. Burden of Proof intent;
3) Person intends the ordinary
 Duty of a party to present evidence on the consequences of his voluntary act;
facts in issue necessary to establish his 4) Person takes ordinary care of his
claim/defense by the amount of evidence concerns; 347
required by law. [Rule 131, Sec. 1] 5) Evidence willfully suppressed would be
EVIDENCE
 The test for determining where the burden of adverse if produced;
proof lies is to ask which party to an 6) Money paid by one to another was due to
action/suit will fail if he offers no the latter;
evidence competent to show the facts 7) Thing delivered by one to another
averred as the basis for the relief he belonged to the latter;
seeks to obtain, and based on the result of 8) Obligation delivered up to the debtor has
an inquiry, which party would be successful been paid;
if he offers no evidence. [Republic v. Vda. 9) Prior rents or installments had been paid
De Neri (2004)] when a receipt for the later ones is
produced;
 General rule: All facts in issue and relevant 10) A person found in possession of a thing
facts must be proven by evidence. taken in the doing of a recent wrongful
 Exception: [Republic v. Vda. De Neri act is the taker and doer of the whole
(2004)] act; otherwise, that things which a person
1) Allegations contained in the possesses or exercises acts of ownership
complaint/answer immaterial to the over, are owned by him;
issues; 11) Person in possession of an order on
2) Facts which are admitted or which are himself for the payment of the money or
not denied in the answer, provided they the delivery of anything has paid the
have been sufficiently alleged; money or delivered the thing
3) Those which are the subject of an accordingly;
agreed statement of facts between the 12) Person acting in public office was
parties, as well as those admitted by the regularly appointed or elected to it;
party in the course of the proceedings in 13) Official duty has been regularly performed;
the same case; 14) A court or judge acting as such,
4) Facts which are the subject of judicial whether in the Philippines or elsewhere,
notice; was acting in the lawful exercise of
5) Facts which are legally presumed; jurisdiction;
6) Facts peculiarly within the knowledge of 15) All the matters within an issue raised in
the opposite party. a case were laid before the court and
passed upon by it; all matters within an
issue raised in a dispute submitted for
arbitration were laid before arbitrators
B. Presumptions and passed upon by them;
16) Private transactions have been fair and
 CONCLUSIVE PRESUMPTIONS [Rule 131, regular;
Sec. 2] 17) Ordinary course of business has been
1) Whenever a party has, by his own followed;
declaration/act/omission, intentionally and 18) There was a sufficient consideration for
deliberately led another to believe a a contract;
particular thing is true and to act upon 19) Negotiable instrument was given or
such belief, he cannot, in any litigation indorsed for a sufficient consideration;
arising out of such declaration/act/omission, 20) An indorsement of negotiable
be permitted to falsify it. instrument was made before the
2) The tenant is not permitted to deny the instrument was overdue and at the place
title of his landlord at the time of the where the instrument is dated;
REMEDIAL LAW REVIEWER Chapter III: WHO MUST PROVE these FACTS that NEED to be PROVEN?
21) A writing is truly dated; printed/published by public authority, was

22) Letter duly directed and mailed was so printed/published;
received in the regular course of the 34) A printed/published book, purporting to
mail; contain reports of cases adjudged in
23) Presumptions concerning absence: tribunals of the country where the book is
24) Acquiescence resulted from a belief that published, contains correct reports of such
the thing acquiesced in was conformable cases;
to the law/fact; 35) A trustee or other person whose duty it
25) Things have happened according to the was to convey real property to a
ordinary course of nature and ordinary particular person has actually
nature habits of life; conveyed it to him when such
26) Persons acting as copartners have presumption is necessary to perfect the 348
entered into a contract of co- title of such person or his successor in
EVIDENCE
partnership; interest;
27) A man and woman deporting 36) Presumptions regarding survivorship:
themselves as husband and wife have (Applicable for all purposes except
entered into a lawful contract of succession)
marriage;
28) Property acquired by a man and a woman  When 2 persons perish in the same calamity,
who are capacitated to marry each  and it is not shown who died first,
other and who live exclusively with each  and there are no particular circumstances from
other as husband and wife without the which it can be inferred,
 the survivorship is determined from the
benefit of marriage or under a void
probabilities resulting from the strength and the
marriage, has been obtained by their age of the sexes:
joint efforts, work or industry; Situation Person presumed
29) In cases of cohabitation by a man and a to have survived
woman who are not capacitated to Both < 15 y/o The older
marry each other and who have acquired Both > 60 y/o The younger
property through their actual joint One < 15 y/o, The one <15
contribution of money, property or the other > 60 y/o
industry, such contributions and their Both > 15 and < 60 y/o, The male
corresponding shares including joint of different sexes
deposits of money and evidences of credit Both > 15 and <60 y/o, The older
are equal; of the same sex
One < 15 or > 60 y/o, and the The one between
30) Presumptions governing children of
other between those ages those ages
women who contracted another marriage
within 300 days after termination of her
37) As between 2 or more persons called to
former marriage (in the absence of proof
succeed each other: If there is a doubt as
to the contrary):
to which of them died first, whoever
alleges the death of one prior to the
When Child was Born Presumption
other, shall prove the same. In the
Before 180 days after Considered to have been
the solemnization of the conceived during the absence of proof, they shall be considered
subsequent marriage former marriage, provided to have died at the same time.
it be born within 300 days
after the termination of the
former marriage
After 180 days following Considered to have been
the celebration of the conceived during the
subsequent marriage subsequent marriage,
even though it be born
within the 300 days after
the termination of the
former marriage.
31) A thing once proved to exist continues

as long as is usual with things of the
nature;
32) The law has been obeyed;
33) A printed/published book, purporting to be
REMEDIAL LAW REVIEWER Chapter IV: WHAT DEGREE of PROOF is NEEDED?
Chapter IV: What degree of proof is unless there are substantial facts and
circumstances which have been
needed?
overlooked and which, if properly
considered, might affect the result.
A. WEIGHT AND SUFFICIENCY OF EVIDENCE [People v. Cabrera (1990)]
1. PREPONDERANCE OF EVIDENCE (CIVIL
CASES)
 Exception: The rule does not apply when
2. PROOF BEYOND REASONABLE DOUBT
(CRIMINAL CASES) the issue revolved on the identification of the
3. SUBSTANTIAL EVIDENCE accused or credibility of witness and one
(ADMINISTRATIVE CASES) judge heard the testimony and a different
B. QUANTUM OF EVIDENCE judge penned the decision. [People v.
1. CONFESSIONS Escalante (1984); People v. CA (2000)]
2. CIRCUMSTANTIAL EVIDENCE
349
3. INTERPRETATION OF DOCUMENTS 
EVIDENCE
Rationale: The latter judge is not in a better
4. EVIDENCE ON MOTION position than the appellate courts to make
the determination.
A. Weight and Sufficiency of Evidence
 The number of witnesses should not in and
1. PREPONDERANCE OF EVIDENCE (CIVIL by itself determine the weight of evidence.
CASES) [Rule 133, Sec. 1] However, the numerical factor may be
 The evidence adduced by one side is, considered in case of conflicting testimonies.
as a whole, superior to or has greater [Caluna v. Vicente (1951)]
weight than that of the other.
 Where the evidence presented by one  Inconsistencies/contradictions on details do
side is insufficient to ascertain the claim, not materially impair the credibility of such
there is no preponderance of evidence. witness, but on the contrary are indications
[Habagat Grill v. DMC Urban (2005)] of veracity rather than prevarication. [People
v. Vinas (1968)]
In determining preponderance, the court
may consider:  The doctrine of falsus in uno, falsus in
1) All the facts and circumstances of the omnibus is not absolute. The court may
case; accept or reject portions of the witness’
2) The witnesses’ manner of testifying; testimony depending on the inherent
3) Their intelligence; credibility thereof or the corroborative
4) Their means and opportunity of knowing evidence in the case. [People v. Baao
the facts to which they testify; (1986)]
5) The nature of the facts to which they
testify  Although the evidence adduced by the
6) The im/probability of their testimony; plaintiff is stronger than that presented by
7) Their interest or want of interest; the defendant, he is not entitled to a
8) Personal credibility so far as the same judgment if his evidence is not sufficient to
may legitimately appear upon the trial; sustain his cause of action.
9) Number of witnesses (although
preponderance is not necessarily  The plaintiff must rely on the strength of his
equated with the number of witnesses). own evidence and not upon the weakness of
that of the defendants’. [Quinto v. Andres
2. PROOF BEYOND REASONABLE DOUBT (2005)]
(CRIMINAL CASES) [Rule 133, Sec. 2]
 That degree of proof which produces 3. SUBSTANTIAL EVIDENCE
conviction in an unprejudiced mind. (ADMINISTRATIVE and QUASI-JUDICIAL
 It does not mean such a degree of proof CASES) [Rule 133, Sec. 5]
as, excluding the possibility of error,  The amount of relevant evidence which a
produces absolute certainty. reasonable mind might accept as adequate
 Only moral certainty is required – that to support a conclusion.
degree of proof which produces
conviction in an unprejudiced mind.
 General rule: Findings of the judge who
tried the case and heard the witnesses
are not to be disturbed on appeal,
REMEDIAL LAW REVIEWER Chapter IV: WHAT DEGREE of PROOF is NEEDED?
B. Quantum of Evidence 3. INTERPRETATION OF DOCUMENTS [Rule

130]
1. CONFESSIONS [Rule 130, Sec. 33; Rule  Interpretation of a writing according to
115 (e); Art. 3, Sec. 17, Consti] the legal meaning it bears in the place
 A categorical acknowledgment of guilt of execution, unless parties intended
made by an accused in a criminal case otherwise.
without any exculpatory statement or  Instrument construed so as to give
explanation. effect to all provisions.
 If the accused admits having committed  Parties’ intention is to be pursued in
the act in question but alleges a construction of instrument.
justification therefore, the same is  In the inconsistency between general
and particular provision, the latter
merely an admission. [US v. Tolosa]
prevails. 350
 The operative act in determining
 Particular intent controls general one
EVIDENCE
whether the right against self-
inconsistent with it.
incrimination has been violated is when  The circumstances under which an
the police investigation is: instrument was made, including the
 no longer a general inquiry into situation of the subject thereof and of
an unsolved crime the parties to it, may be shown, so that
 but has begun to focus on a the judge may be placed in the position
particular suspect who has been of those whose language he is to
taken into custody by the police interpret.
 to carry out a process of  The terms of a writing are presumed to
interrogation that lends itself to have been used in their primary and
eliciting incriminatory statements general acceptation, but evidence is
and not the signing by the suspect admissible to show that they have a
of his supposed extrajudicial local/technical/peculiar signification
confession. [People v. Compil and were so used and understood in the
(1995)] particular instance, in which case the
 Any confession, including a re- agreement must be construed
enactment without admonition of the accordingly.
right to silence and to counsel, and  When there is inconsistency between
without counsel chosen by the accused written words and printed words, the
is inadmissible in evidence. [People v. former controls over the latter.
Yip Wai Ming (1996)]  Experts and interpreters to be used in
explaining writings that are difficult to be
EXTRAJUDICIAL CONFESSIONS [Rule 133, deciphered, or where the language is
Sec. 3] not understood by the court.
 General rule: An extra-judicial confession  When the terms of an agreement have
made by an accused, is not a sufficient been intended in a different sense by
ground for conviction. the different parties to it, that sense is
 Exception: When corroborated by evidence to prevail against either party in which
of the actual commission of a particular he supposed the other understood it.
crime (corpus delicti).  And when different constructions of a
provision are otherwise equally proper,
2. CIRCUMSTANTIAL EVIDENCE [Rule 133, that is to be taken which is the most
Sec. 4] favorable to the party in whose favor the
provision is made.
 Requisites for circumstantial evidence to  Construction in favor of natural right.
be sufficient for conviction:  Interpretation according to usage to
1) There is more than 1 circumstance; determine instrument’s true character.
2) The facts from which the inferences
are derived are proven; and 4. EVIDENCE ON MOTION [Rule 133, Sec. 7]
3) The combination of all the  When a motion is based on facts not
circumstances is such as to produce appearing of record, the Court may hear
a conviction beyond reasonable the matter on affidavits or depositions
doubt. presented by the respective parties
 Under the RPC, one cannot be  but the court may direct that the matter
convicted of treason by means of be heard wholly or partly on oral
circumstantial evidence. [Art. 114, RPC] testimony or depositions.
REMEDIAL LAW REVIEWER Chapter V: WHAT Available EVIDENCE Is ADMISSIBLE to PROVE These FACTS?
Chapter V: What available evidence is A. BEST EVIDENCE

B. SECONDARY EVIDENCE
needed to prove these facts? C. OBJECT
D. CIRCUMSTANTIAL EVIDENCE
A. TESTIMONIAL E. EXTRAJUDICIAL ADMISSIONS
1. WHICH WITNESSES ARE SUBJECT TO 1. ADMISSION BY SILENCE
OBJECTION FOR COMPETENCE? 2. COMPROMISE
2. WHICH WITNESSES WILL TESTIFY ON 3. RES INTER ALIOS ACTA
PRIVILEGED MATTERS AND TO WHAT 4. EXCEPTIONS TO RES INTER ALIOS ACTA
EXTENT DOES THE PRIVILEGE COVER? A. PARTNER’S/AGENT’S ADMISSION;
3. WHAT TESTIMONY IS SUBJECT TO A [RULE 130,
CLAIM OF PRIVILEGE AND BY WHOM? B. CO-CONSPIRATORS ADMISSION;
4. WHAT EVIDENCE IS HEARSAY AND [RULE 130, SEC. 30]
UPON WHAT PROPOSITION, IF IT IS F. ELECTRONIC EVIDENCE 351
HEARSAY, CAN IT BE BROUGHT WITHIN 1. WHAT EVIDENCE IS COVERED BY THE
EVIDENCE
ANY EXCEPTION? REE? (R2,S1; R11, SS1-2, REE)
5. WHAT TESTIMONY INVOLVES OPINIONS 2. WHEN AND TO WHAT EXTENT
AND HOW CAN OBJECTIONS THERETO ADMISSIBLE? (R3,S2, REE)
BE MET? ) 3. EVIDENTIARY WEIGHT OF ELECTRONIC
A. DYING DECLARATION EVIDENCE (R7, SS1-2)
B. DECLARATION AGAINST INTEREST 4. THE HEARSAY RULE AND THE BUSINESS
C. ACT OR DECLARATION ABOUT RECORDS EXCEPTION (R9, SS1-2)
PEDIGREE
D. FAMILY REPUTATION OR TRADITION A. Testimonial
REGARDING PEDIGREE [RULE 130,
SEC. 40]
E. COMMON REPUTATION [RULE 130, 1. WHICH WITNESSESES ARE COMPETENT
SEC. 41] TO TESTIFY IN COURT?
F. PART OF RES GESTAE [RULE 130,  All persons who can perceive, and,
SEC. 42] perceiving, can make their known perception
G. ENTRIES IN THE COURSE OF to others, may be witnesses.
BUSINESS [RULE 130, SEC. 43; RULE
8, RULES ON ELECTRONIC
 Religious/political belief, interest in the
EVIDENCE (REE)] outcome of the case, or conviction of a
H. ENTRIES IN OFFICIAL RECORDS crime unless otherwise provided by law,
I. COMMERCIAL LIST AND THE LIKE shall not be ground for disqualification. [Rule
J. LEARNED TREATISES 130, Sec. 20]
K. TESTIMONY OR DEPOSITION AT A
FORMER PROCEEDING 2. WHICH WITNESSES ARE DISQUALIFIED
6. WHEN IS CHARACTER EVIDENCE TO TESTIFY IN COURT?
ADMISSIBLE?
7. RECALLING A WITNESS TO THE STAND
(RECALLING WITNESSES
a. Disqualification by reason of mental
8. ADVERSE PARTY AS WITNESS incapacity or immaturity [Rule 130, Sec. 21]
(IMPEACHMENT OF ADVERSE PARTY’S  A mental retardate is not for this reason
WITNESS alone disqualified from being a witness.
9. EXCLUDING WITNESSES FROM [People v. Salomon (1993)]
COURTROOM (EXCLUSION AND  Every child is presumed qualified to be a
SEPARATION OF WITNESSES witness.
10. MAY PAROL EVIDENCE BE GIVEN?  However, the court shall conduct a
B. DOCUMENTARY competency examination of a child, motu
1. WHAT DOCUMENTS REQUIRE
propio or on motion of a party, when it finds
AUTHENTICATION AND BY WHOM?
A. PUBLIC DOCUMENTS [RULE 132, that substantial doubt exists regarding the
SEC. 19]) ability of the child to perceive, remember,
B. PRIVATE DOCUMENTS communicate, distinguish truth from
C. IMPEACHMENT OF JUDICIAL falsehood, or appreciate the duty to tell the
RECORD truth in court. [Sec. 6, AM 00-4-07-SC (Child
D. ALTERATIONS [RULE 132, SEC. 31] Witness Rule)]
E. SEAL [RULE 132, SEC. 32]
F. DOCUMENTS WRITTEN IN AN
 Requisites of competency of a child as
UNOFFICIAL LANGUAGE [RULE 132,
SEC. 33]
witness: [People vs. Mendoza (1996)]
2. DO DOCUMENTS COMPLY WITH BEST 1) Capacity of observation;
EVIDENCE RULE? [RULE 130, SEC. 3] 2) Capacity of recollection;
3) Capacity of communication. to give false testimony on the part of the

surviving party and to put the parties to the
b. Disqualification by reason of marriage [Rule suit upon terms of equality in regard to
130, Sec. 22] opportunity to produce evidence.
 General rule: During their marriage, neither
the husband nor the wife may testify for or d. Disqualification by reason of privileged
against the other without the consent of the communication
affected spouse.
 Exception: 1) Marital privilege; [Rule 130, Sec. 24(a)]
a) In a civil case by one against the other;  Purpose: Privilege for confidential
b) In a criminal case for a crime committed communications justified on the ground
by one against the other or the latter's that it promotes marital harmony. 352
direct descendants/ascendants.  General rule: Husband or the wife,
EVIDENCE
 Purpose: Privilege to prevent testimony by during or after the marriage, cannot be
other spouse based on an aversion to use examined without the consent of the
judicial compulsion in a litigation to place other as to any communication received
spouses in an opposing posture that may in confidence by one from the other
weaken or destroy their marriage. [People v. during the marriage
Francisco]  Exception:
 This privilege is also given to a spouse to a) In a civil case by one against the
prevent the other from testifying in his favor. other;
[People v. Franciso] b) In a criminal case for a crime
committed by one against the other
c. Disqualification by reason of death or or the latter's direct
insanity of adverse party [Rule 130, Sec. 23] descendants/ascendants.
 “Dead Man’s Statute” or “Survivorship  A widow of a victim allegedly murdered
Rule” may testify as to her husband’s dying
 General rule: declaration as to how he died the since
a. Parties or assignors of parties to a case, the same was not intended to be
or persons confidential. [US v. Antipolo]
b. in whose behalf a case is prosecuted,
c. against an executor/administrator or Marital disqualification [Rule Marital privilege [Rule
other representative of a deceased 130, Sec. 22] 130, Sec. 24]
person, or against a person of unsound Broader since it prevents all Limited to those made
mind, adverse testimony between during the course of the
spouses and not merely marriage
d. upon a claim/demand against the estate disclosure of confidential
of such deceased person or against communications and may
such person of unsound mind, even cover matters
e. cannot testify as to any matter of fact occurring prior to the
f. occurring before the death of such marriage
deceased person or before such person One spouse should be a Where neither spouse is
became of unsound mind. party to the case a party, this is the
 Exception: disqualifying rule
 The survivor may testify against the 2) Attorney-client privilege; [Rule 130, Sec.
estate of the deceased where the latter 24(b)]
was guilty of fraud which fraud was  General rule: The attorney-client
established by evidence other than the privilege may not be invoked to refuse to
testimony of the survivor. [Ong Chua v. divulge the identity of the client.
Carr]  Exception: [Regala v. Sandiganbayan
 He may also testify where he was the (1996)]
one sued by the decedent’s estate since a) When a strong probability exists that
the action then is not against the estate. revealing the name would implicate
[Tongco v. Vianzon] that person in the very same activity
 He may likewise testify where the estate for which he sought the lawyer’s
had filed a counterclaim against him or advice;
where the estate cross-examined him as b) When disclosure would open the
to matters occurring during the lifetime client to liability;
of the deceased. [Goñi v. CA] c) When the name would furnish the
 Purpose: To guard against the temptation only link that would form the chain of
testimony necessary to convict. written, as well as oral statements [Consunji vs.

CA (2001)]
3) Physician-patient privilege; [Rule 130,  Rationale: The theory of the hearsay rule is
Sec. 24(c)] that the many possible deficiencies,
 Covers any advice or treatment given by suppressions, sources of error and
a physician or any information which he untrustworthiness, which lie underneath the
may have acquired in attending to such bare untested assertion of a witness, may be
patient in a professional capacity, which best brought to light and exposed by the test of
information was necessary to enable cross-examination. The hearsay rule, therefore,
him to act in capacity, and which would excludes evidence that cannot be tested by
blacken the reputation of the patient. cross-examination. [Consunji vs. CA (2001)]
 This does not apply when the doctor is  General rule: A witness can testify only as to
presented as an expert witness and only those facts which he knows of his personal 353
hypothetical problems were presented to knowledge.
EVIDENCE
him. [Lim v. CA (1992)]
 PERSONAL KNOWLEDGE – those
4) Priest-penitent privilege; [Rule 130, Sec. derived from his own perception.
24(d)]  Witnesses can testify only with regard to
 Covers any confession made to or any facts of which they have personal
advice given by a priest or minister knowledge.
 in his professional character in the  It is otherwise if the purpose is merely to
course of discipline enjoined by the establish the fact that the statement was
church to which he belongs. made, or the tenor of such statement.
[People v. Cusi (1965)]
5) Public officer privilege; [Rule 130, Sec.  The testimony of a witness on the
24(e)] confession made to him by the accused is
 A public officer cannot be examined not hearsay.
during his term of office or afterwards,  He is testifying to a fact which he knows of
 as to communications made to him in his personal knowledge (was testifying to
official confidence, the fact that the accused told him that he
 when the court finds that the public stabbed the victim) and not to the truth of
interest would suffer by the disclosure. the statement of the accused. [People v.
Gaddi (1989)]
3. WHAT TESTIMONY IS SUBJECT TO A  Newspaper clippings or facts published in
CLAIM OF PRIVILEGE AND BY WHOM? the newspapers are hearsay and have no
(R130, s25) evidentiary value unless substantiated by
persons with personal knowledge of said
 Parental and filial privilege. [Rule 130, Sec. facts. [People v. Aguel (1980)]
25]
 A person cannot be compelled to testify Doctrine of Independently Relevant
against his parents, other direct Statements
ascendants, children or other direct  Statements or writings attributed to a person
descendants. who is not on the witness stand are being
offered NOT to prove the truth of the facts
4. WHAT EVIDENCE IS HEARSAY AND stated therein but only to prove that such
UPON WHAT PROPOSITION, IF IT IS were actually made.
HEARSAY, CAN IT BE BROUGHT WITHIN  It is not covered by the hearsay rule. [People
ANY EXCEPTION? (R130, SS36-47) v. Cusi] (1965)
(Asked 2x)  Independent of WON the facts stated are
true, they are relevant since they are the
facts in issue or are circumstantial evidence
 HEARSAY RULE - A witness may not testify of the facts in issue.
as what he merely learned from others either
because he was told or read or heard the  Exceptions: (Asked 7x)
same. Such testimony is considered hearsay
and may not be received as proof of the truth of a. Dying Declaration [Rule 130, Sec. 37]
what he has learned. Hearsay is not limited to  “Antemortem statement” or “statement in
oral testimony or statements; the general rule articulo mortis”.
that excludes hearsay as evidence applies to
 Requisites: [People v. Macandog
(2001)] the names of the relatives.

1) Declaration was made under the  It also embraces facts of family history
consciousness of an impending intimately connected with pedigree.
death;
2) Declaration refers to cause and  Requisites for admissibility: [Mendoza v.
surrounding circumstances of CA (1991)]
such death; 1) The declarant is dead or unable to
3) Declaration refers to facts the testify.
person is competent to testify 2) The pedigree must be in issue.
to; 3) The declarant must be a relative of
4) Declaration is offered in any the person whose pedigree is in
case wherein his death is the issue. 354
subject of inquiry. 4) The declaration must be made
EVIDENCE
before the controversy arose.
 However, the law does not require the 5) The relationship between the
declarant to state explicitly a perception declarant and the person whose
of the inevitability of death. pedigree is in question must be
 The foreboding may be gleaned from shown by evidence other than such
surrounding circumstances, such as the declaration.
nature of the declarant’s injury and
conduct that would justify a conclusion d. Family reputation or tradition regarding
that there was consciousness of pedigree [Rule 130, Sec. 40]
impending death. [People v. Latayada  The exception refers to
(2004)] reputations/traditions existing in a family
 The intervening time from the making of previous to the controversy, in respect to
the declaration up to the actual death of the pedigree of any one of its members.
the declarant is immaterial as long as  It may be received in evidence if the
the declaration was made under the witness testifying thereon be also a
consciousness of an impending death. member of the family, either by
[US v. Mallari] consanguinity or affinity.
 Documentary evidence allowed under
b. Declaration against interest [Rule 130, Sec. the exception: Entries in family bibles
38] or other family books, charts, engravings
 Made by a person deceased, or unable on rings, family portraits and the like.
to testify, against the interest of the  This enumeration, by ejusdem generis,
declarant. is limited to objects which are commonly
 INABILITY TO TESTIFY – The known as "family possessions," or those
person is dead, mentally articles which represent, in effect, a
incapacitated or physically family's joint statement of its belief as to
incompetent. Mere absence from the pedigree of a person.
the jurisdiction does not make him  These have been described as objects
ipso facto unavailable. [Fuentes vs. "openly exhibited and well known to the
CA (1996)] family," or those "which, if preserved in a
 Subject of declaration/act: The fact family, may be regarded as giving a
asserted was at the time it was made so family tradition." [Jison v. CA (98)]
far contrary to declarant's own  A person’s statement as to his date of
interest that a reasonable man in his birth and age, as he learned of these
position would not have made the from his parents or relatives, is an ante
declaration unless he believed it to be litem motam declaration of a family
true. tradition. [Gravador v. Mamigo (1967)]
 The declaration should be against  Such statement (as to his age)
himself or his successors in interest and prevails over the mere opinion of the
against 3rd persons. trial judge. [US v. Agadas (36 PHIL
246)]
c. Act or declaration about pedigree [Rule 130,  However, such statement (as to
Sec. 39] age) cannot generally prevail over
 Relationship, family genealogy, birth, the secondary statement of his
marriage, death, the dates when and the father. [US v. Evangelista]
places where these fast occurred, and
e. Common reputation [Rule 130, Sec. 41] capacity or in the performance of

 Admissible evidences under this duty and in the ordinary or regular
exception: course of business/duty.
1) Common reputation existing  If the entrant is available as a witness,
previous to the controversy, the entries will not be admitted as an
respecting facts of public or general exception to the hearsay rule but they
interest more than 30 years old, or may nevertheless be availed of by said
respecting marriage or moral entrant as a memorandum to refresh his
character; memory while testifying on the
 COMMON REPUTATION – The transactions reflected therein. [Cang Yui
general or substantially v. Gardner]
undivided reputation although it 355
need not be unanimous. It is the h. Entries in official records
 The entries must be made at or near the
EVIDENCE
definite opinion of the
community in which the fact to time of transactions to which they refer,
be proved is known or exists. and by a person deceased, or unable to
 CHARACTER – The inherent testify, who was in a position to know
qualities of a person. the facts therein stated.
 REPUTATION - The opinion of  The entrant must have personal
a person by others. knowledge of the facts stated by him
2) Monuments and inscriptions in or such facts acquired by him from
public places as evidence of reports made by persons under a
common reputation. legal duty to submit the same.
[Salmon, Dexter & Co. v. Wijangco]
f. Part of res gestae [Rule 130, Sec. 42]  Such record is prima facie evidence, if
 Statements admissible as part of the res the person made the entries in his
gestae: professional capacity or in the
1) Statements made by a person while performance of duty and in the ordinary
a starting occurrence is taking place or regular course of business or duty
or immediately prior or subsequent  The report submitted by a police officer
thereto, with respect to the in the performance of his duties on the
circumstances thereof. basis of his own personal observation of
2) Statements accompanying an the facts reported, may properly be
equivocal act material to the issue, constituted as an exception. [Caltex v.
and giving it a legal significance. Africa (1966)]
 A dying declaration can be made only by  Entries in a police blotter are not
the victim after the attack while a conclusive proof of the truth of such
statement as part of the res gestae may entries. [People vs. Cabuang (1993)]
be that of the killer himself after or  Baptismal certificates or parochial
during the killing. [People v. Reyes] records of baptism are not official
 Notes taken regarding a transaction by a records. [Fortus v. Novero (1968)]
person who is not a party thereto and
who has not been requested to take i. Commercial list and the like
down such notes are not part of the res
 Requisites:
gestae. [Borromeo v. CA (1976)]
b) Such statements are contained in a
list
g. Entries in the course of business [Rule 130,
c) The compilation is published for use
Sec. 43; Rule 8, Rules on Electronic
by persons engaged in that
Evidence (REE)]
occupation
 The entry must have been made at or
d) It is generally used and relied upon
near the time of transactions to which
by them
they refer.
 The entry should have been made by a
j. Learned treatises
person deceased, or unable to testify,
who was in a position to know the facts  Requisites:
therein stated. 1) on a subject of
 Such entry is treated as prima facie history/law/science/art
evidence, if the person who made the 2) court takes judicial notice of it or
entries did so in his professional 3) a witness expert in the subject
testifies that the writer of the 50]

statement in the  Identity of a person about whom he
treatise/periodical/pamphlet is has adequate knowledge;
recognized in his profession/calling  Handwriting with which he has
as expert in the subject. sufficient familiarity;
 Mental sanity of a person with whom
k. Testimony or deposition at a former he is sufficiently acquainted;
proceeding  Impressions of the
 The prior testimony must have been emotion/behavior/condition/appeara
made by a witness deceased or unable nce of a person.
to testify, in a former case/proceeding
(judicial or administrative) involving the 6. WHEN IS CHARACTER EVIDENCE 356
same parties and subject matter. ADMISSIBLE? (CHARACTER [Rule 130,
EVIDENCE
 UNABLE TO TESTIFY – An Sec. 51; Rule 132, Sec. 14])
inability proceeding from a grave
cause almost amounting to death  General rule: Character evidence is not
as when the witness is old and has admissible.
lost the power of speech. [Tan v.  Exception:
CA (1967)] 1) In criminal cases:
 The prior testimony may be given in a) Accused – May prove his good
evidence against the adverse party who moral character which is pertinent to
had the opportunity to cross-examine the moral trait involved in the
the witness. offense charged.
Child Rule as a Special Exception b) Prosecution – May not prove the
[Sec. 28, AM 00-4-07-SC] bad moral character of the accused,
1) Hearsay testimony of a child describing except in rebuttal.
any act or attempted act of sexual abuse c) Offended Party – His/her good or
may now be admitted in any criminal bad moral character may be proved
proceeding subject to certain if it tends to establish in any
prerequisites and the adverse party’s reasonable degree the im/probability
right to cross-examine. of the offense charged.
2) The admissibility of such hearsay 2) In civil cases:
statements shall be determined by the  Moral character is admissible only
court in light of specified subjective and when pertinent to the issue of
objective considerations which provide character involved in the case. [Rule
sufficient indicia or reliability of the child 130, Sec. 51]
witness.  Evidence of the witness’ good
character is not admissible until
5. WHAT TESTIMONY INVOLVES OPINIONS such character has been
AND HOW CAN OBJECTIONS THERETO impeached. [Rule 130, Sec. 14]
BE MET? (OPINION RULE)  While evidence of another crime is,
as a rule, not admissible, it is
 General rule: The opinion of a witness is admissible when it is otherwise
not admissible. [Rule 130, Sec. 48] relevant, as when it tends to identify
 Exception: defendant as the perpetrator and
a) Expert witness: On a matter requiring tends to show is presence at the
special knowledge/skill/experience/ scene of the crime or in the vicinity
training which he shown to possess. of the crime at the time charged, or
[Rule 130, Sec. 49] when it is evidence of a
 There is no precise requirement as circumstance connected with the
to the mode in which crime. [People vs. Irang (1937)]
skill/experience shall have been
acquired. 7. RECALLING A WITNESS TO THE STAND
 Knowledge acquired by doing is no (RECALLING WITNESSES [RULE 132,
less valuable than that acquired by SEC. 9])
study. [Dilag Co. v. Merced (1949)]
b) Ordinary witness: If proper basis is  After both sides have concluded the
given, and regarding: [Rule 130, Sec. examination of a witness, he cannot be
recalled without leave of court.
 Examples of grounds for recalling a witness:  If a witness remains present in the hearing
[People v. Rivera (1991)] despite the court’s order that all other
 Particularly identified material points were witnesses leave the court room, the
not covered in the cross-examination; discretion to admit/reject the testimony of
 Particularly described vital documents such witness will lie within the court’s
were not presented to the witness; discretion. [People v. Sandal]
 The cross-examination was conducted in
so inept a manner as to result in a virtual 10. MAY PAROL EVIDENCE BE GIVEN?
absence thereof.
 Any evidence aliunde, whether oral or
8. ADVERSE PARTY AS WITNESS written, which is intended or tends to vary or
(IMPEACHMENT OF ADVERSE PARTY’S contradict a complete and enforceable 357
WITNESS [RULE 132, SEC. 11]) agreement embodied in a document.

EVIDENCE
General rule:
 How done:  When the terms of an agreement
1) By contradictory evidence; (including wills) have been reduced to
2) By evidence that his general reputation writing,
for truth, honesty or integrity is bad;  it is considered as containing all the
3) By evidence that he has made at other terms agreed upon and there can be,
times statements inconsistent with his between the parties and their
present testimony. successors in interest,
 no evidence of such terms other than
IMPEACHMENT OF OWN WITNESS the contents of the written agreement.
[Rule 132, Sec. 12]  Exception: A party may present evidence to
 General rule: The party producing a witness modify, explain or add to the terms of written
is not allowed to impeach the latter’s agreement if he puts in issue in his pleading:
credibility. a) An intrinsic ambiguity, mistake or
 Exception: imperfection in the written agreement;
1) Unwilling or hostile witness.  Mistake here refers to a mistake of
 Impeachment may be made by the fact mutual to the parties or where
party presenting the hostile or the innocent party was imposed
unwilling witness in all respects as if upon by unfair dealing of the other.
he had been called by the adverse  Imperfection includes an inaccurate
party, except by evidence of bad statement in the agreement or
character. incompleteness in the writing or the
 He may also be impeached and presence of inconsistent provisions
cross-examined by the adverse therein.
party, but such cross-examination b) The failure of the written agreement to
must only be on the subject matter express the true intent and agreement of
of his examination-in-chief. the parties thereto;
2) Witness is an adverse party or an c) The validity of the written agreement;
officer/director or managing agent of a d) The existence of other terms agreed to
public/private corporation or of a by the parties or their successors in
partnership/association which is an interest after the execution of the written
adverse party. agreement.
 It does not apply when 3rd parties are
9. EXCLUDING WITNESSES FROM involved. [Lechugas v. CA (1986)]
COURTROOM (EXCLUSION AND
SEPARATION OF WITNESSES [RULE 132, Parol Evidence Rule Best Evidence Rule
SEC. 15]) Presupposes that the Contemplates the
original document is situation wherein the
 The judge may exclude from the court any available in court original writing is not
witness who is not under examination at that available and/or there is
a dispute as to whether
time so that he may not hear the testimony
said writing is the original
of other witnesses.
Prohibits the varying of Prohibits the introduction
 The judge may also have the witnesses the terms of a written of substitutionary
separated and prevented from conversing agreement evidence in lieu of the
with each other until all have been original document
examined. regardless of WON it
varies the contents of the  The document may be presented in

original evidence without further proof, the
Applies only to Applies to all kinds of certificate of acknowledgment being
documents contractual in documents prima facie evidence of the
nature (Exception: wills)
execution of the instrument or
Can be invoked only Can be invoked by any
when the controversy is party to an action
document involved.
between the parties to the regardless of WON such  Such notarized documents are
written agreement, their party participated in the evidence, even against 3rd persons,
privies or any party writing involved of the facts which gave rise to their
directly affected thereby execution and of the date of
execution. [Rule 132, Sec. 23]
358
B. Documentary  How to prove Public Records (kept in
EVIDENCE
the Philippines) of Private Documents
required by law to be entered therein
1. WHAT DOCUMENTS REQUIRE
[Rule 132, Sec. 27]
AUTHENTICATION AND BY WHOM?
 By the original record, or a copy
a. PUBLIC DOCUMENTS [Rule 132, Sec. 19]) thereof, attested by the legal
 Public documents generally include custodian of the record, with an
notarial documents and appropriate certificate that such
officer has the custody.
 are admissible in evidence without the
necessity of preliminary proof as to its  Such records are evidence, even
authenticity and due execution. [Antillon against 3rd persons, of the facts
v. Barcellon] which gave rise to their execution
1) Written official acts of the sovereign and of the date of execution. [Rule
authority, official bodies and 132, Sec. 23]
tribunals, and public officers,  Only baptismal certificates issued by
whether of the Philippines or of a the priests during the Spanish
foreign country. regime are considered public
2) Records of official acts of the documents. [Adriano v. De Jesus]
sovereign authority, official bodies
and tribunals, and public officers,  Contents of attestation [Rule 132, Sec.
whether of the Philippines or of a 25]
foreign country.  The attestation must state that the
copy is a correct copy of the original
 How to prove public records [Rule 132, or a specific part thereof, as the
Sec. 24] case may be.
1) By an official publication thereof;  The attestation must be under the
2) By a copy attested by the officer having official seal of the attesting officer, if
the legal custody of the record, or by his there be any, or if he be the clerk of
deputy, and accompanied: a court having a seal, under the seal
 If the record is not kept in the of such court.
Philippines, with a certificate that  A mere copy of the foreign public
such officer has the custody. document, without the attestation
 If the record is in a foreign country, and the certificate, is not admissible
the certificate may be made by a in evidence to prove foreign law.
secretary of the embassy/legation, [Wildvalley Shipping v. CA (2000)]
consul-general, consul, vice-consul,
consular agent or any officer in the  Irremovability of record [Rule 132, Sec.
foreign service of the Philippines 26]
stationed in the foreign country in  Any public record, an official copy of
which the record is kept, and which is admissible in evidence, must
authenticated by the seal of his not be removed from the office in which
office. it is kept,
 except upon order of a court where the
 How to prove notarial documents inspection of the record is essential to
(except last wills and testaments) [RULE the just determination of a pending case.
132, SEC. 30]  Probative value [Rule 132, Sec. 23]
 Documents consisting of entries in  This constitutes an exception to the

public records made in the performance opinion rule. [Rule 130, Sec. 48 and
of duty by a public officer are prima facie 50]
evidence of the facts therein stated. o Evidence respecting the
handwriting may also be given
 Proof of lack of record [Rule 132, Sec. by a comparison made by the
28] witness or the court,
 A written statement signed by an o with writings admitted or treated
officer having the custody of an as genuine by the party against
official record or by his deputy whom the evidence is offered,
 that after diligent search, no or proved to be genuine to the
record or entry of a specified tenor satisfaction of the judge. 359
is found to exist in the records of  Expert evidence may also be
EVIDENCE
his office, admitted to prove the genuineness
 accompanied by a certificate that of the handwriting. [Rule 130, Sec.
such officer has the custody, is 49]
admissible to prove that the records
of his office contain no such record  How to prove if document is offered as
or entry. authentic [Rule 132, sec. 20]
 The document need only be
b. PRIVATE DOCUMENTS ; identified as that which it is claimed
 How to prove if document is offered as to be.
authentic [RULE 132, SEC. 20]
 Its due execution and authenticity c. IMPEACHMENT OF JUDICIAL RECORD
must be proved either: [Rule 132, Sec. 29]
o By anyone who saw the  Impeachment is done using evidence of:
document executed/written; 1) Want of jurisdiction in the court or
o By evidence of the genuineness judicial officer;
of the signature/handwriting of 2) Collusion between the parties;
the maker. 3) Fraud in the party offering the
 Any other private document need record, in respect to the
only be identified as that which it is proceedings.
claimed to be.
 AUTHENTIC DOCUMENT RULE – d. ALTERATIONS [Rule 132, Sec. 31]
If all the following requisites have  The party producing a document as
been met, no other evidence of its genuine, which has been altered and
authenticity is required: [Rule 132, appears to have been altered after its
Sec. 21] execution, in a part material to the
o The private document is more question in dispute, must account for the
than 30 years old; alteration.
o It is produced from the custody  Failure to do so would result in the
in which it would naturally be inadmissibility of evidence.
found if genuine;  Such party may show that the alteration
o It is unblemished by any was made:
alterations or circumstances of 1) By another;
suspicion. 2) Without his concurrence;
3) With the consent of the parties
 Proving genuineness of handwriting affected by it;
[Rule 132, Sec. 22] 4) Properly or innocently made;
 It may be proved by any witness 5) Without changing the meaning or
who believes it to be the handwriting language of the instrument.
of such person because:
a) He has seen the person write; e. SEAL [Rule 132, Sec. 32]
b) He has seen writing purporting to be  There shall be no difference between
his upon which the witness has sealed and unsealed private documents
acted or been charged, and has insofar as their admissibility as evidence
thus acquired knowledge of the is concerned.
handwriting of such person.
f. DOCUMENTS WRITTEN IN AN
UNOFFICIAL LANGUAGE [Rule 132, Sec.

33] b. Secondary Evidence
 These documents are not admissible  Original document is unavailable (lost,
unless accompanied by a translation destroyed or cannot be produced in
into English or Filipino. court);
 Parties or their attorneys are directed to  The offeror, upon proof of its
have the translation prepared before execution/existence and cause of its
trial. unavailability, without bad faith on
his part, may prove its contents by
2. DO DOCUMENTS COMPLY WITH BEST (in order): [Rule 130, Sec. 5]
EVIDENCE RULE? [Rule 130, Sec. 3] 1) A copy;
2) A recital of its contents in 360
a. Best Evidence some authentic document;
 General rule: When the subject of
EVIDENCE
3) The testimony of witnesses.
inquiry is the contents of a document, no  Original document is in adverse party’s
evidence shall be admissible other than custody/control. [Rule 130, Sec. 6]
the original document itself.  If after reasonable notice is given to
 Exception: the adverse party
a) When the original has been lost or  to produce the document and after
destroyed, or cannot be produced in satisfactory proof of the existence of
court, without bad faith on the the document is made, he fails to
offeror’s part; produce the document,
b) When the original is in custody or  secondary evidence may be
under control of party against whom presented.
evidence is offered, and the latter  Original document is a public record.
fails to produce it after reasonable [Rule 130, Sec. 7]
notice;  Its contents may be proved by a
c) When the original consists of certified copy issued by the public
numerous accounts or other officer in custody thereof.
documents which cannot be  The offeror of secondary evidence is
examined in court without great loss burdened to prove: [Lee v. People
of time, and the fact sought to be (2004)]
established from them is only the 1) The loss or destruction of the
general result of the whole; original without bad faith on the part
d) When the original is a public record of the proponent/offeror which can
in the custody of a public officer or is be shown by circumstantial
recorded in a public office. evidence of routine practices of
 Original of a document [Rule 130, Sec. destruction of documents;
4] 2) The proponent must prove by a fair
a) One the contents of which are the preponderance of evidence as to
subject of inquiry. raise a reasonable inference of the
b) When a document is in 2 or more loss or destruction of the original
copies executed at or about the copy;
same time, with identical contents, 3) It must be shown that a diligent and
all such copies are equally regarded bona fide but unsuccessful search
as originals. has been made for the document in
c) When an entry is repeated in the the proper place or places.
regular course of business, one 4) If the document is one in which
being copied from another at/near other persons are also interested,
the time of the transaction, all the and which has been placed in the
entries are likewise equally hands of a custodian for
regarded as originals. safekeeping, the custodian must be
 Carbon copies are deemed duplicate required to make a search and the
originals. [People vs. Tan (1959)] fruitlessness of such search must be
 The BER does not apply when the issue shown, before secondary evidence
is only as to WON such document was can be admitted.
actually executed or in the  Where the original is in the custody of
circumstances relevant to its execution. the adverse party, it is not necessary
[People v. Tandoy (1990)] that it be in the actual possession of the
adverse party. It is enough that the E. Extrajudicial Admissions

circumstances show that the writing is in
his possession or under his control.
 Any statement of fact made by a party
[Villa Rey Transit v. Ferrer (1968)]
against his interest or unfavorable to the
 When the original is outside the
conclusion for which he contends or is
jurisdiction of the court, as when it is in a
inconsistent with the facts alleged by him.
foreign country, secondary evidence is
 Types:
admissible. [PNB v. Olila]
1) Verbal or written;
 A party who calls for the production of a
2) Express or tacit;
document and inspects it is not obliged
3) JUDICIAL – One made in connection
to offer it as evidence. [Rule 130, Sec. 8]
with a judicial proceeding in which it is
offered; 361
EXTRAJUDICIAL – Any admission other
EVIDENCE
C. Object than judicial (e.g. Rule 130, Sec 26 and
32).
 Those addressed to the senses of the court.  General rule: Any act/declaration/ omission
[Rule 130, Sec. 1] of a party as to a relevant fact may be given
 Includes the anatomy of a person or of any in evidence against him. [Rule 130, Sec. 26]
substance taken therefrom. [US v. Tan
Teng] Admission Confession
 General rule: When object is relevant to the Merely a statement of Involves an
fact in issue, it may be exhibited to, fact acknowledgement of
examined or viewed by the court. [Rule 130, guilt/liability
Sec. 1] Maybe express or tacit Must be express
 Exception: Court may refuse exhibition of
Flight from justice is an The silence of an accused
object evidence and rely on testimonial admission by conduct under custody or his
alone if: and circumstantial failure to deny statements
1) Its exhibition is contrary to public policy, evidence of by another implicating him
morals or decency; consciousness of guilt. in a crime cannot be
2) It would result in delays, inconvenience, [US v. Sarikala] considered as a tacit
unnecessary expenses, out of confession of his
proportion to the evidentiary value of participation in the
such object; [People v. Tavera] commission of the crime.
[People v. Alegre (1979)]
3) The evidence would be confusing or
Maybe made by 3rd Can be made only by the
misleading. [People v. Saavedra]
parties, and in certain party himself and are
cases, admissible admissible against his co-
against a party accused in some
D. Circumstantial Evidence instances
Admission Self-serving testimony

 Requisites for circumstantial evidence to be Made against the Made in favor of the
sufficient for conviction: interest of the person interest of the person
1) There is more than 1 circumstance; who admitted making the statement
2) The facts from which the inferences are Made in anticipation of
derived are proven; future litigation
3) The combination of all the Admissible in evidence Not admissible in
circumstances is such as to produce a Admissible not only evidence
conviction beyond reasonable doubt. against the party who
made it or his
successors-in-interest,
 Under the RPC, one cannot be convicted of
but also against 3rd
treason by means of circumstantial persons. [Viacrucis v.
evidence. [Art. 114, RPC] CA (1986)]
1. SELF-SERVING DECLARATIONS
 Requisites
1) The statement was made extra-
judicially;
2) The statement is in favor of the
declarant’s interest; offer can be received as evidence against

3) The statement was made in anticipation the offeror. [People vs. Yparriguirre (1997)]
of future litigation
4. RES INTER ALIOS ACTA [Rule 130, Sec.
2. ADMISSION BY SILENCE [Rule 130, Sec. 28]
32]  The rights of a party cannot be prejudiced by
 AN ACT/DECLARATION MADE IN THE PRESENCE an act/declaration/omission of another. (1st
AND WITHIN THE HEARING/OBSERVATION OF A branch of the res inter alios acta rule)
PARTY  Only the admissions of a party-litigant are
 WHO DOES/SAYS NOTHING admissible as substantive evidence. Those
 WHEN THE ACT/DECLARATION IS SUCH AS of non-party witnesses may be admitted for
NATURALLY TO CALL FOR ACTION/COMMENT IF impeachment purposes only. 362
NOT TRUE,  Extra-judicial statements of an accused
EVIDENCE
 AND WHEN PROPER AND POSSIBLE FOR HIM TO implicating a co-accused may not be utilized
DO SO, MAY BE GIVEN IN EVIDENCE AGAINST against the latter.
HIM.  Exception: [People v. Raquel (1996)]
 The rule does not apply if the statements a) The co-accused impliedly acquiesced in
adverse to the party were made in the or adopted the confession by not
course of an official investigation. [US v. De questioning its truthfulness;
la Cruz] b) The accused persons voluntarily and
independently executed identical
3. COMPROMISE [Rule 130, Sec. 27 confessions without collusion and
 Civil cases – An offer of compromise is not without contradiction by the others
an admission of any liability, and is not present;
admissible against the offeror. c) The accused admitted the facts after
 Criminal cases – An offer of compromise by being apprised of the confession;
the accused may be received in evidence as d) If they are charged as co-conspirators of
an implied admission of guilt. the crime which was confessed by 1 of
 Exception: the accused and the confession is used
 In cases involving quasi-offenses only as a corroborating evidence;
(criminal negligence); e) The confession is used as circumstantial
 Those allowed by law to be evidence to show the probability of
compromised. participation by the co-conspirator;
 An offer to pay or the payment of medical, f) The confessant testified for his co-
hospital or other expenses occasioned by an defendant;
injury is not admissible in evidence as proof g) The co-conspirator’s extra-judicial
of civil/criminal liability for the injury. confession is corroborated by other
 A plea of guilty later withdrawn, or an evidence on record.
unaccepted offer of a plea of guilty to lesser
offense, is not admissible in evidence 5. EXCEPTIONS TO RES INTER ALIOS
against the accused who made the ACTA
plea/offer.
 In cases of public crimes, a) Partner’s/agent’s admission; [Rule 130, Sec.
 the accused is permitted to show that 29]
the offer was not made under a
 Requisites:
consciousness of guilt
a) The act/declaration must be within
 but merely to avoid the inconvenience of the scope of the authority of the
imprisonment of for some other reason partner/agent.
 which would justify a claim by the b) The act/declaration must have been
accused that the offer was not in truth made during the existence of the
an admission of his guilt or an attempt to partnership/agency.
avoid the legal consequences which c) The partnership or agency must be
would ordinarily ensue therefrom. shown by evidence other than the
[People vs. Godoy (1995)] act or declaration.
 A plea of forgiveness may be considered as
analogous to an attempt to compromise.  This rule applies to the act/declaration of
[People vs. De Guzman (1996)] a joint owner, joint debtor or other
 An offer to compromise does not require that person jointly interested with the party.
a criminal complaint be first filed before the
 Statements made after a partnership F. Electronic Evidence

has been dissolved do not fall within this
exception.
1. WHAT EVIDENCE IS COVERED BY THE
REE? (R2,S1; R11, SS1-2, REE)
b) Co-conspirators admission; [Rule 130, Sec.
30]
a) Electronic document –
 Requisites:  information or the representation of
a) The act/declaration must relate to information, data, figures, symbols or
the conspiracy; other modes of written expression,
b) It must have been made during the  described or however represented, by
existence of the conspiracy; which a right is established or an
c) The conspiracy must be shown by obligation extinguished, or by which a 363
evidence other than such fact may be proved and affirmed,
EVIDENCE
act/declaration.  which is received, recorded, transmitted,
stored processed, retrieved or produced
 The existence of the conspiracy may be electronically.
inferred from the acts of the accused.  It includes digitally signed documents
[People v. Belen (1963)] and any print-out or output, readable by
 Where there is no independent evidence sight or other means, which accurately
of the alleged conspiracy, the extra- reflects the electronic data message or
judicial confession of an accused cannot electronic document.
be used against his co-accused as the  For purposes of these Rules, the term
res inter alios rule applies both to extra- “electronic document” may be used
judicial confessions and admissions. interchangeably with electronic data
[People v. Alegre (1976)] message”.
 This rule in Rule 130, Sec. 30 applies b) Electronic data message - information
only to extra-judicial statements, not to generated, sent, received or stored by
testimony given on the stand. [People v. electronic, optical or similar means.
Serrano (1959)] c) Audio recording
d) Photograph Video recording
c) Admission by privies. [Rule 130, Sec. 31] e) Ephemeral evidence - telephone
 Where one derives title to property from conversations, text messages, chatroom
another, the act/declaration/omission of sessions, streaming audio, streaming video,
the latter, while holding the title, in and other electronic forms of communication
relation to the property, is evidence the evidence of which is not recorded or
against the former. retained.
 Requisites: [People v. Du] 2. WHEN AND TO WHAT EXTENT

a) There exists a relation of privity ADMISSIBLE? (R3,S2, REE)
between the party and the
declarant;  An electronic document is admissible in
 Privity in estate may have arisen evidence if it complies with the rules on
by succession, acts mortis admissibility prescribed by the Rules of
causa or acts inter vivos. Court and related laws and is authenticated
[Alpuerto v. Perez Pastor] in the manner prescribed by these Rules.
b) Admission was made by declarant
as predecessor-in-interest while a) Privileged Communication (R3,s3, REE)
holding title to property;  The confidential character of a privileged
c) Admission is in relation to the communications is not solely on the
property. ground that it is in the form of an
electronic document.
b) Functional equivalence (R3, s1, REE)

 Whenever a rule of evidence refers to
the term of writing, document, record,
instrument, memorandum or any other
form of writing, such term shall be
deemed to include an electronic a. a genuine question is raised as to

document as defined in these Rules. the authenticity of the original; or
b. in the circumstances it would be
c) Authentication (R5, ss1-3; R11, ss1-2, unjust or inequitable to admit a copy
REE) in lieu of the original.
 The person seeking to introduce an
electronic document in any legal 3. EVIDENTIARY WEIGHT OF ELECTRONIC
proceeding has the burden of proving its EVIDENCE (R7, SS1-2)
authenticity in the manner provided in
this Rule.  In assessing the evidentiary weight of an
 Before any private electronic document electronic document, the following factors
offered as authentic is received in may be considered: 364
evidence, its authenticity must be a. The reliability of the manner or method
EVIDENCE
proved by any of the following means: in which it was generated, stored or
a. by evidence that it had been communicated, including but not limited
digitally signed by the person to
purported to have signed the same;  input and output procedures,
b. by evidence that other appropriate  controls, tests and checks for
security procedures or devices as accuracy and reliability of the
may be authorized by the Supreme electronic data message or
Court or by law for authentication of document,
electronic documents were applied  in the light of all the circumstances
to the document; or as well as any relevant agreement;
c. by other evidence showing its b. The reliability of the manner in which its
integrity and reliability to the originator was identified;
satisfaction of the judge. c. The integrity of the information and
communication system in which it is
 A document electronically notarized in recorded or stored, including but not
accordance with the rules promulgated limited to the hardware and computer
by the Supreme Court shall be programs or software used as well as
considered as a public document and programming errors;
proved as a notarial document under the d. The familiarity of the witness or the
Rules of Court. person who made the entry with the
communication and information system;
d) Best Evidence Rules (R4, ss1-2, REE) e. The nature and quality of the information
 An electronic document shall be which went into the communication and
regarded as the equivalent of an information system upon which the
original document under the Best electronic data message or electronic
Evidence Rule if it is a printout or document was based; or
output readable by sight or other means, f. Other factors which the court may
shown to reflect the data accurately. consider as affecting the accuracy or
 When a document is in two or more integrity of the electronic document or
copies executed at or about the same electronic data message.
time with identical contents,  In any dispute involving the integrity of the
 or is a counterpart produced by the information and communication system in
same impression as the original, or which an electronic document or electronic
from the same matrix, or data message is recorded or stored, the
 by mechanical or electronic re- court may consider, among others, the
recording, or by chemical following factors:
reproduction, or by other equivalent a. Whether the information and
techniques communication system or other similar
 which accurately reproduces the device was operated in a manner that
original, such copies or duplicates did not affect the integrity of the
shall be regarded as the equivalent electronic document, and there are no
of the original. other reasonable grounds to doubt the
 Notwithstanding the foregoing, copies or integrity of the information and
duplicates shall not be admissible to the communication system;
same extent as the original if: b. Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that

of the party using it; or
c. Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a person
who is not a party tot he proceedings
and who did not act under the control of
the party using it.
 Text messages have been classified as
“ephemeral electronic communication”
under Section 1(k), Rule 2 of the Rules on
Electronic Evidence, and “shall be proven by 365
the testimony of a person who was a party
EVIDENCE
to the same or has personal knowledge
thereof.” [Vidallon-Magtolis v. Salud (2005)]
4. THE HEARSAY RULE AND THE

BUSINESS RECORDS EXCEPTION (R9,
SS1-2)
 All matters relating to the admissibility and

evidentiary weight of an electronic document
may be established by an affidavit stating
facts of direct personal knowledge of the
affiant or based on authentic records.
 The affidavit must affirmatively show the
competence of the affiant to testify on the
matters contained therein.
 The affiant shall be made to affirm the
contents of the affidavit in open court and
may be cross-examined as a matter of right
by the adverse party.
REMEDIAL LAW REVIEWER Chapter VI: HOW do I PRESENT and OFFER the EVIDENCE at TRIAL?
3. EXCEPTIONS IN GENERAL
Chapter VI: How do I present and offer
the evidence at trial? a) Testimony of witness in civil cases may be
given by depositions. [Rule 23 and 24]
A. ORDER OF PROOF b) Depositions or conditional examinations are
1. MANNER OF EXAMINATION allowed in criminal cases. [Rule 119 and
2. MODE OF ANSWERING 123]
3. EXCEPTIONS IN GENERAL
 Mere presentation of the affidavits of
4. RECORD OF PROCEEDINGS
5. TRANSCRIPT
prosecution witnesses subject to cross-
6. RIGHTS AND OBLIGATIONS examination is not allowed by the ROC.
7. ORDER OF EXAMINATION [People v. Estenzo (1976)]
B. FORM OF QUESTIONS c) Affidavits are allowed in cases covered by 366
1. LEADING AND MISLEADING QUESTIONS Rule on Summary Procedure
 Although affidavits of witnesses are
EVIDENCE
C. OFFER OF EVIDENCE
1. OFFER OF EVIDENCE allowed/admissible under the Rule on
2. WHEN TO MAKE OFFER Summary Procedure, these may not
D. OBJECTIONS
have any probative value. [Heirs of
1. WHEN REPETITION OF OBJECTION IS
UNNECESSARY Sabanpan v. Comorposa, (2003)]
2. RULING ON THE OBJECTION
3. MOTION TO STRIKE 4. RECORD OF PROCEEDINGS [Rule 132,
E. TENDER OF EXCLUDED EVIDENCE Sec. 2]
F. ELECTRONIC EXAMINATION OF WITNESS
G. EXAMINATION OF A CHILD WITNESS  The entire proceedings of a trial/hearing
1. SCOPE AND APPLICABILITY should be recorded, including:
2. CHILD WITNESS
 The questions propounded to a witness
3. EXCLUSION OF THE PUBLIC DURING
THE CHILD'S EXAMINATION and his answer thereto;
4. ALTERNATIVE MODES OF GIVING  Statements made by the judge or any of
TESTIMONY the parties/counsels/witnesses with
5. WHEN TO TAKE THE CHILD'S reference to the case.
TESTIMONY
6. PROVISIONS FOR EASE OF CHILD IN 5. TRANSCRIPT
TESTIFYING
7. HEARSAY EXCEPTION IN CHILD ABUSE  TSN shall be made by the official
CASES
stenographer/ stenotypist/recorder. He shall
8. SEXUAL ABUSE SHIELD RULE
9. OTHER PROTECTIVE MEASURES certify it as correct, and it shall be deemed
prima facie a correct statement of the
proceedings.
A. Order of Proof  That a judge did not hear a case does not
necessarily render him less competent in
1. MANNER OF EXAMINATION [Rule 132, assessing the credibility of witnesses. He
Sec. 1] can rely on the TSN of their testimony and
calibrate them in accordance with their
 In open court; conformity to common experience,
 Under oath/affirmation. knowledge and observation of ordinary
men. Such reliance does not violate
2. MODE OF ANSWERING substantive and procedural due process of
law. [People v. Cadley (2004)]
 General rule: Oral answers.
 Exception: 6. RIGHTS AND OBLIGATIONS [Rule 132,
1. Witness is incapacitated to speak; Sec. 3]
2. Question calls for a different mode of
answer.  Obligation of a witness: To answer
 The testimony of the witness should be questions, although his answer may tend to
elicited by questions of counsel. But the establish a claim against him.
court may itself propound questions either  Rights of a witness:
on the direct or cross examination of the a) To be protected from irrelevant,
witness. [People v. Moreno (1988)] improper, or insulting questions, and
from harsh or insulting demeanor;
b) Not to be detained longer than the
interests of justice require; B. Form of Questions

c) Not to be examined except only as to
matters pertinent to the issue;
1. LEADING AND MISLEADING QUESTIONS
d) Not to give an answer which will tend to
[Rule 132, Sec. 10]
subject him to a penalty for an offense,
unless otherwise provided by law;
 MISLEADING QUESTIONS – Questions
 “Unless provided by law” refers to that assume as true a fact not yet testified to
immunity statutes such as those
by the witness, or contrary to that which he
which the witness is granted
has previously stated. They are not allowed.
immunity from criminal prosecution
 LEADING QUESTIONS – Questions that
for offenses admitted (e.g. Sec. 8, suggest to the witness the answer which the
RA 1379). examining party desires. 367
e) Not to give an answer which will tend to  General rule: Leading questions are not
EVIDENCE
degrade his reputation, unless it to be
allowed.
the very fact at issue or to a fact from  Exception:
which the fact in issue would be a) On cross examination;
presumed. But a witness must answer to b) On preliminary matters;
the fact of his previous final conviction c) When there is a difficulty is getting direct
for an offense.
and intelligible answers from a witness
who is ignorant, or a child of tender
7. ORDER OF EXAMINATION [Rule 132, Sec.
years, or is of feeble mind, or a deaf-
4]
mute;
d) On an unwilling or hostile witness;
DIRECT EXAMINATION
[Rule 132, Sec. 5]  A witness may be considered hostile
 Examination-in-chief of a witness by the party
only when declared by the court,
presenting him, on the facts relevant to the issue. upon adequate showing of his: [Rule
132, Sec. 12]
o Adverse interest;
o Unjustified reluctance to testify;
o His having misled the party into
CROSS EXAMINATION calling him to the witness stand.
e) On a witness who is an adverse party or
an officer/director or managing agent of
a public/private corporation or of a
partnership/association which is an
RE-DIRECT EXAMINATION adverse party.
[Rule 132, Sec. 7]
 When conducted: After the cross-examination of
the witness has been concluded.
 Why conducted: To explain or supplement his C. Offer of Evidence
answers given during the cross-examination.
 On re-direct-examination, the court in its 1. OFFER OF EVIDENCE [Rule 132, Sec. 34]
discretion may allow questions on matters
not dealt with during the cross-examination.  Purpose: For evidence to be considered by
the court.
 In making the offer, the purpose for which
the evidence is offered must be specified,
RE-CROSS EXAMINATION because such evidence may be admissible
[Rule 132, Sec. 8] for several purposes under the doctrine of
 When conducted: Upon the conclusion of the re- multiple admissibility.
direct examination.  The rule may be relaxed, provided the
 Matters covered: The adverse party may re-cross- evidence must have duly identified by
examine the witness on matters stated in his re- testimony duly recorded and they must have
direct examination, and also on such other matters been incorporated in the records of the
as may be allowed by the court in its discretion. case. [Vda. De Orate v. CA (1995)]
2. WHEN TO MAKE OFFER [Rule 132, Sec. to take a reasonable time to inform itself on
35] the question presented.
 But the ruling shall always be made during
Kind of evidence When to offer the trial and at such time as will give the
Testimonial At the time the witness is called party against whom it is made an
to testify opportunity to meet the situation presented
Documentary and After the presentation of a by the ruling.
Object party’s testimonial evidence  The reason for sustaining or overruling an
Offer shall be done orally unless allowed by the court
objection need not be stated. However, if the
to be done in writing.
objection is based on two or more grounds,
a ruling sustaining the objection on one or
 Absence of an offer is a defect which is
some of them must specify the ground/s 368
waived when a party fails to object when the
relied upon.
ground became reasonably apparent, as

EVIDENCE
Reservation of a ruling by the court on an
when the witness is called to testify without
objection to the admissibility of evidence,
any prior offer. [Catuira v. CA (1994)]
without subsequently excluding the same,
 The defect caused by the absence of formal
amounts to a denial of an objection. [People
offer of exhibits can be cured by the
v. Tavera]
identification of the exhibits by testimony
duly recorded and the incorporation of the
3. MOTION TO STRIKE [Rule 132, Sec. 39]
said exhibits in the records of the case.
[People v. Mate (1981)]
 The court may sustain an objection and
order the answer given to be stricken off the
record
D. Objections  should a witness answer the question before
the adverse party had the opportunity to
What to object to When to object voice fully its objection and such objection is
Testimonial evidence Immediately after offer is found to be meritorious.
made  The court may also, upon motion, order the
Question propounded in As soon as the grounds striking out of answers, which are
the course of oral become reasonably incompetent, irrelevant or otherwise
examination apparent
improper.
Offer done in writing Within 3 days after notice
of the offer, unless a
different period is allowed
by the court E. Tender of Excluded Evidence (R132,
The grounds for objection s40)
must be specified in any case.
Kind of evidence How to tender the evidence
1. WHEN REPETITION OF OBJECTION IS
Documentary Offeror may have the same
UNNECESSARY [Rule 132, Sec. 37] attached or made part of the
record
 When it becomes reasonably apparent in Testimonial Offeror may state for the
the course of the examination of a witness record the name and other
that the questions being propounded are of personal circumstances of the
the same class as those to which objection witness and the substance of
has been made, whether such objection was the proposed testimony
sustained or overruled.
 It shall be sufficient for the adverse party to  Documents marked as exhibits during the
record his continuing objection to such class hearing but which were not formally offered
of questions. in evidence cannot be considered as
 A court may, motu proprio, treat the evidence nor shall they have evidentiary
objection as a continuing one. [Keller v. value. [Vda. De Flores v. WCC (1977)]
Ellerman & Bucknall Steamship]
Identification of documentary Formal offer of exhibit
2. RULING ON THE OBJECTION [Rule 132, evidence
Sec. 38]  Done in the course of  Done only
the trial and is when the
accompanied by the party rests
 It should be given immediately after the marking of the evidence his/her case
objection is made, unless the court desires  That a document has
been identified does not competency exam shall be conducted.

mean that it will be  The age of the child by itself is not a
offered sufficient basis for a competency
[Interpacific Transit v. Aviles (1990)] examination. [Sec. 6(a)]
 The court has the duty of continuously
assessing the competence of the child
F. Electronic Examination of Witness throughout his testimony. [Sec. 6(f)]
(R10, s1, REE)
3. EXCLUSION OF THE PUBLIC DURING
 After summarily hearing the parties pursuant THE CHILD’S EXAMINATION
to Rule 9 of these Rules, the court may
authorize the presentation of testimonial  To protect the right to the child’s privacy; 369
evidence by electronic means.  If the court determines on the record that
EVIDENCE
 Before so authorizing, the court shall requiring the child to testify in open court
determine the necessity for such would cause psychological harm to him,
presentation and prescribe terms and hinder the ascertainment of truth, or result in
conditions as may be necessary under the his inability to effectively communicate due
circumstance, including the protection of the to embarrassment/fear/timidity.
rights of the parties and witnesses
concerned. 4. ALTERNATIVE MODES OF GIVING
TESTIMONY
a) Live-link television testimony, in criminal

G. Examination of a Child Witness cases where the child is a victim or a
witness. [Sec. 25]
1. SCOPE AND APPLICABILITY  The court may order that the testimony
of the child be taken by live-link
 It shall govern the examination of child television
witnesses who are victims of crime, accused  if there is a substantial likelihood that the
of a crime, and witnesses to crime. It shall child would suffer trauma from testifying
apply in all criminal proceedings and non- in the presence of the accused, his
criminal proceedings involving child counsel or the prosecutor.
witnesses. [Sec. 1]  The trauma must be of a kind which
 The ROC provisions on deposition, would impair the
conditional examination of witnesses and completeness/truthfulness of the child’s
evidence shall be applied suppletorily. [Sec. testimony.
32]  If it is necessary for the child to identify
the accused at trial,
2. CHILD WITNESS  the court may allow the child to enter the
courtroom for the limited purpose of
a) Any person who at the time of giving identifying the accused, or the court may
testimony is < 18 years; allow the child to identify the accused by
b) In child abuse cases, a child includes one observing the image of the latter on a
over 18 years but is found by the court as television monitor.
unable to fully take care of himself or protect
himself from b) Screens, one-way mirrors and other devices
abuse/neglect/cruelty/exploitation/ to shield child from accused. [Sec. 26]
discrimination because of a physical/mental c) Videotaped deposition. [Sec. 27]
disability or condition.  If the court finds that the child will not be
 Every child is presumed qualified to be a able to testify in open court at trial, it
witness. To rebut the presumption of shall issue an order that the deposition
competence enjoyed by a child, the burden of the child be taken and preserved by
of proof lies on the party challenging his videotape.
competence. [Sec. 6(b)]  The rights of the accused during trial,
 When the court finds that substantial doubt especially the right to counsel and to
exists regarding the ability of the child to confront and cross-examine the child,
perceive/remember/ communicate, shall not be violated during the
distinguish truth from falsehood, or deposition.
appreciate the duty to tell the truth in court, a
5. WHEN TO TAKE THE CHILD’S 7. HEARSAY EXCEPTION IN CHILD ABUSE

TESTIMONY CASES [Sec. 28]
 The court may order that the testimony of  Before the hearsay statement may be
the child should be taken during a time of admitted, its proponent shall make known to
day when the child is well-rested. [Sec. 14] the adverse party the intention to offer such
statement and its particulars to provide him
6. PROVISIONS FOR EASE OF CHILD IN a fair opportunity to object.
TESTIFYING  If the child is available, the court shall
require the child to be present at the
a) Interpreter for child. [Sec. 9] presentation of the hearsay statement
b) Facilitator to pose questions to child. [Sec. for cross-examination by the adverse 370
10] party.
 If the child is unavailable, the fact of
EVIDENCE
c) Support persons. [Sec. 11]
 A child testifying at a judicial proceeding or unavailability must be proved by the
making a deposition shall have the right to proponent and his hearsay testimony
be accompanied by 1 or 2 persons of his shall be admitted only if corroborated by
own choosing to provide him emotional other admissible evidence.
support.
d) Waiting area for child witnesses that is 8. SEXUAL ABUSE SHIELD RULE [Sec. 30]
separate from waiting areas used by other
persons. [Sec. 12]  General rule: The following evidence are
e) Courtroom environment is made a more inadmissible in any criminal proceeding
comfortable environment for the child. [Sec. involving alleged child sexual abuse:
13] 1) Evidence offered to prove that the
f) Recess during testimony: The child may be alleged victim engaged in other sexual
allowed reasonable periods of relief while behavior;
undergoing direct, cross, re-direct, and re- 2) Evidence offered to prove the sexual
cross examinations as often as necessary predisposition of the alleged victim.
depending on his developmental level. [Sec.  Exception: Evidence of specific instances
15] of sexual behavior by the alleged victim to
g) Testimonial aids: use of dolls, anatomically- prove that a person other than the accused
correct dolls, puppets, drawings, was the source of semen, injury or other
mannequins, or any other appropriate physical evidence shall be admissible.
demonstrative device to assist him in his
testimony. [Sec. 16] 9. OTHER PROTECTIVE MEASURES
h) Emotional security item: While testifying, a
child shall be allowed to have an item of his  Video/audio tapes that are part of the court
own choosing such as a blanket/toy/doll. record may be viewed only by parties, their
[Sec. 17] counsel, their expert witness and the
i) Conduct in questioning the witness: The guardian ad litem.
court shall exercise control over the  But they cannot divulge the tape (or any
questioning of children so as to: [Sec. 19] portion thereof) to any other person, except
 Facilitate the ascertainment of the truth; as necessary for the trial.
 Ensure that questions are stated in a  The court may issue additional orders to
form appropriate to the child’s protect the child’s privacy.
developmental level;  Publication (or causing it) in any format any
 Protect children from harassment or identifying information of a child who is or is
undue embarrassment; alleged to be a victim/accused of a crime or
 Avoid waste of time. a witness thereof, or an immediate family of
 The court may allow the child witness to the child, shall be liable for contempt of
testify in a narrative form. court.
j) Weight given to testimony of child witness:  A child has a right at any court proceeding
His testimony, if credible by itself, shall be not to testify regarding personal identifying
sufficient to support a finding of information that could endanger his physical
fact/conclusion/judgment subject to the safety or his family.
standard of proof required in criminal and  However, the court may require the child to
non-criminal cases. [Sec. 22] testify regarding personal identifying
information in the interest of justice.
 The records of a youthful offender shall be

considered as privileged and may not be
disclosed in/directly to anyone for any
purpose whatsoever.
 Exception: If he has been charged and
the court acquits him, or dismisses the
case or commits him to an institution
and subsequently releases him pursuant
to Chap. 3, PD 603:
1) To determine if he may have his
sentence suspended (under Art.
192, PD 603); 371
2) To determine if he may be granted
EVIDENCE
probation (under PD 968);
3) To enforce his civil liability, if said
liability has been imposed in the
criminal action.
REMEDIAL LAW REVIEWER Chapter VII: RULE on DNA EVIDENCE
What does the DNA Testing Order provide?

Chapter VII: A.M. No. 06-11-5-SC (2007):
Rule on DNA Evidence In the DNA testing order the court shall
What is DNA evidence? a. Order, where appropriate, that biological

samples be taken from any person or
DNA evidence constitutes the totality of the DNA crime scene evidence;
profiles, results and other genetic information b. Impose reasonable conditions on DNA
directly generated from DNA testing of biological testing designed to protect the integrity of
samples. (Section 3c) the biological sample, the testing process
and the reliability of the test results,
including the condition that the DNA test
When does this Rule apply?
results shall be simultaneously disclosed
372
EVIDENCE
to parties involved in the case; and
Whenever DNA evidence is offered, used, or c. If the biological sample taken is of such an
proposed to be offered or used as evidence in all amount that prevents the conduct of
criminal and civil actions as well as special confirmatory testing by the other or the
proceedings. (Section 1) In all matters not adverse party and where additional
specifically covered by this Rule, the Rules of biological samples of the same kind can
Court and other pertinent provisions of law on no longer be obtained, issue an order
evidence shall apply. (Section 2) requiring all parties to the case or
proceedings to witness the DNA testing to
How to apply for DNA Testing Order? be conducted.
The appropriate court may, at any time, either motu This order is immediately executory and shall not
proprio or on application of any person who has a be appealable. Any petition for certiorari shall not
legal interest in the matter in litigation, order a DNA stay implementation unless a higher court issues
testing. Such order shall issue after due hearing an injunctive order.
and notice to the parties upon a showing of the
following: The grant of DNA testing application shall not be
construed as an automatic admission into evidence
a. A biological sample exists that is relevant of the DNA testing result. (Section 5)
to the case;
b. The biological sample: (i) was not When shall post-conviction DNA testing be
previously subjected to the type of DNA allowed?
testing now requested; or (ii) was
previously subjected to DNA testing, but
the results may require confirmation for Post-conviction DNA testing may be available,
good reasons; without need of prior court order, to the prosecution
c. The DNA testing uses a scientifically valid or any person convicted by final and executory
technique; judgment provided that
d. The DNA testing has the scientific
potential to produce new information that (a) a biological sample exists,
is relevant to the proper resolution of the
case; and (b) such sample is relevant to the case, and
e. The existence of other factors, if any,
which the court may consider as
(c) the testing would probably result in the
potentially affecting the accuracy of
reversal or modification of the judgment of
integrity of the DNA testing. (Section 4)
conviction. (Section 6)
This Rule shall not preclude a DNA testing, without

If results are favorable to the convict, he or the
need of a prior court order, at the behest of any
prosecution may file a petition for a writ of habeas
party, including law enforcement agencies, before
corpus in the court of origin, CA or SC or any
a suit or proceeding is commenced.
member of said courts. If the court after due
hearing finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and
order the release of the convict, unless continued
detention is justified for a lawful cause. (Section
10)
REMEDIAL LAW REVIEWER Chapter VII: RULE on DNA EVIDENCE
What are the standards on assessment of

probative value?
The court shall consider the following:
a. The chair of custody and the possibility of

contamination of the samples;
b. The DNA testing methodology and
compliance with the scientifically valid
standards in conducting the tests;
c. The forensic DNA laboratory, including its
accreditation or if not accredited, the
relevant experience of the laboratory in
373
EVIDENCE
forensic casework and credibility shall be
properly established; and
DNA profiles and all results or other information

obtained from DNA testing shall be confidential.
Except upon order of the court, a DNA profile and
all results or other information obtained from DNA
testing shall only be released to any of the
following, under such terms and conditions as may
be set forth by the court:
a. Person from whom the sample was taken;

b. Person from whom the sample was taken;
c. Lawyers of private complainants in a
criminal action;
d. Duly authorized law enforcement
agencies; and
e. Other persons as determined by the court.
Whoever discloses any information without the

proper court order shall be liable for indirect
contempt. (Section 11)
- end of Evidence -
- end of Remedial Law -

Remedial Law

Uploaded by

Copyright:

Available Formats

Remedial Law

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Remedial Law

Uploaded by

Copyright:

Available Formats

REMEDIAL LAW REVIEWER

The ownership of the work belongs to the University of the

All rights are reserved.

Chapter 1: Jurisdiction ....................................7 2. Probable cause justifying warrantless

3. Complaint or Information.....................30 4. Hearing ........................................... 40

1. Definition .............................................50 Chapter 9: Arraignment................................. 64

i. Effect of denial of motion for leave to 2. Conviction ........................................... 83

5. Jurisdiction of the TC prior to expiration Appendix 2: Modes of Review .................... 105

Appendix 1: Availability of Bail ..................104

Part 1: Jurisdiction.......................................110 A. Amendment....................................... 133

A. Parts of a Judgment ..........................159 V. Rules..................................................... 186

B. Requirements....................................209 C. When to File ...................................... 226

Preliminary Matters......................................242 II. Duty of court; when petition sufficient281

Chapter I. General Provisions.....................346

Chapter II. Which of the facts do not need

Chapter III. Who must prove these facts that

Chapter IV. What degree of proof is needed?

Chapter V. What available evidence is

Chapter VI. How do I present and offer the

Chapter VII. A.M. No. 06-11-5-SC (2007): Rule

3. Complaint or Information.....................30 4. Hearing ........................................... 40

1. Definition .............................................50 Chapter 9: Arraignment................................. 64

i. Effect of denial of motion for leave to 2. Conviction ........................................... 83

5. Jurisdiction of the TC prior to expiration Appendix 2: Modes of Review .................... 105

Appendix 1: Availability of Bail ..................104

ACADEMICS COMMITTEE A. Definition

Chapter 2: Rights of the Accused Right to be present at every stage of the

Right to compulsory process;

Right to speedy, impartial and public

2. Nature of a Search Warrant

character of the articles procured 2. Exception:

 INSTANCES OF INVALID EXAMINATION address. [Burgos v. Chief of Staff

8. Validity of search warrant a receipt in the place in which he found the

RTCs of Manila and Quezon City, is C. Warrantless Searches

o Where a search is first undertaken,  However, these searches would be

of an individual’s other papers and surrounding condition, to warrant the

 A public officer/employee who procures a SW 3. Effect of failure to quash warrant

E. Criminal and Civil Liability of an

 Diplomatic Immunity - Ambassadors

o Examples of Evidence To Be delivered shall cause the warrant

committed, is actually committing or is  Meaning of “offense has in fact just

 Statements or admissions not covered by  Signing of the waiver to the provisions of

2. Custodial rights of the accused

otherwise provided in special laws. [Rule

offended party; with respect to an o To enable the court to pronounce

 Name of the accused  Qualifying and aggravating

If the exception is needed for defining the sufficient definiteness is a motion

 Place of commission of offense  Name of the offended party [Rule 110,

 In case of crimes susceptible of being would be available after the

resided at the time of the commission of should not be dismissed. [Republic v.

b. When to make a reservation to file  Shall furthermore have followed the

d. Filing fees of civil action deemed 3. Suspension of civil action

resolve the question must be lodged

 Where to file petition:

4. Effect of death of accused on civil

5. Effect of judgment in civil case on

 To protect the accused from the

3. Ombudsman 2. Action of the investigating officer

examined the complainant and witnesses; F. Duties of Investigating Fiscal or