BOC 2014 - Remedial Law Reviewer

TABLE OF CONTENTS
JUDGMENT ON THE PLEADINGS ........... 89

SUMMARY JUDGMENTS ........................ 89
RENDITION OF JUDGMENTS
AND FINAL ORDERS .............................. 91
ENTRY OF JUDGMENT AND FINAL ORDER
............................................................. 92
CIVIL PROCEDURE
General Principles ............................ 1
CONCEPT OF REMEDIAL LAW .................. 1

SUBSTANTIVE LAW AS DISTINGUISHED
FROM REMEDIAL LAW .......................... 1
RULE-MAKING POWER OF THE SUPREME
COURT .................................................... 2
NATURE OF PHILIPPINE COURTS ............. 3
Post-Judgment Remedies ............ 93

MOTION FOR RECONSIDERATIO AND
MOTION FOR NEW TRIAL ................... 93
APPEALS IN GENERAL ........................... 95
APPEALS FROM MTC TO THE RTC ......... 98
APPEAL FROM THE RTC ......................... 99
PETITION FOR REVIEW FROM THE RTC TO
THE CA ............................................... 102
APPEALS FROM QUASI-JUDICIAL
AGENCIES TO THE CA ........................ 103
APPEALS BY CERTIORARI TO THE SC .. 106
COMPARATIVE TABLE ON THE MODES OF
APPEAL ............................................... 111
RELIEF FROM JUDGMENTS, ORDERS AND
OTHER PROCEEDINGS ....................... 113
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS ............ 114
COLLATERAL ATTACK OF JUDGMENTS 116
Jurisdiction .......................................4
JURISDICTION IN GENERAL ..................... 4
JURISDICTION OVER THE PARTIES .......... 5
JURISDICTION OVER THE SUBJECT
MATTER ................................................. 5
JURISDICTION OVER THE ISSUES ............. 7
JURISDICTION OVER THE RES OR
PROPERTY IN LITIGATION ..................... 7
JURISDICTION OF THE METC AND MTC .... 7
JURISDICTION OVER SMALL CLAIMS,
CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE AND
BARANGAY CONCILIATION ................... 8
JURISDICTION OF THE METC AND MTC .... 8
JURISDICTION OF THE RTC, FAMILY
COURTS, AND SHARIA COURTS ............ 10
JURISDICTION OF THE SANDIGANBAYAN
................................................................. 12
JURISDICTION OF THE COURT OF TAX
APPEALS ................................................. 12
JURISDICTION OF THE CA ........................13
JURISDICTION OF THE SC ....................... 14
Execution, Satisfaction and Effect of

Judgments .................................... 118
DIFFERENCE BETWEEN FINALITY OF
JUDGMENT FOR PURPOSES OF APPEAL;
FOR PURPOSES OF EXECUTION ........ 118
WHEN EXECUTION SHALL ISSUE .......... 118
HOW A JUDGMENT IS EXECUTED ......... 121
EXECUTION FOR JUDGMENTS OF MONEY
............................................................122
EXECUTION OF JUDGMENTS FOR
SPECIFIC ACTS .................................. 124
EXECUTION FOR JUDGMENTS OF MONEY
........................................................... 125
PROPERTIES EXEMPT FROM EXECUTION
........................................................... 125
RETURN OF WRIT OF EXECUTION ........126
PROCEEDINGS WHERE PROPERTY IS
CLAIMED BY THIRD PERSONS ........... 127
RULES ON REDEMPTION ..................... 128
EFFECT OF JUDGMENT OR FINAL ORDERS
............................................................ 132
EFFECT OF FOREIGN JUDGMENTS OR
FINAL ORDERS ...................................134
Commencement of Action to Trial 14

ACTIONS.................................................. 15
CAUSE OF ACTION .................................. 16
PARTIES TO CIVIL ACTIONS ................... 19
VENUE .................................................... 25
PLEADINGS ............................................ 27
SUMMONS .............................................. 47
MOTIONS................................................. 51
DISMISSAL OF ACTIONS ........................60
PRE-TRIAL .............................................. 63
INTERVENTION ...................................... 70
SUBPOENA ..............................................71
MODES OF DISCOVERY .......................... 72
TRIAL ...................................................... 81
DEMURRER TO EVIDENCE .....................85
Provisional Remedies ..................135
Judgments and Final Orders ....... 87
NATURE OF PROVISIONAL REMEDIES .135

JURISDICTION OVER PROVISIONAL
REMEDIES ..........................................135
PRELIMINARY ATTACHMENT ...............135
JUDGMENTS IN GENERAL ...................... 87

JUDGMENT WITHOUT TRIAL ..................88
CONTENTS OF A JUDGMENT .................89
TABLE OF CONTENTS
PRELIMINARY INJUNCTION ................. 139

RECEIVERSHIP ..................................... 144
REPLEVIN ............................................. 146
Summary Settlement of Estates 194

EXTRAJUDICIAL SETTLEMENT BY
AGREEMENT BETWEEN HEIRS, WHEN
ALLOWED .......................................... 195
AFFIDAVIT OF SELF-ADJUDICATION BY
SOLE HEIR ......................................... 196
SUMMARY SETTLEMENT OF ESTATES OF
SMALL VALUE ................................... 196
REMEDIES OF AGGRIEVED PARTIES
AFTER EXTRA-JUDICIAL SETTLEMENT
OF ESTATE .......................................... 197
Special Civil Actions .................... 152

IN GENERAL .......................................... 152
INTERPLEADER .................................... 153
DECLARATORY RELIEFS AND
SIMILAR REMEDIES ............................. 154
REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTION OF THE
COMELEC AND COA .......................... 155
CERTIORARI, PROHIBITION
AND MANDAMUS ................................. 156
QUO WARRANTO ................................. 162
EXPROPRIATION .................................. 164
FORECLOSURE OF
REAL ESTATE MORTGAGE ................... 169
PARTITION ............................................172
FORCIBLE ENTRY AND UNLAWFUL
DETAINER ..........................................175
CONTEMPT ............................................179
Production and Probate of Will .. 198

NATURE OF PROBATE PROCEEDING .. 198
WHO MAY PETITION FOR PROBATE;
PERSONS ENTITLED TO NOTICE ....... 199
Allowance or Disallowance of Will

....................................................... 199
CONTENTS OF PETITION FOR

ALLOWANCE OF WILL ....................... 199
GROUNDS FOR DISALLOWING A WILL 200
REPROBATE; REQUISITES BEFORE WILL
PROVED OUTSIDE ALLOWED IN THE
PHILIPPINES; EFFECTS OF PROBATE
.......................................................... 200
REQUISITES FOR ALLOWANCE ........... 200

REVISED
RULES
ON
SUMMARY
PROCEDURE....................................... 185
KATARUNGANG PAMBARANGAY LAW
[PD 1508; RA 7160 AS AMENDED] ....... 186
RULES OF PROCEDURE FOR SMALL
CLAIMS CASES ...................................187
EFFICIENT USE OF PAPER RULE .......... 189
Letters Testamentary and of

Administration ........................... 200
WHEN AND TO WHOM LETTERS OF

ADMINISTRATION GRANTED .......... 200
ORDER OF PREFERENCE ..................... 201
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY; SIMULTANEOUS
FILING OF PETITION FOR
ADMINISTRATION ............................. 201
POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS; RESTRICTIONS
ON THE POWERS ............................... 202
APPOINTMENT OF
SPECIAL ADMINISTRATOR ..................204
GROUNDS FOR REMOVAL OF
ADMINISTRATOR .............................. 205
SPECIAL
PROCEEDINGS
Preliminary Matters ...................... 191
APPLICABLE RULES .............................. 191
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES ................................ 191
DIFFERENCE BETWEEN ACTION AND
SPECIAL PROCEEDING ....................... 191
VENUES AND JURISDICTIONS FOR
SPECIAL PROCEEDINGS .................... 192
Claims against the Estate ......... 206
ESTATE BURDENED WITH LIEN OF

CREDITORS .......................................206
PURPOSE OF PRESENTATION OF CLAIMS
AGAINST ESTATE .............................. 206
TIME WITHIN WHICH CLAIMS SHALL BE
FILED; EXCEPTIONS .......................... 206
STATUTE OF NON-CLAIMS .................. 206
Settlement of Estate of Deceased

Persons, Venue And Process ...... 193
JURISDICTION ...................................... 193
TABLE OF CONTENTS
CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST THE ESTATE
............................................................ 207
PAYMENT OF DEBTS ........................... 208
INTER-COUNTRY ADOPTION ............... 227
Writ of Habeas Corpus ............... 228
VITAL PURPOSES ................................. 228

WHO MAY ISSUE THE WRIT ................. 228
TEMPORARY RELEASE MAY CONSTITUTE
RESTRAINT -ELEMENTS ................... 228
NATURE ............................................... 228
WHC MAY BE USED WITH WRIT OF
CERTIORARI FOR PURPOSES OF
REVIEW .............................................. 229
WHC IS NOT THE PROPER REMEDY FOR
THE CORRECTION OF ERRORS OF FACT
OR LAW ............................................. 229
WHC IS NOT PROPER ........................... 229
WHC IS PROPER ................................... 229
CONTENTS OF THE PETITION .............. 229
CONTENTS OF THE RETURN ................ 230
DISTINGUISH PEREMPTORY WRIT FROM
PRELIMINARY CITATION ................... 230
WHEN WRIT NOT PROPER OR
APPLICABLE ...................................... 230
WHEN DISCHARGE NOT AUTHORIZED . 231
DISTINGUISHED FROM WRIT OF AMPARO
AND HABEAS DATA (ANNEX B) ......... 231
CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS (A.M. NO. 03-0404-SC) ................................................. 231
WRIT OF HABEAS CORPUS IN RELATION
TO CUSTODY OF MINORS ................. 234
Actions by and against Executors

and Administrators ...................... 211
ACTIONS THAT MAY BE BROUGHT
AGAINST EXECUTORS AND
ADMINISTRATORS ............................. 211
Distribution and Partition ........... 212

LIQUIDATION ....................................... 212
PROJECT OF PARTITION ...................... 212
EFFECT OF FINAL DECREE OF
DISTRIBUTION ...................................213
REMEDY OF AN HEIR ENTITLED TO
RESIDUE BUT NOT GIVEN HIS SHARE
.............................................................213
INSTANCES WHEN PROBATE COURT MAY
ISSUE WRIT OF EXECUTION ...............213
Trustees ........................................ 213

DISTINGUISHED FROM EXECUTOR OR
ADMINISTRATOR ...............................213
BOND .....................................................213
REQUISITES FOR THE REMOVAL AND
RESIGNATION OF A TRUSTEE ........... 214
GROUNDS FOR REMOVAL AND
RESIGNATION OF A TRUSTEE ........... 214
EXTENT OF AUTHORITY OF TRUSTEE . 214
Writ of Amparo.............................236
COVERAGE ........................................... 236
DISTINGUISH FROM WRIT OF HABEAS
CORPUS AND HABEAS DATA (ANNEX C)
........................................................... 236
DISTINGUISH WRIT OF AMPARO FROM
SEARCH WARRANT ........................... 237
WHO MAY FILE ..................................... 237
CONTENTS OF RETURN ....................... 237
OMNIBUS WAIVER RULE ..................... 238
EFFECT OF FAILURE TO FILE A RETURN
........................................................... 238
PROCEDURE FOR HEARING ON THE WRIT
........................................................... 238
INSTITUTION OF SEPARATE ACTIONS 238
EFFECT OF FILING OF A CRIMINAL ACTION
........................................................... 239
INTERIM RELIEFS AVAILABLE TO THE
PETITIONER AND RESPONDENT ......240
QUANTUM OF PROOF IN APPLICATION
FOR ISSUANCE OF WRIT:
Escheat ......................................... 215

WHEN TO FILE ...................................... 215
REQUISITES FOR FILING OF PETITION 215
REMEDY OF RESPONDENT AGAINST
PETITION; PERIOD FOR FILING A CLAIM
............................................................ 216
Guardianship ............................... 216

BASIS: PARENS PATRIAE ..................... 216
GUARDIANSHIP OF INCOMPETENT ..... 216
GENERAL POWERS AND
DUTIES OF GUARDIANS ....................... 216
CONDITIONS OF THE BOND OF THE
GUARDIAN ........................................ 218
RULE ON GUARDIANSHIP OVER MINORS
............................................................ 218
Adoption ..................................... 222

DISTINGUISH DOMESTIC ADOPTION
FROM INTER-COUNTRY ADOPTION
(ANNEX A) ......................................... 222
DOMESTIC ADOPTION ACT ................... 226
TABLE OF CONTENTS
Writ of Habeas Data .................... 240
CRIMINAL
PROCEDURE
SCOPE OF WRIT ................................... 240

AVAILABILITY OF WRIT ....................... 240
DISTINGUISHED FROM HABEAS CORPUS
AND AMPARO .................................. 240
CONTENTS OF THE PETITION .............. 241
INSTANCES WHEN PETITION MAY BE
HEARD IN CHAMBERS ...................... 241
EFFECT OF FILING OF CRIMINAL ACTION
............................................................ 241
DIFFERENCES UNDER THE APPLICABLE
RULES ................................................ 242
General Matters .......................... 260
JURISDICTION OVER SUBJECT MATTER

AND JURISIDICTION OVER PERSON OF
THE ACCUSED DISTINGUISHED .........260
REQUISITES FOR EXERCISE OF CRIMINAL
JURISDICTION ....................................260
JURISDICTION OF CRIMINAL
COURTS .................................................261
WHEN INJUNCTION MAY BE ISSUED TO
RESTRAIN CRIMINAL PROSECUTION 262
Change of Name and Cancellation

or Correction of Entries In
the Civil Registry ......................... 247
Prosecution of Offenses ..............263
GROUNDS FOR CHANGE OF NAME

(ANNEX D) ......................................... 247
CRIMINAL ACTIONS; HOW INSTITUTED

........................................................... 263
WHO MAY FILE; CRIMES THAT CANNOT
BE PROSECUTED DE OFFICIO ............ 263
CRIMINAL ACTIONS; WHEN ENJOINED 264
CONTROL OF PROSECUTION................ 264
SUFFICIENCY OF COMPLAINT OR
INFORMATION ................................... 265
DESIGNATION OF OFFENSE ................. 265
CAUSE OF THE ACCUSATION................ 266
DUPLICITY OF OFFENSE; EXCEPTION .. 266
AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR
VENUE OF CRIMINAL ACTIONS ............ 267
INTERVENTION OF OFFENDED PARTY. 268
Absentees ................................... 248

PURPOSE OF THE RULE .......................248
WHO MAY FILE; WHEN TO FILE ............248
PETITION FOR DECLARATION OF
ABSENCE AND APPOINTMENT OF
TRUSTEE OR ADMINISTRATOR [PDA]
............................................................248
WHEN TERMINATED ............................249
Cancellation or Correction of Entries

in the Civil Registry ..................... 249
ENTRIES SUBJECT TO CANCELLATION OR
CORRECTION UNDER RULE 108, IN
RELATION TO RA 9048 .....................248
Prosecution of Civil Action ......... 269
RULE ON IMPLIED INSTITUTION OF CIVIL

ACTION WITH CRIMINAL ACTION ...... 269
WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY ............................... 269
WHEN SEPARATE CIVIL ACTION IS
SUSPENDED ....................................... 269
EFFECT OF DEATH OF THE ACCUSED OR
CONVICT ON CIVIL ACTION ................ 269
PREJUDICIAL QUESTION ...................... 270
RULE ON FILING FEES IN CIVIL ACTION
DEEMED INSTITUTED WITH CRIMINAL
ACTION............................................... 270
Appeals in Special Proceeding .. 250

JUDGMENTS AND ORDERS FOR WHICH
APPEAL MAY BE TAKEN .................... 251
WHEN TO APPEAL ................................ 251
MODES OF APPEAL .............................. 251
RULE ON ADVANCE DISTRIBUTION ..... 251
Annex A ........................................ 251
Preliminary Investigation.............. 271

NATURE OF RIGHT ................................. 271
PURPOSES OF PRELIMINARY
INVESTIGATION ................................. 272
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE ..... 272
TABLE OF CONTENTS
RESOLUTION OF THE INVESTIGATING

PROSECUTOR .................................... 273
REVIEW ................................................. 274
WHEN WARRANT OF ARREST MAY ISSUE
............................................................ 274
CASES NOT REQUIRING PRELIMINARY
INVESTIGATION NOR COVERED BY THE
RULE ON SUMMARY PROCEDURE .... 274
REMEDIES OF ACCUSED IF THERE WAS
NO PRELIMINARY INVESTIGATION ... 275
INQUEST................................................ 275
RIGHT TO BE PRESENT AND DEFEND IN

PERSON AND BY COUNSEL AT EVERY
STATE OF THE PROCEEDINGS ........... 286
RIGHT TO TESTIFY AS WITNESS IN HIS
BEHALF .............................................. 287
RIGHT AGAINST SELF-INCRIMINATION287
RIGHT TO CONFRONTATION ................ 287
RIGHT TO COMPULSORY PROCESS ...... 288
RIGHT TO SPEEDY, IMPARTIAL AND
PUBLIC TRIAL..................................... 288
RIGHT TO APPEAL IN GENERAL ........... 288
RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATIONS ............................... 288
Arrest ............................................ 276

DEFINITION ........................................... 276
HOW MADE ........................................... 276
ARREST WITHOUT WARRANT; WHEN
LAWFUL ............................................. 277
METHOD OF ARREST ............................ 278
REQUISITES OF VALID WARRANT OF
ARREST .............................................. 279
DETERMINATION OF PROBABLE CAUSE
FOR ISSUANCE OF WARRANT OF
ARREST ............................................. 280
PROBABLE CAUSE OF FISCAL AND JUDGE
DISTINGUISHED ................................ 280
Arraignment and Plea ................ 290

ARRAIGNMENT AND PLEA; HOW MADE
...........................................................290
WHEN PLEA OF NOT GUILTY SHOULD BE
ENTERED............................................ 291
WHEN ACCUSED MAY ENTER A PLEA OF
GUILTY TO A LESSER OFFENSE ......... 291
ACCUSED PLEADS GUILTY TO CAPITAL
OFFENSE; DUTY OF THE COURT........ 292
SEARCHING INQUIRY............................ 292
IMPROVIDENT PLEA OF GUILTY TO A
CAPITAL OFFENSE ............................. 293
GROUNDS FOR SUSPENSION OF
ARRAIGNMENT .................................. 293
Bail................................................ 280
NATURE ............................................... 280
WHEN A MATTER OF RIGHT; EXCEPTIONS
........................................................... 280
WHEN A MATTER OF DISCRETION ....... 281
HEARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES ........................... 282
GUIDELINES IN FIXING AMOUNT OF BAIL
............................................................ 283
WHEN BAIL IS NOT REQUIRED ............. 283
INCREASE OR REDUCTION ................... 283
FORFEITURE AND CANCELLATION OF
BAIL ....................................................284
APPLICATION NOT A BAR TO OBJECTIONS
ON ILLEGAL ARREST, LACK OF OR
IRREGULAR PRELIMINARY
INVESTIGATION .................................284
HOLD/ALLOW DEPARTURE ORDER AND
BUREAU OF IMMIGRATION WATCHLIST
............................................................284
Motion to Quash ......................... 294

FORM AND CONTENT ........................... 294
GROUNDS ............................................. 294
MOTION TO QUASH AND DEMURRER
DISTINGUISHED ................................. 297
EFFECTS OF SUSTAINING THE MOTION TO
QUASH ............................................... 297
EXCEPTION TO THE RULE THAT
SUSTAINING THE MOTION IS NOT A BAR
TO ANOTHER
PROSECUTION ...................................... 298
DOUBLE JEOPARDY .............................. 298
PROVISIONAL DISMISSAL .................... 299
Pre-Trial ....................................... 300
APPLICATION OF JUDICIAL AFFIDAVIT

RULE ..................................................300
MATTERS TO BE CONSIDERED DURING
PRE-TRIAL ......................................... 301
WHAT THE COURT SHOULD DO WHEN
THE PROSECUTION AND OFFENDED
PARTY AGREE TO THE PLEA OFFERED
BY THE ACCUSED ............................... 301
PRE-TRIAL AGREEMENT ...................... 302
Rights of the Accused ................. 286

RIGHT TO BE PRESUMED INNOCENT
UNTIL THE CONTRARY IS PROVED
BEYOND REASONABLE DOUBT .........286
RIGHT TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION
AGAINST HIM .....................................286
TABLE OF CONTENTS
NON-APPEARANCE DURING PRE-TRIAL

............................................................ 302
PRE-TRIAL ORDER ................................ 302
REFERRAL OF SOME CASES FOR COURT
ANNEXED MEDIATION AND JUDICIAL
DISPUTE RESOLUTION ...................... 303
NATURE OF SEARCH WARRANT ...........319

ARREST AND SEARCH WARRANTS
DISTINGUISHED ................................. 320
APPLICATION FOR SEARCH WARRANT;
WHERE FILED...................................... 321
PROBABLE CAUSE ................................ 323
PERSONAL EXAMINATION BY JUDGE OF
THE APPLICANT AND WITNESS......... 323
PARTICULARITY OF PLACE TO BE
SEARCHED AND THINGS TO BE SEIZED
........................................................... 324
PROPERTY TO BE SEIZED .................... 325
EXCEPTIONS TO SEARCH WARRANT
REQUIREMENT .................................. 325
REMEDIES FROM UNLAWFUL SEARCH
AND SEIZURE ..................................... 327
WAIVER OF IMMUNITY AGAINST
UNREASONABLE SEARCH AND SEIZURE
........................................................... 329
Trial............................................... 303
INSTANCES WHEN PRESENCE OF
ACCUSED IS REQUIRED BY LAW ..............
REQUISITES BEFORE TRIAL CAN BE
SUSPENDED ON ACCOUNT OF ABSENCE
OF WITNESS ....................................... 303
TRIAL IN ABSENTIA ..............................304
REMEDY WHEN ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD.........................304
REQUISITES FOR DISCHARGE OF
ACCUSED TO BECOME A STATE
WITNESS ............................................304
EFFECTS OF DISCHARGE OF ACCUSED AS
STATE WITNESS .................................305
DEMURRER TO EVIDENCE ....................305
Provisional Remedies ..................329

NATURE ................................................ 329
KINDS OF PROVISIONAL REMEDIES .... 329
Judgment ..................................... 307

REQUISITES OF A JUDGMENT .............. 307
CONTENTS OF JUDGMENT ................... 307
PROMULGATION OF JUDGMENT;
INSTANCES OF PROMULGATION IN
ABSENTIA...........................................309
WHEN DOES JUDGMENT BECOME FINAL
............................................................ 310
New Trial or Consideration ........... 311

GROUNDS FOR NEW TRIAL ................... 311
GROUNDS FOR RECONSIDERATION ..... 311
REQUISITES BEFORE A NEW TRIAL MAY
BE GRANTED ON GROUND OF NEWLY
DISCOVERED EVIDENCE ..................... 311
EFFECTS OF GAINING NEW TRIAL FOR
CONSIDERATION ................................ 311
APPLICATION OF THE NEYPES DOCTRINE
IN CRIMINAL CASES ............................312
Appeal ........................................... 313

EFFECT OF AN APPEAL .......................... 313
WHERE TO APPEAL ................................ 313
HOW APPEAL IS TAKEN ......................... 313
EFFECT OF APPEAL BY ANY OF SEVERAL
ACCUSED............................................ 319
GROUNDS FOR DISMISSAL OF APPEAL 319
Search and Seizure ...................... 319

6
TABLE OF CONTENTS
QUALIFICATIONS OF A WITNESS ......... 354

COMPETENCY VS. CREDIBILITY ........... 354
DISQUALIFICATIONS OF WITNESSES .. 355
EXAMINATION OF A WITNESS ..............361
ADMISIONS AND CONFESSIONS ......... 364
HEARSAY RULE ..................................... 368
OPINION RULE ..................................... 374
CHARACTER EVIDENCE ........................ 375
RULE ON EXAMINATION OF A CHILD
WITNESS ............................................ 376
EVIDENCE
General Principles of Evidence .. 332
CONCEPT OF EVIDENCE ....................... 332
APPLICABILITY ...................................... 332
EVIDENCE IN CIVIL CASES VS. EVIDENCE
IN CRIMINAL CASES .......................... 332
PROOF VS. EVIDENCE .......................... 333
FACTUM PROBANS VERSUS FACTUM
PROBANDUM ..................................... 333
3 CLASSES OF EVIDENCE ACCORDING TO
FORM.................................................. 333
ADMISSIBILITY OF EVIDENCE ............... 333
BURDEN OF PROOF AND BURDEN OF
EVIDENCE ........................................... 335
PRESUMPTIONS ................................... 336
LIBERAL CONSTRUCTION OF THE RULES
OF EVIDENCE ..................................... 339
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) ............. 339
Offer and Objection .................... 379

OFFER OF EVIDENCE ............................ 379
WHEN TO MAKE AN OFFER ................. 380
OBJECTION ...........................................380
STRIKING OUT AN ANSWER ..................381
TENDER OF EXCLUDED EVIDENCE ....... 382
Judicial Notice and

Judicial Admissions .................... 340
WHAT NEED NOT BE PROVED .............340
MATTERS OF JUDICIAL NOTICE ...........340
WHEN HEARING NECESSARY ..............340
JUDICIAL ADMISSIONS ........................ 341
JUDICIAL NOTICE OF FOREIGN LAWS,
LAW OF NATIONS AND MUNICIPAL
ORDINANCES .................................... 342
Object (Real) Evidence ............... 343

NATURE OF OBJECT EVIDENCE ........... 343
REQUISITES FOR ADMISSIBILITY ......... 343
CATEGORIES OF OBJECT EVIDENCE ....344
CHAIN OF CUSTODY IN RELATION TO
SECTION 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002
.............................................................. 345
RULES ON DNA EVIDENCE.................... 345
Documentary Evidence ...............347

MEANING OF DOCUMENTARY EVIDENCE
............................................................ 347
REQUISITES FOR ADMISSIBILITY ........ 347
BEST EVIDENCE RULE .......................... 347
RULES ON ELECTRONIC EVIDENCE .....348
PAROL EVIDENCE RULE .......................350
AUTHENTICATION AND PROOF OF
DOCUMENTS ..................................... 351
Testimonial Evidence ................. 354

7
TABLE OF CONTENTS
Evidence ....................................... 393
RULES OF
PROCEDURE FOR
ENVIRONMENTAL
CASES
PRECAUTIONARY PRINCIPLE ............... 393

DOCUMENTARY EVIDENCE .................. 393
Scope and Applicability of the Rule

...................................................... 384
Civil Procedure............................. 385
WHO MAY FILE ...................................... 385
PROHIBITION AGAINST TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION .............. 385
TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO) ............ 385
PRE-TRIAL CONFERENCE; CONSENT
DECREE ............................................. 385
PROHIBITED PLEADINGS AND MOTIONS
............................................................ 385
JUDGMENT AND EXECUTION; RELIEFS IN
A CITIZENS SUIT ............................... 387
PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS ................ 387
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION ................................. 387

WRIT OF KALIKASAN ............................ 388
PROHIBITED PLEADINGS AND MOTIONS
............................................................ 388
DISCOVERY MEASURES ........................ 389
WRIT OF CONTINUING MANDAMUS .... 389
Criminal Procedure ...................... 391

WHO MAY FILE ..................................... 391
INSTITUTION OF CRIMINAL AND CIVIL
ACTION .............................................. 391
ARREST WITHOUT WARRANT, WHEN
VALID ................................................. 391
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION ................................ 391
PROCEDURE IN THE CUSTODY AND
DISPOSITION OF SEIZED ITEMS ........ 391
BAIL ...................................................... 392
ARRAIGNMENT AND PLEA .................. 392
PRE-TRIAL ............................................ 392
SUBSIDIARY LIABILITIES ...................... 393
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
General Principles
REMEDIAL LAW
Prospectivity/ Retroactivity
The Rules of Court are not penal statutes and

cannot be given retroactive effect [Bermejo v
Barrios (1970)].
CONCEPT OF REMEDIAL LAW
Remedial law is that branch of law which

prescribes the method of enforcing rights or
obtaining redress for their invasion [Bustos v.
Lucero, 81 Phil. 640].
Rules of procedure may be made applicable

to actions pending and undetermined at the
time of their passage, and are deemed
retroactive in that sense and to that extent. [In
the Matter to Declare in Contempt of Court
Hon. Simeon Datumanong (2006)].
The Rules of Court shall govern cases brought
after they take effect, and also all further
proceedings then pending, EXCEPT to the
extent that in the opinion of the Court their
application would not be feasible or would
work injustice. [Riano citing Rule 114]
Remedial statute or statutes:

(1) Relating to remedies or modes of
procedure;
(2) Do not take away or create vested rights;
(3) BUT operate in furtherance of rights
already existing. [Riano citing Systems
Factor Corporation v NLRC (2000)]
Source
SUBSTANTIVE LAW VIS--VIS

REMEDIAL LAW
Remedial law is basically contained in the

Rules of Court. Circulars of the Supreme Court
implementing the Rules of Court (e.g. Rules
on Summary Procedure) also contain remedial
law.
Substantive Law - creates, defines and

regulates rights and duties regarding life,
liberty or property which when violated gives
rise to a cause of action [Bustos v. Lucero, 81
Phil. 640]
The Rules of Court, promulgated by authority

of law, have the force and effect of law, if not
in conflict with positive law [Inchausti & Co v
de Leon (1913)]. The rule is subordinate to the
statute, and in case of conflict, the statute will
prevail. [Shioji v Harvey (1922)].
Substantive Law
It is that part of the
law which creates,
defines, or regulates
rights, concerning life,
liberty or property or
the powers of agencies
or instrumentalities for
the administration of
public affairs
Applicability
The Rules of Court is applicable in ALL

COURTS, EXCEPT as otherwise provided by
the SC [Rule 1, Sec. 2].
It governs the procedure to be observed in
CIVIL or CRIMINAL actions and SPECIAL
proceedings [Rule 1, Sec. 3].
It makes vested rights

possible
It does not apply to the following cases:

(1) Election cases,
(2) Land registration cases,
(3) Cadastral cases
(4) Naturalization cases,
(5) Insolvency proceedings
(6) Other cases not herein provided for
It is prospective in
application
It cannot be enacted
by the SC
Except by analogy or in a suppletory

character and whenever practicable and
convenient [Rule 4, Sec. 4]
PAGE 1
Remedial Law
It refers to the
legislation providing
means or methods
whereby causes of
action
may
be
effectuated, wrongs
redressed, and relief
obtained
It is also called
Adjective Law
It has no vested
rights
It governs acts and
transactions which
took
place
(retroactive)
The SC is expressly
empowered
to
promulgate
procedural rules
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) The SC has the sole prerogative to amend,

repeal, or even establish new rules for a
more simplified and inexpensive process,
and the speedy disposition of case [Neypes
v CA (2005)]
RULE MAKING POWER OF THE

SUPREME COURT
Judicial Power includes the duty of the courts

of justice to settle actual controversies
involving rights, which are legally demandable
and enforceable, and to determine whether or
not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the Government (Sec. 1, Art. VIII, 1987
Constitution)
Power to Suspend Remedial Laws

(1) It is within the inherent power of the
Supreme Court to suspend its own rules in
a particular case in order to do justice [De
Guia v De Guia (2001)].
(2) When the operation of rules will lead to an
injustice or if their application tends to
subvert and defeat instead of promote and
enhance justice, their suspension is
justified [Republic v CA (1978)].
(3) There is no absolute rule as to what
constitutes good and sufficient cause that
will merit suspension of the rules. The
matter is discretionary upon the Court
[Republic v Imperial Jr. (1999)].
(4) The bare invocation of "the interest of
substantial justice" is not a magic wand
that will automatically compel this Court to
suspend procedural rules [Ramos v Sps
Lavendia (2008)].
(5) Procedural rules are not to be belittled or
dismissed simply because their nonobservance may have resulted in prejudice
to a party's substantive rights. Like all
rules, they are required to be followed
except only for the most persuasive of
reasons when they may be relaxed to
relieve a litigant of an injustice not
commensurate with the degree of his
thoughtlessness in not complying with the
procedure prescribed. [Polanco v Cruz
(2009)].
The power of judicial review is the SCs power

to declare a law, treaty, international or
executive agreement, presidential decree,
proclamation, order, instruction, ordinance, or
regulation unconstitutional
Sec. 5(5), Art. VIII, of the 1987 Constitution
provides that that the Supreme Court shall
have the power to:
(1) promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all
courts;
(2) admission to the practice of law;
(3) the Integrated Bar;
(4) and legal assistance to the underprivileged
LIMITATIONS ON THE RULEMAKING POWER OF THE SUPREME

COURT
Sec 5(5) of Art. VIII of the Constitution sets

forth the limitations to the power:
(1) That the rules shall provide a simplified and
inexpensive procedure for speedy disposition
of cases;
(2) That the rules shall be uniform for courts of
the same grade; and
(3) That the rules shall not diminish, increase
or modify substantive rights.
NATURE OF PHILIPPINE
COURTS
MEANING OF A COURT
POWER OF THE SUPREME COURT

TO
AMEND
AND
SUSPEND
PROCEDURAL RULES
A court is an organ of the government

belonging to the judicial department, the
function of which is the application of the laws
to controversies brought before it (and) as well
as the public administration of justice.
Generally, the term describes an organ of the
government consisting of one person or of
several persons, called upon and authorized
to administer justice. It is also the place where
justice is administered. [Riano citing Blacks
and Am. Jur. and C. J. S.]
Power to Amend Remedial Laws

(1) The constitutional faculty of the Court to
promulgate rules of practice and procedure
necessarily carries with it the power to
overturn judicial precedents on points of
remedial law through the amendment of
the Rules of Court. [Pinga v Heirs of
Santiago (2006)].
PAGE 2
UP LAW BOC
CIVIL PROCEDURE
COURT AS DISTINGUISHED FROM A

JUDGE
Court
Judge
A tribunal officially
An officer of such
assembled
under
tribunal
authority of law
An organ of the
government with a
The judge is the one
personality separate
who sits in court
from the person or
judge
A being in imagination
A
physical
and
comparable
to
a
natural person
corporation
May be considered an
A public officer
office
COURTS OF GENERAL AND SPECIAL

JURISDICTION
Courts of general jurisdiction Those
competent to decide their own jurisdiction and
to take cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.
Courts of special or limited jurisdiction Those
which have no power to decide their own
jurisdiction and can only try cases permitted
by statute. [Regalado]
CONSTITUTIONAL
AND
STATUTORY
COURTS
Constitutional courts Those which owe their
creation and existence to the Constitution
and, therefore cannot be legislated out of
existence or deprived by law of the jurisdiction
and powers unqualifiedly vested in them by
the Constitution. e.g. Supreme Court;
Sandiganbayan
is
a
constitutionallymandated court but created by statute.
The circumstances of the court are not affected

by the circumstance that would affect the
judge. The continuity of a court and the
efficacy of its proceedings are not affected by
the death, resignation, or cessation from the
service of the judge presiding over it. In other
words, the judge may resign, become
incapacitated, or be disqualified to hold office,
but the court remains. The death of the judge
does not mean the death of the court [Riano
citing ABC Davao Auto Supply v. CA (1998)].
CLASSIFICATION
COURTS
OF
REMEDIAL LAW
Statutory courts Those created, organized

and with jurisdiction exclusively determined by
law. [Regalado]
COURTS OF LAW AND EQUITY
Courts of Law- Those courts which administer
the law of the land. They settle cases
according to law.
PHILIPPINE
(1) Courts of original and appellate jurisdiction

(2) Courts of general and special jurisdiction
(3) Constitutional and statutory courts
(4) Courts of law and equity
(5) Superior and Inferior Courts
(6) Courts of record and not of record
Courts of Equity- Those courts which rules

according to the precepts of equity or justice.
They settle cases according to the principles
of equity referring to principles of justice,
fairness and fair play.
Philippine courts are both courts of law and
equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same
tribunal [U.S. v. Tamparong (1998)]
COURTS OF ORIGINAL AND APPELLATE

JURISDICTION
Courts of original jurisdiction Those courts in
which, under the law, actions or proceedings
may be originally commenced.
SUPERIOR AND INFERIOR COURTS

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

have the power to review on appeal the
decisions or orders of a lower court.
[Regalado]
Inferior courts Those which, in relation to

another court, are lower in rank and subject to
review and supervision by the latter.
[Regalado]
PAGE 3
UP LAW BOC
CIVIL PROCEDURE
COURTS OF RECORD AND NOT OF

RECORD
Courts of record Those whose proceedings
are enrolled and which are bound to keep a
written record of all trials and proceedings
handled by them. [Regalado] One attribute of
a court of record is the strong presumption as
to the veracity of its records that cannot be
collaterally attacked except for fraud. All
Philippine courts, including inferior courts, are
now courts of record. [Riano]
REMEDIAL LAW
DOCTRINE OF NON-INTERFERENCE
OR DOCTRINE OF JUDICIAL
STABILITY
The principle holds that courts of equal and

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

required to keep a written record or transcript
of proceedings held therein.
The doctrine of non-interference applies with

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

scheme which in essence requires that lower
courts initially decide on a case before it is
considered by a higher court. Specifically,
under the judicial policy recognizing hierarchy
of courts, a higher court will not entertain
direct resort to it unless the redress cannot be
obtained in the appropriate courts. [Riano
citing Santiago v. Vasquez (1993)]
General Rule: No court has the authority to

interfere by injunction with the judgment of
another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare
as unjust a judgment of another court
The principle is an established policy

necessary to avoid inordinate demands upon
the Courts time and attention which are
better devoted to those matters within its
exclusive jurisdiction, and to preclude the
further clogging of the Courts docket [Lim v.
Vianzon (2006)].
Exception: The doctrine of judicial stability

does not apply where a third party claimant is
involved
When the doctrine/principle may be

disregarded: A direct recourse of the Supreme
Courts original jurisdiction to issue writs
(referring to the writs of certiorari, prohibition,
or mandamus) should be allowed only when
there are special and important reasons
therefor, clearly and specifically set out in the
petition. [Mangahas v. Paredes (2007)]. The
Supreme Court may disregard the principle of
hierarchy of courts if warranted by the nature
and importance of the issues raised in the
interest of speedy justice and avoid future
litigations [Riano].
Jurisdiction is defined as the authority to try,

hear and decide a case [Tolentino v. Leviste
(2004)].
Jurisdiction
JURISDICTION IN GENERAL
Judicial power includes the duty of the courts

of justice: [Art 8, Sec. 1, Constitution]
(1) To settle actual controversies involving
rights which are legally demandable and
enforceable;
(2) To determine WON there has been a grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
government branch/ instrumentality.
All courts exercise judicial power. Only the
Supreme Court is the court created by the
Constitution [Art 8, Sec. 1, Constitution]. The
Sandiganbayan
is
a
Constitutionally
mandated court, but it is created by statute.
[PD 1486]
PAGE 4
UP LAW BOC
CIVIL PROCEDURE
REQUISITES
FOR
A
VALID
EXERCISE OF JURISDICTION
(1) Court must have jurisdiction over the

persons of the parties
(2) It must have jurisdiction over the subject
matter of the controversy
(3) It must have jurisdiction over the res
(4) It must have jurisdiction over the issues
JURISDICTION
PARTIES
OVER
REMEDIAL LAW
JURISDICTION
OVER
SUBJECT MATTER
THE
JURISDICTION
VERSUS
EXERCISE OF JURISDICTION
THE
Jurisdiction over the subject matter is the

power to deal with the general subject
involved in the action, and means not simply
jurisdiction of the particular case then
occupying the attention of the court but
jurisdiction of the class of cases to which the
particular case belongs [Riano citing CJS].
It is the power to hear and determine cases of
the general class to which the proceedings in
question belong [Reyes v. Diaz (1941)]
THE
The manner by which the court acquires

jurisdiction over the parties depends on
whether the party is the plaintiff or the
defendant.
Jurisdiction - the authority to hear and

determine a cause the right to act in a case.
[Arranza v. BF Homes (2000)].
The mode of acquisition of jurisdiction over

the plaintiff and the defendant applies both to
ordinary and special civil actions.
Exercise of Jurisdiction: the exercise of this

power or authority
How jurisdiction over the PLAINTIFF is

acquired - Jurisdiction over the plaintiff is
acquired by filing of the complaint or petition.
By doing so, he submits himself to the
jurisdiction of the court [Davao Light & Power
Co., Inc. v CA (1991)].
Jurisdiction is distinct from the exercise

thereof. Jurisdiction is the authority to decide
a case and not the decision rendered therein.
When there is jurisdiction over the subject
matter, the decision on all other questions
arising in the case is but an exercise of
jurisdiction. [Herrera v. Baretto et al (1913)]
How jurisdiction over the DEFENDANT is

acquired - Acquired by the
(1) Voluntary appearance or submission by the
defendant or respondent to the court or
(2) By coercive process issued by the court to
him, generally by the service of summons
[de Joya v. Marquez (2006), citing
Regalado]
ERROR OF JURISDICTION AS
DISTINGUISHED FROM ERROR OF
JUDGMENT
Error of jurisdiction
NOTE: In an action in personam, jurisdiction

over the person is necessary for the court to
validly try and decide the case, while in a
proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a
prerequisite to confer jurisdiction on the court
provided the latter has jurisdiction over the res
[Alba v. CA (2005)].
It is one where the act

complained of was
issued by the court
without or in excess of
jurisdiction [Cabrera v.
Lapid (2006)].
Error of judgment
It is one which the
court may commit in
the exercise of its
jurisdiction [Cabrera v.
Lapid (2006)].
It includes errors of
procedure or mistakes
in the courts mistakes
in the courts findings
[Banco Filipino Savings
v. CA (2000)]
Correctible only by the

Correctible by appeal
extraordinary writ of
[Cabrera
v
Lapid
certiorari [Cabrera v
(2006)]
Lapid (2006)]
Ground for reversal
only if it is shown that
Renders a judgment
prejudice has been
void or voidable [Rule 16
caused
[Banco
Sec. 1, Rule 65]
Espaol-Filipino
v
Palanca (1918)]
PAGE 5
UP LAW BOC
CIVIL PROCEDURE
How conferred and determined:

(1) Jurisdiction being a matter of substantive
law, the statute in force at the time of the
commencement of the action determines
the jurisdiction of the court.
REMEDIAL LAW
DOCTRINE OF PRIMARY
JURISDICTION
Courts cannot and will not resolve a

controversy involving a question which is
within the jurisdiction of an administrative
tribunal, especially where the question
demands the exercise of sound administrative
discretion requiring the special knowledge,
experience and services of the administrative
tribunal to determine technical and intricate
matters of fact [Paloma v. Mora (2005)].
(2) It is conferred only by the Constitution or

the law.
(3) Jurisdiction CANNOT be:
(a) Fixed by agreement of the parties;
(b) Cannot be acquired through, or waived,
enlarged or diminished by, any act or
omission of the parties;
(c) Neither can it be conferred by the
acquiescence of the court [Regalado
citing De Jesus v Garcia (1967)].
(d) Cannot be subject to compromise [Civil
Code, Art 2035]
Objective is to guide a court in determining

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

determined by the allegations of the
complaint and the reliefs prayed for. [Gulfo v.
Ancheta (2012)]
DOCTRINE OF
JURISDICTION
ADHERENCE
OF
Also known as doctrine of continuity of

jurisdiction
(5) It is not affected by the pleas set up by the

defendant in the answer or in the answer or
in a motion to dismiss. [Sindico v. Diaz
(2004)].
The court, once jurisdiction has been acquired,

retains that jurisdiction until it finally disposes
of the case [Bantua v. Mercader (2001)].
As a consequence, jurisdiction is not affected
by a new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
(1) Where there is an express provision in the
statute
(2) The statute is clearly intended to apply to
actions pending before its enactment
[Riano citing People v. Cawaling (1998)].
(6) Once attached to a court, it cannot be

ousted by subsequent statute.
(a) Exception: The statute itself conferring
new jurisdiction expressly provides for
retroactive effect. [Southern Food v.
Salas (1992)]
(7) The filing of the complaint or appropriate
initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the
nature of the action [CB v. CA (1992)](2008
Bar Exam).
(a) Exception: Non-payment of docket fee
does not automatically cause the
dismissal of the case on the ground of
lack of jurisdiction as long as the fee is
paid within the applicable prescriptive
or reglementary period, more so when
the party involved demonstrates a
willingness to abide by the rules
prescribing such payment. [Go v. Tong
(2003)]
OBJECTIONS TO JURISDICTION
OVER THE SUBJECT MATTER
When it appears from the pleadings or

evidence on record that the court has no
jurisdiction over the subject matter, the court
shall dismiss the same. [Sec. 1, Rule 9]
The court may on its OWN INITIATIVE object
to an erroneous jurisdiction and may ex mero
motu take cognizance of lack of jurisdiction at
any point in the case and has a clearly
recognized right to determine its own
jurisdiction [Fabian v. Desierto (1998)].
Earliest opportunity of a party to raise the
issue of jurisdiction is in a motion to dismiss
filed before the filing or service of an answer.
PAGE 6
UP LAW BOC
CIVIL PROCEDURE
Lack of jurisdiction over subject matter is a

ground for a motion to dismiss. If no motion is
filed, the defense of lack of jurisdiction may be
raised as an affirmative defense in the answer.
[Riano citing Sec. 1(b) and 6 of Rule 16].
(2) Stipulation of the parties as when in the

pre-trial, the parties enter into stipulations
of facts and documents or enter into
agreement simplifying the issues of the
case.
(3) Waiver or failure to object to the
presentation of evidence on a matter not
raised in the pleadings. Here the parties try
with their express or implied consent or
issues not raised by the pleadings. The
issues tried shall be treated in all respects
as if they had been raised in the pleadings.
Jurisdiction over the subject matter may be

raised at any stage of the proceedings, even
for the first time on appeal. When the court
dismisses the complaint for lack of jurisdiction
over the subject matter, it is common reason
that the court cannot remand the case to
another court with the proper jurisdiction. Its
only power is to dismiss and not to make any
other order.
JURISDICTION OVER THE RES

OR PROPERTY IN LITIGATION
EFFECT
OF
ESTOPPEL
ON
OBJECTIONS TO JURISDICTION
Jurisdiction over the res refers to the courts

jurisdiction over the thing or the property
which is the subject of the action.
General Rule: Estoppel does not apply to

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

the court
(1) By placing the property or thing under its
custody (custodia legis)
(a) The seizure of the thing under legal
process whereby it is brought into actual
custody of law
(b) Example: attachment of property.
(2) Through statutory authority conferring
upon it the power to deal with the property
or thing within the courts territorial
jurisdiction
(a) Institution of a legal proceeding wherein
the power of the court over the thing is
recognized and made effective
(b) Example: suits involving the status of
the parties or suits involving the
property in the Philippines of nonresident defendants.
Exception: Participation in all stages of the

case before the trial court, that included
invoking its authority in asking for affirmative
relief, effectively barred petitioner by estoppel
from challenging the courts jurisdiction.
[Soliven v. Fastforms (2004)]
JURISDICTION
ISSUES
OVER
REMEDIAL LAW
THE
It is the power of the court to try and decide

issues raised in the pleadings of the parties.
An issue is a disputed point or question to
which parties to an action have narrowed
down their several allegations and upon which
they are desirous of obtaining a decision.
Where there is no disputed point, there is no
issue.
JURISDICTION OF THE
METROPOLITAN TRIAL
COURTS AND MUNICIPAL
TRIAL COURTS
JURISDICTION OF THE MTCs IN
CIVIL CASES
Generally, jurisdiction over the issues is

conferred and determined by:
(1) The pleadings of the parties. The pleadings
present the issues to be tried and
determine whether or not the issues are of
fact or law.
Exclusive Original Jurisdiction

(1) If the amount involved does not exceed
P300,000 outside Metro Manila or does
not exceed P400,000 in Metro Manila in
the following cases:
(a) Actions involving personal property
PAGE 7
UP LAW BOC
CIVIL PROCEDURE
(b) Probate Proceeding (testate and

intestate) based on gross value of the
estate
(c) Admiralty and maritime cases
(d) Demand for money
REMEDIAL LAW
(iii)From
the
corresponding
declaration of the real property
tax
NOTE: MTC decisions in cadastral and land

registration cases are appealable in the
same maner as RTC decisions
Note: Do not include Interest, Damages of

whatever kind, Attorneys fees, Litigation
Expenses, and Costs (IDALEC). However, in
cases where the claim for damages is the
main cause of action, or one of the causes
of action, the amount of such claim shall
be considered in determining the
jurisdiction of the court.
1st level courts:

(a) Metropolitan Trial Court Metro Manila;
(b) Municipal Trial Courts in Cities situated in
cities
(c) Municipal Circuit Trial Court composed of
multi-sala
(d) Municipal Trial Courts in one municipality
(2) Actions involving title to, or possession of,

real property, or any interest therein where
the assessed value of the property or
interest therein does not exceed P20,000
outside Metro Manila or does not exceed
P50,000 in Metro Manila
JURISDICTION OVER SMALL

CLAIMS, SUMMARY
PROCEDURE, AND BARANGAY
CONCILIATION
(3) Inclusion and exclusion of voters
JURISDICTION
CLAIMS
OVER
SMALL
MTCs, MeTCs and MCTCs shall have

jurisdiction over actions for payment of money
where the value of the claim does not exceed
P100,000 exclusive of interest and costs [Sec.
2, AM 08-8-7-SC, Oct. 27, 2009].
(4) Those governed by the Rules on Summary

Procedure
(a) Forcible entry and unlawful detainer
(FEUD)
(i) With jurisdiction to resolve issue of
ownership to determine ONLY issue
of possession (provisional only)
(ii) Irrespective of the amount of
damages or unpaid rentals sought to
be recover
(iii)Where attorneys fees are awarded,
the same shall not exceed P20,000
(b) Other civil cases, except probate
proceeding, where the total amount of
the plaintiffs claim does not exceed
P200,000 in MM, exclusive of interests
and costs.
Actions covered are

(1) Purely civil in nature where the claim or
relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of
money, and
(2) The civil aspect of criminal actions, either
filed before the institution of the criminal
action, or reserved upon the filing of the
criminal action in court, pursuant to Rule 111
[Sec. 4, AM 08-8-7-SC].
These claims may be:
(1) For money owed under the contracts of
lease, loan, services, sale, or mortgage;
(2) For damages arising from fault or
negligence, quasi-contract, or contract;
and
(3) The enforcement of a barangay amicable
settlement or an arbitration award
involving a money claim pursuant to Sec.
417 of RA 7160 [LGC].
Special Jurisdiction over petition for writ of

habeas corpus OR application for bail in
criminal cases in the absence of all RTC
judges in the province or city
Delegated Jurisdiction to hear and decide
cadastral and land registration cases where:
(1) There is no controversy over the land
(2) In case of contested lands, the value does
not exceed P100, 000:
(a) The value is to be ascertained:
(i) By the claimants affidavit
(ii) By agreement of the respective
claimants, if there are more than one
PAGE 8
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(5) Where the dispute involves real properties

located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon
(6) Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
except
where
such
barangay units adjoin each other and the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
(7) Such other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice
(8) Any complaint by or against corporations,
partnerships, or juridical entities. The
reason is that only individuals shall be
parties
to
barangay
conciliation
proceedings either as complainants or
respondents
(9) Disputes where urgent legal action is
necessary to prevent injustice from being
committed
or
further
continued,
specifically:
(a) A criminal case where the accused is
under police custody or detention
(b) A petition for habeas corpus by a person
illegally detained or deprived of his
liberty or one acting in his behalf
(c) Actions coupled with provisional
remedies,
such
as
preliminary
injunction, attachment, replevin and
support pendente lite
(d) Where the action may be barred by
statute of limitation
(10) Labor disputes or controversies arising
from employer-employee relationship
(11) Where the dispute arises from the CARL
(12) Actions to annul judgment upon a
compromise which can be directly filed in
court.
CASES COVERED BY RULES ON

SUMMARY PROCEDURE
All cases of forcible entry and unlawful

detainer (FEUD), irrespective of the amount of
damages or unpaid rentals sought to be
recovered. Where attorneys fees are awarded,
the same shall not exceed P20,000;
All other cases, except probate proceedings
where the total amount of the plaintiffs claim
does not exceed P100,000 (outside Metro
Manila) or P200,000 (in Metro Manila),
exclusive of interest and costs.
Prohibited Pleadings:
(1) Motion to dismiss the compliant except on
the ground of lack of jurisdiction;
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file
pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11)Third-party complaints; and
(12) Interventions.
[Sec.
14,
Prohibited
pleadings and motions]
CASES COVERED BY THE RULES ON

BARANGAY CONCILIATION
The Lupon of each barangay shall have the

authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes
Except:
(1) Where one party is the government or any
subdivision or instrumentality thereof
(2) Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
(3) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
P5,000
(4) Offenses where there is no private offended
party
Note: It is a condition precedent under Rule

16; can be dismissed but without prejudice
PAGE 9
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Note: The exclusion of the term damages

of whatever kind in determining the
jurisdictional amount under Sec. 19(8) and
Sec. 33 (1) of BP 129, as amended by RA
7691, applies to cases where the damages
are merely incidental to or a consequence
of the main cause of action. However, if the
claim for damages is the main cause of
action, or one of the causes of action, the
amount of such claim shall be considered
in determining the jurisdiction of the court.
[Admin Circ. 09-94]
JURISDICTION OF THE
REGIONAL TRIAL COURTS,
FAMILY COURTS, AND
SHARIA COURTS
JURISDICTION OF THE RTC IN CIVIL
CASES
General Original Jurisdiction: All cases not

within the exclusive jurisdiction of any
court/tribunal/person/
body
exercising
judicial or quasi-judicial functions
(4) All actions involving the contract of

marriage and family relations

(1) The action is incapable of pecuniary
estimation
(a) Such as rescission of contract, action to
revive judgment, declaratory relief (1st
part), support, expropriation)
(b) If the action is primarily for the recovery
of a sum of money, the claim is
considered capable of pecuniary
estimation, and jurisdiction over the
action will depend on the amount of the
claim. [RCPI v. CA (2002)]
(c) If the basic issue is something other
than the right to recover a sum of
money, if the money claim is purely
incidental to, or a consequence of, the
principal relief sought, the action is one
where the subject of the litigation may
not be estimated in terms of money.
[Soliven v. Fastforms (1992)]
JURISDICTION
OF
COURTS [RA 8369]
FAMILY
(a) Petitions for guardianship, custody of

children and habeas corpus involving
children
(b) Petitions for adoption of children and
the revocation thereof
(c) Complaints for annulment of marriage,
declaration of nullity of marriage and
those relating to status and property
relations of husband and wife or those
living together under different status
and agreements, and petitions for
dissolution of conjugal partnership of
gains
(d) Petitions
for
support
and/or
acknowledgment
(e) Summary judicial proceedings brought
under the provisions of EO 209 (Family
Code)
(f) Petitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for
voluntary or involuntary commitment of
children, the suspension, termination or
restoration of parental authority and
other cases cognizable under PD 603,
EO 56 (1986) and other related laws
(g) Petitions for the constitution of the
family home
(2) Title to, possession of, or interest in, real

property with assessed value exceeding
P20,000 outside Metro Manila, or exceeds
P50,000 in Metro Manila
Except: Forcible entry and unlawful
detainer cases
(3) If the amount involved exceeds P300,000
outside Metro Manila or exceeds P400,000
in Metro Manila in the following cases:
(a) Admiralty and maritime cases
(b) Matters of Probate (testate and
intestate)
(c) Other actions involving personal
property
(d) Demand for money
NOTE: In areas where there are no

Family Courts, the above-enumerated
cases shall be adjudicated by the RTC
(RA 8369)
PAGE 10
UP LAW BOC
CIVIL PROCEDURE
(5) To hear and decide intra-corporate

controversies, as per Sec. 52, Securities and
Regulations Code
(a) Cases involving devises or schemes
employed by or any acts, of the board of
directors, business associates, its
officers or partnership, amounting to
fraud and misrepresentation which may
be detrimental to the interest of the
public and/or of the stockholders,
partners, members of associations or
organizations registered with the SEC
(b) Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates; between any or
all of them and the corporation,
partnership or association of which they
are
stockholders,
members
or
associates, respectively; and between
such corporation, partnership or
association and the state insofar as it
concerns their individual franchise or
right to exist as such entity
(c) Controversies in the election or
appointments of directors, trustees,
officers or managers of such
corporations,
partnerships
or
associations
(d) Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases
where
the
corporation,
partnership of association possesses
sufficient property to cover all its debts
but foresees the impossibility of
meeting them when they respectively
fall due or in cases where the
corporation, partnership of association
has no sufficient assets to cover its
liabilities, but is under the management
of a Rehabilitation Receiver or
Management Committee.
REMEDIAL LAW
(3) With the SC, CA and Sandigabayan in

petitions for writs of habeas data and
amparo
(4) With Insurance Commissioner claims not
exceeding P100,000
Appellate Jurisdiction over cases decided by
lower courts in their respective territorial
jurisdictions EXCEPT decisions of lower courts
in the exercise of delegated jurisdiction.
Special Jurisdiction - SC may designate certain
branches of RTC to try exclusively criminal
cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not
falling within the jurisdiction of any quasijudicial body and other special cases in the
interest of justice.
JURISDICTION OF THE SHARIA

COURTS
Exclusive Jurisdiction
(1) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under the Code of Muslim Personal Laws;
(2) All cases involving disposition, distribution
and settlement of estate of deceased
Muslims, probate of wills, issuance of
letters of administration of appointment
administrators or executors regardless of
the nature or aggregate value of the
property;
(3) Petitions for the declaration of absence
and death for the cancellation and
correction of entries in the Muslim
Registries;
(4) All actions arising from the customary
contracts in which the parties are Muslims,
if they have not specified which law shall
govern their relations; and
(5) All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and all
other auxiliary writs and processes in aid of
its appellate jurisdiction
Concurrent Jurisdiction
(1) With the Supreme Court in actions
affecting ambassadors, other public
ministers and consuls
(2) With the SC and CA in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies in petitions
for quo warranto, habeas corpus, and writ
of continuing mandamus on environmental
cases
Concurrent Jurisdiction
(1) Petitions of Muslim for the constitution of
the family home, change of name and
commitment of an insane person to an
asylum
(2) All other personal and legal actions not
mentioned in par 1 (d) wherein the parties
involved are Muslims except those for
forcible entry and unlawful detainer, which
shall fall under the exclusive jurisdiction of
the MTC.
PAGE 11
UP LAW BOC
CIVIL PROCEDURE
(3) All special civil actions for interpleader or

declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims
(d) Chairmen and Members of the

Constitutional Commissions without
prejudice to the provisions of the
Constitution
(e) All other national and local officials
classified as Grade 27 and higher under
RA 6758
(f) Other offenses or felonies committed by
the public officials and employees
mentioned in Sec. 4(a) of RA 7975 as
amended by RA 8249 in relation to their
office
(g) Civil and criminal cases filed pursuant to
and in connection with EO Nos. 1, 2, 14-A
(Sec. 4, RA 8249)
Cases Cognizable
(1) Offenses defined and punished under PD
1083
(2) Disputes relating to:
(a) Marriage
(b) Divorce
(c) Betrothal or breach of contract to marry
(d) Customary dowry (mahr)
(e) Disposition and distribution of property
upon divorce
(f) Maintenance
and
support
and
consolatory gifts (muta)
(g) Restitution of marital rights
(3) Disputes relative to communal properties
NOTE: Without the office, the crime cannot

be committed.
Appellate Jurisdiction: Over final judgments,
resolutions or orders of the RTC whether in
the exercise of their original or appellate
jurisdiction over crimes and civil cases falling
within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.
Note: The Sharia District Court or the Sharia

Circuit Court may constitute an Agama
Arbitration Council to settle certain cases
amicably and without formal trial.
The Council is composed of the Clerk of Court
as Chairperson and a representative of each of
the conflicting parties.
JURISDICTION
OF
SANDIGANBAYAN
REMEDIAL LAW
Concurrent Original Jurisdiction with SC, CA,

and RTC for petitions for writs of habeas data
and amparo
THE
Note: The requisites that the offender the

offender occupies salary Grade 27 and the
offense must be intimately connected with the
official function must concur for the SB to
have jurisdiction
Original Jurisdiction in all cases involving:

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

OF TAX APPEALS
[UNDER RA 9282 and RULE 5, AM 05-11-07

CTA]
Exclusive Original or Appellate Jurisdiction to
Review by Appeal:
(1) Decisions of CIR in cases involving disputed
assessments, refunds of internal revenue
taxes, fees or other charges, penalties in
relation thereto, or other matters arising
under the NIRC or other laws administered
by BIR;
PAGE 12
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Inaction by CIR in cases involving disputed

assessments, refunds of IR taxes, fees or
other charges, penalties in relation thereto,
or other matters arising under the NIRC or
other laws administered by BIR, where the
NIRC or other applicable law provides a
specific period of action, in which case the
inaction shall be deemed an implied
denial;
(3) Decisions, orders or resolutions of the RTCs
in local taxes originally decided or resolved
by them in the exercise of their original or
appellate jurisdiction;
(4) Decisions of the Commissioner of Customs
(a) in cases involving liability for customs
duties, fees or other charges, seizure,
detention or release of property
affected, fines, forfeitures or other
penalties in relation thereto, or
(b) other matters arising under the
Customs law or other laws, part of laws
or special laws administered by BOC;
(5) Decisions of the Central Board of
Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving
the assessment and taxation of real
property originally decided by the
provincial or city board of assessment
appeals;
(6) Decision of the secretary of Finance on
customs
cases
elevated
to
him
automatically for review from decisions of
the Commissioner of Customs which are
adverse to the government under Sec. 2315
of the Tariff and Customs Code;
(7) Decisions of Secretary of Trade and
Industry in the case of non-agricultural
product, commodity or article, and the
Secretary of Agriculture in the case of
agricultural product, commodity or article,
involving
dumping
duties
and
counterveiling duties under Secs. 301 and
302, respectively, of the Tariff and Customs
Code, and safeguard measures under RA
8800, where either party may appeal the
decision to impose or not to impose said
duties.
specified amount claimed (the offenses or

penalties shall be tried by the regular
courts and the jurisdiction of the CTA shall
be appellate);
(2) In tax collection cases involving final and
executory assessments for taxes, fees,
charges and penalties where the principal
amount of taxes and fees, exclusive of
charges and penalties claimed is less than
P1M tried by the proper MTC, MeTC and
RTC.

(1) Over all criminal cases arising from
violation of the NIRC and the TCC and
other laws, part of laws, or special laws
administered by the BIR or the BOC where
the principal amount of taxes and fees,
exclusive of charges and penalties claimed
is less than P1M or where there is no
Concurrent Original Jurisdiction

(1) With SC to issue writs of certiorari,
prohibition and mandamus against the
RTC, CSC, CBAA, other quasi-judicial
agencies mentioned in Rule 43, and the
NLRC (however, this should be filed first
with the CA as per St. Martin Funeral
Home case), and writ of kalikasan.
Exclusive Appellate Jurisdiction

(1) In criminal offenses
(a) Over appeals from the judgment,
resolutions or orders of the RTC in tax
cases originally decided by them, in
their respective territorial jurisdiction,
and
(b) Over petitions for review of the
judgments, resolutions or orders of
the RTC in the exercise of their
appellate jurisdiction over tax cases
originally decided by the MeTCs,
MTCs, and MCTCs in their respective
jurisdiction.
(2) In tax collection cases
(1) Over appeals from the judgments,
resolutions or orders of the RTC in tax
collection cases originally decided by
them in their respective territorial
jurisdiction; and
(2) Over petitions for review of the
judgments, resolutions or orders of
the RTC in the exercise of their
appellate jurisdiction over tax
collection cases originally decided by
the MeTCs, MTCs and MCTCs in their
respective jurisdiction.
JURISDICTION OF THE COURT

OF APPEALS
JURISDICTION OF THE
APPEALS IN CIVIL CASES
COURT
OF
Exclusive Original Jurisdiction in actions for

annulment of judgments of the RTC
PAGE 13
UP LAW BOC
CIVIL PROCEDURE
(2) With the SC and RTC to issue writs of

against lower courts and bodies and writs
of quo warranto, habeas corpus, whether
or not in aid of its appellate jurisdiction,
and writ of continuing mandamus on
environmental cases.
(3) With SC, RTC and Sandiganbayan for
petitions for writs of amparo and habeas
data where the action involves public data
or government office
REMEDIAL LAW
(3) With CA, RTC and Sandiganbayan for

petitions for writs of amparo and habeas
data
(4) Concurrent original jurisdiction with the
RTC in cases affecting ambassadors,
public ministers and consuls.
Appellate Jurisdiction
(1) By way of petition for review on certiorari
(appeal by certiorari under Rule 45)
against CA, Sandiganbayan, RTC on pure
questions of law and CTA in its decisions
rendered en banc.
(2) In cases involving the constitutionality or
validity of a law or treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty,
jurisdiction of a lower court; and
(3) All cases in which the jurisdiction of any
court is in issue;
(4) All cases in which an error or question of
law is involved
(5) The SC may resolve factual issues in
certain exceptional circumstances [Josefa
v. Zhandong, 2003]
(a) The conclusion is grounded on
speculations/ surmises /conjectures
(b) The
inference
is
manifestly
mistaken/absurd/impossible;
(c) There is grave abuse of discretion;
(d) The judgment is based on a
misapprehension of facts;
(e) The findings of fact are conflicting;
(f) There is no citation of specific
evidence on which the factual findings
are based;
(g) The finding of absence of facts is
contradicted by the presence of
evidence on record;
(h) The findings of the CA are contrary to
those of the trial court;
(i) The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a
different conclusion;
(j) The findings of the CA are beyond the
issues of the case;
(k) Such findings are contrary to the
admissions of both parties.
Exclusive Appellate Jurisdiction

(a) By way of ordinary appeal from the RTC
and the Family Courts.
(b) By way of petition for review from the RTC
rendered by the RTC in the exercise of its
appellate jurisdiction.
(c) By way of petition for review from the
decisions, resolutions, orders or awards of
the CSC, CBAA and other bodies
mentioned in Rule 43 and of the Office of
the Ombudsman in administrative
disciplinary cases.
(d) Over decisions of MTCs in cadastral or
land registration cases pursuant to its
delegated jurisdiction; this is because
decisions of MTCs in these cases are
appealable in the same manner as
decisions of RTCs.
JURISDICTION OF THE
SUPREME COURT
JURISDICTION OF THE SUPREME COURT
IN CIVIL CASES
Exclusive Original Jurisdiction in petitions for
certiorari, prohibition and mandamus against
the CA, COMELEC, COA, CTA, Sandiganbayan
Concurrent Original Jurisdiction
(1) With Court of Appeals in petitions for
against the RTC, CSC, Central Board of
Assessment Appeals, NLRC, Quasijudicial agencies, and writ of kalikasan, all
subject to the doctrine of hierarchy of
courts.
(2) With the CA and RTC in petitions for
against lower courts and bodies and in
petitions for quo warranto, and writs of
habeas corpus, all subject to the doctrine
of hierarchy of courts.
PAGE 14
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Ordinary or Special both are governed

by the rules of ordinary civil actions,
subject to the specific rules prescribed for
a special civil action
(a) Special
(b) Ordinary may be classified as:
(i) As to place
(a) Transitory action founded on
privity of contract between
parties; brought in the place
where the party resides
(b) Local action founded on
privity of estate only and there
is no privity of contract;
brought in a particular place
(ii) As to object or against which
the action is directed, actions may
be classified as:
(a) In personam;
(b) In rem; or
(c) Quasi in rem
(iii) As to cause or foundation
(a) Real, or
(b) Personal
TOTALITY RULE
Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the claims
in all the claims of action, irrespective of
whether the causes of action arose out of the
same or different transactions [Sec.33 [1], BP
129].
Commencement of
Actions to Trial
ACTIONS
Actions in General: An ordinary suit in a court
of justice by which one party prosecutes
another for the enforcement/ protection of a
right or the prevention/redress of a wrong
[Santos v. Vda. De Caparas, (1959)]
An action is a formal demand of ones legal
rights in a court of justice in the manner
prescribed by the court or by the law.
Determinative fact which converts a claim into
an action or suit is the filing of the same with a
court of justice. (Herrera)
Ordinary Civil Actions: An ordinary civil action

is one that is governed by the rules for
ordinary civil actions [Rule 1, Sec. 3(a) par 2]
Special Civil Actions: A special civil action is
one that is subject to the specific rules
prescribed for a special civil action; it is also
governed by the rules for ordinary civil actions
[Rule 1, Sec. 3(a) par 2]
ACTION v. CAUSE OF ACTION

Cause of Action
Action
A cause of action is
the basis of the action Ordinary suit in a court
filed [Rule 2, Sec.1]
of justice, by which
one party prosecutes
Fact or combination of another
for
the
facts which affords a enforcement
or
party a right to judicial protection of a right,
interference in his or the prosecution or
behalf. [Into v. Valle redress of a wrong
(2005)]
Criminal Actions: A criminal action is one by

which the State prosecutes a person for an act
or omission punishable by law. [Rule 1, Sec.
3(b)]
CIVIL
ACTIONS
PROCEEDINGS
vs.
SPECIAL
A civil action is one by which a party sues

another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
[Rule 1, Sec. 3(a) par 1]
KINDS OF ACTION
(1) Civil or Criminal
(a) Civil one by which a party sues
another for the enforcement or
protection of a right, or the prevention
or redress of a wrong
(b) Criminal one by which the State
prosecutes a person for an act or
omission punishable by law
A special proceeding is a remedy by which a

party seeks to establish a status, a right, or a
particular fact. [Rule 1, Sec. 3 (c)]
PAGE 15
UP LAW BOC
CIVIL PROCEDURE
found, at the election of the plaintiff. [Rule

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

property is a real action because the realty
may only be incidental to the subject matter of
the suit. To be a real action, it is not enough
that the action must deal with real property. It
is important that the matter in litigation must
also involve any of the following issues: title
to,
ownership,
possession,
paritition,
foreclosure or mortgage or any interest in real
property. [Riano]
Real action
Ownership or
possession of
real property
is involved
Special rules of
procedure
Founded on
privity of real
estate
Filed in the
court where
the property
(or any
portion
thereof) is
situated
As to appeal from an interlocutory

Order
Cannot be directly and
immediately appealed Can be immediately
to the appellate court
and directly
until after final
appealed to the
judgment on the
appellate court
merits
PERSONAL ACTIONS AND REAL

ACTIONS
Personal Action
Personal
property is
sought to be
recovered or
damages for
breach of
Contract or the
enforcement of
a contract are
sought
Founded on
privity of
contract
Filed in the
court where the
plaintiff or any
of the
defendants
resides, at the
plaintiffs option
Mixed action
Both real and

personal
properties are
involved
Founded on
both
The rules on
venue of real
actions
govern
LOCAL AND TRANSITORY ACTIONS
Real Actions: Actions affecting title to or

possession of real property, or interest therein.
[Rule 4, Sec. 1 par 1]
Personal Actions: All other actions are
personal actions. [Rule 4, Sec.2]
Local action
One that could be
instituted
in
one
specific place [Manila
Railroad v. AttorneyGeneral (1911)]
Transitory action
One that could be
prosecuted in any one
of several places
[Manila Railroad v.
Attorney-General
(1911)]
Its venue depends
Venue depends upon upon the residence of
the location of the the plaintiff or the
property involved in defendant at the
the litigation (Riano) option of the plaintiff
(Riano)
Importance of Distinction: For purposes of

determining venue of the action [Riano]
(1) Real actions shall be commenced and
tried in the proper court which has
jurisdiction over the area wherein the real
property involved, or a portion thereof, is
situated. [Rule 4, Sec.1]
(2) Personal actions may be commenced and
tried where the plaintiff or any of the
principal plaintiffs resides, or where the
defendant or any of the principal
defendants resides, or in the case of a
non-resident defendant, where he may be
E.g. Action to recover E.g. Action to recover

real property
sum of money
PAGE 16
UP LAW BOC
CIVIL PROCEDURE
If action is founded on privity of contract

between parties, then the action is transitory
The question of whether the trial court has

jurisdiction depends on the nature of the
action, i.e., whether the action is in personam,
in rem, or quasi in rem. [Riano citing Biaco v.
Philippine Countryside Rural Bank (2007)]
But if there is no privity of contract and the

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

whether or not jurisdiction over the person of
the defendant is required and consequently to
determine the type of summons to be
employed. [Riano citing Gomez v. Court of
Appeals (2004)]
ACTIONS IN REM, IN PERSONAM,

AND QUASI IN REM
Action In
Rem
Directed
against the
thing itself
Action In
Personam
Directed
against
particular
persons
Action Quasi In
Rem
INDEPENDENT CIVIL ACTIONS

Rule 111, Sec 3: When civil action may
proceeded independently. In the cases
provided for in Articles 32, 33, 34 and 2176 of
the Civil Code of the Philippines, the
independent civil action may be brought by
the offended party. It shall proceed
independently of the criminal action and shall
require only a preponderance of evidence. In
no case, however, may the offended party
recover damages twice for the same act or
omission charged in the criminal action.
Directed against
particular
persons
Jurisdiction
Jurisdiction over
over the
the person of
Jurisdiction
person of
defendant is not
over the person
the
required as long
of defendant
defendant
as jurisdiction
required
not
over the res is
required
required
Proceeding to
subject the
Proceeding
Action to
interest of a
to
impose a
named
determine
responsibility or defendant over
the state or
liability upon a
a particular
condition
person directly property to an
of a thing
obligation or
lien burdening it
Action In
Rem
Action In
Personam
Judgment is
Judgment binging only
is binding
upon
on the
impleaded
whole
parties or their
world
successors in
interest
E.g.
E.g. Specific
Probate
performance,
proceeding,
action for
cadastral
breach of
proceeding
contract
REMEDIAL LAW
CAUSE OF ACTION
Cause of Action - A cause of action is the act or

omission by which a party violates a right of
another. [Rule 2, Sec.2]
Every ordinary civil action must be based on a
cause of action [Rule 2, Sec. 1]
A cause of action stems from the sources of
obligations under Art. 1156, CC - Law,
Contract, Quasi-contract, Acts and omissions
punishable by law and Quasi-delict. [Sagrada
Orden etc v. National Coconut Corporation
(1952)]
Action Quasi In
Rem
Judgment
binging upon
particular
persons
Elements of a Cause of Action:

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

partition;
foreclosure of
real estate
mortgage
PAGE 17
UP LAW BOC
CIVIL PROCEDURE
RIGHT OF ACTION vs. CAUSE OF

ACTION [Regalado]
Right of Action
The remedial right or
right to relief granted by
law to a party to
institute
an
action
against a person who
has committed a delict
or wrong against him
Right to sue as a
consequence of the
delict
REMEDIAL LAW
TEST OF THE SUFFICIENCY OF A

CAUSE OF ACTION
Cause of Action
The
delict
or
wrongful act or
omission committed
by the defendant in
violation of the
primary rights of the
plaintiff
Whether or not admitting the facts alleged,

the court could render a valid verdict in
accordance with the prayer of the complaint
[Santos v. de Leo (2005)]
SPLITTING A SINGLE CAUSE OF

ACTION; EFFECTS
Definition - The act of instituting two or more

suits on the basis of the same cause of action.
[Rule 2, Sec.4]
The delict or wrong
Determined by the
Whether such acts give
averments in the
him right of action
pleading regarding
determined
by
the acts committed
substantive law
by the defendant
The act of dividing a single or indivisible cause

of action into several parts or claims and
bringing several actions thereon. [Regalado]
The test of singleness of cause of action lies in
the singleness of the delict or wrong violating
the rights of one person.
There can be no right of action without a

cause of action being first established
[Regalado citing Espaol v. The Chairman of
PVA (1985)]
For a single cause of action or violation of a

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

ACTION
There is a failure to state a cause of action if

the pleading asserting the claim states no
cause of action. This is a ground for a motion
to dismiss. [Rule 16, Sec.1(g)]
Effects:
(1) The filing of one or a judgment upon the
merits in any one is available as a ground
for the dismissal of the others. [Rule 2,
Sec.4]
(2) Filing of the 1st complaint may be pleaded
in abatement of the 2nd complaint, on the
ground of litis pendentia; or
(3) A judgment upon the merits in any of the
complaints is available as ground for
dismissal of the others based on res
judicata.
(4) A Motion to Dismiss under Rule 16 (litis
pendentia or res judicata) may be filed in
order that the complaint may be
dismissed.
It is submitted that the failure to state a cause

of action does not mean that the plaintiff has
no cause of action. It only means that the
plaintiffs allegations are insufficient for the
court to know that the rights of the plaintiff
were violated by the defendant. [Riano]
There is a failure to state a cause of action if
allegations in the complaint taken together,
do not completely spell out the elements of a
particular cause of action. [Riano]
A failure to state a cause of action is not the
same as an absence or a lack of cause of
action. The former refers to an insufficiency in
the allegations of the complaint while the
latter refers to the failure to prove or to
establish by evidence ones stated cause of
action. [Riano]
Ratio: A party may not institute more than one

suit for a single cause of action. [Rule 2, Sec. 3]
(1) To prevent repeated litigation between
the same parties in regard to the same
subject or controversy;
(2) To protect the defendant from
unnecessary vexation. Nemo debet vexare
pro una et eadem causa (No man shall be
twice vexed for one and the same cause);
PAGE 18
UP LAW BOC
CIVIL PROCEDURE
(3) To avoid the costs and expenses incident

to numerous suits. [City of Bacolod v. SM
Brewery (1969)]
REMEDIAL LAW
(4) TOTALITY RULE - Where the claims in all

the causes of action are principally for
recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
JOINDER OF CAUSES OF ACTION
MISJOINDER
ACTION
It is the assertion of as many causes of action

as a party may have against another in one
pleading alone. It is also the process of uniting
two or more demands or rights of action in
one action. [Riano citing Rule 2, Sec. 5 and
CJS]
OF
CAUSES
OF
[Rule 2, Sec. 6]
Misjoinder of causes of action is not a ground

for dismissal of an action. A misjoined cause
of action may, on motion or motu propio, be
severed and proceeded with separately.
However, if there is no objection to the
improper joinder or the court did not motu
proprio direct a severance, then there exists no
bar in the simultaneous adjudication of all the
erroneously joined causes of action. However,
this rule exists only when the court trying the
case has jurisdiction over all of the causes of
action therein notwithstanding the misjoinder
of the same. This is because if the court has no
jurisdiction to try the misjoined action, then
the same must be severed and if not so
severed, any adjudication rendered by the
court with respect to the same would be a
nullity. [Ada v. Baylon (2012)]
By a joinder of actions, or more properly, a

joinder of causes of action is meant the
uniting of two or more demands or rights of
action in one action, the statement of more
than one cause of action in a declaration [Ada
v. Baylon (2012)]
Splitting of Causes
Joinder of Causes
There is a single
Contemplates several
cause of action
causes of action
Prohibited
Encouraged
It causes multiplicity
It minimizes
of suits and double
multiplicity of suits
vexation on part of and inconvenience on
defendant
the parties
Ratio: To avoid a multiplicity of suits and to
expedite disposition of litigation at minimum
cost [Ada v. Baylon (2012)]
There is no sanction against non-joinder of

separate causes of action since a plaintiff
needs only a single cause of action to
maintain an action (Regalado).
The rule however is purely permissive as the

plaintiff can always file separate actions for
each cause of action. [Baldovi v. Sarte, (1917)]
In case of misjoinder of causes of action, the

cause of action erroneously joined need only
be separated and dismissed, without affecting
the action with regard to other causes of
action (Regalado).
Joinder shall not include special civil actions

governed by special rules. [Ada v. Baylon
(2012)]
PARTIES TO CIVIL ACTIONS
Requisites [Rule 2, Sec. 5]:

(1) The party joining the causes of action
must comply with the rules on joinder of
parties;
(2) The joinder shall not include special civil
actions or actions governed by special
rules;
(3) Where causes of action are between the
same parties but pertain to different
venues/jurisdictions, the joinder may be
allowed in the RTC provided one of the
causes of action are within the RTCs
jurisdiction and the venue lies therein;
REQUIREMENTS FOR A PERSON TO

BE A PARTY TO A CIVIL ACTION:
For a Person to be a Party to a Civil Action:
(1) He must be a natural or juridical person or
an entity authorized by law
(2) He must have legal capacity to sue; and
(3) He must be the real party-in-interest
A party must be a natural or juridical person or
an entity authorized by law
Only natural and juridical persons may be
parties
See Art. 44, NC
PAGE 19
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PARTIES TO A CIVIL ACTION
Entities authorized by law may also be

parties, e.g.:
(a) Partnership has a juridical personality
separate and distinct from that of each
of the partners, even in case of failure to
comply with the requirements in Art 1772
NCC [Art. 1768 NCC]
(b) Labor organizations organized in
accordance with law may file a complaint
or petition in court in representation of
its members [Art 242 LC]
(c) As to properties of the Roman Catholic
Church, the Archbishop or diocese to
which they belong may be a party [Ponce
v. Roman Catholic]
Plaintiff one having an interest in the matter

of the action or in obtaining the relief
demanded. The term may either refer to the
claiming party, counter-claimant, crossclaimant, or third-party plaintiff
Defendant one claiming an interest in the
controversy or the subject thereof adverse to
the plaintiff. Term may also include:
(1) An unwilling co-plaintiff or one who
should be joined as plaintiff but refuses to
give his consent thereto [Sec. 10, Rule 3]
(2) The original plaintiff becoming a
defendant to the original counterclaim of
defendant; and
(3) One
necessary
to
a
complete
determination or settlement of the
questions involved therein
LEGAL CAPACITY TO SUE

Legal capacity to sue or be sued means that
the party is free from general disability (e.g.
minority or insanity) or, in case of juridical
entities, that it must be duly registered in
accordance with law
REAL PARTIES IN INTEREST
Under Sec. 4, Rule 8, legal capacity to sue

must be averred
Who is a real party-in-interest: [Rule 3, Sec. 2]

(1) The party who stands to be
benefited/injured by the judgment in the
suit;
(2) The party entitled to the avails of the suit.
Lack of legal capacity to

Lack of legal
sue
personality to sue
The plaintiffs general
disability to sue, such as
The plaintiff is not
on account of minority,
the real party in
insanity, incompetence,
interest
lack of juridical
personality or any other
general disqualifications
It can be used as
ground for a MTD
It can be a ground for a
based on the
MTD [Rule 16 (1) (d)]
failure of complaint
to state a cause of
action. [Rule 16 (1)
(g)]
Rules:
(1) Every action must be prosecuted or
defended in the name of the real party in
interest. [Rule 3, Sec.2]
(2) The partys interest must be direct,
substantial and material [Sumalo v. Litton
(2006)].
(3) Husband and wife shall sue and be sued
jointly, except as provided by law [Rule 3,
Sec. 4]
(4) A minor or a person alleged to be
incompetent may sue or be sued, with the
assistance of his father, mother, guardian,
or if he has none, a guardian ad litem.
[Rule 3, Sec. 5]
(5) Minors (represented by their parents) are
real parties in interest under the principle
of intergenerational responsibility. [Oposa
v. Factoran (1993)]
(6) If a party becomes incompetent/
incapacitated during the pendency of the
action, the action survives and may be
continued by/against the incompetent/
incapacitated assisted by his legal
guardian or guardian ad litem [Rule 3, Sec.
18]
REAL- PARTY IN INTEREST

Interest within the meaning of the Rules of
Court means material interest or an interest in
issue to be affected by the decree or judgment
of the case, as distinguished from mere
curiosity about the question involved. [Ang v.
Sps. Ang (2012)]
PAGE 20
UP LAW BOC
CIVIL PROCEDURE
Failure to name real party in interest

(a) Effect: a motion to dismiss may be filed on
the ground that the complaint states no
cause of action
(i) If a complaint is filed for and in behalf
of a plaintiff who is not authorized to
do so, the complaint is not deemed
filed
(b) Remedies:
(i) Amendment of pleadings (Alonso v.
Villamor, 1910); or
(ii) Complaint may be deemed amended
to include the real party-in-interest
(Balquidra v. CFI Capiz, 1977)
(c) Exception: A real litigant may be held
bound as a party even if not formally
impleaded provided he had his day in
court (Albert v. University Publishing Co.,
1958)
REMEDIAL LAW
General Rule: An agent acting in his own

name and for the benefit of an undisclosed
principal may sue or be sued without joining
the principal.
Exception: If the contract involves things
belonging to the principal. [Art. 1883, CC]
NECESSARY PARTIES
Who: One who is not indispensable but ought
to be joined as a party if complete relief is to
be accorded as to those already parties, or for
a complete determination or settlement of the
claim subject of the action [Rule 3, Sec. 8]
Indispensable parties v. Necessary parties
Indispensable parties Necessary parties [Rule
[Rule 3, Sec. 7]
3, Sec. 8]
Should
be
joined
Must be joined under
whenever possible; the
any
and
all
action can proceed
conditions,
his
even in their absence
presence being a sine
because their interest
qua non for the
is separable from that
exercise of judicial
of the indispensable
power
party
The case may be
determined in court
No valid judgment if but the judgment
indispensable party is therein will not resolve
not joined.
the entire controversy if
a necessary party is not
joined
They are those with They are those whose
such an interest in the presence is necessary
controversy that a to adjudicate the whole
final decree would controversy but whose
necessarily
affect interests are so far
their rights so that separable that a final
the court cannot decree can be made in
proceed without their their absence without
presence.
affecting them.
INDISPENSABLE PARTIES
Who: An indispensable party is a real party-ininterest without whom no final determination
can be had of an action. [Rule 3, Sec.7]
A party who has such an interest in the
controversy or subject matter that a final
adjudication cannot be made, in his absence,
without injuring or affecting that interest.
[Riano]
The joinder of a party becomes compulsory
when the one involved is an indispensable
party. [Riano citing Rule 3, Sec.7]
A person is NOT an indispensable party if his
interest in the controversy or subject matter is
separable from the interest of the other
parties, so that it will not necessarily be
directly or injuriously affected by a decree
which does not complrete justice between
them. [Riano]
REPRESENTATIVE AS PARTIES
Who: Those acting in fiduciary capacity, such
as a trustee/guardian/executor/administrator
or a party authorized by law or ROC. [Rule 3,
Sec. 3]
Whenever in any pleading in which a claim is

asserted a necessary party is not joined, the
pleader is under obligation to:
(1) Set forth the name of the necessary party,
if known, and
(2) State the reason why the necessary party
is omitted. [Riano citing Rule 3, Sec. 9 par
1]
The beneficiary shall be included in the title of

the case and shall be deemed to be the real
party in interest.
PAGE 21
UP LAW BOC
CIVIL PROCEDURE
The non-inclusion of a necessary party does

not prevent the court from proceeding in the
action, and the judgment rendered therein
shall be without prejudice to the rights of such
necessary party [Rule 3, Sec. 9 par 3]
REMEDIAL LAW
Effect of Absence of Indispensable Parties:

(1) It is the duty of the court to stop the trial
and to order the inclusion of such party
[Cortez v. Avila]. Such an order is
unavoidable
(2) Absence of an indispensable party renders
all subsequent actuations of the court null
and void, for want of authority to act, not
only as to the present parties but even as
to those present
INDIGENT PARTIES
Who: An indigent is one who has no money or
property sufficient and available for food,
shelter, and basic necessities [Rule 3, Sec. 21]
PERMISSIVE JOINDER [Rule 3, Sec. 6] Parties

can be joined, as plaintiffs or defendants, in
one single complaint or may themselves
maintain or be sued in separate suits.
Authority to Litigate as Indigent Party

May be granted upon an ex parte
application and hearing
It shall include an exemption from payment
of docket and other lawful fees (e.g. fees for
TSN)
Requisites of Permissive Joinder:

(1) Right to relief arises out of the same
transaction or series of transactions
(a) Transaction - not only a stipulation or
agreement but any event resulting in
wrong, without regard to whether the
wrong has been done by violence,
neglect, or breach of contract
(b) Series of transaction transactions
connected with the same subject of
the action
(2) There is a question of law or fact common
to all the plaintiffs or defendants
(3) Such joinder is not otherwise proscribed
by the rules on jurisdiction and venue
NOTE: The amount of docket and other

lawful fees is a lien on any judgment
rendered in favor of indigent party, unless
court otherwise provides.
Adverse party may contest: Authority may be
contested by the adverse party at any time
before judgment is rendered
If the court determines after hearing that
the party declared indigent has sufficient
income or property, the proper docket and
other lawful fees shall be assessed and
collected by the clerk of court
Distinguished from Joinder of Causes of

Action
In joinder of causes of action, it is enough if
the cause of action arises out of the same
contract
Unlike permissive joinder of parties, in
joinder of causes of action, there is no need
for a common question of fact or law
ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against whom
of several persons he is entitled to relief, he
may join any or all of them in the alternative,
although a right to relief against one may be
inconsistent with a right to relief against the
other. [Rule 3, Sec. 13]
MISJOINDER AND NON-JOINDER

OF PARTIES
COMPULSORY AND PERMISSIVE

JOINDER OF PARTIES
A party is misjoined when he is made a party

to the action although he should not be
impleaded.
COMPULSORY
JOINDER
OF
INDISPENSABLE PARTIES [Rule 3, Sec. 7]
Parties in interest without whom no final
determination can be had of an action shall be
joined either as plaintiffs or defendants
A party is not joined when he is supposed to

be joined but is not impleaded in the action.
[Riano]
Joinder of INDISPENSABLE PARTIES are

mandatory
PAGE 22
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Effect:
(1) Neither misjoinder nor non-joinder of
parties is a ground for dismissal of an
action. [Rule 3, Sec. 11]
(a) Non-joinder of an indispensable party
is not a ground for outright dismissal.
Reasonable opportunity must be
given for his inclusion by amendment
of the complaint [Cortez v Avila
(1957)].
(b) In case of non-joinder of a necessary
party, if the court should find the
reason
for
such
omission
unmeritorious, it may order the
inclusion of such omitted necessary
party
(2) Parties may be dropped or added by order
of the court on motion of any party or on
its own initiative at any stage of the action
and on such terms as are just. [Rule 3,
Sec.11]
If a class suit is improperly brought, the action

is subject to dismissal regardless of the cause
of action [Rule 16, Sec 1 (d)].
Objections to defects in parties: Objections to

defects in parties should be made at the
earliest opportunity.
The moment such defect becomes
apparent, a motion to strike the names of
the parties must be made.
Objections to misjoinder cannot be raised
for the first time on appeal [Lapanday
Agricultural & Development Corporation v.
Estita (2005)]
A class suit does not require a commonality of

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

suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover
damages in behalf of individual sugar planters
for an allegedly libelous article in an
international magazine. There is no common
or general interest in reputation of a specific
individual. Each of the sugar planters has a
separate and distinct reputation in the
community not shared by the others. [Riano
citing Newsweek, Inc. v. Intermediate Appellate
court (1986)]
Permissive Joinder of
Parties
There
are
multiple
There is a single cause of
causes
of
action
action pertaining to
separately belonging to
numerous persons.
several persons.
Class Suit
CLASS SUIT
Requisites: [Rule 3, Sec. 12]
(1) Subject matter of the controversy is one of
common/general interest to many
persons;
(2) The persons are so numerous that it is
impracticable to join them all as parties
(i.e. impracticable to bring them all before
the court);
(3) Parties bringing the class suit are
sufficiently numerous and representative
of the class and can fully protect the
interests of all concerned;
(4) The representative sues/defends for the
benefit of all.
Class Suit
Derivative Suit
An action brought by
minority shareholders in
the name of the
corporation to redress
wrongs
committed
When the subject matter
against it, for which the
of the controversy is one
directors refuse to sue.
of common or general
interest
to
many
It is a remedy designed
persons, and the parties
by equity and has been
are so numerous that it
the principal defense of
is impracticable to bring
the
minority
them all before the
shareholders
against
court, one or more may
abuses by the majority.
sue or defend for the
benefit of all. [Rule 3,
In a derivative action, the
Sec. 12]
real party in interest is
the corporation itself,
not the shareholders
who actually instituted it
[Lim v. Lim Yu (2001))
Any party in interest shall have the right to

intervene to protect his individual interest.
[Rule 3, Sec. 12]
PAGE 23
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Counsels duty:
(1) Inform court within 30 days after such
death of the fact thereof;
(2) Give the name and address of the legal
representatives.
SUITS AGAINST ENTITES WITHOUT

JURIDICAL PERSONALITY
Requisites: [Rule 3, Sec. 15]
(1) There are two or more persons not
organized as a juridical entity;
(2) They enter into a transaction;
(3) A wrong is committed against a third
person in the course of such transaction.
NOTE: Failure to comply with this duty is a

ground for disciplinary action.
Courts duty: in case of death, the court if the
action survives, shall order, upon proper
notice, the legal representative of the
deceased to appear and to be substituted for
the deceased within a period of 30 days or
within such time as may be granted.
If there is notice of death, court should await
appointment of legal representative;
otherwise, subsequent proceedings are void.
Period of filing of brief is suspended.
Effect: Persons associated in an entity without

juridical personality may be sued under the
name by which they are generally/commonly
known, but they cannot sue under such name.
[Rule 3, Sec. 15]
The service of summons may be effected upon
all the defendants by serving upon any of
them, or upon the person in charge of the
office or place of business maintained under
such name. [Rule 14, Sec. 8]
If no legal representative is named or if the

one so name shall fail to appear within the
specified period, the court may order the
opposing party to procure the appointment of
an executor or administrator for the estate.
EFFECT OF DEATH OF PARTY

LITIGANT
SURVIVAL OR DEATH OF ACTION
The question as to whether an action survives
or not depends on the nature of the action
and the damage sued for
(1) Causes of Action that SURVIVE the
decedent
(a) The wrong complained of affects
primarily and principally property and
property rights
(b) Injuries to the person are merely
incidental
(c) E.g. Purely personal actions like
support
(2) Causes of Action which DO NOT SURVIVE
(a) The injury complained of is to the
person
(b) Property and property rights affected
are incidental
(c) E.g. actions to recover real and
personal property or to enforce liens
thereon
The substitute defendant need not be

summoned. The order of substitution shall be
served upon the parties substituted for the
court to acquire jurisdiction over the substitute
party [Ferreria v Vda de Gonzales (1986)].
DEATH OR SEPARATION OF A PARTY
WHO IS A PUBLIC OFFICER [Rule 3, Sec. 17]
Requisites:
(1) Public officer is a party to an action in his
official capacity;
(2) During the pendency of the action, he
either dies/resigns or otherwise ceases to
hold office;
(3) It is satisfactorily shown to the court by
any party, within 30 days after the
successor takes office, that there is a
substantial need to continue/maintain the
action and
(4) The successor adopts/continues (or
threatens to do so) his predecessors
action
(5) The party or officer affected was given
reasonable notice of the application
therefore and accorded an opportunity to
be heard.
Substitution of Parties: For causes of action

that survive the death of the party, there is
substitution of parties
PAGE 24
UP LAW BOC
ACTION ON CONTRACTUAL
CLAIMS [Rule 3, Sec. 20]
CIVIL PROCEDURE
MONEY
REMEDIAL LAW
VENUE VERSUS JURISDICTION

Venue
Jurisdiction
Power of the court to
Place where the action
hear and decide a
is instituted
case
Jurisdiction over the
subject matter and
over the nature of the
May be waived
action is conferred by
law and cannot-be
waived
Requisites:
(1) The action must primarily be for recovery
of money/debt or interest thereon;
(2) The claim arose from express/implied
contract;
(3) Defendant dies before the entry of final
judgment in the court in which the action
was pending.
(4) The defendants death will not result in
the dismissal of the action.
Procedural
The deceased shall be substituted by his legal

representatives in the manner provided for in
Rule 3, Sec. 16, and the action will continue
until the entry of final judgment.
Substantive
Is fixed by law and

May be changed by
cannot be the subject
the written agreement
of the agreement of
of the parties
the parties
Establishes a relation
Establishes a relation
between plaintiff and
between the court
defendant,
or
and
the
subject
petitioner
and
matter
respondent
Not a ground for a
Lack of jurisdiction
motu propio dismissal
over
the
subject
(except in cases of
matter is a ground for
summary procedure;
a
motu
proprio
Rule 4, Rule on
dismissal.
Summary Procedure)
However, execution shall not issue in favor of

the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.
TRANSFER
OF
INTEREST
DURING
PENDENCY OF ACTION [Rule 3, Sec. 19]
General rule: The rule does not consider the
transferee an indispensable party. Hence, the
action may proceed without the need to
implead him.
VENUE OF REAL ACTIONS
(1) Shall be commenced and tried in the

proper court which has jurisdiction over
the area wherein the real property
involved, or a portion thereof is situated.
[Rule 4, Sec. 1(1)]
(2) Forcible entry and detainer actions shall
be commenced and tried in the municipal
court of the municipality or city wherein
the real property involved, or a portion
thereof, is situated. [Rule 4, Sec. 1(2)]
(3) If the property is located at the boundaries
of two places, file the case in either place
(at the plaintiffs option).
(4) If the case involves two properties located
in two different places:
(a) If the properties are the object of the
same transaction, file it in any of the
two places;
(b) If they are the objects of two distinct
transactions, separate actions should
be filed in each place unless properly
joined.
Exception: When the substitution by or joinder

of the transferee is ordered by court.
The case will be dismissed if the plaintiffs
interest is transferred to defendant unless
there are several plaintiffs, in which case the
remaining plaintiffs can proceed with their
own cause of action.
VENUE
Venue is the place, or the geographical area

where an action is to be filed and tried. In civil
cases, it relates only to the place of the suit
and not to the jurisdiction of the court. [Riano
citing Manila Railroad Company v. Attorney
General (1911)]
Choosing the venue of an action is not left to a
plaintiffs caprice; the matter is regulated by
the Rules of Court. [Ang v. Sps. Ang (2012)]
PAGE 25
UP LAW BOC
CIVIL PROCEDURE
VENUE OF PERSONAL ACTIONS
REMEDIAL LAW
WHEN THE RULES ON VENUE DO

NOT APPLY [Rule 4, Sec. 4]
At the plaintiffs election: [Rule 4, Sec. 2]

(1) Where the plaintiff or any of the principal
plaintiffs resides;
(2) Where the defendant or any of the
principal defendants resides;
(3) In case of a non-resident-defendant,
where he may be found.
(1) If a specific rule/law provides otherwise

(e.g. action for damages arising from
libel);
(2) If there is a stipulation as to venue which is
permitted if the parties have validly
agreed
(a) in writing
(b) before the filing of the action
(c) on the exclusive venue
NOTE: The plaintiff or the defendant must be

residents of the place where the action has
been instituted at the time the action is
commenced. [Ang v. Sps. Ang (2012)]
EFFECTS OF STIPULATIONS ON
VENUE
The residence of a person is his personal,

actual or physical habitation or his actual
residence or place of abode, which may not
necessarily be his legal residence or domicile
provided he resides therein with continuity
and consistency. [Boleyley v. Villanueva]
To be binding, the parties must have agreed

on the exclusive nature of the venue of any
prospective action between them. The
agreement of parties must be restrictive and
not permissive. [Regalado]
A corporation cannot be allowed to file

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

(e.g. only/solely/exclusively in such court),
venue stipulation is merely permissive; that is,
the stipulated venue is in addition to the
venue provided for in the rules. [Polytrade
Corp. v. Blanco (1969)]
VENUE OF ACTIONS AGAINST NONRESIDENTS [Rule 5, Sec. 3]
The mere stipulation on the venue of an

action, however, is not enough to preclude
parties from bringing a case in other venues.
The parties must be able to show that such
stipulation is EXCLUSIVE. In the absence of
qualifying or restrictive words, the stipulation
should be deemed as merely an agreement on
an additional forum, not as limiting venue to
the specified place. [Riano citing Spouse
Lantin v. Lantion, (2006)]
Non-resident FOUND in the Philippines:

(1) For personal actions Where the plaintiff
resides
(2) For real actions Where the property is
located
NOTE: The alternative venues granted to
plaintiffs in Sec. 2, Rule 4 is not available
to a non-resident
The court may declare agreements on venue

as contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres
(1978)].
Non-resident NOT FOUND in the Philippines:

An action may be filed ONLY when the case
involves:
(1) Personal status of plaintiff File at the
place where plaintiff resides
(2) Any property of said defendant located in
the Philippines File at the place where
the property (or any portion thereof) is
situated/found
OTHER RULES ON VENUE
Improper Venue - The Court may not motu

propio dismiss an action on the ground of
improper venue. [Dacoycoy v. IAC (1991)]
NOTE: When there is more than one

defendant or plaintiff, the residences of the
PRINCIPAL parties should be the basis for
determining proper venue (Herrera)
Exception: In summary procedures
PAGE 26
UP LAW BOC
CIVIL PROCEDURE
Change of Venue - The SC has the power to

change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, 1987 Constitution]
REMEDIAL LAW
(6) Complaint-in-intervention
(7) Reply
COMPLAINT [Rule 6, Sec. 3]
Waiver of Venue - Until and unless the

defendant objects to the venue in a motion to
dismiss prior to a responsive pleading, the
venue cannot truly be said to have been
improperly laid since for all intents and
purposes, the venue though technically wrong
may yet be considered acceptable to the
parties for whose convenience the rules on
venue had been devised. Although venue is
mandatory, it is waivable. [Diaz v. Adiong
(1993)]
Definition - The pleading alleging the

plaintiffs cause/s of action. It should contain
a concise statement of the ultimate facts
constituting the plaintiffs cause/s of action,
not evidentiary facts or legal conclusions.
Contents Statement of ultimate facts on
which the plaintiff relies for his claim:
(1) It must be in a methodical and logical
form
(2) Plain, concise, and direct
(3) Statement of mere evidentiary facts are
omitted [Rule 8, Sec. 1]
Means of waiving venue:

(1) Where parties validly agreed in writing
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4 (b)];
and
(2) Failure to raise improper venue as
affirmative defense or in motion to
dismiss
Function
(1) Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared to
meet the issues at trial.
(2) It should inform the defendant of all
material facts on which the plaintiff relies
to support his demand.
(3) It should state the theory of a cause of
action which forms the bases of plaintiffs
claim of liability. [Tantuico v. Republic
(1991)]
PLEADINGS
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate
judgment [Rule 6, Sec. 1]
PLEADING v. MOTION
Pleading
Motion
Purpose: to submit a Purpose: to apply for
claim or defense for an order not included
appropriate judgment
in the judgment
Cannot be initiatory
as they are always
May be initiatory
made in a case
already filed in court
Always filed before
May be filed even
judgment
after judgment
Only 9 kinds of
Any application for
pleading are allowed
relief not by a
by the rules
pleading is a motion
May be oral when
made in open court or
Must be written
in the course of a
hearing or trial
Ultimate Facts - Essential facts constituting

the plaintiffs cause of action. A fact is
essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient. [Remitere v. Montinola (1966)]
Non-Ultimate Facts:
(1) Evidentiary or immaterial facts;
(2) Legal conclusions, conclusions or
inferences of facts from facts not stated,
or incorrect inferences or conclusions from
facts stated;
(3) Conclusions of law alleged in the
complaint are not binding on the court.
(4) The details of probative matter or
particulars of evidence, statements of law,
inferences and arguments.
KINDS OF PLEADINGS
Test of Sufficiency of the Facts alleged in the

Complaint: WON upon the averment of facts,
a valid judgment may be properly rendered
[Pamintan v. Costales (1914)].
Kinds of Pleadings Allowed [Rule 6, Sec. 2]

(1) Complaint
(2) Answer
(3) Counterclaim
(4) Cross-claim
(5) 3rd-party Complaint
PAGE 27
UP LAW BOC
CIVIL PROCEDURE
ANSWER [Rule 6, Sec. 4]
REMEDIAL LAW
Insufficient denial or denial amounting to

admissions:
(1) General denial; and
(2) Denial in the form of a negative pregnant
Definition - The pleading where the defendant

sets forth his affirmative/negative defenses. It
may also be the response to a counterclaim or
a cross-claim.
COUNTERCLAIM
Two kinds of Defenses that may be set forth in

the Answer [Rule 6, Sec. 5]
Definition - Any claim which a defending party

may have against an opposing party.
(1) A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in
the answer, it is not part of the answer.
(2) Upon its filing, the same proceedings are
had as in the original complaint.
(3) For this reason, it must be answered 10
days from service [Rule 11, Sec 4]
(1) Negative Defenses - Specific denials of the

material facts alleged in the pleading of
the claimant essential to his cause of
action.
A denial is not specific just because it is
so qualified (Agton v. CA)
A general denial will be deemed an
admission of the averments in the
complaint; it has to be specific
Modes of Denial [Sec. 10, Rule 8]
(a) Defendant must specify each material
allegation of fact the truth of which he
does not admit
(b) If pleader decides to deny only a part
or a qualification of an averment, he
shall specify so much of it as true and
deny the remainder
(c) If pleader is without knowledge or
information sufficient to form a belief
as to the truth of a material averment,
he shall so state
How to Raise Counterclaims

(1) By including it in the Answer
(a) A compulsory counterclaim or a crossclaim that a defending party has AT
THE TIME he files his answer shall be
contained therein. [Rule 11, Sec. 8]
(b) Exception:
Pleadings
may
be
amended under Rule 11, Sec. 10:
(i) By leave of court;
(ii) Before judgment;
(iii) On the grounds of:
(iv) Oversight;
(v) Inadvertence;
(vi) Excusable neglect;
(vii) When justice requires.
(2) Affirmative Defenses - Allegations of new

matters which, while hypothetically
admitting the material allegations in the
claimants pleading, would nevertheless
prevent/bar recovery by him. It includes
fraud, prescription, release, payment and
any other matter by way of confession and
avoidance.
(2) By filing after the Answer [Rule 11, Sec. 9]

(a) Counterclaims/cross-claims arising
AFTER the answer,
(b) How done:
(1) By filing a supplemental pleading
before judgment
(2) WITH courts permission
Negative Pregnant - Denial pregnant with an

admission. It is a denial pregnant with the
admission of the substantial facts in the
pleading responded to which are not squarely
denied. It is in effect an admission of the
averment it is directed to. [Philamgen v. Sweet
Lines (1993)]
Rules on Counterclaims
(1) In an original action before the RTC, the
counterclaim
may
be
considered
compulsory regardless of the amount.
[Rule 6, Sec. 7]
(2) In the case of Agustin v. Bacalan (1985), if
a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived.
(3) But in Calo v. Ajax (1968), the remedy
where a counterclaim is beyond the
jurisdiction of the MTC is to set off the
claims and file a separate action to collect
the balance.
While it is a denial in the form its substance

actually has the effect of an admission
because of a too literal denial of the allegation
sough to be denied. This arises when the
pleader merely repeats the allegations in a
negative form.
PAGE 28
UP LAW BOC
CIVIL PROCEDURE
Kinds of Counterclaims
Compulsory
counterclaim
One which arises out
of or is necessarily
connected with the
transaction
or
occurrence -that is the
subject matter of the
opposing
party's
claim.
Does not require for
its adjudication the
presence of third
parties of whom the
court cannot acquire
jurisdiction.
Barred if not set up in
the action.
REMEDIAL LAW
(b) When a pleader fails to set up a

counterclaim through oversight,
inadvertence, excusable negligence,
or when justice so requires. He may,
by leave of court, set-up the
counterclaim by amendment of the
pleading [Rule 11, Sec. 10]
Permissive
counterclaim
It does not arise out of
nor is it necessarily
connected with the
subject matter of the
opposing
party's
claim.
(3) A plaintiff who fails or chooses not to

answer a compulsory counterclaim may
not be declared in default, principally
because the issues raised in the
counterclaim are deemed automatically
joined by the allegations in the complaint.
[Gojo v. Goyala (1970)]
May require for its

adjudication
the
presence of third
parties over whom the
court cannot acquire
jurisdiction.
Not barred even if not
set up in the action.
Must be answered,
Need
not
be otherwise,
the
answered; no default. defendant can be
declared in default.
Since permissive, it
requires the payment
No need for separate
of docket fees (Sun
docket fees
Insurance v. Asuncion,
1989)
(4) The filing of a MTD and the setting up of a

compulsory
counterclaim
are
incompatible remedies.
(a) In the event that a defending party
has a ground for dismissal and a
compulsory counterclaim at the same
time, he must choose only one
remedy.
(b) If he decides to file a MTD, he will lose
his counterclaim. But if he opts to set
up his counterclaim, he may still
plead his ground for dismissal as an
affirmative defense in his answer.
(c) If any of the grounds to dismiss under
Rule 17, Sec. 3 arise, the proper
recourse for a defendant who desires
to
pursue
his
compulsory
counterclaim in the same proceeding
is not a MTD.
(d) Instead, he should only move to have
the plaintiff declared non-suited on
the complaint so that the latter can
no longer present his evidence
thereon, and simultaneously move
that he be declared as in default on
the compulsory counterclaim, and
reserve the right to present evidence
ex parte on his compulsory
counterclaim. [BA Finance v. Co
(1993)]
Compulsory Counterclaim
(1) Requisites:
(a) It must arise out of, or be necessarily
connected
with,
the
transaction/occurrence that is the
subject matter of the opposing party's
claim;
(b) It does not require for its adjudication
the presence of third parties of whom
the court cannot acquire jurisdiction;
(c) It must be within the courts
jurisdiction both as to the amount and
the
nature.
[Regalado,
citing
Quintanilla v CA (1997)]
(2) General Rule: A compulsory counterclaim
not set up in the answer is deemed
barred.
Exceptions:
(a) If it is a counterclaim which either
matured or was acquired by a party
after serving his answer. In this case, it
may be pleaded by filing a
supplemental answer or pleading
before judgment. [Rule 11, Sec. 9]
Permissive Counterclaim
(1) Counterclaim is permissive if it does not
arise out of, nor is necessarily connected
with, the subject matter of the opposing
partys claim
(a) This is not barred even if not set up in
the action
PAGE 29
UP LAW BOC
CIVIL PROCEDURE
(b) Must have independent jurisdictional

ground [Herrera)]. Hence, the filing of
a separate docket fee.
REMEDIAL LAW
Improper Cross-Claims
(1) Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
(2) The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and
executory (Ruiz, Jr. v. CA, 1993)
(3) A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of
default because then the cross-claimant
would re-obtain a standing in court as
party litigant
(2) Test to determine whether a counterclaim

is compulsory or permissive: LOGICAL
RELATIONSHIP TEST
(a) Where conducting separate trials of
the respective claims would entail
substantial duplication of effort and
time and involves many of the same
factual and legal issues. [Meliton v. CA
(1992)]
(3) NOTE: If the counterclaim matures AFTER
the Answer, it is merely PERMISSIVE
Counter-Counterclaims and Counter-CrossClaims [Rule 6, Sec. 9]

(1) Counter-Counterclaim - A claim asserted
against an original counter-claimant.
(2) Counter-Cross-claim - A claim filed
against an original cross-claimant.
Effect on Counterclaim when Complaint is

Dismissed - Under Section 3, Rule 17, dismissal
of action due to plaintiffs fault shall be
without prejudice to the defendants right to
prosecute
his
counterclaim
in
the
same/separate action.
THIRD (FOURTH, ETC.) PARTY

COMPLAINTS [Rule 6, Sec. 11]
Definition - It is a claim that a defending party
may, with leave of court, file against a person
not a party to the action for contribution,
indemnity, subrogation or any other relief, in
respect of his opponent's claim.
CROSS-CLAIM
Requisites:
(1) A claim by one party against a co-party;
(2) It must arise out of the subject matter of
the complaint or of the counterclaim;
(3) The cross-claimant is prejudiced by the
claim against him by the opposing party.
There could also be a 4th/etc.-party complaint

with the same purpose and function.
General Rule: A cross-claim is always

compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]
Exceptions: Permissive Cross-Claims
(1) When it is outside the courts jurisdiction;
(2) If the court cannot acquire jurisdiction
over third parties whose presence is
necessary for the adjudication of said
cross-claim. In this case, the cross-claim is
considered permissive.
(3) Cross claim that may mature or may be
acquired AFTER service of Answer
Cross-claim
Counterclaim
Against a
co-party
Against an
opposing party
Must arise
out of the
transaction
that is the
subject
matter of the
original
action or of a
counterclaim
therein
Effect on Cross-Claim when Complaint is

Dismissed - The dismissal of the complaint
carries with it the dismissal of a cross-claim
which is purely defensive, but not a crossclaim seeking an affirmative relief. [Torres v.
CA (1973)]
No need for
a leave of
court
PAGE 30
3rd Party
complaint
Against a
person not a
party to the
action
May arise out of

or be necessarily
connected with
the transaction
or the subject
Must be in
matter of the respect of the
opposing partys opponents
claim
(plaintiffs)
(compulsory
claim
counterclaim), or
it may not
(permissive
counterclaim)
No need for
leave of court
Leave of court
is needed
UP LAW BOC
3rd-party complaint
CIVIL PROCEDURE
(3) WON the 3rd-party defendant may assert

any defenses which the 3rd-party plaintiff
has or may have to the plaintiffs claim.
Complaint in
intervention
Brings into the action

a 3rd person who was
Same
not originally a party
Initiative is with the Initiative is with a nonperson already a party party who seeks to
to the action
join the action
3rd-party complain
REMEDIAL LAW
Additional Rules
(1) Leave of court to file a 3rd-party
complaint may be obtained by motion
under Rule 15.
(2) Summons on 3rd (4th/etc.) party
defendant must be served for the court to
obtain jurisdiction over his person, since
he is not an original party.
(3) Where the trial court has jurisdiction over
the main case, it also has jurisdiction over
the 3rd-party complaint, regardless of the
amount involved as a 3rd-party complaint
is merely auxiliary to and is a continuation
of the main action. [Republic v. Central
Surety (1968)]
(4) A 3rd-party complaint is not proper in an
action for declaratory relief.
Counterclaim
Must be within the

Need not be within the
jurisdiction of the
jurisdiction of the court
court trying the main
trying the main case
case
Need not
Diminishes/defeats
diminish/defeat the
the recovery sought by
recovery sought by
the opposing party
the opposing party
May exceed in
Cannot exceed the
amount or be
amount stated in the different in kind from
original complaint
that sought in the
original complaint
COMPLAINT-IN-INTERVENTION
Pleadings-in-Intervention [Rule 19, Sec. 3]
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
Definition - INTERVENTION is a remedy by
which a third party, not originally impleaded in
a proceeding, becomes a litigant therein to
enable him to protect or preserve a right or
interest which may be affected by such
proceeding.
Basis of Third-Party Complaint - Under this

Rule, a person not party to an action may be
impleaded by the defendant either:
(1) On allegation of liability to the latter
(2) On the ground of direct liability to the
plaintiff; or
(3) Both (1) and (2)
Situation in (1) is covered by the phrase
contribution, indemnity or subrogation,
while (2) and (3) are subsumed under the
catch-all phrase (Samala v. Victor, 1989)
Its purpose is "to settle in one action and by a

single judgment the whole controversy
(among) the persons involved." [First
Philippine Holdings v. Sandiganbayan (1996);
Rule 19]
Tests to Determine Whether the 3rd-Party

Complaint is in Respect of Plaintiffs Claim
[Capayas v. CFI, 1946]
(1) WON it arises out of the same transaction
on which the plaintiff's claim is based, or
although arising out of another/different
transaction, is connected with the
plaintiffs claim;
(2) WON the 3rd-party defendant would be
liable to the plaintiff or to the defendant
for all/part of the plaintiffs claim against
the original defendant;
When Allowed - Intervention shall be allowed

when a person has:
(1) A legal interest in the matter in litigation;
(2) Or in the success of any of the parties;
(3) Or an interest against the parties; and
(4) When he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or of
an officer thereof. [First Philippine
Holdings v. Sandiganbayan (1996)]
PAGE 31
UP LAW BOC
CIVIL PROCEDURE
Not an Independent Action - Intervention is

not an independent action, but is ancillary and
supplemental to an existing litigation. [First
Philippine Holdings v. Sandiganbayan (1996)]
(1) It is neither compulsory nor mandatory
but only optional and permissive. [Mabayo
v. CA (2002)]
(2) The Court has full discretion in permitting
or disallowing intervention, which must be
exercised judiciously and only after
consideration of all the circumstances
obtaining in the case. [Mago v. CA (1999)]
(3) It is not an absolute right as it can be
secured only in accordance with the terms
of applicable statute or rule. [Office of
Ombudsman v. Samaniego (2010)]
REMEDIAL LAW
How to Intervene
(1) With leave of court, the court shall
consider the two factors
(2) Motion to intervene may be filed at any
time before rendition of judgment by trial
court
(3) Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties
Time to Intervene: [Rule 19, Sec. 2]
(1) General Rule: The motion to intervene
must be filed at any time before the
rendition of judgment by the trial court
(2) Exceptions:
(a) With respect to indispensable parties,
intervention may be allowed even on
appeal [Falcasantos v. Falcasantos]
(b) When the intervenor is the Republic
[Lim v. Pacquing]
(c) Intervention may be allowed after
judgment where necessary to protect
some interest which cannot otherwise
be protected, and for the purpose of
preserving the intervenors right to
appeal [Pinlac v. CA]
Meaning of Legal Interest - Interest must be of

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

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

(1) There must be a motion for intervention
filed before rendition of judgment by the
trial court.
(2) Movant must show in his motion that he
has a:
(a) Legal interest in (1) the matter of
litigation, (2) the success of either of
the parties in the action or (3) against
both parties.
(b) That the movant is so situated as to
be adversely affected by a distribution
or other disposition of property in the
custody of the court or an officer
thereof
(c) That the intervention must not unduly
delay or prejudice the adjudication of
the rights of the original parties and
that the intervenors rights may not be
fully protected in a separate
proceeding.
REPLY
The plaintiffs response to the defendant's
answer. The function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Rule 6, Sec. 10]
Effect of Failure to Reply
(1) General Rule - Filing a reply is merely
optional. New facts that were alleged in
the answer are deemed controverted
should a party fail to reply thereto.
(2) Exception When a Reply is necessary
(a) To set up affirmative defenses on the
counterclaim [Rosario v. Martinez]
(b) Where the answer alleges the defense
of usury in which case a reply under
oath should be made; otherwise, the
allegation of usurious interest shall be
deemed admitted [Rule 8, Sec. 8; Sun
Bros. v. Caluntad]
PAGE 32
UP LAW BOC
CIVIL PROCEDURE
(c) Where the defense in the answer is

based on an actionable document, a
reply under oath must be made;
otherwise, the genuineness and due
execution of the document shall be
deemed admitted. [Rule 8, Sec. 11;
Toribio v. Bidin]
REMEDIAL LAW
(a) Is within the coverage of this Rule,

exclusive of interest and costs;
(b) Arises out of the same transaction or
event that is the subject matter of the
plaintiffs claim;
(c) Does not require for its adjudication
the joinder of third parties; and
(d) Is not the subject of another pending
action, the claim shall be filed as a
counterclaim in the Response;
otherwise, the defendant shall be
barred from suit on the counterclaim.
PLEADINGS ALLOWED IN SMALL

CLAIM
CASES
AND
CASES
COVERED BY THE RULES OF
SUMMARY PROCEDURE
The defendant may also elect to file a

counterclaim against the plaintiff that does
not arise out of the same transaction or
occurrence, provided that the amount and
nature thereof are within the coverage of this
Rule and the prescribed docket and other
legal fees are paid.
Under the Revised Rules on Summary

Procedure The only pleadings allowed to be
filed are: [Sec. 3]
(1) Complaints
(2) Compulsory counterclaims and crossclaims pleaded in the Answer; and
(3) Answers thereto
NOTE: Courts decision shall be contained in

Form 13-SCC
Prohibited Pleadings, Motions, or Petitions

[Sec. 19]
(1) Motion to dismiss the complaint or to
quash the complaint or information
except on the ground of lack of jurisdiction
over the subject matter, or failure to
comply
with
required
barangay
conciliation proceedings;
of a judgment, or for opening of trial;
pleadings, affidavits or any other paper;
(7) Motion to declare the defendant in
default;
(9) Reply;
(10) Third party complaints; and
(11) Interventions.
Prohibited Pleadings and Motions in Small

Claims
(1) Motion to dismiss the complaint except on
(6) Memoranda;
(8) Motion to declare the defendant in
default;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.
PARTS OF A PLEADING [Rule 7, Sec.1- 3]
Forms Used Under the Rule of Procedure

under Small Claims Cases
(1) Instead of filing complaint, a Statement of
Claim using Form 1-SCC shall be filed
[Sec. 5]
(2) Answer shall be filed by way of a
Response using Form 3-SCC [Sec. 10]
(3) Defendant may file counterclaim if he
possesses a claim against the plaintiff
that
CAPTION
Caption - Courts name, actions title (i.e.
parties names) and docket number.
Body - Pleadings designation, allegations of
party's claims/defenses, relief prayed for and
pleadings date.
PAGE 33
UP LAW BOC
CIVIL PROCEDURE
(1) Paragraphs must be numbered, and each

paragraph number must contain a single
set of circumstances
(2) Headings: if more than one cause of
action, use "1st cause of action," 2nd
cause of action," etc.
(3) Specify relief sought, but it may add a
general prayer for such further/other relief
as may be deemed just/equitable.
(4) Every pleading shall be dated.
REMEDIAL LAW
(7) Petition for annulment of judgments or

final orders and resolutions [Sec. 1, Rule
47]
(8) Complaint for injunction [Sec. 4, Rule 58]
(9) Application for appointment of receiver
[Sec. 1, Rule 59]
(10) Application for support pendente lite [Sec.
1, Rule 69]
(11) Petition for certiorari against judgments,
final
orders,
or
resolutions
of
constitutional commissions [Sec. 2, Rule
64]
(12) Petition for certiorari [Sec. 1, Rule 65]
(13) Petition for prohibition [Sec. 2, Rule 65]
(14) Petition for mandamus [Sec. 3, Rule 65]
(15) Petition for quo warranto [Sec. 1, Rule 66]
(16) Complaint for expropriation [Sec. 1, Rule
67]
(17) Complaint for forcible entry or unlawful
detainer [Sec. 4, Rule 70]
(18) Petition for indirect contempt [Sec. 4, Rule
71]
(19) Petition for appointment of a general
guardian [Sec. 2, Rule 93]
(20)
Petition for leave to sell or encumber
property of the ward by a guardian [Sec. 1,
Rule 95]
(21) Petition for declaration of competency of a
ward [Sec. 1, Rule 97]
(22)Petition for habeas corpus [Sec. 3, Rule
102]
(23)Petition for change of name [Sec. 2, Rule
103]
(24)
Petition
for
voluntary
judicial
dissolution of a corporation [Sec. 1, Rule
104]
(25)
Petition for cancellation or correction
of entries in the civil registry [Sec. 1, Rule
108]
SIGNATURE AND ADDRESS

Every pleading must be signed by the party or
counsel representing him.
The address must be stated and such address
must not be a post office box
Effect of Signature of Counsel in a Pleading Signature of counsel constitutes a certificate
by him that:
(1) He has read the pleading
(2) That to the best of his knowledge,
information, and belief there is good
ground to support it; and
(3) That it is not interposed for delay
Unsigned Pleadings
(1) No legal effect
(2) Court may, in its discretion, allow such
remedy to be remedied if it appears that:
(a) It was due to mere inadvertence; and
(b) It was not intended for delay
VERIFICATION
AND
CERTIFICATION
AGAINST FORUM SHOPPING [Rule 7, Sec. 4]
Verification - Pleadings need not be verified,
unless otherwise provided by the law/rules
How a pleading is verified: By an affidavit

(1) That the affiant read the pleading;
(2) That the allegations therein are true and
correct of his personal knowledge or
based on authentic documents.
Verification is required in the following:

(1) Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure are all required to be verified
(2) Petition for relief from judgment or order
[Sec. 3, Rule 38]
(3) Petition for review from RTC to the CA
[Sec. 1, Rule 42]
(4) Petition for review from quasi-judicial
agencies to the CA [Sec. 5, Rule 43]
(5) Appeal by certiorari from the CTA to the
SC [Sec. 12, RA 9282 amending Sec. 19, RA
1125]
(6) Appeal by certiorari from CA to the SC
[Sec. 1, Rule 45]
Forum Shopping - The filing of multiple suits

in different courts, simultaneously or
successively, involving the same parties, to 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. Solidapsi (2002)]
(Asked in the 2006 Bar Exam)
PAGE 34
UP LAW BOC
CIVIL PROCEDURE
Test to Determine WON there is forum

shopping: WON in the 2 or more cases
pending, there is identity of:
(1) Parties
(2) Rights or causes of action
(3) Relief sought
REMEDIAL LAW
Requirement of a Corporation executing the

verification/ CNFS - Only individuals vested
with authority by a valid board resolution may
sign the certificate of non-forum shopping in
behalf of a corporation. In addition, the Court
has required that proof of said authority must
be attached. Failure to provide a certificate of
non-forum shopping is sufficient ground to
dismiss the petition. Likewise, the petition is
subject to dismissal if a certification was
submitted unaccompanied by proof of the
signatorys authority. [PAL v. FASAP (2006)]
Certificate of Non-Forum Shopping (CNFS)

[Rule 7, Sec. 5]
(1) The CNFS is to be executed by the
petitioner, not by the counsel.
(2) CNFS is required only for complaints or
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.).
(3) CNFS is not required in a compulsory
counterclaim. A counterclaim is not an
initiatory pleading. [UST Hospital v. Surla
(1998)]
(a) However, a certification is needed in
permissive
counterclaims
[Korea
Exchange Bank v. Gonzales]
(4) The lack of certification against forum
shopping is not curable by mere
amendment of a complaint, but shall be a
cause for the dismissal of the case without
prejudice. The general rule is that
subsequent
compliance
with
the
requirements will not excuse a party's
failure to comply in the first instance.
[Ramirez v. Mar Fishing (2012)]
ALLEGATIONS IN A PLEADING
[Rule 8]
MANNER OF MAKING ALLEGATIONS

In General [Rule 8, Sec. 1]
(1) Every pleading shall contain a statement of
the ultimate facts on which the party
pleading relies for his claim or defense
(a) In a methodical and logical form
(b) A plain, concise and direct statement
(c) Statement of mere evidentiary facts
omitted
(2) If a defense relief is based on law, state in a
clear and concise manner:
(a) Pertinent provisions of the law
(b) Applicability of the law to him
Who Executes the Certification - Certification

against forum shopping ordained by the Rules
is to be executed by the petitioner, not his
counsel. The petitioner is in the best position
to know whether he filed or caused the filing
of a petition in the case.
Facts that must be averred PARTICULARLY Circumstances showing fraud/mistake in all

averments of fraud/mistake [Rule 8, Sec. 5]
Facts that may be averred GENERALLY:
(1) Conditions precedent; but there must still
be an allegation that the specific condition
precedent has been complied with,
otherwise it will be dismissed for lack of
cause of action; [Rule 8, Sec. 3]
(2) Capacity to sue or be sued;
(3) Capacity to sue or be sued in a
representative capacity; [Rule 8, Sec. 4]
(4) Legal existence of an organization; A party
desiring to raise an issue as to the legal
existence or capacity of any party to sue or
be sued in a representative capacity shall
do so by specific denial which shall include
supporting particulars within the pleader's
knowledge. [Rule 8, Sec 4]
(5) Malice/intent/knowledge
or
other
condition of the mind; [Rule 8, Sec. 5]
Certification by counsel is defective

certification. In Santos v. CA, the Court held
that a special power of attorney was
insufficient.
Effect of Submission of False CNFS or NonSubmission:
(1) Indirect contempt
(2) Administrative and criminal actions
Effect of Willful and Deliberate Forum
Shopping
(1) Ground for summary dismissal of the case
with prejudice;
(2) Direct contempt and administrative
sanctions.
NOTE: the CNFS is mandatory but NOT
jurisdictional.
PAGE 35
UP LAW BOC
CIVIL PROCEDURE
(6) Judgments of domestic/foreign courts,

tribunals, boards or officers (without need
to show jurisdiction); [Rule 8, Sec. 6]
(7) Official documents/acts. [Rule 8, Sec. 9]
REMEDIAL LAW
Judgment - In pleading a judgment or

decision of a domestic or foreign court, judicial
or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or
decision without setting forth matter showing
jurisdiction to render it. (Rule 8, Sec. 6)
Condition Precedent If the cause of action

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

[Rule 8, Sec. 7]
A general averment of the performance or

occurrence of all conditions precedent shall be
sufficient [Rule 8, Sec. 3]
Actionable Document - The written instrument

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

institution of a particular action, whether
prescribed by statute, fixed by agreement of
the parties, or implied by law must be
performed or complied with before
commencing the action. Such fact must be
pleaded.
Pleading the actionable document:

(1) The substance of such instrument or
document shall be set forth in the
pleading; and
(2) The original or copy thereof shall be
attached to the pleading as an exhibit,
which shall be deemed to be part of the
pleading; or
(3) Said copy may with like effect be set forth
in the pleading
Failure to comply with a condition precedent

is a ground for a motion to dismiss [Rule 16,
Sec. 1(j)]
Examples of Conditions Precedent:
(1) Exhaustion of administrative remedies
(2) Investigation by a fiscal is a prerequisite to
annulment of marriage when defendant
defaults [Tolentino v. Villanueva]
(3) No suit shall be filed or maintained
between members of the same family
unless it should appear that earnest efforts
at compromise have been made but that
the same have failed. [Art. 222; Versoza v.
Versoza]
(4) Arbitration; Barangay Conciliation
A variance in the substance of the document

set forth in the pleading and the document
annexed thereto does not warrant dismissal of
the action [Convets Inc. v. National Dev. Co.]
How to Contest an Actionable Document [Rule
8, Sec. 8]
(1) By specific denial under oath; and
(2) By setting forth what is claimed to be the
facts
NOTE: The genuineness and due execution of
the document must be denied SPECIFICALLY
Due Execution - That the party whose
signature it bears admits that he voluntarily
signed it; or that it was signed by another for
him with his authority
Genuineness - That the party whose
signature it bears admits that at the time it
was signed it was in words and figures
exactly as set out; and that the formalities,
such as swearing and acknowledgement, or
revenue stamps which are required by law
are waived by him
Capacity What must be averred:

(1) Facts showing the capacity of a party to sue
or be sued; or
(2) The authority to sue or be sued in a
representative capacity;
(3) Or the legal existence of an organized
association of persons that is made a party
[Rule 8, Sec. 4]
Fraud, Mistake, Malice, Intent, Knowledge and
Other Condition of the Mind, Judgments,
official documents, or acts - Circumstances
constituting fraud or mistake must be stated
with particularity while malice, intent,
knowledge or other condition of the mind of a
person may be averred generally [Rule 8, Sec.
5]
Failure to Deny Under Oath the Actionable

Document:
(1) The genuineness and due execution is
deemed admitted
(2) The document need not be formally
offered in evidence
PAGE 36
UP LAW BOC
CIVIL PROCEDURE
SPECIFIC DENIALS [Rule 8, Sec. 10]
REMEDIAL LAW
EFFECT OF FAILURE TO PLEAD

[Rule 9]
The purpose of requiring the defendant to

make a specific denial is to make him disclose
the matters alleged in the complaint which he
sincerely intends to disprove at the trial,
together with matters which he relies upon to
support the denial [Herrera].
FAILURE TO PLEAS DEFENSES AND

OBJECTIONS
General Rule: Defenses and objections not
pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule)
Modes of Denial:
(1) Specific Absolute Denial - Defendant
must specify each material allegation of
fact the truth of which he does not admit
(a) Whenever applicable, he shall set
forth the substance of the matters
which he will rely upon to support the
denial
Exceptions:
(1) Lack of jurisdiction over the subject
matter;
(2) Litis pendentia between same parties for
the same cause
(3) Res judicata
(4) Action barred by statute of limitations.
FAILURE TO PLEAD COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM
(2) Partial Specific Denial - If pleader decides

to deny only a part or a qualification of an
averment:
(a) He shall specify so much of it as is true
and material
(b) He shall deny the remainder
General Rule: A compulsory counterclaim not

set up is considered barred. [Rule 9, Sec. 2]
Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set
up by amendment before judgment. [Rule 11,
Sec. 10]
(3) Disavowal of Knowledge - If defendant is

without knowledge or information
sufficient to form a belief as to the truth of
a material averment made in the
complaint:
(a) He shall so state
(b) This shall have the effect of a denial
For Cross-Claims: A cross-claim is always

compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]
Effect of Failure to make Specific Denials:

(1) General Rule: Allegations not specifically
denied are deemed admitted [Rule 8, Sec.
11]
DEFAULT [Rule 9, Sec. 3]

Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
appear nor his failure to present evidence
(2) Exceptions: Averments not deemed

admitted even if not specifically denied
(a) Allegations as to the amount of
unliquidated damages;
(b) Allegations immaterial to the cause of
action
(c) Allegations of merely evidentiary or
immaterial facts may be expunged from
the pleading or may be stricken out on
motion. [Rule 8, Sec. 12]
(d) Conclusion of law.
Dual stages of default:

(1) Declaration of Order of Default when
defendant fails to answer within the time
specified in the rules, the court shall, upon
motion of the plaintiff and proof of such
failure, declare defendant in default
(2) Rendition of Judgment by Default
thereafter, on the basis of the allegation of
the complaint or after receiving plaintiffs
evidence, the court shall render judgment
granting him such relief as the complaint
and the facts proven may warrant
When a specific denial requires an OATH

When the genuineness and due execution of
an actionable document is contested or
denied, the specific denial must be under
oath. [Rule 8, Sec. 8]
PAGE 37
UP LAW BOC
Order of default
Issued by the court on
plaintiffs motion, for
failure
of
the
defendant to file his
responsive pleading
seasonably
Interlocutory
-Not appealable
CIVIL PROCEDURE
Judgment by default
REMEDIAL LAW
(4) Defendant is still entitled to notices of

subsequent proceedings
(a) A defendant declared in default
cannot take part in the trial, but he
cannot be disqualified from testifying
as a witness in favor of non-defaulting
defendants. [Cavili v. Florendo (1987)]
(b) A party in default is entitled to notice
of:
(i) Motion to declare him in default;
(ii) Order declaring him in default;
(iii) Subsequent proceedings;
(iv) Service of final orders and
judgments.
Rendered by the court

following a default
order or after it
received ex parte
plaintiffs evidence
Final
Appealable
When a Declaration of Default is Proper:

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

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

(1) The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons or
voluntary appearance
(2) The defendant failed to file his answer
within the time allowed therefor
(3) There must be a motion to declare the
defendant in default with notice to the
latter
(4) There must be notice to the defendant by
serving upon him a copy of such motion
(5) There must be proof of such failure to
answer
(6) There must be a hearing to declare
defendant in default
Relief from an Order of Default [Lina v. CA]

(1) The defendant in default may file a
motion, under oath, to set aside the order
of default
At any time after discovery thereof (from
Notice) and before judgment,
(2) If the judgment has already been
rendered, he may file for new trial under
Sec. 1 (a) Rule 37
When the defendant discovered the
default, but before the same has
become final and executory
Effect of Order of Default:

(1) The court shall proceed to render
judgment granting the claimant such
relief as his pleading may warrant; or in its
discretion
(2) Shall require the claimant to submit
evidence;
(3) If defendant discovered the default after

judgment had become final and
executory, he may file a petition for relief
under Sec. 2, Rule 38
(3) Loss of standing in court of the defaulting

party meaning he cannot appear
therein, adduce evidence and be heard
nor take part in the trial
(4) He may also appeal from the judgment

rendered against him as contrary to the
evidence or to the law, even if no petition
to set aside the order of default has been
presented by him
PAGE 38
UP LAW BOC
CIVIL PROCEDURE
Partial Default - When the complaint states a

common cause of action against several
defendants some of whom answers and some
of them do not, the court should declare
defaulting defendants in default, and proceed
to trial on answers of others
If the defense is personal to the one who
answered, it will not benefit those who did not
answer.
Extent of Relief to be Awarded
(1) A judgment rendered against a party in
default shall not exceed the amount or be
different in kind from that prayed for nor
award unliquidated damages
(2) If the claim is not proved, the case should
be dismissed
(3) As held in Datu Samad Mangelen v. CA
(1992):
(a) In a judgment based on evidence
presented ex parte, judgment should
not exceed the amount or be different
in kind from that prayed for.
(b) On the other hand, in a judgment
where an answer was filed but
defendant did not appear at the
hearing, the award may exceed the
amount or be different in kind from
that prayed for.
Actions Where Default is NOT allowed:
(1) An action for annulment or declaration of
nullity of marriage
(2) For legal separation
(3) Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is required
to be filed
(4) Summary procedure
PAGE 39
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
DEFAULT IN ORDINARY PROCEDURE

After the lapse of time to file an
answer, the plaintiff may move
to declare the defendant in
default
If motion denied:
Defendant allowed to file an
answer
If motion granted:
Court issues order of default
and renders judgment or
require plaintiff to submit
evidence ex parte
Before judgment by default is

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

default
Court sets aside order of

default and defendant is
allowed to file an answer
Presentation of plaintiffs
evidence ex-parte
Case set for pre-trial
If plaintiff proves his

allegations:
Judgment by default
If plaintiff fails proves his

allegations:
Case is dismissed
PAGE 40
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Further modification by Heirs of Hinog v.

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

PLEADINGS
PAYMENT OF DOCKET FEES
As a rule, the court acquires jurisdiction over
the case only upon payment of prescribed fees
General rule: Without payment, case is
considered not filed. Payment of docket fees is
mandatory and jurisdictional.
It is not simply the filing of the complaint or
appropriate initiatory pleading but the
payment of the prescribed docket fee, that
vests a trial court with jurisdiction over the
subject matter or nature of the action [Proton
Pilipinas v. Banque National de Paris (2005)]
(4) Exception to the Sun Insurance doctrine:

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

(1) The Manchester Rule: Manchester v. CA
(1987)
(a) Automatic Dismissal
(b) Any defect in the original pleading
resulting in underpayment of the
docket fees cannot be cured by
amendment, such as by the reduction
of the claim as, for all legal purposes,
there is no original complaint over
which the court has acquired
jurisdiction
FILING VERSUS SERVICE OF PLEADINGS

Filing - The act of presenting the pleading or
other paper to the clerk of court. [Rule 13, Sec.
2]
Service - The act of providing a party or his
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
(2) Relaxation of the Manchester Rule by Sun

Insurance v. Asuncion (1989)
(a) NOT automatic dismissal
(b) Court may allow payment of fees
within reasonable period of time. Note
that payment should always be within
the prescriptive period of the action
filed.
Papers required to be filed and served: [Rule 13,

Sec. 4]
(1) Pleading subsequent to the complaint;
(2) Appearance;
(3) Written Motion;
(4) Notice;
(5) Order;
(6) Judgment;
(7) Demand;
(8) Offer of Judgment;
(9) Resolution;
(10) Similar papers.
PAGE 41
UP LAW BOC
CIVIL PROCEDURE
PERIODS OF FILING OF PLEADINGS

Period
Pleading
Period
counted from
Service of
summons,
unless a
Within 15 days
different
period is fixed
by the court
[Rule 11, Sec. 1]
Within 30 days if
the defendant is
a foreign private
juridical entity
Receipt of
Answer to the
and service of
summons
Complaint
summons is [Rule 11, Sec. 2]
made on
government
official
At least 60 days
In case of nonService of
resident
extrajudicial
defendant on
summons [Sec.
whom
15, Rule 14]
extrajudicial
service is made
Answer to
Within 15 days
Service of a
AMENDED
(if amendment
copy of the
Complaint was a matter of
amended
(amended
right)
complaint
counterclaim,
cross-claim, Within 10 days Notice of the
order
3rd party
(if amendment
admitting
the
complaint,
was not a
same
[Rule
11,
complaint in matter of right)
Sec.
3]
intervention)
Answer to
Counterclaim
From service
Within 10 days
or Cross[Rule 11, Sec. 4]
Claim
Answer to
Same rule as
third (4th, etc)- Within 15 days answer to the
party
complaint
complaint
[Rule 11, Sec. 5]
From service
of the pleading
Reply
Within 10 days
responded to
[Rule 11, Sec. 6]
From notice of
the order
Answer to
admitting the
supplemental Within 10 days same, unless a
complaint
different
period is fixed
by the court
REMEDIAL LAW
NOTE: Upon motion and on such terms as

may be just, the court may extend the time to
plead provided in these Rules. The court may
also, upon like terms, allow an answer or other
pleading to be filed after the time fixed by
these Rules. [Rule 11, Sec. 11]
MANNER OF FILING
As per Rule 13, Sec. 3:
(1) Personally
(a) By By personally presenting the
original to the clerk of court.
(b) The pleading is deemed filed upon the
receipt of the same by the clerk of
court who shall endorse on it the date
and hour of filing.
(c) If a party avails of a private carrier, the
date of the courts actual receipt of
the pleading (not the date of delivery
to the private carrier) is deemed to be
the date of the filing of that pleading.
[Benguet Electric Cooperative v. NLRC
(1992)]
(2) By Registered Mail
(a) Filing by mail should be through the
registry service (i.e. by depositing the
pleading in the post office).
(b) The pleading is deemed filed on the
date it was deposited with the post
office.
Filing a pleading by facsimile is not
sanctioned. But fax was allowed in an
extradition case [Justice Cuevas v. Juan
Antonio Munoz]
MODES OF SERVICE
Personal Service [Rule 13, Sec. 6]
(1) Delivering personally a copy to the party,
who is not represented by a counsel, or to
his counsel; or
(2) Leaving a copy in counsels office with his
clerk or with a person having charge
thereof; or
(3) Leaving the copy between 8am and 6pm
at the partys or counsels residence, if
known, with a person of sufficient age and
discretion then residing thereon if not
person is found in his office, or if his office
is unknown, or if he has no office
PAGE 42
UP LAW BOC
CIVIL PROCEDURE
Service by Mail [Rule 13, Sec. 7]

(1) Ordinary Mail - it does not constitute filing
until the papers are actually delivered into
the custody of clerk or judge
(a) Service may be done by ordinary mail
if no registry service is available in the
locality of either sender or addressee
REMEDIAL LAW
PRIORITIES IN MODES OF SERVICE AND

FILING
General rule: Personal filing and service is
preferred. [Rule 13, Sec. 11]
Resort to other modes of filing and service
must be accompanied by an explanation why
the service/filing was not done personally. If
there is no written explanation, the paper is
considered not filed.
(2) Registered Mail - The date of mailing is

the date of filing
(a) Date of filing is determinable from 2
sources:
(i) From the post office stamp on the
envelope
(ii) From the registry receipt
Exception: Papers emanating from the court.

WHEN SERVICE IS DEEMED COMPLETE
Completeness of
Proof of service
service (Rule 13 Sec.
(Rule 13 Sec. 13)
10)
Personal service
Written admission of
the party served, OR
Official return of the
server OR
Upon actual delivery Affidavit of the party
serving, with a full
statement
of
the
date/place/manner of
service.
Service by ordinary mail
Affidavit of the person
10 days after mailing,
mailing
of
facts
unless
otherwise
showing
compliance
provided by the court
with Sec. 7 of Rule 13.
Service by registered mail
Whichever is earlier:
mailing
of
facts
showing
compliance
Actual receipt by the
with Sec. 7 of Rule 13
addressee
OR
AND
5 days after the
addressee received
Registry receipt issued
1st
postmaster's
by the post office
notice (Constructive)
(b) It is done by depositing in the post

office:
(i) In a sealed envelope
(ii) Plainly addressed to the party or
his counsel
(a) At his office if known
(b) Otherwise, at his residence if
known
(iii) Postage fully pre-paid
(iv) With
instructions
to
the
postmaster to return the mail to
the sender after 10 days if
undelivered
Substituted Service [Rule 13, Sec. 8]
(1) Done by delivery of the copy to the clerk of
court with proof of failure of both personal
and service by mail
(2) Proper only when:
(a) Service cannot be made personally or
by mail
(b) Office and place of residence of the
party of his counsel being unknown
(3) Service is complete at the time of such
delivery
SERVICE OF JUDGMENTS, FINAL ORDERS,
OR RESOLUTIONS [Rule 13, Sec. 9]
Service is done either:
(1) Personally
(2) By registered mail
(3) By publication ONLY IF:
(a) Party is summoned by publication
AND
(b) He failed to appear in the action
Substituted Service
At the time of delivery of the copy to the clerk
of court together with proof of failure of both
personal service and service by mail
NOTE: There is NO substituted service of

judgments and final orders
PAGE 43
UP LAW BOC
CIVIL PROCEDURE
Purpose of the rule on completeness of service

for service by registered mail:
To make sure that the party being served with
the pleading, order or judgment is duly
informed of the same so that such party can
take steps to protect the interests, i.e., enable
to file an appeal or apply for other appropriate
reliefs before the decision becomes final.
[MINTERBRO v,CA (2012)]
When pleading is
deemed filed
REMEDIAL LAW
Proof of filing
Personally
Upon receipt of the Written/stamped
pleading by the clerk of acknowledgment by the
court
clerk of court
By registered mail
Registry receipt, and
affidavit of the person
who did the mailing with:
(a) Full statement of the
date/place
of
depositing the mail in
the post office in a
On the date the
sealed
envelope
pleading was deposited
addressed to the
with the post office
court
Service to the lawyer binds the party. But

service to the party does not bind the lawyer,
unless ordered by the court in the following
circumstances:
(1) When it is doubtful who the attorney for
such party is; or
(2) When the lawyer cannot be located; or
(3) When the party is directed to do
something personally, as when he is
ordered to show cause. [Retoni, Jr. v. CA]
(b) Postage fully paid

(c) Instructions to the
postmaster to return
the mail to the
sender after 10 days if
undelivered
Notice to the lawyer who appears to have

been unconscionably irresponsible cannot be
considered as notice to his client, as it would
then be easy for the lawyer to prejudice the
interests of his client by just alleging that he
just forgot every process of the court affecting
his clients, because he was so busy. [Bayog v.
Natino]
PROOF OF SERVICE [Rule 13, Sec. 13]

Mode
Proof of service
A written admission of
the party served, OR
The official return of the
server; OR
Personal Service
Affidavit of the party
serving containing a full
statement of the date,
place, and manner of
service
mailing stating the facts
Service by ordinary mail
showing compliance with
Rule 13, Sec. 7
Affidavit
of
person
mailing containing facts
showing compliance with
Rule 13, Sec. 7, AND
Registry receipt issued by
mailing office; OR
The registry return card
which shall be filed
Service by registered
immediately upon its
mail
receipt by the sender, or
in lieu thereof of the
unclaimed
letter
together
with
the
certified or sworn copy of
the notice given by the
postmaster
to
the
addressee.
PROOF OF FILING
(1) Filing is proved by its existence in the
record of the case [Rule 13, Sec. 12]
(2) If it is not in the record:
PAGE 44
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(iii) Amendment of reply any time

within 10 days after it is served
(b) Formal amendment
AMENDMENT AND
SUPPLEMENTAL PLEADINGS
HOW TO AMEND PLEADINGS [Rule 10,Sec.
1]
(1) Adding an allegation of a party;
(2) Adding the name of a party;
(3) Striking out an allegation of a party;
(4) Striking out the name of a party;
(5) Correcting a mistake in the name of a
party; and
(6) Correcting a mistaken or inadequate
allegation or description in any other
respect
AMENDMENTS BY LEAVE OF COURT

[Rule 10, Sec. 3]
When leave of court is necessary before
amendment is allowed:
(1) All substantial amendments (unless it
falls under Rule 10, Sec. 2 as a matter of
right)
(2) When a responsive pleading has already
been served
Requisites:
(1) A motion for leave of court to amend
pleading is filed
(a) Amended pleading should be
attached to the motion [see Sec. 9,
Rule 15]
(2) Notice is given to the adverse party
(3) Parties are given opportunity to be heard
A new copy of the entire pleading,

incorporating the amendments, which shall
be indicated by appropriate marks, shall be
filed. [Rule 10, Sec. 7]
Purpose: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the
most expeditious and inexpensive manner.
Grounds for allowance of the amendment

(1) If it appears to the court that the motion
was made to delay the action, leave of
court is not given
(2) There must be some reasonable grounds
justifying its exercise of discretion to allow
amendment
As a general policy, liberality in allowing

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

be allowed
(1) If the cause of action, defense or theory of
the case is changed.
(2) If amendment is intended to confer
jurisdiction to the court.
(a) If the court has no jurisdiction in the
subject matter of the case, the
amendment of the complaint cannot
be allowed so as to confer jurisdiction
on the court over the property. [PNB v.
Florendo (1992)]
(3) If amendment is for curing a premature or
non-existing cause of action.
(4) If amendment is for purposes of delay.
Types of Amendments:
(1) Amendment as a matter of right
(2) Amendment as a matter of judicial
discretion
AMENDMENTS AS A MATTER OF RIGHT
[Rule 10, Sec. 2]
When amendment is allowed as a matter of
right:
(1) Once as a matter of course
(a) A 2nd or subsequent amendment must
now be with leave of court, not a
matter of right anymore
(2) Instances:
(a) Substantial amendment before
responsive pleading is filed
(i) Amendment of complaint before
an answer is filed.
(ii) Amendment of answer before a
reply is filed or before the period
for filing a reply expires
FORMAL AMENDMENTS
(Rule 10, Sec. 4)
When an amendment is formal:
(1) When there is a mere defect in the
designation of the parties;
(2) Other clearly clerical or typographical
errors
PAGE 45
UP LAW BOC
CIVIL PROCEDURE
How formal amendments are effected

(1) It may be summarily corrected by the
court at any stage of the action
(2) A party may, by motion, call for the formal
amendment
REMEDIAL LAW
But failure to amend does not affect the

result of the trial of those issues
(2) When evidence IS objected to:
Objection on the ground that it is not
within the issues made by the pleadings
Court may allow the pleadings to be
amended and shall do so freely when
the presentation of the merits of the
action will be subserved
As safeguard, the court may grant a
continuance to enable the objecting
party to meet such evidence
NOTE: The formal amendment must NOT

cause prejudice to the adverse party
AMENDMENTS TO CONFORM TO OR
AUTHORIZE
PRESENTATION
OF
EVIDENCE [Rule 10, Sec. 5]
Applicability of Sec. 5 - This is an instance
wherein the court acquires jurisdiction over
the issues even if the same are not alleged in
the original pleadings of the parties where the
trial of said issues is with the express or
implied consent of the parties
SUPPLEMENTAL PLEADINGS
Definition: One which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
What Sec. 5 contemplates:

(1) It allows a complaint which states no
cause of action to be cured either by:
(a) Evidence presented without objection
or
(b) In the event of an objection sustained
by the court, by an amendment of the
complaint with leave of court
Purpose: To bring into the records new facts

which will enlarge or change the kind of relief
to which the plaintiff is entitled [Ada v. Baylon
(2012), citing Young v. Spouses Yu]
(2) It also allows the admission of evidence:

(a) On a defense not raised in a motion or
answer if no objection is made
thereto;
(b) In the event of such objection, court
may allow amendment of the answer
in order to raise said defense
How Made: It is made upon motion of a party

with reasonable notice and upon terms as are
just.
A supplemental complaint/pleading supplies

deficiencies in aid of an original pleading, not
to entirely substitute the latter.
Difference with Amended Pleading

Amendments
Reason
for
the
amendment
is
available at time of
the 1st pleading
Either as a matter of
right or a matter of
discretion
NOTE: Remember, however, that where the

plaintiff has no valid cause of action at the
time of the filing of the complaint, this defect
cannot be cured or remedied by the
acquisition or accrual of one while the action is
pending
Two Scenarios:
(1) When evidence is NOT objected to
When issues not raised by pleadings are
tried by express or implied consent of
the parties, they shall be treated in all
respected as if they had been raised in
the pleadings
Such amendments of pleadings as may
be necessary to cause them to conform
to the evidence and raise these issues
may be made upon motion of any party
at any time, even after judgment
Supplemental Pleadings
Grounds
for
the
supplemental pleading
arose after the 1st
pleading was filed
Always a matter of
discretion
Merely
supplements
the the original (i.e. Exists
side by side with the
original pleading)
When an amended A
supplemental
pleading is filed, a pleading does not
new copy of the require the filing of a
entire pleading must new copy of the entire
be filed
pleading
Supersedes
original
PAGE 46
UP LAW BOC
CIVIL PROCEDURE
Limitations:
(1) Claims or defenses which have matured
after the filing of the original pleadings
cannot be averred in a supplemental
pleading (it may be the subject of an
amendment)
(2) Supplemental pleadings are not allowed
on separate and distinct causes of action
(a) A supplemental pleading may raise a
new cause of action as long as it has
some relation to the original cause of
action set forth in the original
complaint. [Ada v. Baylon (2012)]
(3) The admission or non-admission of a
supplemental pleading is not a matter of
right but is discretionary on the court
REMEDIAL LAW
Issuance of Summons - Upon the filing of the

complaint and the payment of legal fees, the
clerk of court shall issue the corresponding
summons to the defendants. [Rule 14, Sec. 1]
Contents of Summons [Rule 14, Sec. 2]
(1) Summons shall be:
(a) Directed to the defendant
(b) Signed by clerk of court under seal
(2) Summons shall contain:
(a) Name of the court and the names of
the parties to the action
(b) A direction that the defendant answer
within the time fixed by the Rules
(c) A notice that unless the defendant so
answers, plaintiff will take judgment
by default and may be granted the
relief applied for
EFFECT OF AMENDED PLEADING [Rule 10,

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

original and each copy of the summons:
(a) A copy of the complaint
(b) Order for appointment of guardian ad
litem (if any)
Effect of Invalid Summons
(1) The trial court does not acquire
jurisdiction and renders null and void all
subsequent proceedings and issuances
[Syjuco v. Castro]
(2) Any judgment without service of
summons in the absence of a valid waiver
is null and void [Filmerco Commercial Co.
v. IAC]
SUMMONS
Definition: A coercive force issued by the court
to acquire jurisdiction over the person of the
defendant
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN
REM, AND QUASI IN REM
VOLUNTARY APPEARANCE
Any form of appearance in court, by the
defendant, by his agent authorized to do so, or
by attorney, is equivalent to service except
where such appearance is precisely to object
the jurisdiction of the court over the person of
the defendant [Carballo v. Encarnacion]
Purposes of Summons
(1) For Actions in Personam
(a) To acquire jurisdiction over the person
of the defendant in a civil case;
(b) To give notice to the defendant that
an action has been commenced
against him.
General
Rule:
Defendant's
voluntary
appearance in the action shall be equivalent
to service of summons;
(2) For Actions in Rem and Quasi In Rem

(a) Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due
process
(b) Jurisdiction over the defendant is not
required and the court acquires
jurisdiction over an action as long as it
acquires jurisdiction over the res
Exception: Special appearance to file a MTD.

BUT inclusion in the MTD of grounds other
than LOJ over the defendants person, is not
deemed a voluntary appearance.
PAGE 47
UP LAW BOC
CIVIL PROCEDURE
Any mode of appearance in court by a

defendant or his lawyer is equivalent to service
of summons, absent any indication that the
appearance of counsel for petitioner is
precisely to protest the jurisdiction of the court
over the person of the defendant. [Delos
Santos v. Montesa (1993)]
REMEDIAL LAW
therefrom, stating the reasons for the failure

of service
MODES OF SERVICE OF SUMMONS
Modes:
(1) Personal Service [Rule 14, Sec. 6]
(2) Substituted Service [Rule 14, Sec. 7]
(3) Service by Publication [Rule 14, Sec. 14, 15,
16]
WHO MAY SERVE SUMMONS

Who May Serve Summons [Rule 14, Sec. 3]
(1) The sheriff
(2) His deputy
(3) Other proper court officer
(4) Any suitable person authorized by the
court (for justifiable reasons)
NOTE: Summons cannot be served by mail

Where service is made by publication, a copy
of the summons and order of the court shall
be sent by registered mail to last known
address of defendant [Sec. 15]
o Resort to registered mail is only
complementary to the service of summons
by publication
o But it does not mean that service by
registered mail alone would suffice
NOTE: The enumeration in Sec. 3 of the

persons who may validly serve summons
is EXCLUSIVE [Herrera]
RETURN OF SUMMONS
PERSONAL SERVICE OF SUMMONS [Rule

14, Sec. 6]
Return When Service has been Completed

[Rule 14, Sec. 4]
(1) The server shall serve a copy of the return
to the plaintiffs counsel
(a) Within 5 days therefrom
(b) Personally or by registered mail
(2) The server shall return the summons
(a) To the clerk who issue it
(b) Accompanied by proof of service
How Done:
(1) By handing a copy of summons to him; or
(2) If he refuses to receive it, by tendering it to
him
Personal Service of
Pleadings
It is required to be given to the plaintiffs

counsel in order to enable him:
(1) To move for a default order should the
defendant fail to answer on time, or
(2) In case of non-service, so that alias
summons may be sought
Personal Service of
Summons on
Defendant
Rule 14, Sec. 6
Rule 13, Sec. 6

Personal
service
includes:
(1) Service on the
party
or
his
counsel; or
(2) By leaving a copy
with the clerk or
person
having
Service is only made
charge of his
on defendant himself
office; or
(3) Leaving it with a
person
of
sufficient age and
discretion at the
partys
or
counsels
residence
In either of the 2 cases, server must serve

a copy of the return on plaintiffs counsel
within 5 days from completion or failure of
service
ALIAS SUMMONS [Rule 14, Sec. 5]
Upon plaintiffs demand, the clerk may issue
an alias summons if either:
(1) Summons is returned without being
served on any/all of the defendants.
(2) Summons was lost.
The server shall also serve a copy of the return
on the plaintiff's counsel within 5 days
PAGE 48
UP LAW BOC
CIVIL PROCEDURE
SUBSTITUTED SERVICE OF SUMMONS

[Rule 14, Sec. 7]
REMEDIAL LAW
(3) To be in charge means to have care an

custody of, under control of, or entrusted
to the management or direction of
[Sandoval II v. House of Representatives]
It is only when the defendant cannot be served

personally within a reasonable time and for
justifiable reasons that a substituted service
may be made.
Proof of Substituted Service MUST:

(1) Indicate the impossibility of service of
summons within a reasonable time;
(2) Specify the efforts exerted to locate the
defendant; and
(3) State that the summons was served upon
a person of sufficient age and discretion
who is residing in the address, or who is in
charge of the office or regular place of
business, of the defendant.
(4) It is likewise required that the pertinent
facts proving these circumstances be
stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar (2012)]
How Done:
(1) By leaving copies of the summons at the
defendants residence with some person
of suitable age and discretion residing
therein; or
(2) By leaving the copies at defendants office
or regular place of business with some
competent person in charge thereof
Necessary Requisite: For substituted service of
summons to be valid, it is necessary to
establish the following:
(1) The impossibility of the personal service of
summons within a reasonable time
(2) The efforts exerted to locate the person to
be served; and
(3) Service upon:
(a) A person of sufficient age and
discretion residing in the same place
as defendant or
(b) Some competent person in charge of
his office or regular place of business
[Spouses Ventura v. CA, 1987]
CONSTRUCTIVE
PUBLICATION)
SERVICE
(BY
Three Situations were Summons by Publication

may be allowed under Rule 14 [Baltazar v. CA]
(1) First is the situation of an Unknown
Defendant governed by Sec. 14
(2) Second
is
the
situation
were
Extraterritorial service is proper
governed by Sec. 15
(3) Third, is that of a resident who is
temporarily out of the Philippines
governed by Sec. 16
Meaning of RESIDENCE
(1) For a substituted service to be valid,
summons served at the defendants
residence must be served at his residence
AT THE TIME OF SERVICE; not his former
place of residence
(2) dwelling house or residence refers to
the dwelling house at the time of service
(3) They refer to the place where the person
named in the summons is living at the
time of when the service is made, even
though he may be temporarily out of the
country at that time [Venturanza v. CA]
The Rule on Unknown Defendants [Rule 14,

Sec. 14]
If a defendant is a resident and plaintiff
cannot determine the correct address of
respondent, petitioner only needs to show
that:
(1) Respondents address is unknown and
(2) Cannot be ascertained by diligent inquiry
Upon compliance with this requirement, it
can validly serve summons by publication
in a newspaper of general circulation.
[United Coconut Planters Bank v. Ongpin]
Meaning of Defendants Office or Regular

Place of Business
(1) Office or regular place of business
refers to the office or place of business of
defendant at the time of service
(2) The rule specifically designates the
persons to whom copies of the process
should be left
NOTE: Under this Section, summons by

publication can be made in ANY action
(personam, in rem, quasi in rem) unlike in cases
of Non-Resident Defendants.
PAGE 49
UP LAW BOC
CIVIL PROCEDURE
The Rule on Non-Resident Defendants (Extraterritorial Service); [Rule 14, Sec. 15]
REMEDIAL LAW
(b) Extra-territorial service is also allowed

(also by leave of court) according to
Sec. 16
Extra-territorial service is allowed IF:

(1) The defendant
(a) Does not reside in the Philippines
(b) And is not found in the Philippines
(2) And the action (in rem and quasi in rem)
(a) Affects the personal status of the
plaintiff, or
(b) Relates to or the subject of which is
property within the Philippines
(1) In which defendant has or claims
a lien or interest, actual or
contingent; or
(2) In which the relief demanded
consists, wholly or in part, in
excluding the defendant from any
interest therein, or
(3) Property of defendant has been
attached within the Philippines
NOTE: In other words, a resident defendant in

an action personam, who cannot be
personally served with summons, may be
summoned either by:
(1) Substituted service in accordance with
Sec. 7, Rule 14
(2) Or by service by publication under Sec. 16,
Rule 14
When the action is in rem or quasi in rem,
extra-territorial service may be effected
provided that Sec. 16 requirements are met.
SERVICE UPON PRISONERS AND MINORS
Service of Summons on Different Entities:
Defendant
Entity
without
juridical
personality
[Sec. 8]
NOTE: Always remember that extraterritorial service, when allowed, covers

only action in rem and quasi in rem.
How Extra-territorial service is done:
(1) Always by leave of court
(2) Modes:
(a) Personal service as under Sec. 6, Rule
14
(b) Publication in a newspaper of general
circulation in such places and for such
time as court may order
(1) A copy of the summons and order
of the court shall be sent by
registered mail to the last known
address of defendant
(c) In any other manner the court may
deem sufficient
Service of Summons
Upon any or all the
defendants being sued under
common name; or person in
charge of the office
In case of minors: by serving

upon:
(1) The minor, regardless of
age, AND
(2) Upon his legal guardian,
or also upon either of his
parents
In case of incompetents: by
Minors and serving on:
incompetents (1) Him personally AND
[Sec. 10]
(2) Upon his legal guardian,
but not upon his parents,
unless they are his legal
guardians
In any event: if the minor or
incompetent has no legal
guardian, the plaintiff must
obtain the appointment of a
guardian ad litem for him
Serve to either: (Exclusive
enumeration)
Domestic
(1) The president,
private
(2) Managing partner,
juridical
(3) General manager,
entity [Sec. 11] (4) Corporate secretary,
(5) Treasurer, or
(6) In- house counsel
NOTE: Any order granting such leave shall

specify a reasonable time within which
defendant must answer BUT the time shall
not be less than 60 days after notice
The Rule on Residents Temporarily Outside of
the Philippines [Rule 14, Sec. 16]
How done:
(1) Always by leave of court
(2) Modes:
(a) Where the defendant is residing in the
Philippines, jurisdiction over his
person may be acquired by
substituted service of summons under
Sec. 7
PAGE 50
UP LAW BOC
CIVIL PROCEDURE
Defendant
Service of Summons
Service may be done on:
(1) The resident agent;
Foreign
(2) If no resident agent;
private
(a) The
government
juridical
official designated by
entity [Sec.
law; or
12]
(b) Any officer or agent of
the corporation within
the Philippines
In case defendant is the
Republic, by serving upon the
Solicitor General
Public
In case of a province, city or
corporations municipality, or like public
[Sec. 13]
corporations, by serving on its
executive head or on such
other officer or officers as the
law or the court may direct
REMEDIAL LAW
Effect of Defect of Proof of Service:

(1) Where sheriffs return is defective,
presumption of regularity in the
performance of official functions will not
lie
(2) Defective return is insufficient and
incompetent to prove that summons was
indeed served
(3) Party alleging valid summons will now
prove that summons was indeed served
(4) If there is no valid summons, court did not
acquire jurisdiction which renders null and
void all subsequent proceedings and
issuances
MOTIONS
MOTIONS IN GENERAL
DEFINITION OF A MOTION
A motion is an application for relief other than
by a pleading. [1a]
PROOF OF SERVICE
The proof of service of summons [Rule 14, Sec.
18]:
(1) Shall be made in writing
(2) It shall:
(a) Set forth the manner, place, date of
service
(b) Specify any papers which may have
been served with the process and the
name of the person who received the
same
(c) Shall be sworn to when made by a
person, other than the sheriff or his
deputy
MOTIONS VERSUS PLEADINGS

Motion
Contains allegations
of facts
Prays for a relief
Grant of the relief
does not extinguish
the
action
(interlocutory relief)
Generally in writing
(with
some
exceptions)
If service has been made by publication, service

may be proved by: [Rule 14, Sec. 19]
(1) The affidavit of the printer, his foreman, or
principal clerk; or of the editor, business or
advertising manager
Copy of the publication shall be
attached
Pleading
Contains allegations
of the ultimate facts
Prays for a relief
Grant
of
relief
extinguishes
the
action (final relief)
Always in writing
General Rule: A motion cannot pray for

judgment
Exceptions:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to
evidence.
(2) AND an affidavit showing:

(a) The deposit of a copy of the
summons; and
(b) Order of publication in the post office,
postage
prepaid,
directed
to
defendant by registered mail to his
last known address
CONTENTS AND FORM OF MOTIONS

Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained
(2) Grounds upon which it is based
(3) Accompanied by supporting affidavits and
other papers if:
(a) Required by the Rules, or
(b) Necessary to prove facts alleged
therein
PAGE 51
UP LAW BOC
CIVIL PROCEDURE
Form [Rule 15, Sec. 2]

General Rule: In writing.
REMEDIAL LAW
(4) Motion and notice of hearing must be

served at least 3 days before the date of
hearing; [Rule 15, Sec. 4]
Exception: Oral motions:

(1) Motions for continuance made in the
presence of the adverse party or those
made in the course of the hearing or trial
(2) Those made in open court even in the
absence of the adverse party or those
made in the course of a hearing or trial
Purpose: To prevent surprise upon the

adverse party and to enable the latter to
study and meet the arguments of the
motion.
Exceptions:
(a) Ex parte motions;
(b) Urgent motions;
(c) Motions agreed upon by the parties to
be heard on shorter notice, or jointly
submitted by the parties;
(d) Motions for summary judgment which
must be served at least 10 days before
its hearing.
NOTICE OF HEARING AND HEARING OF

MOTIONS
Requisites of motions (not made in open court
or in the course of hearing/trial)
(1) It must be in writing; [Rule 15, Sec. 2]
Exception: Oral motions
(5) Proof of Service
(2) Hearing on the motion set by the

applicant
Proof of Service [Rule 15, Sec. 6]

General Rule: A written motion set for hearing
will not be acted upon by the court if there is
no proof of service thereof.
Motion Day [Rule 15, Sec. 7] - Except for

urgent motions, motions are scheduled
for hearing:
(a) On Friday afternoons;
(b) Afternoon of the next working day, if
Friday is a non-working day.
What may be proof:

(1) If by registered mail: Affidavit or registry
receipt or postmark on envelope or
return card, with an explanation.
(2) If by personal service: Affidavit or
acknowledgment of receipt by the other
party.
(3) Notice of hearing shall be addressed to all

parties, and shall specify the time and
date of the hearing which shall not be
later than 10 days from the filing of the
motion. [Rule 15, Sec. 5]
Exceptions:
(1) If the motion is one which the court can
hear ex parte.
(2) If the court is satisfied that the rights of
the adverse parties are not affected by the
motion.
(3) If the party is in default because such a
party is not entitled to notice.
Notice must be addressed to the counsels.

A notice of hearing addressed to the clerk
of court, and not to the parties, is no
notice at all. Accordingly, a motion that
does not contain a notice of hearing to the
adverse party is nothing but a mere scrap
of paper, as if it were not filed; hence, it
did not suspend the running of the period
to appeal. [Provident International
Resources v. CA (1996)]
OMNIBUS MOTION RULE

Definition: A motion attacking a pleading/
order/ judgment/ proceeding must include all
objections then available. All objections not
included in the motion are deemed waived.
Effect of Want of Notice: A motion that

does not contain a notice of hearing is
but a mere scrap of paper. A court has
no jurisdiction to issue an order in
consideration of a motion for correction
of judgment which does not have a
proper notice of hearing [Fajardo v. CA]
Purpose: To require the movant to raise all

available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided
PAGE 52
UP LAW BOC
CIVIL PROCEDURE
Exception: When the courts jurisdiction is in

issue:
(1) Lack of jurisdiction over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
proper mode of discovery. [Galeon v. Galeon

(1973)]
Purpose: to define/ clarify/ particularize/
limit/ circumscribe the issues in the case to
expedite the trial and assist the court.
The only question to be resolved in a motion
for a Bill of Particulars is WON the
allegations in the complaint are averred
with sufficient definiteness/ particularity to
enable the movant to properly prepare his
responsive pleading and to prepare for trial.
[Tantuico, Jr. v. Republic (1991)]
A Bill of Particulars becomes part of the
pleading for which it was intended. [Rule 12,
Sec. 6]
LITIGATED AND EX PARTE MOTIONS

Kinds of Motion
(1) Motion Ex Parte - Made without
notification to the other party because the
question generally presented is not
debatable.
(2) Litigated Motion - Made with notice to the
adverse party so that an opposition
thereto may be made.
(3) Motion Of Course - Motion for a kind of
relief/remedy to which the movant is
entitled to as a matter of right,
Allegations contained in such motion do
not have to be investigated/verified.
(4) Special Motion - Discretion of the court is
involved. An investigation of the facts
alleged is required.
When Applied For: [Rule 12, Sec. 1]

(1) Before responding to a pleading
(2) If the pleading is a reply, within 10 days
from service thereof
What a Motion for a Bill of Particulars should
point out: [Rule 12, Sec. 1]
(1) The defects complained of;
(2) The paragraph wherein they are
contained;
(3) The details desired.
PRO FORMA MOTIONS

Definition - A motion failing to indicate time
and date of the hearing
MOTIONS
FOR
PARTICULARS
BILL
REMEDIAL LAW
What cannot be done in a Bill of Particulars:

To supply material allegations necessary to
the validity of a pleading
To change a cause of action or defense
stated in the pleading
To state a cause of action or defense other
than that one stated
To set forth the pleaders theory of his cause
of action or a rule of evidence on which he
intends to reply
To furnish evidentiary information
OF
DEFINTION
It is a detailed explanation respecting any
matter which is not averred with sufficient
definiteness/particularity in the complaint as
to enable a party to properly prepare his
responsive pleading or to prepare for trial.
[Rule 12, Sec. 1]
ACTIONS OF THE COURT
PURPOSE AND WHEN APPLIED FOR

It is filed by the plaintiff pursuant to a court
order issued upon granting a motion for Bill of
Particulars filed by the defendant before the
latter files an answer.
In said motion, the defendant prays for a
more definite statement of matters which
are not averred with sufficient definiteness
in the complaint.
An action cannot be dismissed on the
ground that the complaint is vague/
indefinite. The remedy of the defendant is to
move for a Bill of Particulars or avail of the
Upon the filing of the motion, the clerk must

immediately bring it to the attention of the
court.
The court may: [Rule 12, Sec. 2]
(1) Deny
(2) Grant the motion outright
(3) Allow the parties the opportunity to be
heard
PAGE 53
UP LAW BOC
CIVIL PROCEDURE
COMPLIANCE WITH THE ORDER AND

EFFECT OF NONCOMPLIANCE
Bill of Particulars
Purpose is to enable a
party
bound
to
respond to a pleading
to get more details
about matters which
are alleged generally
or which are indefinite
and vague, so as to
properly guide such
party in answering the
pleading and to avoid
surprise in the trial of
the case
Compliance with Order [Rule 12, Sec. 3] If

motion is granted wholly/partially:
(1) Within 10 days from notice of order, Bill of
Particulars or a more definite statement
should be submitted (unless court fixes a
different period).
(2) Bill of Particulars or definite statement
filed either as a separate pleading or as an
amended pleading, a copy of which must
be served on the adverse party.
Effect of Non-Compliance [Rule 12, Sec. 4]
(1) In case of non-compliance or insufficient
compliance with the order for Bill of
Particulars, the court:
(a) May order the striking out of the
pleading (or portion thereof) to which
the order is directed; OR
(b) Make such order as it may deem just.
TO
Intervention
Purpose is to enable a
person not yet a party
to an action, yet
having a certain right
or interest in such
action, the opportunity
to appear and be
joined so he could
assert or protect such
right or interest
Available
to
any
person not yet a party
to the action at any
Available
to
the
time
after
the
defendant before he
commencement of an
files his responsive
action, even during the
pleading
proceeding, but not
after the trial has been
concluded
(2) If a party fails to obey:

(a) If the plaintiff fails to obey, his
complaint may be dismissed with
prejudice unless otherwise ordered by
the court. [Rule 12, Sec. 4; Rule 17, Sec.
3]
(b) If defendant fails to obey, his answer
will be stricken off and his
counterclaim dismissed, and he will
be declared in default upon motion of
the plaintiff. [Rule 9, Sec. 3; Rule 12,
Sec. 4; Rule 17, Sec. 4]
EFFECT ON THE PERIOD
PLEADING [Rule 12, Sec. 5]
REMEDIAL LAW
Effect of Motion:
(1) If the motion is granted, in whole or in
part,
(a) The movant can wait until the bill of
particulars is served on him by
opposing party
(b) Then he will have the balance of the
reglementary period within which to
file his responsive pleading
(2) If the motion is denied
(a) He will still have such balance of the
reglementary period to file his
responsive pleading, counted from
service of the order denying his
motion
FILE
A Motion for Bill of Particulars interrupts the

period to file a responsive pleading.
IN ANY CASE: The party will have at least

5 days to file his responsive pleading
BUT only if it is sufficient in the form and

substance.
MOTION TO DISMISS
The period to which the movant is entitled at

the time of filing of the motion, which shall
not be less than 5 days in any event.
NOTE the following distinctions:
IN GENERAL
Definition A remedy of the defendant, or the
responding party in general, which attacks the
entire pleading and seeks its dismissal based
on:
(1) Grounds which are patent on the face of
the complaint;
(2) Defenses available to the defendant at the
time of the filing of the complaint
PAGE 54
UP LAW BOC
CIVIL PROCEDURE
It hypothetically admits the facts stated in the

complaint.
REMEDIAL LAW
(10) Unenforceable claim under the Statute of

Frauds
(11) Non-compliance with a condition
precedent for filing claim
It is not a responsive pleading. It is not a

pleading at all. It is subject to the omnibus
motion rule since it is a motion that attacks a
pleading. Hence, it must raise all objections
available at the time of the filing thereof.
NOTE: Complaints cannot be dismissed on

ground not alleged in a motion to dismiss. The
motion may be based on only one of the
grounds enumerated in Sec. 1, Rule 16
Types of Dismissal of Action:

(1) MTD before answer under Rule 16;
(2) MTD under Rule 17:
(a) Upon notice by plaintiff;
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff.
(3) Demurrer to evidence after plaintiff has
completed the presentation of his
evidence under Rule 33;
(4) Dismissal of an appeal.
Lack of Jurisdiction (LOJ) over the

Defendants Person
The objection of LOJ over the person on
account of lack of service or defective service
of summons, must be raised:
(1) At the very first opportunity;
(2) Before any voluntary appearance is made.
In La Naval Drug Corp. v. CA, et al. the Court
held that while lack of jurisdiction over the
person of defendant may be duly and
seasonably raised, his voluntary appearance in
court without qualification is a waiver of such
defense.
Period to File: Within the time for, but before

filing of, the answer to the complaint or
pleading asserting a claim
Exceptions:
(a) For special reasons which may be allowed
even after trial has begun, a motion to
dismiss may be filed
(b) The court has allowed the filing of a
motion to dismiss where the evidence that
would constitute a ground for dismissal
was discovered during trial
Appearance of counsel is equivalent to

summons, unless such is made to protest the
jurisdiction of the court over the person of the
defendant. If grounds other than invalid
service of summons are raised, it cannot be
considered as a special appearance. [De los
Santos v. Montesa (1993)]
General Rule: A court may NOT motu propio

dismiss a case, unless a motion to that effect
is filed by a party.
NOTE: Sec. 20, Rule 14 makes a categorical

statement that the inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant
shall not be deemed voluntary appearance on
his part.
Exceptions:
(1) Cases where the court may dismiss a case
motu propio; [Rule 9, Sec. 1]
(2) Failure to prosecute; [Rule 17, Sec. 3]
(3) Sec. 4, Revised Rule on Summary
Procedure.
Lack of Jurisdiction over the Subject Matter

of the Claim
If the complaint shows on its face LOJ, the
court may dismiss the case outright instead of
hearing the motion.
GROUNDS [Rule 16, Sec. 1]

(1) Lack of jurisdiction over the defendants
person
(2) Lack of jurisdiction over the subject matter
of the claim
(3) Improper venue
(4) Plaintiffs lack of legal capacity to sue
(5) Litis pendentia
(6) Res judicata
(7) Prescription
(8) Failure to state a cause of action
(9) Extinguished claim
A MTD on the ground of LOJ over the subject

matter may be raised either:
(1) Before answer;
(2) After answer is filed;
(3) After hearing had commenced;
(4) At any stage of the proceeding, even for
the first time on appeal and even if no
such defense is raised in the answer.
PAGE 55
UP LAW BOC
CIVIL PROCEDURE
NOTE: The rule refers to the subject matter of

each particular claim and not only to that of
the suit. Hence. other initiatory pleadings
included.
REMEDIAL LAW
plaintiff is not a real party in interest, in which

case the ground for dismissal would be that
the complaint states no cause of action.
The issue of plaintiffs lack of legal capacity to
sue cannot be raised for the first time on
appeal where the defendant dealt with the
former as a party in the proceedings below
[Univ. of Pangasinan Faculty Union v. Univ. of
Pangasinan]
Where a party invokes the jurisdiction of a

court to obtain affirmative relief and fails, he
cannot thereafter repudiate such jurisdiction.
While the issue of jurisdiction may be raised at
any time, he is estopped as it is tantamount to
speculating on the fortunes of litigation
(Crisostomo, et al. v. CA)
Litis pendentia
Requisites: [Anderson Group v. CA, 1997]

(1) Identity of parties;
(2) identity of rights asserted and relief
prayed for;
(3) Relief founded on the same facts and the
same basis;
(4) Identity in the 2 proceedings should be
such that any judgment which may be
rendered in the other action will amount
to res judicata on the action under
consideration.
Improper Venue
Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
improperly laid since, for all practical intents
and purposes, the venue though technically
wrong may yet be considered acceptable to
the parties for whose convenience the rules on
venue had been devised. Improper venue may
be waived and such waiver may occur by
laches. [Diaz v. Adiong (1993)]
It is not required to allege that there be a prior

pending case. It is sufficient to allege and
prove the pendency of another case, even if
same had been brought later.
Where a motion to dismiss for improper venue

is erroneously denied, the remedy is
prohibition (Enriquez v. Macadaeg)
Where the plaintiffs filed the action in a court
of improper venue and thereafter submitted
to its jurisdiction, the issue of venue was
thereby waived and they are in estoppel to
repudiate or question the proceedings in said
court (Vda. De Suan, et al. v. Cusi, et al.)
It does not require that the later case be

dismissed in favor of the earlier case. To
determine which case should be abated,
apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into
account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court
to the parties;
(c) Other similar factors.
Objection to venue is also impliedly waived

where the party enters into trial, crossexamines the witnesses of the adverse party
and adduces evidence (Paper Industries Corp
of the Philippines v. Samson et al.)
In both tests, the parties good faith shall be

taken into consideration.
Plaintiffs Lack of Legal Capacity to Sue

The plaintiff lacks legal capacity to sue:
(1) When he does not possess the necessary
qualification to appear at the trial (e.g.
when he plaintiff is not in the full exercise
of his civil rights);
(2) When he does not have the character
which he claims, which is a matter of
evidence (e.g. when he is not really a duly
appointed administrator of an estate).
The first case shall be abated if it is merely an

anticipatory action or defense against an
expected suit. The second case will not be
abated if it is not brought to harass. [Vitrionics
Computers v. RTC (1993)]
Res Judicata
Requisites:
(1) Former judgment rendered by a court
having jurisdiction over the subject matter
and over the parties;
(2) Judgment must be a final judgment;
Lack of legal capacity to sue refers to

plaintiffs disability; while lack of legal
personality to sue refers to the fact that the
PAGE 56
UP LAW BOC
CIVIL PROCEDURE
(3) Judgment must be on the merits;

(a) There can be res judicata without a
trial, such as in a judgment on the
pleadings [Rule 34]; a summary
judgment [Rule 35]; or an order of
dismissal under Rule 17, Sec. 3.
(4) There must be identity of parties, of
subject matter and of the causes of action.
REMEDIAL LAW
If the fact of prescription is not indicated on

the face of the complaint and the same may
be brought out later, the court must defer
decision on the motion until such time as
proof may be presented on such fact of
prescription.
Prescription
Laches
Concerned with the Concerned with the
fact of delay
effect of delay
A matter of time
A matter of equity
Statutory
Not statutory
Applies in law
Applies in equity
Not based on fixed
Based on fixed time
time
For res judicata to apply, absolute identity of

parties is not required because substantial
identity is sufficient. Inclusion of additional
parties will not affect the application of the
principle of res judicata.
The test of identity of cause of action lies not
in the form of the action but on WON the
same evidence would support and establish
the former and the present causes of action.
[DBP v. Pundogar (1993)]
Defense of prescription is waived and cannot

be considered on appeal if not raised in the
trial court [Ramos v. Osorio]
However, if the allegations of the complaint,
or evidence presented, clearly indicate that
the action has prescribed, or where there is no
issue in fact as to prescription, defense of
prescription is not deemed waived by failure to
allege the same [Chua Lamko v. Dioso]
Rationale: The sum and substance of the

whole doctrine is that a matter once judicially
decided is finally decided because of:
(1) Public policy and necessity makes it the
interest of the State that there should be
an end to litigation;
(2) The hardship on the individual that he
should be vexed twice for the same cause.
[Nabus v. CA (1991)]
Estoppel and prescription cannot be invoked

against the State [Republic v. CA]
A motion to dismiss on the ground of
prescription will be given due course only if
the complaint shows on its face that the
action has already prescribed [Sison v.
McQuaid]
Two concepts of res judicata [Abalos v. CA

1993)
(1) Bar by prior judgment Judgment on the
merits in the 1st case constitutes an
absolute bar to the subsequent action not
only as to every matter which was offered
and received to sustain or defeat the
claim/demand, but also to any other
admissible matter which might have been
offered for that purpose and to all matters
that could have been adjudged in that
case. (Asked in the 2002 Bar Exam)
If it is not apparent on its face, take note that

Sec. 3 prohibits deferment of the resolution of
the motion. Thus:
(1) Evidence may be received in support of
the motion under Sec. 2, Rule 16; or
(2) The motion to dismiss should be denied
without prejudice to the complaints
dismissal if evidence disclose that the
action had already prescribed [Sec. 1, Rule
9]
(2) Conclusiveness of judgment Where the

second action between the parties is upon
a different claim/demand, the judgment
in the first case operates as an estoppel
only with regard to those issues directly
controverted, upon the determination of
which the judgment was rendered.
Complaint States No Cause of Action

Failure to state a cause of action (not lack of
cause of action) is the ground for a MTD. The
former means there is insufficiency in the
allegations in the pleading. The latter means
that there is insufficiency in the factual basis
of the action.
Statute of Limitations
Prescription applies only when the complaint
on its face shows that indeed the action has
already prescribed.
PAGE 57
UP LAW BOC
CIVIL PROCEDURE
The failure to state a cause of action must be

evident on the face of the complaint itself.
Unenforceable Claim under the Statute of

Frauds
Article 1403 (2) CC requires certain contracts to
be evidenced by some note or memorandum
in order to be enforceable, to wit:
(1) An agreement that by its terms is not to
be performed within a year from the
making thereof;
(2) A special promise to answer for the debt,
default, or miscarriage of another;
(3) An agreement made in consideration of
marriage, other than a mutual promise to
marry;
(4) An agreement for the sale of goods,
chattels or things in action, at a price not
less than five hundred pesos, unless the
buyer accept and receive part of such
goods and chattels, or the evidences, or
some of them, of such things in action, or
pay at the time some part of the purchase
money; but when a sale is made by
auction and entry is made by the
auctioneer in his sales book, at the time of
the sale, of the amount and kind of
property sold, terms of sale, price, names
of the purchasers and person on whose
account the sale is made, it is a sufficient
memorandum;
(5) An agreement for the leasing for a longer
period than one year, or for the sale of real
property or of an interest therein;
(6) A representation as to the credit of a third
person.
Test: Assuming the allegations and

statements to be true, does the plaintiff have
a valid cause of action?
A MTD based upon the ground of failure to
state a cause of action imports a hypothetical
admission by the defendant of the facts
alleged in the complaint.
If the court finds the allegations of the
complaint to be sufficient but doubts their
veracity, it must deny the MTD and require the
defendant to answer and then proceed to try
the case on its merits.
A complaint containing a premature cause of
action may be dismissed for failure to state a
cause of action.
If the suit is not brought against the real
party-in-interest, a motion to dismiss may be
filed on the ground that the complaint states
no cause of action. [Tanpinco v. IAC (1992)]
Complaint states no
cause of action
Insufficiency
of
allegations in the
pleading
May be raised in a
Motion to Dismiss at
any time but before the
filing the answer to the
complaint or pleading
asserting a claim
Dismissal due to failure
to state a cause of
action can be made at
the earliest stages of
an action and without
prejudice
REMEDIAL LAW
No cause of action
Insufficiency
of
factual basis for the
action
Unlike a motion to dismiss on the ground that

the complaint states no cause of action, a
motion invoking the Statute of Frauds may be
filed even if the absence of a cause of action
does not appear on the face of the complaint.
Such absence may be proved during the
hearing of the motion to dismiss on said
ground. [Yuviengco et al. v. Dacuycuy, etc., et
al.]
may be raised at any

time
dismissal due to lack
of cause of action is
made after questions
of fact have been
resolved on the basis
of
stipulations,
admissions
or
evidence presented
and with prejudice
Non-Compliance
with
a
Condition
Precedent
Where the plaintiff has not exhausted all
administrative remedies, the complaint not
having alleged the fact of such exhaustion,
the same may be dismissed for lack of cause
of action [Pineda v. CFI Davao, et al.].
Extinguished Claim
That the claim/demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished.
PAGE 58
UP LAW BOC
CIVIL PROCEDURE
Where the complaint does not state that it is

one of the excepted cases, or it does not
allege prior availment of conciliation process,
or it does not have a certification that no
conciliation or settlement had been reached
under P 1508, case should be dismissed on
motion [Morata v. Go, et al].
REMEDIAL LAW
The courts resolution on the MTD must

clearly and distinctly state the reasons
therefor.
REMEDIES OF PLAINTIFF WHEN THE
COMPLAINT IS DISMISSED
If the motion is granted, the complaint is
dismissed. Since the dismissal is final and not
interlocutory in character, the plaintiff has
several options:
Where the defendant had participated in the

trial court without any invocation of PD 1508,
and the judgment therein had become final
and executory, but said defendant thereafter
sought the annulment of the decision for
alleged lack of jurisdiction, the same was
denied under the doctrine of estoppel and
laches [Royales, et al., v. IAC].
(1) Depending upon the ground for the

dismissal of the action, the plaintiff may
REFILE the complaint,
(a) These are orders of dismissal which is
not tantamount to an adjudication on
the merits
(b) e.g when ground for dismissal is
anchored on improper venue.
RESOLUTION OF MOTION
During the hearing of the motion: Parties shall
submit:
(1) Their arguments on questions of law
(2) Their evidence on questions of fact [Rule
16, Sec. 2]
(a) Exception: Those not available at that
time
(2) He may APPEAL from the order of

dismissal where the ground relied upon is
one which bars refilling of complaint
(a) The grounds which bar re-filing are:
(i) Res judicata
(ii) Prescription
(iii) Extinguishment of the obligation
(iv) Violation of Statutes of Fraud
Parties should be allowed to present

evidence and the evidence should be
taken down
(3) The plaintiff may also avail of a petition

for certiorari, alleging grave abuse of
discretion. [Riano]
Except: when the motion is based on the

ground of insufficiency of cause of action
which must generally be determined on
the basis of the facts alleged in the
complaint
REMEDIES OF THE DEFENDANT WHEN

MOTION IS DENIED
Trial: If the case goes to trial, such evidence

presented shall automatically be part of the
evidence of the party presenting the same.
Appeal is NOT a remedy since denial of a

motion to dismiss is an interlocutory order. As
a general rule, defendant files his answer and
then may appeal an adverse judgment.
Lack of formal hearing of a motion to dismiss

is not fatal where the issues raised were fully
discussed in the motion and opposition.
[Castillo v. CA]
Remedies of Defendant:
(1) The movant shall file his answer within
the balance of the period described in
Rule 11 to which he was entitled at the
time of serving his motion, but not less
than 5 days in any event.
(a) If pleading is ordered to be amended,
he shall file his answer within the
period prescribed by Rule 11 counted
from service of amended pleading
unless the court provides a longer
period
After hearing: Court may either:

(1) Dismiss the action/claim
(2) Deny the MTD
(3) Order amendment of the pleadings
The court cannot defer the resolution of the
MTD for the reason that the ground relied
upon is not indubitable.
PAGE 59
UP LAW BOC
CIVIL PROCEDURE
(2) Another remedy is to file a certiorari, case

under Rule 65 alleging grave abuse of
discretion. [Riano]
Motion to dismiss
Grounded
on
preliminary
objections
May be filed by any
defending
party
against whom a
claim is asserted in
the action
Should be filed within
the time for but prior
to the filing of the
answer
of
the
defending party to
the
pleading
asserting the claim
against him
If denied, defendant
must file an answer,
or else he may be
declared in default
EFFECT OF DISMISSAL OF COMPLAINT ON

CERTAIN GROUNDS
General rule: The action/claim may be re-filed.
Exception: The action cannot be re-filed
(although subject to appeal) if it was
dismissed on any of the following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/demand;
(4) Unenforceability under the Statute of
Frauds. [Rule 16, Sec. 1 (f),(h),(i)]
WHEN
GROUNDS
PLEADED
AFFIRMATIVE DEFENSES
AS
If no motion to dismiss had been filed, any of

the grounds for dismissal may be pleaded as
affirmative defenses and a preliminary hearing
may be had at courts discretion. [Rule 16, Sec.
6]
If granted, plaintiff
may appeal or if
subsequent case is
not barred, he may
re-file the case
NOTE: The dismissal of the complaint under

this section shall be without prejudice to the
prosecution in the same or separate action of
a counterclaim pleaded in the answer.
REMEDIAL LAW
Demurrer to evidence
Based on insufficiency
of evidence
May be filed only by
the defendant against
the complaint of the
plaintiff
May be filed for the
dismissal of the case
only after the plaintiff
has completed the
presentation of his
evidence
If denied, defendant
may present evidence
If granted, plaintiff
appeals and the order
of
dismissal
is
reversed, defendant
loses his right to
present evidence
DISMISSAL OF ACTIONS
If the defendant would not want to file a

counterclaim, he should not file a motion to
dismiss
Instead, he should allege the grounds of a
motion to dismiss as affirmative defenses in
his answer with a counterclaim
A preliminary hearing may be had thereon,
and in the event the complaint is dismissed,
defendant can prosecute his counterclaim
[Herrera]
DISMISSAL UPON NOTICE BY

PLAINTIFF; TWO-DISMISSAL RULE
DISTINGUISHED FROM DEMURRER TO

EVIDENCE UNDER RULE 33
A motion to dismiss under this Rule differs
from a motion to dismiss under Rule 33 on
demurrer to evidence:
The dismissal as a matter of right ceases

when an answer or a motion for summary
judgment is served on the plaintiff and not
when the answer or the motion is filed with
the court.
[Rule 17, Sec. 1]
Dismissal by plaintiff as a matter of right

Dismissal is effected not by motion but by
mere notice of dismissal which is a matter of
right before the service of:
(1) The answer; or
(2) A motion for summary judgment
Dismissal NOT Automatic

It requires an order by the court confirming
the dismissal. Until confirmed, the withdrawal
does not take effect
PAGE 60
UP LAW BOC
CIVIL PROCEDURE
Generally, Dismissal is Without Prejudice

General Rule: Dismissal is without prejudice
Exceptions:
(1) Where the notice of dismissal so provides;
or
(2) Where the plaintiff has previously
dismissed the same case in a court of
competent jurisdiction (Two Dismissal
Rule)
(3) Even where the notice of dismissal does
not provide that it is with prejudice but it is
premised on the fact of payment by the
defendant of the claim involved [Serrano
v. Cabrera]
REMEDIAL LAW
However, under this section, if a

counterclaim has been pleaded by a
defendant PRIOR to the service upon him of
the plaintiffs motion for dismissal, the
dismissal shall be limited to the complaint.
Such dismissal shall be without prejudice to
the right of the defendant to either:
(1) Prosecute his counterclaim in a separate
action;
(a) In this case, the court should render
the corresponding order granting and
reserving his right to prosecute his
claim in a separate complaint
(2) OR to have the same resolved in the same
action
(a) In this case, defendant must manifest
such preference to the trial court
within 15 days from notice to him of
plaintiffs motion to dismiss
Two Dismissal Rule

When the same complaint had twice been
dismissed by the plaintiff without order of the
court by simply filing a notice of dismissal, the
2nd dismissal operates as an adjudication on
the merits.
NOTE: These alternative remedies of the

defendant are available to him regardless of
whether his counterclaim is compulsory or
permissive
DISMISSAL UPON MOTION BY

PLAINTIFF; EFFECT ON EXISTING
COUNTERCLAIM [Rule 17, Sec. 2]
DISMISSAL DUE TO FAULT OF

PLAINTIFF [Rule 17, Sec. 3]
Under this section, dismissal of the complaint

is subject to the discretion of the court and
upon such terms and conditions as may be
just.
Generally, Dismissal is Without Prejudice
General Rule: Dismissal is without prejudice
Exceptions:
(1) When otherwise stated in the motion to
dismiss; or
(2) When stated to be with prejudice in the
order of the court
Distinction between Sec. 2 and Sec. 3 of
Rule 17
Section 3
Dismissal
is
not
Dismissal is at the procured by plaintiff
instance
of
the though justified by
plaintiff
causes imputable to
him
Dismissal is a matter
of procedure, without Dismissal is a matter
prejudice
unless of
evidence,
an
otherwise stated in adjudication on the
the court order or on merits
motion to dismiss
Dismissal is without
prejudice to the right
of
defendant
to
prosecute
his Dismissal is without
counterclaim in a prejudice to the right
separation
action of
defendant
to
unless within 15 days prosecute
his
from notice of motion counterclaim on the
he manifests his same or separate
intention to have his action
counterclaim
resolved in the same
action
Effect on Counterclaim
If counterclaim has been pleaded by
defendant prior to service upon him of
plaintiffs motion for dismissal, dismissal shall
be limited to the complaint
Remember that if the civil case is dismissed,
so also is the counterclaim filed therein
o It was held that if the court does not have
jurisdiction to entertain the main action of
the case and dismiss the case, then the
compulsory counterclaim, being ancillary
to the principal controversy must likewise
be
dismissed [Metals
Engineering
Resources v. CA]
PAGE 61
Section 2
UP LAW BOC
CIVIL PROCEDURE
Dismissal under this Section

The case may be dismissed motu proprio or
upon the defendants motion if, without
justifiable cause, plaintiff fails either:
(1) To appear on the date of the presentation
of his evidence-in-chief on the complaint;
(a) The plaintiffs failure to appear at the
trial after he has presented his
evidence and rested his case does not
warrant the dismissal of the case on
the ground of failure to prosecute.
(b) It is merely a waiver of his right to
cross-examine and to object to the
admissibility of evidence. [Jalover v.
Ytoriaga (1977)]
(c) Since plaintiffs presence is now
required only during the presentation
of his evidence in chief, his absence
during the presentation of defendant
or other parties evidence, or even at
rebuttal or subsequent stages, is not a
ground for dismissal.
REMEDIAL LAW
(iii) The failure to comply with order of

new judge to recall witness so he
may observe demeanor is
sufficient ground for dismissal
[Castillo v. Torres]
(c) Failure to comply with rules
(i) The failure of the parties to
submit a compromise agreement
within period granted to them by
court is not a ground for dismissal
[Goldloop Properties Inc. v. CA]
(ii) Dismissal is improper where a 3rd
party complaint has been
admitted and the 3rd party
defendant had not yet been
summoned [Sotto v. Valenzuela]
(iii) A case may be dismissed for
failure
to
answer
written
interrogatories under Rule 25
even without an order from the
court to answer. [Arellano v. CFISorsogon]
Effect of Dismissal
General Rule: Dismissal of actions under Sec.
3 which do not expressly state whether they
are with or without prejudice are held to be
with prejudice on the merits
(2) To prosecute his action for an

unreasonable length of time (nolle
prosequi);
(a) The test for dismissal of a case due to
failure to prosecute is WON, under the
circumstances, the plaintiff is
chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
(b) The dismissal of an action pursuant to
this rule rests upon the sound
discretion of the court
[Smith Bell and Co. v. American
President Lines Ltd.]
(c) The action should never be dismissed
on a non-suit for want of prosecution
when the delay was caused by the
parties looking towards a settlement.
[Goldloop Properties Inc. v. CA]
Exceptions:
(1) The court declares otherwise, without
prejudice to the right of the defendant to
prosecute his counter-claim in the same
or separate action
(2) If court has not yet acquired jurisdiction
over the person of the defendant
Effect on Counterclaim
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action, just like the grant of that
remedy in Sec. 6, Rule 16
In this section (as well as in Sec. 6, Rule 16),
defendant is not required to manifest his
preference within a 15-day period as in Sec. 2
The motions to dismiss in this section and in
Sec. 6, Rule 16, are filed by defendant who
perforce has already deliberated upon the
course of action he intends to take on his
counterclaim and which he may even
manifest right in his motion to dismiss
The dismissal in Sec. 2 is at the instance of
plaintiff, hence, defendant is granted the
time and duty to manifest preference within
15 days from notice, after an opportunity to
study the situation
(3) To comply with the Rules or any court

order.
(a) The order must be valid
(b) Failure to comply with order:
(i) Dismissal for failure to comply
with order to amend complaint to
make claims asserted more
definite is ground for dismissal
[Santos v. General Wood Craft]
(ii) Failure to comply with an order to
include indispensable parties is
ground for dismissal [AranicoRubino v. Aquino]
PAGE 62
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
It is a procedural device by which the court is

called upon, after the filing of the last
pleading, to compel the parties and their
lawyers to appear before it, and negotiate an
amicable settlement or otherwise make a
formal settlement and embody in a single
document the issues of fact and law involved
in the action, and such other matters as may
aid in the prompt disposition in the case, such
as:
(1) Number of witnesses
(2) Tenor or character of their testimonies
(3) Documentary evidence; nature and
purpose of each
(4) Number of trial dates
DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM, OR THIRD-PARTY
COMPLAINT
Provisions of Rule 17 shall apply to the

dismissal of any counterclaim, cross-claim, or
third-party complaint
Voluntary dismissal by claimant by notice as in
Sec. 1, shall be made:
(1) Before a responsive pleading or motion for
summary judgment is served; or
(2) If there is none, before introduction of
evidence at trial or hearing
Effect of Dismissals
(1) Dismissal or continuance of an action
operates to annul orders, ruling, or
judgments previously made in the case
(2) It also annuls all proceedings had in
connection therewith and renders all
pleadings ineffective
(3) Dismissal or non-suit leaves the situation
as though no suit had ever been brought
NATURE AND PURPOSE

Purpose of pre-trial is to consider: [Rule 18, Sec.
2]
(1) Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution;
(2) Simplification of the issues;
(3) Necessity/desirability of amendments to
the pleadings;
(4) Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
(5) Limitation of the number of witnesses;
(6) Advisability of a preliminary reference of
issues to a commissioner;
(7) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefor be found to exist;
(8) Advisability/necessity of suspending the
proceedings; and
(9) Other matters that may aid in the prompt
disposition of the action.
Where a counterclaim is made the subject of a

separate suit, it may be abated upon a plea of
auter action pendentia and/or dismissal on the
ground of res judicata. Res judicata, however,
is not applicable since the court held that it
did not acquire jurisdiction due to nonpayment of docket fees.
Dismissal on the ground of LOJ does not
constitute res judicata, there being no
consideration and adjudication of the case on
the merits. Neither is there litis pendentia.
[Meliton v. CA (1992)]
PRE-TRIAL
CONCEPT OF PRE-TRIAL
Pre-trial is Mandatory
Vital
objective:
the
simplification,
abbreviation, and expedition of the trial, if
not indeed its dispensation
Mandatory nature is addressed to both
court and parties:
o Court must set the case for pre-trial and
notify the parties as well as counsel to
appear
Parties with their counsel are obliged to
obey the order of the court to that effect
Pre-Trial is a mandatory conference and

personal confrontation before the judge
between the parties and their respective
counsel, called by the court after the joinder of
issues in a case or after the last pleading has
been filed and before trial, for the purpose of
settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice.
PAGE 63
UP LAW BOC
CIVIL PROCEDURE
Primary Objective
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
REMEDIAL LAW
APPEARANCE OF PARTIES; EFFECT

OF FAILURE TO APPEAR
Duty to Appear: It is the duty of the parties and
their counsel to appear at the pre-trial. [Rule
18, Sec. 4]
NOTE: BOTH parties AND their counsel
Thus, to obviate the element of surprise,

parties are expected to disclose at a pre-trial
conference (PTC) all issues of law and fact
which they intend to raise at the trial, except
such as may involve privileged or impeaching
matters. The determination of issues at a pretrial conference bars the consideration of
other questions on appeal. [Caltex v. CA
(1992)]
When non-appearance is excused: A partys

non-appearance may be excused only if
either:
(1) Valid cause is shown for it;
(2) A representative appears in his behalf,
fully authorized in writing:
(a) To enter into an amicable settlement;
(b) To submit to alternative modes of
dispute resolution;
(c) To enter into stipulations/admissions
of facts and of documents.
NOTICE OF PRE-TRIAL
When pre-trial conducted - After the last

pleading has been served and filed, it shall be
the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial.
[Sec. 1, Rule 18]
(1) Specifically, the motion is to be filed
within 5 days after the last pleading
joining the issues has been served and
filed [Admin Circ. No. 3-99, Jan 15, 1999]
(2) Within 5 days from date of filing of the
reply, plaintiff must promptly move exparte that the case be set for pre-trial
conference. If the plaintiff fails to file said
motion within the given period, the branch
clerk shall issue a Notice of Pre-Trial [AM
No. 03-109-SC, July 13, 2004]
NOTE: The written special authority

must be in the form of an SPA (Sec.
23, Rule 38). If the party is a
corporation, the SPA must be
supported by a board resolution.
Effect of Failure to Appear; unexcused nonappearance: [Rule 18, Sec. 5]
Order of Non-suit is issued to the party who
failed to appear at pre-trial.
Who fails to
appear
NOTE: The Last Pleading need not be

literally construed as the actual filing of the
last pleading. For purpose of pre-trial, the
expiration of the period for filing the last
pleading is sufficient [Sarmiento v. Juan]
Plaintiff
Notice of Pre-trial: The notice shall be served

on:
(1) Counsel
(2) Party, only if he has no counsel [Sec. 3,
Rule 18]
Defendant
Effect
Cause for dismissal of the action
which will be with prejudice,
unless otherwise ordered by the
court
Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on the
basis thereof
NOTE: The non-appearance of defendant in

pre-trial is not a ground to declare him in
default. Thus, we distinguish:
The sufficiency of the written notice of pre-trial

is irrelevant where evidence shows that
counsel and the parties actually knew of the
pre-trial [Bembo v. CA]
PAGE 64
UP LAW BOC
Default by defendant
[Rule 9, Sec. 3]
CIVIL PROCEDURE
Contents of a Pre-Trial Brief

(1) Statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating
the desired terms thereof;
(2) Summary of admitted facts and proposed
stipulation of facts;
(3) Issues to be tried/resolved;
(4) Documents/exhibits to be presented,
stating the purpose thereof;
(5) Manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners;
(6) Number and names of the witnesses, and
the substance of their respective
testimonies. [AM No. 03-1-09-SC]
Failure to appear by
defendant [Rule 18,
Sec. 5]
Upon motion and

Not required
notice to defendant.
Requires proof of
Not required
failure to answer
Court
to
allow
Court
to
render
plaintiff to present
judgment, unless it
evidence ex parte,
requires submission of
then the court shall
evidence
render judgment
Judgment by Default Judgment Ex Parte
Relief awarded must Relief awarded may
be the same in nature be of different nature
and amount as prayed and amount from the
for in the complaint
relief prayed for
Failure to File Pre-trial Brief: Failure to file the

pre-trial brief shall have the same effect as
failure to appear at the pre-trial.
When we say that a defendant is in default it

speaks of his failure to file responsive pleading
and not his non-appearance at pre-trial.
Remedy of defendant is to file a motion for

reconsideration, showing that his failure to file
a trial brief was due to fraud, accident,
mistake, or excusable negligence
Remedy of Party who has been non-suited:

(1) For a non-suited plaintiff:
(a) Motion to set aside the order of nonsuit
(b) Affidavit of merit is not necessary in a
simple motion for reconsideration of
the order of non-suit EXCEPT as to
show the cause of the failure to
appear at the pre-trial [Jonathan
Landoil
International
Inc.
v.
Mangudadatu]
PROCEEDINGS AFTER
TERMINATION OF PRE-TRIAL
Record of Pre-Trial: The pre-trial proceedings
shall be recorded. Upon termination of such
proceedings, the court shall issue the pre-trial
order.
Contents of Pre-Trial Order:
(1) Matters taken up in the conference;
(2) Action taken thereon;
(3) Amendments allowed on the pleadings;
(4) Agreements/admissions made by the
parties as to any matters considered;
(5) Should the action proceed to trial, the
explicit definition and limit of the issues to
be tried.
(2) For a non-suited defendant:

(a) File a motion for reconsideration
without need for affidavits of merits
regarding the fraud, accident,
mistake, or excusable negligence
[Lucero v. Dacayo]
PRE-TRIAL BRIEF;
FAILURE TO FILE
EFFECT
REMEDIAL LAW
OF
Effect of Pre-Trial Order: The contents of the

order shall control the subsequent course of
the action; UNLESS:
(1) Modified before trial to prevent manifest
injustice [Rule 18, Sec. 7]
(2) Issues impliedly included therein or may
be inferable therefrom by necessary
implication [Velasco v. Apostol]
(3) Amendment to conform to evidence [Rule
10, Sec. 5]
Rule 18, Sec. 6 makes it the MANDATORY duty

of the parties to seasonably file their pre-trial
briefs under the conditions and with the
sanctions provided therein.
When to File Pre-Trial Brief: Parties shall file
and serve their respective pre-trial briefs,
ensuring receipt by adverse party at least 3
days before the date of the pre-trial.
PAGE 65
UP LAW BOC
CIVIL PROCEDURE
On Compromise:
Upon manifestation of the parties of their
willingness to discuss a compromise, the TC
should order the suspension of the
proceedings to allow them reasonable time
to discuss and conclude an amicable
settlement.
If despite all efforts exerted by the TC and
the parties the settlement conference still
fails, then the action should have continued
as if no suspension had taken place.
[Goldloop Properties v. CA (1992)]
NOTE: AM 03-1-09-SC - No termination of
pre-trial for failure to settle
Civil Case
[AM No. 03-1-09] requires
the
proceedings
during
the
preliminary
conference to be
recorded
in
the
Minutes
of
Preliminary
Conference to be
signed by both parties
and/or counsel.
(Note: either party or
his counsel is allowed
to sign)
The sanctions for nonappearance
are
imposed upon the
plaintiff
and
the
defendant [Rule 18,
Sec. 4]
A pre-trial brief is
specifically required to
be submitted [Rule 18,
Sec. 6]
DISTINCTION BETWEEN PRE-TRIAL

IN CIVIL CASE AND PRE-TRIAL IN
CRIMINAL CASE
Civil Case
Set when the plaintiff

moves ex parte to set
the case for pre-trial
[Rule 18, Sec. 1]
Made
after
the
pleading has been
served and filed [Rule
18, Sec. 1]
Considered
the
possibility
of
an
amicable settlement
as
an
important
objective [Rule 118,
Sec. 2(a)]
The arrangements and
admissions in the pretrial are not required
to be signed by both
parties
and
their
counsels. Under the
Rules, they are instead
to be contained in the
record of pre-trial and
pre-trial order [Rule 18,
Sec. 7]
Criminal Case
Ordered by the court
and no motion to set
the case for pre-trial is
required from either
the prosecution or the
defense [Rule 118, Sec.
1]
Ordered by the court
after arraignment and
within 30 days from
the sate the court
acquired jurisdiction
over the person of the
accused [Rule 118, Sec.
1]
Does not include the
considering of the
possibility of amicable
settlement of ones
criminal liability as
one of its purposes
[Rule 118, Sec. 1]
(Stricter procedure)
All agreements or
admissions made or
entered during the
pre-trial conference
shall be reduced in
writing and signed by
both the accused and
counsel;
otherwise,
they cannot be used
against the accused.
[Rule 118, Sec. 2]
REMEDIAL LAW
Criminal Case
Sanctions
imposed upon
counsel
for
accused
or
prosecutor [Rule
Sec. 3]
are
the
the
the
118,
A pre-trial brief is not

specifically required.
ALTERNATIVE DISPUTE
RESOLUTION (ADR)
Special Rules of Court on ADR [AM No. 07-1108-SC]

The parties may be submitted to ADR during
pre-trial. If ADR fails, judge will schedule the
continuance of the pre-trial conference
The Alternative Dispute Resolution System
Means any process or procedure used to
resolve a dispute or controversy, other than by
adjudication of a presiding judge of a court or
an officer of a government agency, as defined
in this Act, in which a neutral third party
participates to assist in the resolution of issue
[RA 9285, Sec. 3]
Policy Behind the ADR: To actively promote
party autonomy in the resolution of disputes
or the freedom of the party to make their own
arrangements to resolve their disputes [RA
9285, Sec. 2]
PAGE 66
UP LAW BOC
CIVIL PROCEDURE
In Relation to Pre-Trial:
(1) At the start of the pre-trial conference, the
judge shall immediately refer the parties
and/or their counsel if authorized by their
clients to the PMC mediation unit for
purposes of mediation if available.[AM No.
03-1-09-SC]
REMEDIAL LAW
(2) Mediation
(a) a voluntary process in which a
mediator, selected by the disputing
parties, facilitates communication and
negotiation, and assist the parties in
reaching a voluntary agreement
regarding a dispute
(b) includes conciliation
(2) The pre-trial briefs of parties must include

the parties statement of their willingness
to enter into an amicable settlement
indicating the desired terms thereof or to
submit the case to any of the alternative
modes of dispute resolution [AM No. 03-109-SC]
(3) Mini-Trial
(a) A structured dispute resolution
method in which the merits of a case
are argued before a panel comprising
senior decision makers with or without
the presence of a neutral third person
after which the parties seek a
negotiated settlement
Exception to the Application of RA 9285:

(1) labor disputes covered by the Labor Code;
(2) the civil status of persons;
(3) validity of a marriage;
(4) any ground for legal separation;
(5) the jurisdiction of courts;
(6) future legitime;
(7) criminal liability; and
(8) those which by law cannot be
compromised.
(4) Early Neutral Evaluation

(a) An ADR process wherein parties and
their lawyers are brought together
early in a pre-trial phase to present
summaries of their cases and receive a
nonbinding assessment by an
experienced, neutral person, with
expertise in the subject in the
substance of the dispute
Modes of Alternative Dispute Resolutions:

(1) Arbitration [RA 9285, Sec. 1)
(a) A voluntary dispute resolution process
in which one or more arbitrators,
appointed in accordance with the
agreement of the parties, or rules
promulgated pursuant to this Act,
resolve a dispute by rendering an
award\
(b) Different Kinds:
(1) Domestic Arbitration an
arbritration
that
is
not
international; governed by RA 876
(Arbitration Law) [RA 9285, Sec.
32]
(2) International Arbitration - An
arbitration is international if:
(a) the parties to an arbitration
agreement have, at the time
of the conclusion of that
agreement, their places of
business in different States; or
(b) one of the following places is
situated outside the State in
which the parties have their
places of business [Article 3,
Model Law on International
Commercial Arbritration]
(5) Combination of ADR

(a) Example: Med-Arb - step dispute
resolution process involving both
mediation and arbitration
Special Rules of Court on ADR [AM No. 0711-08-SC]
The Special ADR Rules shall apply to and
govern the following cases [Rule 1.1]
(1) Relief on the issue of Existence, Validity, or
Enforceability
of
the
Arbitration
Agreement;
(2) Referral ADR
(3) Interim Measures of Protection;
(4) Appointment of Arbitrator;
(5) Challenge to Appointment of Arbitrator;
(6) Termination of Mandate of Arbitrator;
(7) Assistance in Taking Evidence;
(8) Confirmation, Correction or Vacation of
Award in Domestic Arbitration;
(9) Recognition and Enforcement or Setting
Aside of an Award in International
Commercial Arbitration;
(10) Recognition and Enforcement of a Foreign
Arbitral Award;
(11) Confidentiality/Protective Orders; and
(12) Deposit and Enforcement of Mediated
Settlement Agreements.
PAGE 67
UP LAW BOC
CIVIL PROCEDURE
Service and Filing of Petition The petitioner

shall serve, either by personal service or
courier, a copy of the petition upon the
respondent before the filing thereof. Proof of
service shall be attached to the petition filed
in court.
REMEDIAL LAW
5. Motion for extension, except in cases

where an ex-parte temporary order of
protection has been issued;
6. Rejoinder to reply;
7. Motion to declare a party in default;
and
8. Any other pleading specifically
disallowed under any provision of the
Special ADR Rules.
Notice served once court finds petition

sufficient in form and substance
1. Notice is sent to parties directing
them to appear at a particular time
and date for hearing
2. Hearing shall not be set no later than
5 days from lapse of period for filing
opposition or comment
3. Notice to respondent shall contain a
statement allowing him to file a
comment or opposition to petition
within 15 days from receipt of notice
4. For
Referral
to
ADR
or
Confidentiality/Protection Orders:
a. Follow Rule 15 Rules of Court
No summons (Rule 1.9 - In cases covered by

the Special ADR Rules, a court acquires
authority to act on the petition or motion upon
proof of jurisdictional facts, i.e., that the
respondent was furnished a copy of the
petition and the notice of hearing.
Summary Hearing - In all cases, as far as

practicable, the summary hearing shall be
conducted in one (1) day and only for purposes
of clarifying facts.
Prohibited Submissions [Rule 1.6]
1. Motion to dismiss;
2. Motion for bill of particulars;
3. Motion for new trial or for reopening
of trial;
4. Petition for relief from judgment;
PAGE 68
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PRE TRIAL
NO SETTLEMENT
Agreements made by
parties; Amendments
to pleading; Schedule
of Trial
FAILURE TO APPEAR
If plaintiff is absent
when so required to
attend, court may
dismiss the case
AMICABLE
SETTLEMENT
If defendant is absent,
court may hear
evidence of plaintiff ex
parte
TRIAL
If evidence is
insufficient to prove
plaintiffs cause of
action or defendants
counterclaim, court
rules in favor of either
one or dismisses the
case
COURT RENDERS
DECISION
PAGE 69
UP LAW BOC
CIVIL PROCEDURE
INTERVENTION
REMEDIAL LAW
Notwithstanding the presence of a legal

interest, permission to intervene is subject to
the sound discretion of the court, the exercise
of which is limited by considering "whether or
not the intervention will unduly delay or
prejudice the adjudication of the rights of the
original parties and whether or not the
intervenors rights may be fully protected in a
separate proceeding. [Virra Mall Tenants v.
Virra Mall (2011)]
A legal remedy whereby a person is permitted

to become a party in a case, by either:
(1) Joining the plaintiff;
(2) Joining the defendant;
(3) Asserting his right against both plaintiff
and defendant, considering that either:
(a) He has a legal interest in the subject
matter of the action;
(b) He has legal interest in the success of
either of the parties
(c) He has legal interest against both of
the parties
(d) He is going to be adversely affected by
the disposition of the property in the
custody of the court [Rule 19, Sec. 1]
TIME TO INTERVENE
How Intervention is Done
(1) By a motion to intervene
(2) Attaching the pleading-in-intervention to
the motion
(3) Copies served on the original parties [Rule
19, Sec. 2]
Intervention is never an independent action,

but is ancillary and supplemental to the
existing litigation. Its purpose is to afford one
not an original party, yet having a certain
right/interest in the pending case, the
opportunity to appear and be joined so he
could assert or protect such right/interest.
[Carino v. Ofilada, 1993]
When should it be filed The motion to

intervene may be filed at ANY TIME before
rendition of judgment by the court
General Rule: Allowance of intervention is
discretionary with the court
REQUISITES FOR INTERVENTION
The requisites of intervention are:

(1) Legal interest:
(a) In the matter in controversy; or
(b) In the success of either of the parties;
or
(c) Against both; or
(d) So situated as to be adversely affected
by a distribution or other disposition
of property in the custody of the court
or of an office thereof;
(2) Intervention will not unduly delay or
prejudice the adjudication of rights of
original parties
(3) Intervenors rights may not be fully
protected in a separate proceeding
[Lorenza Ortega v. CA, 1998]
Exception: When the

indispensable party
intervenor
is
an
Pleadings-in-Intervention:
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
(3) Answer to complaint-in-intervention [Rule
19, Sec. 4] - It must be filed within 15 days
from notice of the order admitting the
complaint-in-intervention,
unless
a
different period is fixed by the court.
REMEDY FOR DENIAL OF MOTION

TO INTERVENE
MEANING OF LEGAL INTEREST
Interest must be of a direct and immediate

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

(a) Aggrieved party may appeal
(b) Mandamus will not lie except in case
of grave abuse of discretion
(2) If intervention is granted
(a) A grant of a motion to intervene is
interlocutory
PAGE 70
UP LAW BOC
CIVIL PROCEDURE
(b) Hence, anyone who objects can file a

petition for certiorari for improper
granting of intervention
books, documents, or things demanded

which must appear to the court to be
prima facie relevant
Kinds:
(1) Subpoena duces tecum (SDT)
(2) Subpoena ad testificandum (SAT)
SUBPOENA
Subpoena is a process directed to a person

requiring him:
(1) To attend and to testify at the hearing or
the trial of an action, or at any
investigation conducted by competent
authority, or for the taking of his
deposition; or
(2) To bring with him any books, documents,
or other things under his control [Rule 21,
Sec. 1]
Subpoena
An order to appear
and testify or to
produce books and
documents
May be served to a
non-party
Needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee
SUBPOENA AD TESTIFICANDUM
A process directed to a person requiring him
to attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority or for the
taking of his deposition
SUBPOENA DUCES TECUM
Summons
A process directed to a person requiring him

to bring with him books, documents, or other
things under his control
An order to answer
complaint
Served
on
defendant
REMEDIAL LAW
the
The SDT is, in all respects, like the ordinary

SAT with the exception that it concludes with
an injunction that the witness shall bring with
him and produce at the examination the
books, documents, or things described in the
subpoena
Does not need tender

of kilometrage and
other fees
Who May Issue: [Rule 21, Sec. 2]

(1) Court before whom the witness is required
to attend
(2) Court of the place where the deposition is
to be taken
(3) Officer or body authorized by law to do so
in
connection
with
investigations
conducted by said officer or body; or
(4) Any justice of the SC or of the CA, in any
case or investigation pending within the
Philippines
Before SDT may issue, the court must first be

satisfied that the following requisites are
present:
(1) Test of RELEVANCY: The books,
documents, or other things requested
must appear prima facie relevant to the
issue subject of the controversy
(2) Test of DEFINITENESS: Such books must
be reasonably described by the parties to
be readily identified (test of definiteness)
NOTE: Sec. 38(2), BP 129 All processes

issued by the MTC and MCTC in cases falling
within their jurisdiction may be served
anywhere in the Philippines without the
necessity of certification by the judge of the
RTC
6]
SERVICE OF SUBPOENA [Rule 21, Sec.

How Made: Same manner as PERSONAL or
SUBSTITUTED service of summons
Formalities:
(1) The original shall be exhibited
(2) A copy is delivered to the person on whom
it is served
(3) Fees and costs:
(a) Tender to the person on whom it is
served the fees for one days
attendance and the kilometrage
allowed by the Rules
Form and Contents: [Rule 21, Sec. 3]

(1) Shall state the name of the court and the
title of the action or investigation
(2) Shall be directed to the person whose
attendance is required
(3) In case of a subpoena duces tecum, shall
contain a reasonable description of the
PAGE 71
UP LAW BOC
CIVIL PROCEDURE
(1) EXCEPT: Tender need not be

made if issued by or on behalf of
the Republic or an officer of
agency thereof
(b) The articles sought to be produced do

not appear prima facie to be relevant
to the issues; or
(c) The person asking for the subpoena
does not advance the cost for the
production of the articles desired
(d) Failure to tender witness fees and
kilometrage allowed by the Rules
(b) If SDT, reasonable cost of producing

the books, documents, or things
demanded shall also be tendered
Service must be made so as to allow the
witness reasonable time for preparation and
travel to the place of attendance
COMPELLING ATTENDANCE
WITNESSES; CONTEMPT
REMEDIAL LAW
(2) For quashal of subpoena ad testificandum

(a) That the witness is not bound thereby,
or
(b) That the witness fees and kilometrage
allowed by the Rules were not
tendered when subpoena was served
OF
MODES OF DISCOVERY
General Rule:
(1) The court which issued the subpoena may
issue a warrant for the arrest of the
witness and make him pay the cost of
such warrant and seizure, if the court
should determine that his disobedience
was willful and without just cause [Sec. 8]
Discovery a device employed by a party to

obtain information about relevant matters on
the case from the adverse party in the
preparation for trial
Purpose to enable the parties to obtain the
fullest possible knowledge of the issues and
evidence long before the trial to prevent such
trial from being carried on in the dark
(2) The refusal to obey a subpoena without

adequate cause shall be deemed
contempt of the court issuing it [Sec. 9]
Exception:
Provisions
regarding
the
compelling of attendance [Sec. 8] and
contempt [Sec. 9] do not apply where:
(1) Witness resides more than 100km from
his residence to the place where he is to
testify by the ordinary course of travel
(Viatory Right) and
(a) NOTE: This refers to civil cases only,
not criminal
Modes:
(1) Depositions pending actions Rule 23
(2) Depositions before action or pending
appeal Rule 24
(3) Interrogatories to parties Rule 25
(4) Admission by adverse party Rule 26
(5) Production or inspection of documents or
thing Rule 27
(6) Physical and mental examination of
persons Rule 28
(2) Permission of the court in which the

detention prisoners case is pending was
not obtained
DEPOSITIONS
[Rule 23]
QUASHING OF SUBPOENA [Rule 21,
PENDING
ACTION
Meaning of Deposition - Deposition is chiefly a

mode of discovery, the primary function of
which is to supplement the pleadings for the
purpose of disclosing the real points of
dispute between the parties and affording an
adequate factual basis during the preparation
for trial.
Sec. 4]
How Done: By motion promptly made

Period to File: A motion to quash may be
made at or before the time specified in the
subpoena
General Uses of Deposition:

(1) Intended as a means to compel disclosure
of facts resting in the knowledge of a party
or other person, which are relevant in a
suit or proceeding
Grounds:
(1) For quashal of subpoena duces tecum:
(a) It is unreasonable and oppressive
PAGE 72
UP LAW BOC
CIVIL PROCEDURE
(2) Dual functions:

(a) A method of discovery
(b) A method of presenting testimony in
lieu of oral open court testimony
REMEDIAL LAW
(2) Deposition of an ADVERSE party may be

used for any purpose
(a) It may be used as an admission
(b) A deposition cannot, however, be used
in the trial of a case against a
defendant who was not a party to the
action when the deposition was taken
Scope of Examination
(1) Matter which is relevant to the subject of
the pending action made by the pleadings
or likely to arise under the pleadings
(2) Matter that is not privileged
(3) As well as:
(a) The existence, description, nature,
custody, condition and location of any
books, documents, or other tangible
things; and
(b) The identity and location of persons
having knowledge of relevant facts
[Rule 23, Sec. 2]
(3) Deposition of a witness or party may be

used for any purpose under the following
circumstances:
(a) Witness is dead there must be proof
of death or presumption of death and
that deposition was legally taken
(b) Non-residence of deponent where it
appears that the absence of deponent
was procured by the party offering the
deposition of the same cannot be
received in evidence
NOTE: Under such limitations as the court

may order under Sec. 16 and 18
When Depositions Pending Action Taken:
[Rule 23, Sec. 1]
(1) With leave of court:
(a) AFTER jurisdiction has been obtained
over any defendant or over the
property which is the subject of the
action, but
(b) BEFORE an answer has been served
(c) Disability of a witness age, sickness,

infirmity, or imprisonment. The
certificate of the attending physician
that the witness is in a precarious
condition is sufficient
(d) Inability to procure attendance of
witness by subpoena
(2) Without leave of court

(a) AFTER answer has been served
Deponent
Depositions before an answer should be

granted only under special circumstances
where the conditions point to the necessity of
presenting a strong case for allowance of the
motion.
There must be some necessity or good
reason for taking the testimony immediately
or that it would be prejudicial to the party
seeking the order to be compelled to await
joinder of issues.
Any person
Use
By any party for
contradicting
or
impeaching
the
testimony
of
deponent as witness
A party or anyone
who at the time of
the deposition was
an officer, director, or
managing agent, of a By an adverse party
public or private for any purpose
corporation
or
partnership,
or
association which is a
party
By any party for any
Witness, whether or purpose if the court
not a party
finds the 5 instances
occurring
Specific Uses of Depositions Pending

Action: the use of depositions depends on
whether deponent is a party or not [Rule 23,
Sec. 4]
(1) The depositions may be used for
contradicting or impeaching the testimony
of deponent not as proof of specific facts
(a) If deponent does not testify and is not
a party, deposition cannot be used for
this purpose
NOTE: Depositions can be used as evidence

by a party (for any purpose) under the
specific conditions in Sec. 4
PAGE 73
UP LAW BOC
CIVIL PROCEDURE
REMEMBER: Generally, a deposition is not

generally supposed to be a substitute for the
actual testimony in open court of a party or
witness. If the witness is available to testify, he
should be presented in court to testify. If
available to testify, a partys or witness
deposition is inadmissible in evidence for
being hearsay. [Dasmarinas Garments Inc. v.
Reyes, 1993]. Exceptions to this rule are those
found in Sec. 4.
REMEDIAL LAW
(2) After the notice is served, the court may

make any order for the protection of the
parties and the deponent. [Rule 23, Sec.
16]
(3) The attendance of the witnesses may be
compelled by the use of subpoenas. [Rule
23, Sec. 1]
(4) The deponent may be examined or cross
examined following the procedures for
witnesses in a trial. He may be asked
questions on direct, cross, re-direct or recross. He has the same rights as a witness
and may be impeached like a court
witness because Sections 3 to 18 of Rule
132 apply to deponent. [Rule 23, Sec. 3]
Persons before whom depositions may be

taken [Rule 23, Sec. 10 and 11]
(1) Within the Philippines:
(a) Judge
(b) Notary Public, or
(c) Any person authorized to administer
oaths, as stipulated by the parties in
writing
(5) The officer before whom the deposition is

being taken has no authority to rule on
objections interposed during the course of
the deposition although any objections
shall be noted by him upon the
deposition. Any evidence that is objected
to shall still be taken but subject to the
objection. [Rule 23, Sec. 17]
(2) Outside the Philippines

(a) On notice before a secretary of
embassy or legation, consul general,
consul, vice-consul, or consular agent
of the Philippines
(b) Before such person or officer as may
be appointed by commission or under
letter rogatory or
(c) Any person authorized to administer
oaths as stipulated by parties in
writing
When may objections to admissibility be

made [Rule 23, Sec. 6] - Objection may be
made at the TRIAL or HEARING to receiving in
evidence any deposition or part thereof for any
reason which would require the exclusion of
the evidence if the witness were then present
and testifying
Disqualification by interest: No deposition

shall be taken before a person who is: [Rule
23, Sec. 13]
(1) A relative within the 6th degree of affinity
or consanguinity
(2) An employee or counsel of any of the
parties
(3) A relative within the same degree or
employee of such counsel
(4) Financially interested in the action
Effect of Taking and Using Depositions:

(1) General Rule: A party shall not be deemed
to make a person his own witness for any
purpose by taking his deposition because
depositions are taken for discovery and
not for use as evidence. [Rule 23, Sec. 7]
Procedure in Taking Depositions:

(1) A party desiring to take the deposition of
any person upon oral examination shall
give reasonable notice in writing to every
party to the action stating the time and
place for taking the deposition and the
name and address of each person to be
examined. [Rule 23, Sec. 15]
(2) Exception: If a party offers the deposition

in evidence, then he is deemed to have
made the deponent his witness [Sec. 8]
(3) Exceptions to the Exception:
(a) The deposition is that of an opposing
party, OR
(b) The deposition is used to impeach or
contradict opponent. [Sec. 8]
PAGE 74
UP LAW BOC
CIVIL PROCEDURE
When may taking of deposition be

terminated or its scope limited [Rule 23, Sec.
18]
(1) How done:
(a) A motion or petition for termination or
limit examination is filed by any party
or of the deponent
(b) Filed in the court where the action is
pending OR the RTC of the place
where deposition is being taken
(2) When done: At any time during the taking
of deposition
(3) Grounds: That the examination is being
conducted:
(a) In bad faith, or
(b) In such manner as unreasonably to
annoy, embarrass or oppress the
deponent or party
Error and
Irregularities
Objections to
the form of
written
interrogatories
under Sec. 25
and 26
In the manner
in
which
testimony
is
transcribed or in
the preparation
under Sec. 17,
19, 20, and 26
Effect of Errors and Irregularities in

Depositions [Rule 23, Sec. 29]
Error and
Effect
Irregularities
Waived
As to notice for
Unless written objection is
taking
promptly served upon party
depositions
giving notice
Waived
Objection
to Unless made:
taking
(1) Before taking of
deposition
deposition begins or
because
of (2) As soon thereafter as
disqualification
disqualification
of officer before
becomes known or
whom it is to be
could be discovered
taken
with
reasonable
diligence
Not waived by failure to
Objection to the
make them before or during
competency of
the taking of deposition
a witness or
Unless the ground of the
competency or
objection is one which
relevancy
or
might have been obviated
materiality of
or removed if presented at
testimony
that time
In the manner of taking, in
the form of questions or
answers, in the oath or
Occurring
at affirmation, or in conduct of
parties and errors of any
oral
kind which might
be
examination
and
other obviated or removed if
promptly prosecuted are
particulars
waived
REMEDIAL LAW
Effect
Unless
reasonable
objection thereto is made at
the time of taking the
deposition
Waived
Unless served in writing
upon
the
party
propounding them within
the time allowed for serving
succeeding cross or other
interrogatories and within 3
days after service of last
interrogatories authorized
Waived
Unless motion to suppress
depositions or some part
thereof is made with
reasonable
promptness
after such defect is
ascertained, or with due
diligence might have been
ascertained
Orders that may be issued by the court

regarding deposition taking
(1) That the deposition shall not be taken;
(2) That it may be taken at some designated
place other than that stated in the notice;
(3) That it may be taken only on written
interrogatories;
(4) That certain matters shall not be inquired
into
(5) That the scope of the examination shall be
held with no one present except the
parties to the action and their officers or
counsel;
(6) That after being sealed, the deposition
shall be opened only by order of the court;
(7) That secret processes, developments, or
research need not be disclosed;
(8) That the parties shall simultaneously file
specified documents or information
enclosed in sealed envelopes to be
opened as directed by the court;
PAGE 75
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Notice and service to each person named

in the petition as an expected adverse
party, together with a copy of the petition,
stating that the petitioner will apply to the
court, at a time and place named therein,
for the order described in the petition.
(3) At least twenty (20) days before the date
of the hearing, the court shall cause notice
thereof to be served on the parties and
prospective deponents in the manner
provided for service of summons.
(4) Order and Examination: If the court is
satisfied that the perpetuation of the
testimony may prevent a failure or delay
of justice, it shall make an order
designating or describing the persons
whose deposition may be taken and
specifying the subject matter of the
examination and whether the depositions
shall be taken upon oral examination or
written interrogatories.
DEPOSITIONS BEFORE ACTION OR

PENDING APPEAL [Rule 24]
A deposition before action and a deposition
pending appeal are referred to as
perpetuation of testimony (perpetuam rei
memoriam) because their objective is to
perpetuate the testimony of a witness for
future use.
Purpose: To perpetuate the testimony of
witnesses for probable use in the event of
further proceedings in said court.
Who may avail: Any person:
(1) Who wants to perpetuate his own
testimony; or
(2) Who wants to perpetuate the testimony of
another person
Procedure for Deposition Pending Action:
Use of Deposition: If a deposition to

perpetuate testimony is taken under this Rule,
or if, although not so taken, it would be
admissible in evidence, it may be used in any
action involving the same subject matter
subsequently brought in accordance with the
provisions of sections 4 and 5 of Rule 23. [Rule
24, Sec. 6]
(1) File a verified petition in the court of the

place of the residence of any expected
adverse party
(a) Petition shall be entitled in the name
of petitioner
(b) It shall show:
(i) That the petitioner expects to be a
party to an action in a court of the
Philippines but is presently
unable to bring it or cause it to be
brought;
(ii) The subject matter of the
expected action and his interest
therein;
(iii) The facts which he desires to
establish by the proposed
testimony and his reasons for
desiring to perpetuate it;
(iv) The names or a description of the
persons he expects will be adverse
parties and their addresses so far
as known; and
(v) The names and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each, and
shall ask for an order authorizing
the petitioner to take the
depositions of the persons to be
examined named in the petition
for the purpose of perpetuating
their testimony.
Procedure for Deposition Pending Appeal:

(1) During the pendency of an appeal, the
court in which the judgment was rendered
may allow the taking of depositions of
witnesses to perpetuate their testimony in
the event of further proceedings in the
said court.
(2) The party who desires to perpetuate the
testimony may make a motion in the said
court for leave to take the depositions,
upon the same notice and service thereof
as if the action was pending therein. The
motion shall state:
(a) The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each, and
(b) The reason for perpetuating their
testimony.
(3) Order allowing the deposition: If the court
finds that the perpetuation of the
testimony is proper to avoid a failure or
delay of justice, it may make an order
allowing the deposition to be taken.
PAGE 76
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Objections to Interrogatories: [Rule 25, Sec.

3]
Objections may be presented to the court
within 10 days after service thereof with notice
as in case of a motion.
Effect: Answers shall be deferred until
objections are resolved
WRITTEN INTERROGATORIES TO
ADVERSE PARTIES [Rule 25]
Purpose - This mode of discovery is availed of
by the party to the action for the purpose of
eliciting material and relevant facts from any
of the adverse party. [Rule 25, Sec. 1]
Grounds:
(1) They require the statements of
conclusions of law or answers to
hypothetical questions or opinion, or mere
hearsay, or matters not within the
personal knowledge of the interrogated
party
(2) Frivolous interrogatories need not be
answered [Herrera]
Service of Interrogatories to Parties Any

party desiring to elicit material and relevant
facts from any adverse party shall file and
serve upon the adverse party written
interrogatories to be answered by the party
served.
NOTE: Written interrogatories must not only
be served but also filed.
Scope and Use of Interrogatories [Rule 25,

Sec. 5]
Manner of Service:
(1) Without leave of court After answer has
been served; and for the first set of
interrogatories
(2) With leave of court before the answer has
been served; and for subsequent sets of
interrogatories
Interrogatories may relate to any matters than

can be inquired into under Sec. 2, Rule 23
Answers may be used for the same purposes
provided in Sec. 4, Rule 23
NOTE: No party may, without leave of court,

serve more than one set of interrogatories to
be answered by the same party. [Rule 25, Sec.
4]
Effect of Failure to Serve

Interrogatories [Rule 25, Sec. 6]
Written
A party not served with written interrogatories

may not be compelled by adverse party to:
(1) Give testimony in open court; or
(2) Give deposition pending appeal
Answer to Interrogatories: [Rule 25, Sec. 2]

(1) Written interrogatories and the answers
thereto must both be filed and served
(a) Hence, the answers may constitute as
judicial admissions [Sec. 4, Rule 129]
UNLESS thereafter allowed by the court for

good cause shown and to prevent a failure of
justice
(2) Form of answer:

(a) It must be answered fully in writing
(b) And signed and sworn to by the
person making them
NOTE: This should not be confused with the

provisions of Rule 29. Sec. 6 Rule 25 as well as
a similar provision in Rule 26 are directed to a
party who fails or refuses to resort to discovery
procedures therein. Rule 29 provides for
sanctions or other consequences upon a party
who refuses or fails to comply with discovery
procedures duly availed of by his opponent
(3) Service and Filing

(a) Party upon whom interrogatories were
served shall file and serve a copy of
the answers on the party submitting
interrogatories
(b) Time period:
(i) Within 15 days after service
thereof
(ii) UNLESS court extends or
shortens the time on motion and
for good cause shown
PAGE 77
UP LAW BOC
CIVIL PROCEDURE
Written Interrogatories v. Interrogatories to

Parties
Written Interrogatories
REMEDIAL LAW
The request for admission MUST BE SERVED

ON THE PARTY and NOT ON THE COUNSEL.
This is an exception to the general rule that
notices shall be served upon counsel and not
upon the party. (Duque v. CA, 2002)
Interrogatories to
Parties
Implied Admission by Adverse Party [Rule

26, Sec. 2]
Each of the matters which an admission is
requested shall be deemed admitted UNLESS
the party to whom request is directed files and
serves upon the party requesting admission a
SWORN STATEMENT
(1) Contents of the sworn statement:
(a) Denying specifically the matters of
which an admission is requested, or
(b) Setting forth in detail the reasons why
he cannot truthfully either admit or
deny those matters
The deposition is takes There

is
no
before a deposition officer deposition officer.
Questions are prepared
beforehand. These are
submitted
to
the
The questioning is
deposition officer who will
direct.
ask the deponent the
questions and he will
record the answers.
The deposition of any
The deposition of
person may be taken,
the parties are
whether he is a party or
only taken.
not.
(2) Period to file and serve the sworn

statement
(a) Within a period designated in the
request
(b) Which shall not be less than 15 days
after service thereof, or
(c) Within such further time as the court
may allow on motion
REQUEST FOR ADMISSION [Rule 26]

Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegation in a
pleading.
Purposes:
(1) To allow one party to request the adverse
in writing to admit certain material and
relevant matters which most likely will not
be disputed during the trial.
(2) To avoid unnecessary inconvenience to the
parties in going through the rigors of
proof, before the trial, a party may request
the other to:
(a) Admit the genuineness of any
material and relevant document
described in and exhibited with the
request; or
(b) Admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]
Objections to any request for admission

Objections shall be submitted to the court by
the party requested within the period for and
prior to filing of his sworn statement.
Compliance with the sworn statement shall be
deferred until objections are resolved.
How made:
(1) A party files and serves upon any other
party a written request
(2) Copies of the documents shall be served
with the request unless already furnished
Effect of Failure to File and Serve Request

for Admission [Rule 26, Sec. 5]
A party who fails to file and serve a request for
admission on the adverse party of material
and relevant fact at issue which are, or ought
to be, within the personal knowledge of the
latter:
(1) He shall not be permitted to present
evidence on such facts
Effect of Admission [Rule 26, Sec. 3]

(1) Any admission made by a party pursuant to
such request is for the purpose of the
pending action only
(2) It shall not:
(a) Constitute an admission by him for
any other purpose; nor
(b) Be used against him in any other
proceeding
When made: At any time after issues have

been joined.
PAGE 78
UP LAW BOC
CIVIL PROCEDURE
(2) UNLESS otherwise allowed by the court

for good cause and to prevent a failure of
justice
Procedure:
(1) A motion must be filed by the party
seeking the production or inspection
of documents and things and the
motion must show good cause
supporting the same. [Rule 27, Sec. 1]
NOTE: This is similar to the provision on

unjustified failure of a party to avail of written
interrogatories under Sec. 6, Rule 25.
(2) The court in which the action is

pending shall issue an order:
(a) which shall specify the time, place
and manner of making the
inspection and taking copies and
photographs, and
(b) which may prescribe such terms
and conditions as are just. [Rule
27, Sec. 1]
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS [Rule 27]
Rule 27 applies only to a PENDING ACTION

and the documentary things subject of the
motion must be only WITHIN the possession,
control, or custody of a party
Production or
Inspection of
Documents or
Things
Subpoena Duces
Tecum
A
means
Essentially a mode compelling
of discovery
production
evidence
Court Order:
(1) The court may:
(a) Order any party to produce and
permit the inspection and copying or
photographing,
(i) By or on behalf of the moving
party
(ii) 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
(iii) And which are in his possession,
custody or control
of
of
Rules is limited to It may be directed to a

the parties of the person whether a
action
party or not
The order under this
Rule is issued only It may be issued upon
upon motion with an
ex
parte
notice to the adverse application
party
(b) Order any party to permit entry upon

designated land or other property in
his possession or control
(i) For the purpose of inspecting,
measuring,
surveying,
or
photographing, property or any
designated relevant object or
operation thereon
May be asked before May be asked only

and/or during trial
during trial
Necessary to show Not necessary
good cause
show good cause
to
Grounds for quashal:

(1) Unreasonable,
Ground for quashal:
oppressive,
No good cause
irrelevant
shown
(2) Failure to advance
reasonable costs
of production
Consequence
disobedience,
Rule 29, Sec. 3
REMEDIAL LAW
(2) Contents of the Order

(a) Time, place, and manner of making
the inspection and taking copies and
photographs, and
(b) Such terms and conditions as are just
of Disobedience
see constitutes contempt
of court
PAGE 79
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PHYSICAL AND MENTAL

EXAMINATION OF PERSONS
(3) If party examined refuses to deliver such

report:
(a) The court on motion and notice may
make an order requiring delivery on
such terms as are just
(b) And if a physician fails or refuses to
make such a report the court may
exclude his testimony if offered at the
trial
How Done:
(1) Motion for examination is filed
(2) Filed in the court in which the action is
pending
(3) Court may, in its discretion, order him to
submit to a physical or mental
examination by a physician
Waiver of privilege [Rule 28, Sec. 4]

Where the party examined requests and
obtains a report on the results of the
examination, the consequences are:
(1) He has to furnish the other party a copy of
the report of any previous or subsequent
examination of the same physical and
mental condition; AND
(2) He waives any privilege he may have in
that action or any other involving the
same controversy regarding the testimony
of any other person who has so examined
him or may thereafter examine him
[Rule 28]
When available: In an action in which the
mental or physical condition of a party is in
controversy. [Rule 28, Sec. 1]
- NOTE: It is the mental and physical
condition of a PARTY not a WITNESS
that is in controversy
NOTE: Since the results of the examination

are intended to be made public, the same are
not covered by physician-patient privilege
[Sec. 24(b), Rule 130]
Requisites to Obtain an Order for
Examination
(1) A motion must be filed for the physical
and mental examination
(2) The motion must show good cause for the
examination
(3) Notice to the party to be examined and to
all other parties;
(4) The motion shall specify the time, place,
manner, conditions, and scope of the
examination and the person or persons by
whom it is made [Rule 28, Sec. 2]
CONSEQUENCES OF REFUSAL TO
COMPLY
WITH
MODES
OF
DISCOVERY [Rule 29]
Refusal to
Comply with
Modes of
Discovery
Sanctions
(1) The court may, upon

proper application, compel
a refusing deponent to
answer [Sec. 1]
(a) If granted, and refusal
to answer is without
substantial
justification, court may
require the refusing
party to pay proponent
Refusal to
the
reasonable
answer any
expenses incurred in
question
obtaining the order
[Sec. 1 and 2)
(b) If denied, and filed
without
substantial
justification, court may
require proponent to
pay refusing party the
reasonable expenses
incurred in obtaining
the order
Report of Findings [Rule 28, Sec. 3]

(1) If requested by the party examined:
(a) The party causing the examination to
be made shall deliver to him a copy of
a detailed written report of the
examining physician setting out his
findings and conclusions
(2) After such request and delivery:
(a) The party causing the examination to
be made shall be entitled upon
request to receive from the party
examined a like report of any
examination, previously or thereafter
made, of the same mental or physical
condition
PAGE 80
UP LAW BOC
Refusal to
Comply with
Modes of
Discovery
CIVIL PROCEDURE
Refusal to
Comply with
Modes of
Discovery
Sanctions
(2) A refusal to answer after
being directed by court to
do so may be constituted
as contempt of court
REMEDIAL LAW
Sanctions
The court on motion and

notice may:
(1) Strike out all or any part of
Failure of
any
pleading
of
party to
disobedient party
attend or (2) Dismiss the action or
serve
proceeding or any part
answers to
thereof
written
(3) Enter a judgment by
interrogatori
default
against
es
disobedient party
[Sec. 5]
(4) 4. Order payment of
reasonable
expenses
incurred by the other
including attorneys fees
Refusal to be
Cite the disobedient deponent
Sworn [Sec.
in contempt of court
2]
The court may make the
following orders:
(1) Prohibit the disobedient
party to introduce evidence
of physical or mental
condition
(2) Refuse to allow the
disobedient
party
to
Refusal to
support or oppose claims
answer
or defenses
designated (3) Strike out pleadings or
questions or
parts thereof
refusal to (4) Stay further proceedings
produce (5) Dismiss the action or
documents
proceeding or any part
or to submit
thereof
to physical or (6) Render a judgment by
mental
default
against
examination
disobedient party
[Sec. 3]
(7) Direct the arrest of any
party disobeying any of
such orders except an
order to submit to a
physical
or
mental
examination
(8) Other orders as may be
just
NOTE: Expenses and attorneys fees are not to

be imposed upon the Republic of the
Philippines. [Rule 29, Sec. 6]
TRIAL
A trial is the judicial process of investigating
and determining the legal controversies,
starting with the production of evidence by the
plaintiff and ending with his closing
arguments [Acosta v. People (1962)].
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
because it actually embraces several stages in
the litigation. It includes the pre-trial and the
determination of granting or denying a
motion. [Trocio v. Labayo (1973)]
NOTICE OF TRIAL [Rule 30, Sec. 1]
Upon entry of a case in the trial calendar, the

clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date.
The court, upon proper

application, issue an order
requiring the other party to
pay him reasonable expenses
incurred, including attorneys
fees
Refusal to PROVIDED
that
party
admit under requesting
proves
Rule 26
genuineness
of
such
[Sec. 4]
document or truth
UNLESS court finds:
(1) There were good reasons
for denial
(2) Admissions sought were
of no importance
General Rule: When an issue exists, trial is

necessary. Decision should not be made
without trial.
Exceptions: When there may be judgment
without trial
(1) Judgment on the pleading [Rule 34]
(2) Summary Judgment [Rule 35]
(3) Judgment on Compromise
(4) Judgment on Confession
(5) Dismissal with Prejudice [Rule 17]
PAGE 81
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(6) Judgment under Rule on Summary

Procedure, and
(7) Stipulation of fact
If the parties agree only on some of the facts

in issue, trial shall be held as to the disputed
facts in such order as the court shall prescribe.
ADJOURNMENTS AND
POSTPONEMENTS
Stipulation Of Facts in
Civil Cases
May be signed by the
counsel alone who
has an SPA
May be made verbally
or in writing
[Rule 30, Sec. 2]
General Rule: A court may adjourn a trial from

day to day, and to any stated time, as the
expeditious and convenient transaction of
business may require
Stipulation Of Facts in
Criminal Cases
Must be signed by
both counsel and
accused
Strict; it must always
be in writing
An agreed statement of facts is conclusive on

the parties, as well as on the court. Neither of
the parties may withdraw from the agreement,
nor may the court ignore the same. [McGuire v.
Manufactures Life]
Limitation: The court has no power to adjourn

a trial for:
(1) A period longer than one month for each
adjournment; or
(2) More than 3 months in all
ORDER OF TRIAL; REVERSAL OF

ORDER
Exception: Unless authorized in writing by

the Court Administrator, SC
[Rule 30, Sec. 5]
Postponement is not a matter of right. It is

addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela (1989)]
General Rule: Trial shall be limited to the

issues stated in the pre-trial order.
REQUISITES OF
POSTPONE TRIAL
Exceptions:
(1) Provisions on separate trials under Rule 31,
Sec. 2
(2) When for special reasons the court directs
otherwise
MOTION
TO
(1) For absence of evidence [Rule 30, Sec. 3]

(a) Submission of affidavit showing that:
(i) The evidence is relevant; and
(ii) Diligent efforts had been exerted
to procure the evidence
General Order of Trial:

(1) Plaintiffs evidence in chief
(2) Defendants evidence in chief and
evidence in support of his counterclaim,
cross-claim and 3rd-party complaint
(3) 3rd-party defendant shall adduce evidence
of his defense, counterclaim, cross-claim,
and 4th party complaint
(4) 4th-party defendant shall adduce
evidence, and so forth
(5) Parties against whom any counterclaim or
cross-claim has been pleaded shall
adduce evidence in support of their
defense, in the order to be prescribed by
court
(6) Parties may then respectively adduce
rebutting evidence only
(a) Unless the court permits them to
adduce evidence upon original case
(7) Upon admission of evidence, case
submitted for decision
(a) Unless court directs parties to argue
or to submit respective memoranda or
any further pleading
(2) For illness of party or counsel [Rule 30,

Sec. 4]
(a) A motion for postponement stating
the ground relied upon must be filed;
and
(b) The motion must be supported by an
affidavit or sworn certification
showing:
(1)
The presence of such party or
counsel
at
the
trial
is
indispensable; and
(2) That the character of his
illness is such as to render his
non-attendance excusable
AGREED STATEMENT OF FACTS
[Rule 30, Sec. 6]

The parties may agree in writing upon the
facts involved in the litigation and submit the
case for judgment in the facts agreed upon
without the introduction of evidence
PAGE 82
UP LAW BOC
CIVIL PROCEDURE
Reverse Order of Trial:

In this situation, the defendant presents
evidence ahead of the plaintiff
REMEDIAL LAW
law or facts in common with each other [Active

Woods Products Co. Inc. v. CA]
SEVERANCE
When Proper: If the defendant in his answer

relies upon an affirmative defense
When proper: This contemplates a single

action having a number of claims,
counterclaims,
cross-claims,
third-party
complaints or issues which may be separately
tried
Where the answer of the defendant admitted

the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come forward with evidence
to support his special defenses [Yu v. Mapayo]
When separate trial of claims is conducted by

the court under this section, it may render
separate judgments on each claim [see Sec. 5,
Rule 36]
Ratio: Plaintiff need not have to present

evidence since judicial admissions do not
require proof [Sec. 2, Rule 129]
This provision permitting separate trials

presupposes that the claims involved are
within the jurisdiction of the court
When one of the claims is not within its
jurisdiction, the same should be dismissed,
so that it may be filed in the proper court
CONSOLIDATION OR SEVERANCE
OF HEARING OR TRIAL [Rule 31]
CONSOLIDATION
DELEGATION OF RECEPTION OF
EVIDENCE [Rule 30, Sec. 9]
When proper: When actions involving a

common question of fact or law are pending
before the court
General Rule: The judge of the court where the

case is pending shall personally receive the
evidence to be adduced by the parties.
Court action: The court may:

(1) Order a joint hearing or trial of any or all
matters in issue in the actions
(2) Order all actions consolidated
(3) Such orders concerning proceedings
therein as may tend to avoid unnecessary
costs or delay
Exception: The court may delegate the

reception of evidence to its clerk of court who
is a member of the bar in:
(1) Default hearings;
(2) Ex parte hearings;
(3) Cases where parties agree in writing.
Purpose: To avoid multiplicity of suits, guard

against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unnecessary costs and
expenses
However, the clerk of court has no power to

rule on objections to any question/admission
of exhibits.
Where a case has been partially tried before

one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes
the consolidation not mandatory. [PCGG v.
Sandiganbayan (1992)]
Objections shall be resolved by the court upon

submission of the clerks report and TSN
within 10 days from termination of the
hearing.
The rule requires that, where the reception of
evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither
agreement by parties nor their acquiescence
can justify its violation. [Umali-Paco v. Quilala]
It has been held that the rules do not

distinguish between cases filed before the
same branch or judge and those that are
pending in different branches or before
different judges of the same court, in order
that consolidation may be proper, as long as
the cases involve the resolution of questions of
PAGE 83
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Order of Reference: [Rule 32, Sec. 3]

(1) When a reference is made, the clerk shall
furnish the commissioner with a copy of
the order of reference
(2) Contents of the order:
(a) It may specify or limit the powers of
commissioner
(b) It may direct him to report only upon
particular issues; or to do or perform
particular acts; or to receive and
report evidence only
(c) It may fix the date for beginning and
closing the hearings and for the filing
of his report
TRIAL BY COMMISSIONERS [Rule 32]

CONCEPTS
Commissioner - A person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered
General rule: Trial by commissioner depends
largely upon the discretion of the court
Exception: In the following instances,
appointment of a commissioner is necessary:
(1) Expropriation [Rule 67]
(2) Partition [Rule 69]
(3) Settlement of Estate of a Deceased
Person in case of contested claims; and
(4) Submission of Accounting by executors or
administrators
Powers of Commissioner:
(1) Exercise power to regulate the proceeding
before him
(2) Do all acts and take all measures
necessary or proper for the efficient
performance of his duties
(3) Swear witnesses
(4) Issue subpoena and subpoenas duces
tecum
(5) Rule upon the admissibility of evidence
(a) UNLESS otherwise provided in the
order of reference
Kinds of trial by commissioners

(1) Reference by consent of both parties.
(2) Reference ordered on motion when:
(a) Trial of an issue of fact requires the
examination of a long account on
either side
(b) Taking of an account is necessary for
the courts information before
judgment,
or
for
carrying
judgment/order into effect.
(c) A question of fact, other than upon
the pleadings, arises in any stage of a
case or for carrying a judgment/order
into effect.
NOTE: Limitations on the powers of

commissioner are found in the Order
of Reference.
Proceedings before the Commissioner [Rule
32, Sec. 5]
(1) Upon receipt of the order of reference, the
commissioner shall set a time and place
for the first meeting of parties or their
counsel
(2) Notices shall be sent to parties or counsel
(3) Hearing is to be held within 10 days after
date of order of reference
(4) If a party fails to appear, the
commissioner may: [Sec. 6]
(a) Proceed ex parte; or
(b) Adjourn the proceedings to a future
date giving notice to the absent party
REFERENCE BY CONSENT
The court may order any or all of the issues in
a case to be referred to a commissioner by
written consent of BOTH parties. [Rule 32, Sec.
1]
Commissioners are to be:
(1) Agreed upon by the parties; or
(2) Appointed by the court
REPORT OF COMMISSIONER [Rule 32, Sec.

9]
(1) When filed:
(a) Filed upon completion of the trial or
hearing or proceeding before the
commissioner
(b) Filed with the court
REFERENCE ORDERED ON MOTION

When proper:
(1) When trial of an issue of fact requires
examination of long account
(2) When taking of an account is necessary
(3) When question of fact, other than upon
pleadings, arises upon motion or
otherwise, in any stage [Rule 32, Sec. 2]
PAGE 84
UP LAW BOC
CIVIL PROCEDURE
(2) Contents:
(a) Report in writing upon the matters
submitted to him by the order of
reference
(b) When his powers are not specified or
limited, he shall set forth his findings
of fact and conclusions of law in his
report
(c) He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if
any, of testimonial evidence presented
before him
REMEDIAL LAW
DEMURRER TO EVIDENCE
CONCEPTS:
Definition - A species of MTD that may be
invoked based on insufficiency of evidence (i.e.
upon the facts and the law the plaintiff has
shown no right to relief). [Rule 33, Sec. 1]
It is invoked after the plaintiff has presented
all the evidence available to him
Judgment on Demurrer to Evidence
It is a judgment rendered by the court
dismissing a case upon motion of defendant,
made after plaintiff has rested his case, on the
ground that upon the facts presented and the
law on the matter, plaintiff has not shown any
right to relief.
NOTICE AND HEARING ON THE REPORT

[Rule 32, Sec. 10 and 11]
Upon filing of the report of the
commissioner:
(1) Parties shall be notified by the clerk
(2) Parties shall be allowed 10 days within
which to object to the findings of the
report
Distinctions
NOTE: Objections to the report based upon

grounds which were available to the parties
during the proceedings before the
commissioner shall not be considered by the
court UNLESS they were made before the
commissioner
Motion to dismiss
Presented before a
It is presented after
responsive pleading
the plaintiff has
is made by the
rested his case
defendant
It may be based on
The ground is based
any
of
those
on the insufficiency
enumerated in Rule
of evidence
16
Hearing on the Report:

(1) When made: Upon expiration of the 10
day period in Sec. 10
(2) The report shall be then set forth in
hearing
(3) After the hearing, the court shall issue an
order, either:
(a) Adopting, modifying, or rejecting the
report in whole or in part
(b) Or recommitting it with instructions
(c) Or requiring the parties to present
further
evidence
before
the
commissioner or the court
If the motion to
If the motion is
dismiss is denied, the
denied,
the
defendant may file
defendant
may
his
responsive
present his evidence
pleading
If the motion is
granted,
the
complaint
is
dismissed
The
plaintiffs
remedy is to appeal
PAGE 85
If the motion to
dismiss is granted,
the complaint is
dismissed
and
depending on the
ground,
the
complaint may be refiled
UP LAW BOC
CIVIL PROCEDURE
EFFECT OF DENIAL; EFFECT OF

GRANT
Grant of demurrer
WAIVER OF RIGHT TO PRESENT

EVIDENCE
If the order granting the demurrer is reversed
on appeal, the defendant loses his right to
present evidence. [Rule 33, Sec .1; Republic v.
Tuvera (2007)]
Denial of demurrer
The case shall be The defendant shall

dismissed
have the right to
present evidence
Two scenarios:
The court should set

the date for the
reception
of
the
defendants evidencein-chief
[Northwest
Airlines v. CA (1998)]
Motion denied
xxx
Denial
is
INTERLOCUTORY
Sec. 1, Rule 36 (that
judgment
should
state clearly and
distinctly the facts and
the law on which it is
based)
will
NOT
apply.
The denial is NOT
appealable
The appellate court

should
render
judgment on the
basis of the evidence
submitted by the
plaintiff. [Radiowealth
Finance v. Del Rosario
(2000)]
Equivalent
to
judgment (i.e. based
on the merits of the
evidence presented
so far)
Motion granted but

reversed on appeal
Movant shall have the Movant is deemed to

right to present his have waived his right
evidence
to present evidence.
The decision of the
appellate court will
be based only on the
evidence
of
the
plaintiff
as
the
defendant loses his
right to have the case
remanded
for
reception
of
his
evidence
Plaintiff's
remedy
would be to appeal.
However, if the order
granting
the
demurrer is reversed
on
appeal,
the
defendant loses his
right
to
present
evidence. [Rule 33,
Sec 1; Republic v.
Tuvera (2007)]
REMEDIAL LAW
An interlocutory order
and not appealable.
However, it may be
the subject of a
petition for certiorari
for GAD under Rule
65
[Katigbak
v.
Sandiganbayan
(2003)]
PAGE 86
Order of the court is

an ADJUDICATION
ON THE MERITS
Hence,
the
requirement in Sec. 1,
Rule 36 should be
complied with
UP LAW BOC
CIVIL PROCEDURE
Judgments and Final

Orders
DEMURRER TO EVIDENCE IN CIVIL

CASES VERSUS CRIMINAL CASES
Civil Cases
Criminal Cases
Defendant need not

ask for leave of court
May be filed with or

without leave of court.
Leave of court is
necessary so that the
accused could present
his evidence if
demurrer is denied
If the court finds

plaintiffs evidence
insufficient, it will
grant demurrer by
dismissing the
complaint
If the court finds the

prosecutions evidence
insufficient, it will
grant demurrer by
rendering judgment of
acquittal.
JUDGMENTS IN GENERAL
The final ruling by a court of competent
jurisdiction regarding the rights and
obligations of the parties or other matters
submitted to it in an action/proceeding
[Macahilig v. Heirs of Magalit (2000)]
Requisites of a Valid Judgmeny
[Rule 36, Sec. 1; Art. VIII, Sec. 14, 1987
Constitution]
(1) Court/tribunal must be with authority to
hear and determine the matter before it;
(2) Court must have jurisdiction over the
parties and the subject matter;
(3) Parties must have been given an
opportunity to adduce evidence in their
behalf;
(4) Evidence must have been considered by
the tribunal in deciding the case; [Acosta
v. COMELEC (1998)]
(5) Judgment must be in writing, personally
and directly prepared by the judge. A
verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan
(2004)]
(6) Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the
clerk of court. [Rule 35, Sec. 1]
The judgment of
dismissal is
appealable.
If plaintiff appeals and
judgment is reversed
by the appellate court,
it will decide the case Judgment of acquittal
on the basis of
is NOT appealable.
plaintiffs evidence
Double jeopardy sets
with the consequence
in.
that the defendant
already loses his right
to present evidence.
There is no res
judicata in dismissal
due to demurrer.
The plaintiff files a
motion to deny
motion to demurrer to
evidence
The court may motu

proprio deny the
motion
If court denies the

demurrer, defendant
will present his
evidence
If court denies the

demurrer filed with
leave, accused may
present his evidence.
If court denies the
demurrer filed without
leave, accused can no
longer present his
evidence and submits
the case for decision
based on the
prosecutions evidence
REMEDIAL LAW
Kinds of Judgment:
(1) JUDGMENT ON COMPROMISE - It is one
conferred on the basis of a compromise
agreement entered into between the
parties. It is immediately executory in the
absence of a motion to set aside on the
ground of FAME.
(2) JUDGMENT UPON CONFESSION - It is
one rendered by the court when a party
expressly agrees to the other partys claim
or acknowledges the validity of the claim
against him.
(a) JUDGMENT
BY
COGNOVIT
ACTIONEM After service, the
defendant, instead of entering a plea,
acknowledged and confessed that the
plaintiffs cause of action was just and
rightful.
PAGE 87
UP LAW BOC
CIVIL PROCEDURE
(b) JUDGMENT
BY
CONFESSION
RELICTA VERIFICATIONE After
pleading and before trial, the
defendant both: (a) confessed the
plaintiffs cause of action and (b)
withdrew his plea or other allegations,
whereupon judgment was entered
against him without proceeding to
trial.
REMEDIAL LAW
(9) SEPARATE JUDGMENT - It is one

rendered disposing of a claim among
several others presented in a case, after a
determination of the issues material to a
particular claim and all counterclaims
arising out of the transaction or
occurrence that is the subject matter of
said claim. [Rule 36, Sec. 5] It is proper
when more than one claim for relief is
presented in an action for the
determination as to the issues material to
the claim has been made.
(3) JUDGMENT UPON THE MERITS - It is one

that is rendered after consideration of the
evidence submitted by the parties during
the trial of the case. A judgment is on the
merits when it amounts to a legal
declaration of the respective rights and
duties of the parties, based upon the
disclosed facts
(10) MEMORANDUM DECISION - A decision of

the appellate court which adopts the
findings and conclusions of the TC.
(a) A judgment is considered rendered
upon the filing of the signed decision.
(b) This includes an amended decision
because an amended decision is a
distinct and separate judgment and
must
follow
the
established
procedural rule.
(4) CLARIFICATORY JUDGMENT - It is

rendered to clarify an ambiguous
judgment or one difficult to comply with.
(5) JUDGMENT NUNC PRO TUNC - Literally,
now for then. It is a judgment intended
to enter into the record the acts which had
already been done, but which do not
appear in the records. [Lichauco v. Tan
Pho (1923)]
JUDGMENT WITHOUT TRIAL

When trial is NOT necessary:
(1) The pleadings of the parties tender no
issue at all judgment on the pleadings
may be directed by the court [Rule 34]
(2) There is actually no genuine issue from
the pleadings, affidavits, depositions and
other papers court may render a
summary judgment [Rule 35]
(3) Parties entered into a compromise or an
amicable settlement either during the
pre-trial or during the trial [Rule 18; Art.
2028 Civil Code]
(4) Complaint has been dismissed with
prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3;
Rule 7, Sec. 5 (last par.)]
(5) Case falls under the Rules on Summary
Procedure
(6) Agreed statement of facts [Rule 30, Sec. 6]
(6) JUDGMENT SIN PERJUICIO - It may refer

to a dismissal of a case without prejudice
to it being re-filed.
(7) CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an event.
Such a judgment is generally void
because of the absence of a disposition
[Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]
(8) SEVERAL JUDGMENT - It is one rendered
by a court against one or more defendants
and not against all of them, leaving the
action to proceed against the others. [Rule
36, Sec. 4] It is proper when the liability of
each party is clearly separate and distinct
from his co-parties such that the claims
against each of them could have been the
subject of separate suits, and the
judgment for or against one of them will
not necessarily affect the other.
PAGE 88
UP LAW BOC
CIVIL PROCEDURE
CONTENTS OF A JUDGMENT
REMEDIAL LAW
JUDGMENT ON THE
PLEADINGS
Parts of a Judgment
(1) Body, Ratio decidendi, or Opinion of the
court It contains the findings of facts
and conclusions of law;
(2) Fallo, or Disposition of the case It is the
dispositive part of the judgment that
actually settles and declares the rights
and obligations of the parties, finally,
definitively, and authoritatively [Light Rail
Transit Authority v. CA (2004)]; The part of
the judgment that is subject to execution
[Riano]
(3) Signature of the judge
Judgment on the Pleadings is a judgment

rendered by the court if the answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse partys
pleading. It is rendered without a trial, or even
without a pre-trial
It has been held that a motion for a judgment
on the pleadings, were the answer admits all
material averments, is one that may be
considered ex parte because upon the
particular facts thus presented and laid down
before the court, the plaintiff is entitled to a
judgment [Dino v. Valencia], or motu proprio
under Rule 18(2g) [Luzon Dev. Bank v.
Conquilla]
Distinction between Judgment and Opinion

of the Court
(1) A judgment (or FALLO) must be
distinguished from an opinion.
(2) The latter is the informal expression of the
views of the court and cannot prevail
against its final order or decision.
(3) While the two may be combined in one
instrument, the opinion forms no part of
the judgment.
(4) So there is a distinction between the
findings and conclusions of a court and its
judgment.
(5) While they may constitute its decision and
amount to a rendition of a judgment they
are not the judgment itself.
(6) They amount to nothing more than an
order for judgment, which, of course, must
be distinguished from the judgment.
[Freeman on Judgments, Vol. I, 5th Edition,
page 6, quoted in Casilan v. Salcedo (1969)]
Grounds for Judgment on the Pleadings

[Rule 34, Sec. 1]
(1) The answer fails to tender an issue
because of:
(a) General denial of the material
allegations of the complaint;
(b) Insufficient denial of the material
allegations of the complaint; OR
(2) The answer admits material allegations of
the adverse partys pleading
Judgment on the Pleadings is NOT proper
in actions for:
(1) Declaration of Nullity of Marriage
(2) Annulment of marriage; and
(3) Legal Separation
(4) Unliquidated damages; claims for such
damages must be alleged and proved
(5) Admission refers only to allegations of
fact and not conclusions of law
(6) Insufficiency of facts; proper remedy is
amendment
Conflict Between Dispositive Portion and

Body of Decision
Rule: Where there is a conflict between the
fallo and the body of the decision, the fallo
controls.
NOTE: If the complaint states no cause of

action, a motion to dismiss should be filed and
not a motion for judgment on the pleadings.
Qualification: This rule applies only when the

dispositive part is definite, clear, and
unequivocal [Union Bank v. Pacific Equipment
Corporation (2008)]
SUMMARY JUDGMENTS
Summary Judgment is a judgment rendered

by a court without trial if it is clear that there
exists NO GENUINE ISSUE or controversy as
to any material fact, EXCEPT as to the amount
of damages
Basis: The fallo is the final order. The opinion

in the body is merely a statement ordering
nothing [Poland Industrial Limited v. National
Development Company (2005)]
PAGE 89
UP LAW BOC
CIVIL PROCEDURE
Genuine Issue - an issue of fact which calls for

the presentation of evidence as distinguished
from an issue, which is a sham, fictitious,
contrived, and patently unsubstantial so as
not to constitute a genuine issue for trial
WHEN THE CASE IS NOT FULLY

ADJUDICATED
Partial Summary Judgment - Applies when
for some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
PROCEDURE [Rule 35, Sec. 3]
(1) Movant files a motion for summary

judgment with supporting affidavits,
depositions or admission
(2) Service to the adverse party at least 10
days the hearing
(3) Adverse party may serve opposing
affidavits, depositions or admissions at
least 3 days before the hearing
(4) Hearing Court shall determine if a
genuine issue as to any material fact
exists and if the movant is entitled to a
summary judgment as a matter of law
(5) Court renders summary judgment
Nature It is interlocutory in nature and is not

a final and appealable judgment. [Guevarra v.
CA]
Duty of the Court [Rule 35, Sec. 4]
(1) Ascertain what material facts exist
without substantial controversy and what
are actually and in good faith
controverted based on:
(a) An examination of the pleadings and
evidence before it
(b) Interrogation of the counsel
NOTE: Damages must still be proven even if

not denied.
(2) Make an order specifying the facts and the

extent of the amount of damages that
appear without substantial controversy
Bases for Summary Judgment:

(1) Affidavits made on personal knowledge;
(2) Depositions of the adverse or a 3rd party;
[Rule 23]
(3) Admissions of the adverse party; [Rule 26]
(4) Answers to interrogatories. [Rule 25]
(3) Direct further proceedings as are just

(4) Conduct trial on the controverted facts
accordingly
Effect - A partial summary judgment is not a
final judgment, but merely a pre-trial
adjudication that said issues in the case shall
be deemed established for the trial of the
case. [Guevarra v. CA (1983)]
WHO MAY FILE

Who may file the
motion
Claimant
Defendant
REMEDIAL LAW
When
May file the motion only
after the answer has been
served
May file the motion any
time
AFFIDAVITS AND ATTACHMENTS

These are submitted to support the motion for
summary judgment.
NOTE: Filing of a motion for summary

judgment does not interrupt the running of
the period for filing an answer. Hence, the
movant must also file a Motion for Extension
of Time to File Answer.
Form of affidavits and supporting papers

[Rule 35, Sec. 5]
(1) Made on personal knowledge
(2) Shall set forth such facts as would be
admissible in evidence
(3) Shall show affirmatively that the affiant is
competent to testify to the matters stated
therein.
(4) Sworn or certified true copies of all papers
or parts thereof referred to in the affidavit
shall be attached thereto OR served
therewith.
TEST: Whether or not the pleadings, affidavits

and exhibits in support of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, there is no defense to the action or claim
is clearly meritorious [Estrada v. Consolocaion,
et al.]
PAGE 90
UP LAW BOC
CIVIL PROCEDURE
Affidavits in bad faith

(1) Affidavits presented under this Rule which
appear to the court at any time as
presented in bad faith or solely for the
purpose of delay
(2) Effects:
(a) Court shall order the offending party
or counsel to pay the other party
amount of reasonable expenses which
the filing of the affidavits caused him
to incur, including attorneys fees
(b) Court may adjudge the offending
party or counsel guilty of contempt,
after hearing
Summary
Judgment
Available only
in actions to
recover a
debt, or for a
liquidated
sum of money
or for
declaratory
relief
If filed by
plaintiff, it
must be filed
at any time
after an
answer is
served.
If filed by
defendant,
may be filed
at any time
even before
there is
answer
SUMMARY JUDGMENT
Validity: Sec. 3, Rule 35 requires:

(1) That there must be NO genuine issue as
to any material fact, except for the
amount of damages; and
(2) That the party presenting the motion for
summary judgment must be entitled to a
judgment as a matter of law
SUMMARY JUDGMENT v.
JUDGMENT ON THE PLEADINGS v.
JUDGMENT BY DEFAULT
Summary
Judgment
Based on the
pleadings,
depositions,
admissions,
and affidavits
Available to
both plaintiff
and
defendant
There is no
genuine issue
between the
parties
i.e. There may
be issues but
these are
irrelevant
10-day notice
required
May be
interlocutory
or on the
merits
Judgment on Judgment by
The Pleadings
Default
Available in
Available in
any action
any action
except
except
annulment of annulment of
marriage, or marriage, or
legal
legal
separation
separation
cases
cases
There is
already an
answer filed
There is no
answer filed
RENDITION OF JUDGMENTS
AND FINAL ORDERS
Judgment on Judgment by
The Pleadings
Default
Based on the
complaint
Based solely
and evidence,
on the
if
pleadings
presentation
is required
Generally
available only
to the plaintiff,
Available to
unless the
plaintiff
defendant
presents a
counterclaim
FORM OF JUDGMENT [Rule 36, Sec. 1]
(1) In writing
(2) Personally and directly prepared by the
judge
(3) Stating clearly & distinctly the facts and
the law on which it is based
(4) Signed by the judged
(5) Filed with the clerk of court.
DEFINITION
JUDGMENT
OF
RENDITION
OF
It is the filing of the judgment with the clerk of

court. It is not the pronouncement of the
judgment in open court that constitutes the
rendition. Even if the judgment has already
been put in writing and signed, it is still
subject to amendment if it has not yet been
filed with the clerk of court and before its filing
does not yet constitute the real judgment of
the court. [Ago v. CA (1962)]
The answer
fails to tender No issue as
an issue or
no answer is
there is an
filed by the
admission of
defending
material
party
allegations
3-day notice
required
REMEDIAL LAW
3-day notice
rule applies
On the merits On the merits
PAGE 91
UP LAW BOC
CIVIL PROCEDURE
PERIOD OF RENDITION [Art VIII, Sec. 5,
ENTRY OF JUDGMENTS AND FINAL

ORDERS [Rule 36, Sec. 2]
1987 Constitution]
(1) All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
(2) Unless reduced by the SC, within 12
months for lower collegiate courts and
within 3 months for all other lower courts.
When entered: If no appeal or motion for new

trial or reconsideration is filed within the time
provided in the Rules, judgment or final order
shall forthwith be entered by the clerk in the
book of entries of judgments
Date of Finality: Date of finality is the date of
entry.
A case is deemed submitted for resolution

upon the filing of the last pleading, brief or
memorandum required by the Rules of Court
or by the court.
Contents of the Records in the Book of Entries:

(1) Dispositive part of the judgment or final
order
(2) Signed by the clerk with a certification
that such judgment or final order has
become final and executory.
An extension of the period may be set by the

SC upon request by the judge concerned on
account of heavy caseload or by other
reasonable excuse [Arap v Mustafa (2002)]
AMENDMENTS TO JUDGMENT
ENTRY OF JUDGMENT AND

FINAL ORDER
General Rule: Once a judgment becomes final

and executory, such judgment can no longer
be disturbed, altered, or modified
DEFINITION
The entry of judgment refers to the physical
act performed by the clerk of court in entering
the dispositive portion of the judgment in the
book of entries of judgment after the same
has become final and executory. [Riano]
Exceptions:
(1) Clerical errors
(2) Nunc Pro Tunc entries
(3) Void judgments - Final judgment can be
annulled on the ground of fraud or lack of
jurisdiction or contrary to law [Panlilio v.
Garcia]
(4) Whenever circumstances transpire after
finality of the decision making its
execution unjust and inequitable:
(a) Cases where, because of supervening
events, it becomes imperative, in the
higher interest of justice, to direct its
modification in order to harmonize the
disposition with the prevailing
circumstances [Seavan Carrier Inc. v.
GTI Sportswear Corp.]
(b) Whenever it is necessary to
accomplish the aims of justice
[Pascual v. Tan]
It is the filing of the signed decision with the

clerk of court, and not its pronouncement in
open court that constitutes rendition of
judgment [Ago v. CA]
Promulgation refers to the process by which a
decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel
Rendition of judgment
REMEDIAL LAW
Entry of judgment
Act of clerk of court in

entering
the
Filing
of
the
dispositive portion of
judgment with the
the judgment in the
clerk of court
book of entries of
judgment
PAGE 92
UP LAW BOC
Amended/clarified
judgment
An
entirely
new
decision
and
supersedes
the
original judgment
Court
makes
a
thorough study of the
original judgment and
renders the amended
and
clarified
judgment only after
considering all the
factual and legal
issues
CIVIL PROCEDURE
REMEDIAL LAW
NOTE: Fraud must be extrinsic fraud

which means any fraudulent scheme
executed by the prevailing party
outside of the trial against the losing
party who because of such fraud is
prevented from presenting his side of
the case.
Supplemental decision
Does not take the
place of or extinguish
the original judgment
(2) Newly discovered evidence

(a) Requisites:
(i) It must have been discovered after
the trial
(ii) It could not have been discovered
and produced at the trial even
with the exercise of reasonable
diligence; and
(iii) The evidence is of such weight
that if admitted, would probably
alter the result of the action; and
(iv) It must be material and not
merely collateral, cumulative, or
corroborative
Serves to add to the

original judgment
Post-Judgment
Remedies
Grounds for Motion for Reconsideration:

(1) Damages awarded are excessive
(2) Evidence is insufficient to justify the
decision or final order
(3) The decision or final order is contrary to
law
MOTION FOR
RECONSIDERATION AND
MOTION FOR NEW TRIAL
REMEDIES BEFORE FINALITY OF
JUDGMENT
WHEN TO FILE:
(1) Motion for reconsideration

(2) Motion for new trial
(3) Appeal
An aggrieved party may file a motion for new

trial or reconsideration within the period for
taking an appeal.
DEFINITION
The motions are filed with the court which

rendered the questioned judgment or final
order.
A motion for reconsideration under Rule 37 is

directed against a judgment or final order. It is
not the motion for reconsideration of
interlocutory order, which often precedes a
petition for certiorari under Rule 65. It does
not apply to cases that fall under Summary
Procedure.
The period for appeal is within 15 days after

notice to the appellant of the judgment or
final order appealed from. The 15-day period
is deemed to commence upon receipt by the
counsel of record, which is considered notice
to the parties. Service upon the parties
themselves is prohibited and is not considered
as official receipt of judgment.
GROUNDS: [Rule 37, Sec. 1]

Grounds for Motion for New Trial:
(1) FAME Fraud, accident, mistake,
excusable negligence
(a) Conditions:
(i) Which ordinary prudence could
not have guarded against; and
(ii) By reason of which such aggrieved
party has probably been impaired
in his rights
Effect of Filing The filing of a timely motion

interrupts the period to appeal.
PAGE 93
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Amend such judgment or final order

accordingly if:
(a) The court finds that excessive
damages have been awarded or that;
or
(b) That the judgment or final order is
contrary to the evidence or law
FORM AND CONTENTS [Rule 37, Sec. 2]
Form:
(1) The motion must comply with the
provisions of Rule 15 otherwise it will not
be accepted for filing and/or will not
suspend the running of the reglementary
period.
(2) It shall be made in writing, stating the
ground or grounds therefor
(3) Written notice shall be served by movant
on the adverse party
Resolution [Rule 37, Sec. 4] he motion shall

be resolved within 30 days from submission
The 30-day period to resolve the motion is
held to be mandatory [Gonzales v. Bantolo
(2006)]
NOTE: Non-compliance with this

requirement would reduce the motion
to a mere pro forma motion, which
shall not toll the period for appeal.
GRANT OF THE MOTION; EFFECT
Contents of a motion for new trial

(1) If based on FAME, it shall be supported by
an affidavit of merits
Grant of motion for reconsideration

The court may amend the judgment or final
order accordingly. The amended judgment is
in the nature of a new judgment, which
supersedes the original judgment.
NOTE: An affidavit of merits is one which

recites the nature and character of FAME
on which the motion is based and stating
the movants good and substantial cause
of action or defense and the evidence he
intends to present if granted
Grant of motion for new trial

The original judgment shall be vacated, and
the action shall stand for trial de novo. The
recorded evidence upon the former trial shall
be used at the new trial without retaking them
(if they are material and competent).
(2) If based on newly found evidence, it shall

be supported by:
(a) Affidavits of witnesses by whom such
evidence is expected or given; or
(b) Duly authenticated documents which
are proposed to be introduced in
evidence
Partial grant
Rule 37, Sec. 7 allows the court to order a new
trial or grant reconsideration as to such issues
if severable without interfering with the
judgment or final order upon the rest.
Contents of a motion for reconsideration

(1) Shall point out specifically the findings or
conclusions of the judgment or final order
which are not supported by evidence or
which are contrary to law
(2) Make express reference to testimonial or
documentary evidence or provisions of law
alleged to be contrary to such findings or
conclusions
REMEDY
WHEN
MOTION
DENIED; FRESH 15-DAY RULE
IS
Effect of Denial of Motion The judgment or

final order shall stand as is
Single-Motion Rule [Rule 37, Sec. 5]
A party shall not be allowed to file a 2nd
motion for reconsideration.
Follow the Omnibus Motion Rule
RESOLUTION OF MOTION AND

COURT ACTION
NOTE: While a 2nd motion for reconsideration

is not allowed, a second motion for new trial is
authorized
However, it must be based on a ground not
existing nor available when the 1st motion
was made within the period allowed but
excluding the time during which the first
motion had been pending.
Court action The court may: [Rule 37, Sec. 3]

(1) Set aside the judgment or final order and
grant a new trial; or upon such terms as
may be just
(2) Deny the motion
PAGE 94
UP LAW BOC
CIVIL PROCEDURE
Fresh 15-Day Rule: The aggrieved party has a

fresh period of 15 DAYS within which to file
his appeal.
Motion for New Trial
NOTES:
(1) This fresh period becomes significant only
when a party opts to file a motion for new
trial or reconsideration
(2) This rule does not refer to the period
within which to appeal from the order
denying the motion for reconsideration
but to the period within which to appeal
from the judgment itself.
Filing of a proper motion for new trial
interrupts the running of the period of appeal
which begins to run again from receipt of the
notice of the movant of the order denying his
motion (fresh 15 day period) [Phil. Commercial
and Industrial Bank v. Ortiz]
Remedies if Motion is DENIED:
(1) To appeal from the judgment or final
order itself
(2) The order denying the motion may itself
be assailed by a petition for certiorari
under Rule 65
(3) Rule 37, Sec. 9 says that an order denying
a motion for new trial or reconsideration is
NOT appealable
(a) NOTE HOWEVER: AM 07-7-12
amended Sec. 1 of Rule 41 by deleting
An order denying a motion for new
trial or reconsideration from the nonappealable orders.
Grounds:
(1) Fraud, accident,
mistake,
or
excusable
negligence
(2) Newly discovered
evidence
Note
the
qualifications
of each
Motion for
Reconsideration
Second motion from
the same party is
prohibited.
Second motion may

be allowed so long
as based on grounds
not existing or
The prohibition
available at the time applies only to final
the first motion was orders or judgments,
made
hence it is allowed in
interlocutory orders
If the court finds that
If a new trial is excessive
damages
granted,
original have been awarded or
judgment or final that the judgment or
order is vacated.
final order is contrary
The case stands for to the evidence or law,
trial de novo and will it may amend such
be tried anew
judgment or final
order accordingly
Available even on Available against the
appeal but only on judgments or final
the ground of newly orders or both the trial
discovered evidence and appellate courts
Both are prohibited motions under Summary
Procedure
If the motion is denied, the movant has a

fresh period of 15 days from receipt or notice
of the order denying the motion for new trial
or motion for reconsideration within which to
file an appeal. [Neypes v. CA, 2005]
Motion for New Trial
REMEDIAL LAW
APPEALS IN GENERAL
NATURE OF APPEAL
(1) Not a natural right nor a part of due

process
(2) It is merely a statutory right, and may be
exercised only in the manner and in
accordance with provisions of the law. It
must comply with the requirements;
failing to do so, the right to appeal is lost
(3) Once granted, appeals become part of
due process and should be liberally
applied in favor of the right to appeal
JUDGMENTS AND FINAL ORDERS

SUBJECT TO APPEAL; MATTERS
NOT APPEALABLE
Motion for
Reconsideration
Grounds:
(1) Damages awarded
are excessive
(2) That evidence is
insufficient
to
justify the decision
or final order
(3) 3. That decision
or final order is
contrary to law
Rule 41, Sec. 1, as amended by AM 07-7-12-SC

(2007) provides:
(1) Appeal may be taken from a judgment or
final order that completely disposes of the
case, or of a particular matter therein
when declared by the Rules to be
appealable
PAGE 95
UP LAW BOC
CIVIL PROCEDURE
(2) No appeal may be taken from:

(a) An order denying a petition for relief
or any similar motion seeking relief
from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an
appeal;
(d) An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress, or
any other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or
against one or more of several parties
or in separate claims, counterclaims,
cross-claims
and
third-party
complaints, while the main case is
pending, unless the court allows an
appeal therefrom; and
(g) An order dismissing an action without
prejudice.
REMEDIAL LAW
indicates that other things remain to be done.

[BPI v. Lee (2012)]
REMEDY AGAINST JUDGMENTS

AND ORDERS WHICH ARE NOT
APPEALABLE
The aggrieved party may file a special civil

action under Rule 65. [Rule 41, Sec. 1]
MODES OF APPEAL
(1) Ordinary appeal Rule 40 and 41

(a) Notice of appeal
(b) Record on appeal
(2) Petition for review Rule 42
(3) Petition for review on certiorari Rule 45
Ordinary
Appeal
Petition for
Review
Appeal by
Rule 42
writ of error
Case is
Case decided
decided by by RTC in the
RTC in its exercise of its
original
appellate
jurisdiction jurisdiction
Petition for
Appealed to
review with
the CA
the CA
File a verified
petition for
review with
File notice of
CA.
appeal or
Pay docket
record of
and lawful
appeal with
fees and
court of
P500 as
origin and
deposit for
give a copy
costs with
to adverse
the CA.
party
Furnish RTC
and adverse
party a copy
of such
Within 15
Within 15
days from
days from
notice of
notice of
judgment for decision to
notice of
be reviewed
appeal and
or from
30 days for denial of a
records on
MFR or
appeal
MFNT
NOTE: AM 07-7-12-SC removed from the

original list an order denying a motion for
new trial or reconsideration.
NOTE, HOWEVER: Rule 37, Sec. 9 which
states that no appeal can be made from
an order denying MR or MNT.
Only final judgments or orders can be
appealed as distinguished from interlocutory
judgments or orders which are not
appealable.
Final Order
Interlocutory Order
Disposes of the
Does not dispose of a
matter in its entirety, case completely but
leaving nothing more
leaves something
to be done but to
more to be decided
enforce execution
upon.
Not appealable except
through a petition for
Appealable
certiorari under Rule
65
Must clearly and
No need to comply
distinctly state the law
with such a
and the facts on
requirement
which it is based
An interlocutory order is one that does not
finally dispose of the case, and does not end
the court's task of adjudicating the parties
contentions and determining their rights and
liabilities as regards each other, but obviously
PAGE 96
Petition for
Review on
Certiorari
Rule 45
Case decided by
the RTC, CA,
CTA, and
Sandiganbayan
Appealed to the
SC
File verified
petition for
review on
certiorari with
the SC.
Pay docket and
lawful fees and
P500 for costs.
Submit proof of
service of a copy
to the lower
court and
adverse party
Within 15 days
from notice of
judgment or
order of denial
of MFR or
MFNT
UP LAW BOC
CIVIL PROCEDURE
ISSUES TO BE RAISED ON APPEAL
Period to Appeal
Limited to cognizable judgments/issues.
Rationale: Appeal is merely a privilege

conferred by law upon the litigants.
A party cannot change the theory on appeal.
Only issues pleaded in the lower court and
properly raised may be resolved by the
appellate court. [Medina v. CA (1992)]
However, issues which are inferred from or
necessarily connected with the issue properly
raised and pleaded may be resolved by the
appellate court. [Espina v. CA (1992)]
PERIOD OF APPEAL
Extensions
MTC to RTC
By notice of
appeal; within 15
No
days from notice of extensions
judgment or final
allowed
order
By record of
appeal;
within 30 days
from notice of
judgment or final
order
RTC to CA
By notice of
appeal;
No
Within 15 days
extensions
from notice of
allowed
judgment or final
order
By record of
appeal;
within 30 days
from notice of
judgment or final
order
Extensions
MTC to RTC to CA
The CA may
grant a 15 day
extension.
15 days from
No further
notice of the
extension shall
judgment or final
be granted
order OR from
except for the
denial of MR or
most compelling
MNT
reasons and in no
case longer than
15 days.
QJA to CA
15 days from
The CA may
notice of the
grant a 15 day
award, judgment, extension. No
final order or
further extension
resolution or
shall be granted
from date of last except for the
publication if
most compelling
required by law reasons and in no
OR from denial of case longer than
MR or MNT
15 days.
RTC to SC
RTC to CA to SC
CA to SC
The appellate court has no jurisdiction to

review a judgment which is immediately final
and executory by express provision of law.
[Republic v. Bermudez-Lorino (2005)]
Period to Appeal
REMEDIAL LAW
Effect of MR
or MNT
Interrupts
period to
appeal
15 days from
notice of
The SC may grant
judgment or final
a 30 day
order OR from
extension for
denial of
justifiable
petitioners MR or
reasons.
MNT.
Effect of
MR or
MNT
Fresh
period
to
appeal
from
denial
MR or
MNT
Fresh
period
to
appeal
from
denial
MR or
MNT
Fresh
period
to
appeal
from
denial
MR or
MNT
The fresh period rule shall apply to:

(1) Rule 40 governing appeals from the
Municipal Trial Courts to the Regional
Trial Courts;
(2) Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals;
(3) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(4) Rule 45 governing appeals by certiorari to
the Supreme Court. The new rule aims to
regiment or make the appeal period
uniform, to be counted from receipt of the
order denying the motion for new trial,
motion for reconsideration (whether full or
partial) or any final order or resolution.
[Neypes v. CA, (2005)]
Interrupts
period to
appeal
PAGE 97
UP LAW BOC
CIVIL PROCEDURE
Being procedural in nature, Neypes is deemed

to be applicable to actions pending and
undetermined at the time of its effectivity and
is thus retroactive in that sense and to that
extent. [First Aqua Sugar v. BPI (2007)]
WHEN TO APPEAL [Rule 40, Sec. 2]
(1) If by notice of appeal, within 15 days after

notice to appellant of judgment or final
order appealed from
(2) If record of appeal is required, within 30
days from notice of judgment or final
order
(3) Period of appeal shall be interrupted by a
timely motion for new trial or
reconsideration
PERFECTION OF APPEAL
Perfection of an appeal in the manner and

within the period laid down by law is
mandatory and jurisdictional. [Balgami v. CA
(2004)]
NOTE: The fresh 15 day period rule applies.
Effect of Failure to Perfect Appeal

(1) Defeats a partys right to appeal.
(2) Precludes appellate court from acquiring
jurisdiction.
HOW TO APPEAL [Rule 40, Sec. 3]

By Notice of Appeal
(1) File a notice of appeal with the trial court
that rendered the judgment or final order
appealed from
(2) The notice of appeal must indicate the
parties, the judgment or final order or part
thereof appealed from; the material date
showing timeliness of appeal
(3) A copy served on the adverse party; and
(4) Payment in full of docket fees and other
lawful fees
APPEAL FROM MUNICIPAL

TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
[Rule 40]
OUTLINE OF PROCEDURE [Rule 40,
Sec. 7]
Appeal decision of MTC by filing notice of appeal

and pay within 15 days from receipt of judgment
15 days from perfection of appeal,
MTC clerk transmits record to RTC
Notice to parties that an appeal is being taken
from the decision of the MTC
Within 15 days from notice of appeal:
(1) Appellant submits memorandum to the RTC
(2) Appellee files his own memorandum 15 days
from receipt of appellants memorandum
Court acts on the appeal
If uncontested,
judgment is entered
in the book of
entries
REMEDIAL LAW
Any party may

appeal by filing a
petition for review
with the CA
WHERE APPEAL IS TAKEN
It is taken to the RTC exercising jurisdiction

over the area to which the MTC pertains. [Rule
40, Sec. 1]
PAGE 98
By Record on Appeal
(1) Record on appeal is required for the
following cases:
(a) Special proceedings
(b) In such other cases where multiple
appeals are allowed
(2) Form and contents of the record on
appeal: [Rule 41, Sec. 6]
(a) Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall transmit
to the RTC:
(i) Original record or record on
appeal
(ii) Together with transcripts and
exhibits
(b) Clerk shall make a certification that
the documents are complete
(c) Clerk shall also furnish the parties a
copy of his letter of transmittal of the
records to the appellate court
(3) Copy is served on the adverse party
lawful fees
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(a) This mode of appeal, governed by

Rule 41, is taken to the CA on
questions of fact or mixed questions
of fact and law
Since appeals from inferior courts may now be

either by notice of appeal or record on appeal,
the rules on the perfection and the effect
thereof are the same. See Sec. 9, Rule 41
(2) PETITION FOR REVIEW, where judgment

was rendered by the RTC in the exercise of
its appellate jurisdiction
(a) This mode of appeal, covered by Rule
42, is brought to the CA on question
of fact, of law, or mixed questions of
fact and law
APPEAL FROM ORDERS

DISMISSING THE CASE WITHOUT
TRIAL; LACK OF JURISDICTION
[Rule 40, Sec. 8]
Two Scenarios:
(3) PETITION FOR REVIEW ON CERTIORARI,

or appeal by certiorari to the SC
(a) This mode of appeal, provided for by
Rule 45, is brought to the SC from the
decision of the RTC in the exercise of
its original jurisdiction and only on
questions of law
(1) If the MTC dismissed the case without trial

on the merits, the RTC may:
(a) AFFIRM, if the ground of dismissal is
lack of jurisdiction over the subject
matter
(i) If the RTC has jurisdiction, it shall
try the case on the merits as if the
case was originally filed therein
HOW ORDINARY APPEAL VIA RULE

41 IS MADE:
(b) REVERSE, in which case, it shall

remand the case for further
proceedings
Appeal via Rule 41 presupposes that:

(1) The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its ORIGINAL
jurisdiction; and
(2) That the appeal is taken to the CA on:
(a) Questions of fact or
(b) Mixed questions of fact and law
(2) If the case was tried on the merits by the

MTC without jurisdiction over the subject
matter:
(a) The RTC shall NOT dismiss the case if
it has original jurisdiction
(b) If it has original jurisdiction, the RTC
shall decide the case and admit
amended pleadings or additional
evidence
Notice of Appeal Filed with the court which

rendered the judgment or final order
appealed from. A copy is served on the
adverse party. [Rule 41, Sec. 5]
APPLICABILITY OF RULE 41
The other provisions of Rule 41 shall apply to

appeals provided for herein insofar as they are
not inconsistent with or may serve to
supplement the provisions of this Rule.
Contents of the Notice of Appeal:

(1) Parties to the appeal
(2) Judgment or final order or part thereof
appealed from
(3) The court to which the appeal is being
taken; and
(4) The material dates showing the timeliness
of the appeal
APPEAL FROM THE REGIONAL

TRIAL COURTS [Rule 41]
Modes of Appeal: There are three modes of
appeal from judgments or final orders of the
RTC:
Record on Appeal Done in special

proceedings and other cases where multiple
or separate appeals are allowed. This is filed
and served in the same manner as notice of
appeal.
(1) ORDINARY APPEAL or appeal by writ of

error, where judgment was rendered in a
civil or criminal action by the RTC in the
exercise of its original jurisdiction
PAGE 99
UP LAW BOC
CIVIL PROCEDURE
Contents of the Record [Rule 41, Sec. 6]

(1) Full names of all the parties to the
proceedings shall be stated in the caption
of the record on appeal
(2) It shall include the judgment or final order
from which the appeal is taken,
(3) In chronological order, copies of only such
pleadings, petitions, motions, and all
interlocutory orders as are related to the
appealed judgment or final order
(4) For the proper understanding of the issue
involved
(5) Together with such data as will show that
the appeal was perfected on time
REMEDIAL LAW
Extension of Period to Appeal

Period to appeal may be extended but such
extension is addressed to the sound discretion
of the court [Socco v. Garcia]
The mere filing and pendency of motion for
extension to perfect appeal does not suspend
the running of the reglementary period [Bello
et al., v. Fernandez]
PLEADINGS
FILED
[See
Rule
44,
Procedure in the CA]
Appellants Brief
(1) Filed within 45 days from receipt of notice
of clerk that all evidence is attached to
record
(2) Follow the Efficient Use of Paper Rule, one
original properly marked and 2 copies
with annexes
(3) Attach proof of service to adverse party
Approval of the Record on Appeal [Rule 41,

Sec. 7] Upon filing of the record for approval
and if no objection is filed by the appellee
within 5 days from receipt of a copy thereof,
the trial court may:
(1) Approve it as presented; or
(2) Direct its amendment by the inclusion of
any omitted matters which are deemed
essential
Grounds for dismissal with respect to

appellants brief:
(1) Failure to file brief on time
(2) Failure to make specific assignment of
errors in his brief
Joint Record on Appeal [Rule 41, Sec. 8]

Where both parties are appellants, they may
file a joint record on appeal.
Contents:
(1) Subject index
(2) Assignment of Errors
(3) Statement of the Case
(4) Statement of Facts
(5) Statement of Issues
(6) Arguments
(7) Relief
(8) Copy of judgment or final order appealed
from
PERIOD TO APPEAL [Rule 41, Sec. 2]
(1) 15 days from notice of judgment or final

order appealed from
(2) 30 days from notice of judgment or final
order where a record on appeal is required
(3) 48 hours from notice of judgment or final
order appealed from in habeas corpus
cases
Reckoning point of reglementary period:
Period for filing the appeal should be counted
from the date when the partys counsel
received a copy of the judgment or final order
Appellees Brief:
(1) Filed within 45 days from receipt of
appellants brief
(2) Manner of filing is similar to that in
appellants brief
When a party is represented by a counsel,

service of process must be made on counsel,
not on party [Fajardo v. CA]
Contents:
(1) Subject index
(2) Statement of Facts
Statement of Facts
(3) Arguments
Effect of Motions for New Trial and

Reconsideration Originally, the period to
appeal is interrupted by a timely motion for
new trial and reconsideration. However, with
the Neypes doctrine, a party has a fresh 15-day
period from a denial of the motion to perfect
an appeal.
and
Counter-
Appellants Reply Brief

(1) Filed within 20 days from receipt of
appellees brief
(2) This is not mandatory as it is optional on
the part of the appellant
PAGE 100
UP LAW BOC
CIVIL PROCEDURE
Extension of Time for Filing Briefs:

(1) General rule: Not allowed
(2) Exception: For good reasons and only if
motion for extension is filed before
expiration of time sought to be extended
REMEDIAL LAW
Residual Powers/Jurisdiction of the RTC

After losing jurisdiction but prior to the
transmittal of the original record on appeal,
the RTC may:
(1) Order execution pending appeal under
Rule 39, Sec. 2 (motion for execution was
filed before expiration of the period to
appeal)
(2) To issue orders for preservation of the
rights of the parties which do not involve
matters litigated by appeal
(3) To approve compromise prior to the
transmittal of the record
(4) Permit appeal by an indigent
(5) Allow withdrawal of the appeal
Payment of Docket Fees [Rule 41, Sec. 4]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful fees.
Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.
The concept of residual jurisdiction of the trial

court is available at a stage in which the court
is normally deemed to have lost jurisdiction
over the case or the subject matter involved in
the appeal. There is no residual jurisdiction to
speak of where no appeal or petition has even
been filed [Fernandez v. CA)]
Payment of docket fees in full is mandatory

and is a condition sine qua non for the
perfection of an appeal.
Perfection of Appeal [Rule 41, Sec. 9]
(1) If appeal is by notice of appeal it is
deemed perfected as to him upon the
filing of the notice of appeal in due time
(2) If appeal is by record on appeal it is
perfected as to him with respect to the
subject matter thereof, upon approval of
the record on appeal filed in due time
Duty of Clerk Upon Perfection of Appeal

[Rule 41, Sec. 10]
Within 30 days after perfection of all appeals,
the RTC clerk shall:
(1) Verify completeness of original record or
record on appeal and make certification
as to its correctness
(2) Verify completeness of records that will be
transmitted to appellate court
(3) If found to be incomplete:
(a) Take such measures as may be
required to complete records
(b) If efforts to complete records fail:
(i) Indicate in his letter of transmittal
the exhibits or transcripts not
included
(ii) Reasons for their transmittal
(iii) Steps taken or that could be taken
to have them available
(4) Transmit the records to appellate court
and furnish the parties with copies of his
letter of transmittal
Effect of Perfected Appeal

(1) In appeals by notice of appeal:
(a) Court loses jurisdiction over the case
upon perfection of appeal filed in due
time and expiration of the time to
appeal of the other parties
(b) NOTE: This rule applies individually
and to each of the parties since the
timeliness of their recourse for
appellate remedy depends on when
they respectively received a copy of
the judgment or final order
(2) In appeals by record on appeal:
(a) Court loses jurisdiction only over the
subject matter thereof upon approval
of the records on appeal filed in due
time and the expiration of the time to
appeal of the other parties
(b) NOTE: The effect is limited to the
subject matter only. Jurisdiction over
the case is still with the trial court
DISMISSAL OF APPEAL [Rule 41, Sec. 13]

When can the RTC dismiss the appeal?
(1) Prior to transmittal of original record to
appellate court; or
(2) Prior to transmittal of record on appeal to
the appellate court
PAGE 101
UP LAW BOC
CIVIL PROCEDURE
How done: By the court, motu proprio, or on

motion to dismiss appeal by a party
REMEDIAL LAW
Conditions:
(1) There was a motion filed to this effect
lawful fees as well as deposit for costs
(3) To be done within the reglementary
period
Grounds:
(1) Appeal was taken out of time
(2) Non-payment of docket and other lawful
fees within the reglementary period
No further extension may be granted EXCEPT

for the most compelling reason and in no case
to exceed 15 days.
NOTE: The dismissal of the appeal in RTC is

limited only to these two grounds
PETITION FOR REVIEW FROM

THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
FORM AND CONTENTS OF THE

PETITION FOR REVIEW [Rule 42, Sec. 5]
Form of the petition:
(1) Original copy is filed intended for the
court, properly marked and 2 copies with
their annexes (Efficient Use of Paper Rule)
(2) Accompanied by clearly legible duplicate
originals or true copies of judgments or
final orders of both lower courts certified
correct by the RTC clerk
(3) Also with pleadings and other material
portions of record as would support the
allegations of the petition
[Rule 42]
Under this mode of appeal, it is NOT a matter

of right but is a matter of DISCRETION on the
part of the CA on whether or not to entertain
the appeal.
Appeal via Rule 42 is proper when one
appeals from a decision of the RTC in the
exercise of its APPELLATE jurisdiction.
Appeal under Rule 42 may be on either
questions of fact or of law or on mixed
questions of both
Contents of the petition:

(1) Full names of the parties without
impleading the lower courts or judges
thereof
(2) Specific material dates showing timeliness
of appeal
(3) Concise statement of:
(a) Matters involved
(b) Issues raised
(c) Specification of errors of fact or law, or
both
(d) Reasons or arguments relied upon
(4) A certificate of non-forum shopping must
also be attached
HOW APPEAL IS TAKEN; PERIOD

OF APPEAL [Rule 42, Sec. 1]
If a party desires to appeal from a decision of
the RTC in its appellate jurisdiction:
(1) File a VERIFIED petition for review with
the CA
(a) Within 15 days from notice of decision,
or
(b) Within 15 days from notice of denial of
petitioners motion for new trial or
reconsideration
(2) Pay the corresponding docket fee and
other lawful fees and depositing P500 for
costs
(3) Furnish the RTC and adverse party a copy
of the petition
EFFECT OF FAILURE TO COMPLY

WITH REQUIREMENTS [Rule 42, Sec. 3]
Failure to comply with any of the following

requirements shall be sufficient ground for
DISMISSAL
(1) Payment of docket and other lawful fees
Extension of period: - The CA may grant an

additional 15 days within which to file the
petition for review
NOTE: In petitions for review under Rules

42, 43, and 45, the docket fee is paid in
the appellate courts
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of the documents, which should
accompany the petition
PAGE 102
UP LAW BOC
CIVIL PROCEDURE
ACTION ON PETITION [Rule 42, Sec. 4]
REMEDIAL LAW
[Rule 42, Sec. 8]
The CA may:
(1) Require respondent to file a comment on
the petition not a motion to dismiss within
10 days from notice; or
Appeal is deemed perfected as

PETITIONER upon:
(1) Timely filing of the petition
(2) Payment of docket and lawful fees
(2) Dismiss the petition if it finds the same to

be:
(a) Patently without merit
(b) Prosecuted manifestly for delay; or
(c) The questions raised therein are too
unsubstantial to require consideration
to
Jurisdiction of the RTC

(1) RTC loses jurisdiction upon:
(a) Perfection of appeals filed in due
time; and
(b) Expiration of the time to appeal of
other parties
(2) RTC may exercise residual jurisdiction
before the CA gives due course to the
petition
REMEMBER: Under this Rule, appeal is

discretionary on the CA which may give its due
course only when the petition shows prima
facie that the lower court has committed
error.
General Rule: Perfected appeal stays the

challenged judgment or final order
COMMENT BY RESPONDENT [Rule 42,
Exceptions:
(1) Unless the CA, law, or Rules, provide
otherwise
(2) Also in civil cases decided under the Rule
on Summary Procedure; Stay of
judgment is not applicable here since
these are immediately executory
Sec. 5]
Form of Comment:
(1) An original is filed, properly marked,
together with 2 copies with their annexes
(Efficient Use of Paper Rule)
(2) Accompanied by certified true copies of
such material portions of the record
referred to therein
(3) Together with other supporting papers
(4) Copy of the comment served on petitioner
SUBMISSION OF DECISION
[Rule 42, Sec. 9]
If the petition is given due course

(1) Case may be set for oral argument, or
(2) The parties may be required to submit
memoranda within 15 days from notice
(3) Case shall be deemed submitted for
decision upon filing of last pleading or
memoranda
Contents of Comment: The comment shall

(1) State whether or not he accepts the
statement of matters involved in the
petition
(2) Point out such insufficiencies or
inaccuracies as he believes exist in
petitioners statement of matters but
without repetition
(3) Reasons why the petition should not be
given due course
APPEALS FROM QUASIJUDICIAL AGENCIES TO THE

COURT OF APPEALS
[Rule 43]
DUE COURSE [Rule 42, Sec. 6]
If upon the filing of the comment or such

other pleadings as the court may allow or
require, or after the expiration of the period for
the filing thereof without such comment or
pleading having been submitted, the Court of
Appeals finds prima facie that the lower court
has committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition.
SCOPE
Appeals from awards, judgments, final orders

or resolution of or authorized by any quasijudicial agency (QJA) in the exercise of its
quasi-judicial functions
PAGE 103
UP LAW BOC
CIVIL PROCEDURE
A quasi-judicial agency or body is an organ of

government other than a court and other than
a legislature, which affects the rights of
private parties though either adjudication or
rule-making
REMEDIAL LAW
Extension of Period: Additional 15 days only

(1) Extension is granted upon motion for
extension and payment of full docket fees,
both within the reglementary period
(2) No further extension is allowed except for
the most compelling reasons and in no
case shall exceed 15 days
NOTE: A party adversely affected by a decision

or ruling of the CTA en banc may file with the
SC a verified petition for review on certiorari
via Rule 45 [Sec. 12, RA 9282 and AM 07-7-12SC]
HOW APPEAL IS TAKEN
[Rule 43, Sec. 5]

(1) A verified petition for review is filed with
the CA following the Efficient Use of Paper
Rule
a. Attach proof of service of a copy to
the adverse party and to the court
or agency a quo
(2) Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs
a. Payment is made to the CA clerk
b. Exemption from payment may be
granted by the CA by filing a
verified motion for exemption; if
denied, party must pay within 15
days from notice of denial
The CTA is no longer a quasi-judicial agency

under RA 9282, as of April 7, 2004.
QJAs covered by Rule 43:
(1) Civil Service Commission
(2) Securities and Exchange Commission
(3) Office of the President
(4) Land Registration Authority
(5) Social Security Commission
(6) Civil Aeronautics Board
(7) Bureau of Patents Trademarks and
Technology Transfer
(8) National Electrification Administration
(9) Energy Regulatory Board
(10) National Telecommunications
Commission
(11) Department of Agrarian Reform under RA
6657
(12) GSIS
(13) Employees Compensation Commission
(14) Agricultural Inventions Board
(15) Insurance Commission
(16) Philippine Atomic Energy Commission
(17) Board of Investment
(18) Construction
Industry
Arbitration
Commission, and
(19) Voluntary arbitrators authorized by law
CONTENTS OF THE PETITION
Appeal is taken to the CA on questions of fact,

of law, or mixed questions of fact and law.
[Rule 43, Sec. 6]

(1) Statement of full names of parties to the
case without impleading court or agencies
(2) Concise statement of facts and issues
involved and grounds relied upon for
review
(3) Accompanied by:
(a) Clearly legible duplicate original or a
certified true copy of award,
judgment, final order, or resolution
appealed from
(b) Certified true copies of such material
portions of record referred to in the
petition and other supporting papers
(4) Certificate of non-forum shopping
(5) Statement of specific material dates
showing timeliness of appeal
PERIOD TO APPEAL [Rule 43, Sec. 4]
EFFECT OF FAILURE TO COMPLY:
WHERE TO APPEAL [Rule 43, Sec. 3]
Dismissal [Rule 43, Sec. 7] for failure to comply

with the following:
(1) Payment of docket and lawful fees
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of petition
(5) Documents which should accompany the
petition
Period to appeal is 15 days from:

(1) Notice of award, judgment, final order, or
resolution OR
(2) Date of publication, if publication is
required by law for its effectivity, OR
(3) Denial of petitioners MNT or MFR
PAGE 104
UP LAW BOC
CIVIL PROCEDURE
ACTION ON THE PETITION
EFFECT OF APPEAL [Rule 43, Sec. 12]
[Rule 43, Sec. 8]
General Rule: Appeal shall not stay the award,

judgment, final order or resolution sought to
be reviewed
The CA may:
(1) Require respondent to file Comment
within 10 days from notice
(2) Dismiss the petition if CA finds the same
to be:
(a) Patently without merit
(b) Prosecuted manifestly for delay, or
(c) Questions
raised
are
too
unsubstantial to require consideration
FORM
AND
CONTENTS
COMMENT [Rule 43, Sec. 9]
REMEDIAL LAW
Exception: When the CA shall direct otherwise

upon such terms as it may deem just
SUBMISSION FOR DECISION
[Rule 43, Sec. 13]

If petition is given due course, the CA may set
the case for oral argument or require parties
to submit memoranda within 15 days from
notice.
OF
Upon filing of last pleading or memorandum

required, case is deemed submitted for
decision.
Form of comment:
(1) Filed within 10 days from notice following
the Efficient Use of Paper Rule
(2) Accompanied
by
the
following
documents:
(a) Clearly legible certified true copies of
such material portions of the record
referred to therein
(b) And
such
other
supporting
documents
(3) Copy of Comment is served on petitioner
with proof of such service filed with the CA
APPEAL FROM JUDGMENTS OR

FINAL ORDERS OF THE CTA
A party adversely affected by a decision or
ruling of the CTA en banc may file with the
Supreme Court a verified petition for review on
certiorari pursuant to Rule 45. [Sec. 19, RA 1125
as amended by RA 9282]

FINAL ORDERS OF THE COMELEC
Contents of Comment: The comment shall:

(1) Point insufficiencies or inaccuracies in
petitioners statement of facts and issues
(2) State reasons why petition should be
denied or dismissed
Unless otherwise provided by law, or by any

specific provisions in these Rules, any decision,
order or ruling of the Commission may be
brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days
from its promulgation. [Rule 37, Sec. 1,
COMELEC Rules of Procedure]
DUE COURSE [Rule 43, Sec. 10]
CA may give due course if CA finds prima facie

that court or agency has committed errors of
fact or law that would warrant reversal or
modification
Decisions in appeals from courts of general or

limited jurisdiction in election cases relating to
the elections, returns, and qualifications of
municipal and barangay officials are not
appealable. [Rule 37, Sec. 2, COMELEC Rules
of Procedure]
If not, then the CA may dismiss the same.
TRANSMITTAL OF RECORDS
[Rule 43, Sec. 11]

Within 15 days from notice that petition has
been given due course, the CA may:
(1) Require court or agency concerned to
transmit original or legible certified true
copy of entire record of proceeding under
review
(2) Require or permit subsequent correction
or addition to record
Decisions in pre-proclamation cases and

petitions to deny due course to or cancel
certificates of candidacy, to declare a
candidate as nuisance candidate or to
disqualify a candidate, and to postpone or
suspend elections shall become final and
executory after the lapse of five (5) days from
their promulgation, unless restrained by the
Supreme Court. [Rule 37, Sec. 3, COMELEC
Rules of Procedure]
PAGE 105
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
APPEAL BY CERTIORARI TO
THE SUPREME COURT
[Rule 45]

FINAL
ORDERS
OF
THE
OMBUDSMAN
The following decisions are unappealable:
(1) In administrative cases where respondent
is absolved of the charge
(2) In case of conviction, where penalty
imposed is public censure or reprimand,
or suspension of not more than one
month or a fine equivalent to one month
salary [AO 7, Rule III, Sec. 7]
CERTIORARI
AS
MODE OF
APPEAL
[RULE
45]
AND
CERTIORARI AS A SPECIAL CIVIL
ACTION [RULE 65]
Appeal by Certiorari
Rule 45
Based on questions of
law which appellant
desires the appellate
court to resolve
Jurisdiction of the CA
(1) CA has jurisdiction over orders, directives,
and decisions of the Office of
Ombudsman in administrative disciplinary
cases only
(2) It cannot review orders, directives,
decisions in criminal and nonadministrative cases
Involves review of
judgment, award or
final order on merits
Jurisdiction of the SC
(1) In criminal cases, ruling of Ombudsman
shall be elevated to the SC via Rule 65
(2) In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or excess
of jurisdiction, a special civil action of
certiorariunder Rule 65 may be filed with
this Court to set aside the Ombudsmans
order or resolution. [Nava v. NBI (2005)]
Must be made within

the reglementary
period of appeal

FINAL ORDERS OF THE NLRC
Stays the judgment,

award, or order
appealed from
Rule 43, Sec. 2 states that Rule 42 shall not

apply to judgments or final orders issued
under the Labor Code.
The law no longer provides for an appeal from
decisions of the LA or from the NLRC. Mode of
review from said decisions is the special civil
action for Certiorari under Rule 65 in the CA.
Petitioner and
respondent are
original parties to the
action
NLRC judgments and final orders or

resolutions are now reviewable, in the first
instance, by the Court of Appeals on certiorari
under Rule 65, but those of the Employees
Compensation Commission should be
brought to the Court of Appeals through a
petition for review under this Rule. Also,
appeals from the Office of the Ombudsman in
administrative disciplinary cases are now
covered by this Rule. [Fabian v. Desierto
(1998)]
Prior filing of MR not

required
Appellate court is in
the exercise of
appellate jurisdiction
and power of review
PAGE 106
Certiorari as an Action
Rule 65
Petition raises the
issue as to whether the
lower court acted
without or in excess of
jurisdiction or with
grave abuse of
discretion
May be directed
against an
interlocutory order of
the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy, or adequate
remedy
May be filed not later
than 60 days from
notice of judgment,
order or resolution
sought to be assailed
Does not stay the
challenged
proceedings
(unless a writ of
preliminary injunction
or TRO is issued)
The parties are the
aggrieved party
against the lower court
or quasi-judicial
agency as prevailing
parties
A filing of a MR is a
condition precedent,
subject to certain
exceptions
Higher court exercises
original jurisdiction
under its power of
control and
supervision over
proceedings of lower
courts
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
A party desiring to appeal by certiorari from a

judgment, final order or resolution of the CA,
the Sandiganbayan, the CTA, the RTC or other
courts, whenever authorized by law, may file
with the Supreme Court a verified petition for
review on certiorari.
PROPRIETY OF RULE 45 AS A
MODE OF APPEAL
The petition may include an application for a

writ of preliminary injunction or other
provisional remedies and shall raise only
questions of law, which must be distinctly set
forth. The petitioner may seek the same
provisional remedies by verified motion filed in
the same action or proceeding at any time
during its pendency. [Rule 45, Sec. 1, as
amended by A.M. 07-7-12-SC]
Only questions of law are allowed. Whether an

appeal involves only questions of law or both
questions of law and fact is best left to the
determination of an appellate court and not
by the court which rendered the decision
appealed from (PNB v. Romillo, etc., et al.)
Appeals to the SC Can be taken from a

judgment or final order or resolution of the
CA, Sandiganbayan, CTA en banc, RTC or
such other courts as may be authorized by law
Questions of Law
Questions of Fact
Doubt or difference as
to the truth or
Doubt or controversy
falsehood of facts, or
as to what the law is
as to probative value
on certain facts
of the evidence
presented
If the appellate court
can determine the
The determination
issue without
involves evaluation or
reviewing or
review of evidence
evaluating the
evidence
Query involves the
calibration of the
whole evidence
considering mainly
the credibility of
Can involve questions
witnesses, existence,
of interpretation of
and relevancy of
law with respect to
specific surrounding
certain set of facts
circumstances and
relation to each other
and the whole
probabilities of the
situation
OUTLINE OF PROCEDURE
RTC, Sandiganbayan, CTA en banc, or CA
renders a decision
Any party files a petition for review on
certiorari
Within 15 days from notice
of final judgment or order of lower court
or notice of denial of motion for
reconsideration or new trial
Appellant serves copies of petition on
adverse parties and to the lower court,
and pay the corresponding docket fees
SC may dismiss the petition or require
appellee to comment
If given due course, parties may submit
memoranda
The SC is not a trier of facts, and is not to

review or calibrate the evidence on record.
Moreover, findings of facts of trial court, as
affirmed on appeal by the CA, are conclusive
on the court [Boston Bank of the Philippines v.
Manalo]
SC may affirm, reverse, or modify

judgment of lower court
It has to be emphasized that it is not the duty

of the SC to review, evaluate, and weigh the
probative value of the evidence adduced
before the lower courts [Frondarina v.
Malazarte]
PAGE 107
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Inference made is manifestly mistaken,

absurd or impossible [Luna v. Linatok
(1942)].
(3) There is grave abuse of discretion in the
appreciation of facts [Buyco v. People
(1954)].
(4) Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing (1953).
(5) The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].
(6) The Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
(7) The Court of Appeals manifestly
overlooked certain relevant facts not
disputed by the parties and which, if
properly considered, would justify a
different conclusion [Abellana v. Dosdos
(1965)].
(8) The Court of Appeals findings of fact are
contrary to those of the trial court, or are
mere conclusions without citation of
specific evidence, or where the facts set
forth by the petitioner are not disputed by
the respondent, or where the findings of
fact of the Court of Appeals are premised
on absence of evidence but are
contradicted by the evidence of record
[Manlapaz v. CA (1987)].
APPEAL FROM RTC TO SC UNDER

RULE 45
To appeal under Rule 45, RTC must render

judgment in the exercise of its original
jurisdiction
If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to the
CA via Rule 42 even if only questions of law
are raised
If the other party had already taken an appeal
to the CA to question the RTC decision, the
property remedy of petitioner is simply
ordinary appeal to the CA as well [First Phil.
International Bank v. CA)].
Grave abuse of discretion is not an allowable
ground under Rule 45 [Martires v. CA].
APPEAL FROM CA IS ALWAYS BY

RULE 45
Appeal under Rule 45 is the proper review of
decisions of the CA even in special civil
actions.
Any alleged errors committed by it in the
exercise of jurisdiction would be errors of
judgment which are reviewable by timely
appeal and not by special civil action of
certiorari.
PERIOD OF APPEAL [Rule 45, Sec. 2]
Rule 45 is clear that decisions, final orders, or

resolutions of the CA in any case, regardless of
the nature of the action or proceedings
involved, may be appealed to the SC by filing
a petition for review, which would but be a
continuation of the appellate process over the
original case.
Time for Filing: 15 days from

(1) Notice of judgment, final order, or
resolution appealed from, or
(2) Notice of denial of motion for new trial or
reconsideration filed in due time after
notice of judgment
The Neypes doctrine is also applicable in Rule
45.
CONCLUSIVENESS OF FINDINGS OF
FACT
Extension of Period: 30 days upon

(1) Motion duly filed and served; and
(2) Payment of docket and lawful fees and
deposit for costs
(3) And for justifiable reasons
General Rule: The findings of fact of the CA

are final and conclusive and cannot be
reviewed on appeal to the SC
Exceptions: CAs findings of fact may be
reviewed by the SC on appeal by certiorari
when:
(1) Conclusion is a finding grounded entirely
on speculations, surmises or conjectures
[Joaquin v. Navarro (1953)].
PAGE 108
UP LAW BOC
CIVIL PROCEDURE
FORM OF PETITION
REVIEW IS DISCRETIONARY
(1) The petition must be VERIFIED

(2) Following the Efficient Use of Paper Rule:
(a) One original, properly marked, and 4
copies
(b) If the case is referred to En Banc, 10
additional copies is filed
(3) Payment of docket and other lawful fees
and deposit of P500 for costs is made
with the SC Clerk at the time of filing
(4) Proof of service of the petition to the lower
court and adverse party are attached
[Rule 45, Sec. 6]
Appeal to the SC is NOT a matter of right. It

will be granted only when there are special
and important reasons therefor.
Some indications of the character of reasons
which will be considered:
(1) When the court a quo has decided the
question of substance, not theretofore
determined by the SC, or has decided it in
a way probably not in accord with law or
with the applicable provisions of the SC;
or
(2) Court a quo has so far departed from
accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for
an exercise of power of supervision
CONTENTS OF PETITION
[Rule 45, Sec. 4]

(1) State full names of the parties
(a) Appealing party = as Petitioner
(b) Adverse party = as Respondent
(c) Do not implead lower courts or
judges
(2) Indicate material dates showing:
(a) When notice of judgment or final
order or resolution was received
(b) When a motion for new trial or
reconsideration, if any, was filed
and when a denial thereof was
received
(3) Concise statement of:
(a) The matters involved
(b) Reasons or arguments relied on
(4) Accompanied by a clearly legible
duplicate original, or a certified true copy
of the judgment or final order or
resolution certified by the clerk of court
and court a quo
GROUNDS
FOR
DENIAL
PETITION [Rule 45, Sec. 5]
REMEDIAL LAW
ELEVATION OF RECORDS
[Rule 45, Sec. 8]

If the petition is given due course, the
Supreme Court may require the elevation of
the complete record of the case or specified
parts thereof within fifteen (15) days from
notice
GROUNDS FOR DISMISSAL OF

APPEAL
DISMISSAL BY THE CA [Rule 50]
An appeal may be dismissed by the CA, on its

own motion, or on that of the appellee on
certain grounds.
OF
Grounds for Dismissal as provided in Sec. 1,
Rule 50
(1) Failure of petitioner to comply with:

(a) Payment of docket or other lawful
fees
(b) Deposit for costs
(c) Proof of Service; and
(d) Contents of and documents which
would accompany the petition
(2) Appeal is without merit
(3) Is prosecuted manifestly for delay
(4) That the questions raised are so
unsubstantial as to require consideration
(1) Failure of record on appeal to show on its

face that appeal was taken within the
period fixed by Rules
(2) Failure to file notice of appeal or record on
appeal within prescribed period
(3) Failure of appellant to pay docket and
other lawful fees as provided in Sec. 4,
Rule 41
(4) Unauthorized alterations, omissions, or
additions in approved record on appeal as
provided in Sec. 4, Rule 44
(5) Failure of appellant to serve and file
required number of copies of his brief or
memorandum within time provided by
Rules
NOTE: SC may dismiss the petition motu

proprio
PAGE 109
UP LAW BOC
CIVIL PROCEDURE
(6) Absence of specific assignment of errors

in the appellants brief, or of page
references to record as required in Sec. 13,
(a), (c), (d), (f), Rule 44
(7) Failure of appellant to take necessary
steps for correction or completion of
record within time limited by the court in
its order
(8) Failure of appellant to appear at
preliminary conference under Rule 48 or
comply with orders, circulars, directives of
the court without justifiable cause
(9) Fact that the order or judgment appealed
from is not appealable
Other Grounds
(1) By agreement of the parties (i.e. amicable
settlement)
(2) Where appealed case has become moot
or academic
(3) Where appeal is frivolous or dilatory
DISMISSAL BY THE SC [Rule 56]

The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
(1) Failure to appeal within reglementary
period
(2) Lack of merit of petition
(3) Failure to pay docket and lawful fees and
deposit
(4) Failure to comply with requirements on
proof of service, contents, and documents
accompanying petition
(5) Failure to comply with circular, directive,
or order of SC without justifiable cause
(6) Error in choice of mode of appeal
(7) The case is not appealable to the SC
PAGE 110
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
COMPARATIVE TABLE ON THE MODES OF APPEAL

WHEN PROPER
RULE 40
RULE 41
ORDINARY APPEAL
Matter of Right; Filed with the court of origin
All records are elevated from court of origin
RULE 42
RULE 43
RULE 45
PETITIONS FOR REVIEW

Discretionary; No records are elevated unless the court decrees it
Filed with the appellate court
Appeal from a decision of the

Appeal from a judgment or final
RTC in the exercise of its original
order of a MTC
jurisdiction
Appeals
from
awards,
judgments, final orders or
Appeal from a decision of the
resolution of or authorized by
RTC rendered in the exercise of
any quasi-judicial agency in the
Rule 41 provisions shall apply to Rule 40 if not consistent with Rule its appellate jurisdiction
exercise of its quasi-judicial
40 provisions
functions
Appeals to the SC from a

judgment or final order or
resolution
of
the
CA,
Sandiganbayan, CTA en banc,
RTC (original jurisdiction) or such
other courts as may be
authorized by law
Decisions, final orders, or
resolutions of the CA in any case,
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
WHERE TO FILE
RULE 40
Filed with the MTC
Appeal to the RTC
RULE 41
Filed with the RTC
Appeal to the CA
RULE 42
Filed with the CA
Appeal to the CA
RULE 43
Filed with the CA
Appeal to the CA
RULE 45
Filed with the SC
Appeal to the SC
Questions of fact, Questions of

Questions of fact or mixed
Questions of fact or mixed Questions of fact, Questions of law, or Mixed questions of fact
questions of fact and law
Only Questions of Law
questions of fact and law
law, or Mixed questions of both and law
PAGE 111
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
TIME FOR FILING

RULE 40
RULE 41
RULE 42
RULE 43
RULE 45
Within 15 days from:

1. Notice
of
award, Within 15 days from:
judgment, final order, or
1. Notice of judgment,
BY NOTICE OF APPEAL
Within 15 days from notice of
resolution OR
final order, or resolution
Within 15 days after notice of judgment or final order
decision, or
2. Date of publication, if
appealed from, or
Within 15 days from notice of
publication is required
2. Notice of denial of
BY RECORD ON APPEAL
denial of petitioners motion for
by law for its effectivity,
motion for new trial or
Within 30 days from notice of judgment or final order by filing a new trial or reconsideration
OR
reconsideration filed in
notice of appeal and a record on appeal
3. Denial of petitioners
due time after notice of
MNT or MR (only one
judgment
MR allowed)
PAGE 112
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 37 and Rule 38 are EXCLUSIVE

remedies.
RELIEF FROM JUDGMENTS,

ORDERS, AND OTHER
PROCEEDINGS
A party who has filed a timely motion for new

trial and/or reconsideration cannot file a
petition for relief after his motion has been
denied.
[Rule 38]
CONCEPT
A party who has filed a timely motion for new

trial or motion for reconsideration can no
longer file a petition for relief from judgment
after his motion has been denied. These
remedies are mutually exclusive. It is only in
appropriate cases where a party aggrieved by
the judgment has not been able to file a
motion for new trial or motion for
reconsideration that a petition for relief can be
filed. [Francisco v. Puno, 1981]
Remedies AFTER finality of judgment

(1) Petition for relief [Rule 38]
(2) Action to Annul Judgment [Rule 47]
(3) Collateral Attack of a Judgment that is
Void on its Face
A petition for relief from judgment together
with a motion for new trial and a motion for
reconsideration are remedies available only to
parties in the proceedings where the assailed
judgment is rendered. In fact, it has been held
that a person who was never a party to the
case, or even summoned to appear therein,
cannot avail of a petition for relief from
judgment [Alaban v. Cam]
WHEN PROPER
Rule 38 can be availed of once the judgment

has become final and executory.
The relief provided for by Rule 38 is of
equitable character and is only allowed in
exceptional cases, that is where there is no
other available or adequate remedy. A petition
for relief is not regarded with favor and
judgment will not be disturbed where the
party complaining has or by his exercising
proper diligence would have had an adequate
remedy at law, as where petitioner could have
proceeded by appeal to vacate or modify the
default judgment. [Manila Electric v. CA (1990)]
NOTE: This is not applicable to the SC since it

is not a trier of facts.
RULE 37 v. RULE 38
Rule 37
Rule 38
Available BEFORE
Available AFTER
judgment becomes judgment has become
final and executory
final and executory
Applies to judgments,
Applies to judgments
final orders and other
or final orders only
proceedings
Grounds: (1) FAME
and (2) Newly
Ground: FAME
discovered evidence
Filed within 60 days
from knowledge of
Filed within the time
judgment and within
to appeal
6 months from entry
of judgment
If denied, order
If denied, order of
denying a petition for
denial is not
relief is not
appealable; hence,
appealable; remedy is
remedy is appeal
appropriate civil
from judgment
action under Rule 65
Legal remedy
Equitable remedy
Motion need not be
Petition must be
verified
verified
Under Sec. 1, it is also available when any

other proceeding is thereafter taken against
the petitioner in any court through FAME
Thus, it was held that a petition for relief is
also applicable to a proceeding taken after
entry of judgment or final order such as an
order of execution [Cayetano v. Ceguerra] or an
order dismissing an appeal [Medran v. CA]
WHERE FILED
Rule 38 is not an independent action but a

continuation of the old case. Hence, it is filed
with the same court and same branch which
decided the case.
PAGE 113
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(4) When judgment was entered by mistake

or was obtained by fraud; or
(5) Other similar cases.
GROUNDS [Rule 38, Sec. 1 and 2]
(1) When judgment or final order is entered

or any other proceeding is thereafter
taken against petitioner through FAME
(2) When petitioner has been prevented from
taking an appeal by FAME
ORDER TO FILE ANSWER
[Rule 38, Sec. 4]

An order to answer shall issue only if petition
is sufficient in form and substance.
PERIOD FOR FILING [Rule 38, Sec. 3]
(1) Within 60 days after petitioner learns of

the judgment, final order, or other
proceeding to be set aside; AND
(2) Not more than 6 months after such
judgment or final order was entered, or
such proceeding was taken
If petition is sufficient in form and in

substance, the court shall issue an order
requiring the adverse party to answer within
15 days from receipt thereof.
The two periods for the filing of a petition for

relief are not extendible and never
interrupted. Both periods must be complied
with. [Phil. Rabbit Bus Lines Inc. v. Ariaga]
After filing of answer or expiration of the

period therefor, court shall hear the petition.
PROCEEDINGS AFTER ANSWER IS

FILED [Rule 38, Sec. 6]
If the court finds that the allegations are not

true Petition is dismissed.
Reckoning points:
(1) The 60-day period is reckoned from the
time the party acquired knowledge of the
order, judgment or proceeding. Not from
the date he actually read the same [Perez
v. Araneta]
(2) 6-months period is computed from the
date of entry of the order or judgment
If the court finds that allegations are true:

(1) It shall set aside the judgment, final order,
or other proceeding complained of upon
such terms as may be just
(2) Thereafter, case shall stand as if such had
never been rendered, issued, or taken
(3) The court shall then proceed to hear and
determine the case as if timely motion for
new trial or reconsideration has been
granted by it
FORM AND CONTENTS OF THE

PETITION
(1) The petition for relief must be verified

(2) The petition must be accompanied by an
affidavit showing the FAME relied upon;
and
(3) The affidavit of merit accompanying the
petition must also show the facts
constituting the petitioners good and
substantial cause of action or defense as
the case may be
REMEDY FOR DENIAL OF PETITION

FOR RELIEF.
Appeal from an order denying a petition for

relief is no longer available under the present
rules.
The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper.
The absence of an affidavit of merits is a fatal

defect and warrant denial of the petition
[Fernandez v. Tan Tiong Tick].
ANNULMENT OF JUDGMENTS
OR FINAL ORDERS AND
RESOLUTIONS
However, it is not a fatal defect so long as the

facts required to be set out also appear in the
verified petition [Fabar Inc. v. Rodelas].
[Rule 47]
Annulment of Judgment is a remedy in law
independent of the case where the judgment
sought to be annulled was rendered and may
be availed of though the judgment has been
executed.
When Affidavit of Merit is not necessary:

(1) When there is lack of jurisdiction over the
defendant;
(2) When there is lack of jurisdiction over the
subject matter;
(3) When judgment was taken by default;
PAGE 114
UP LAW BOC
CIVIL PROCEDURE
A person who is not a party to the judgment

may sue for its annulment provided that he
can prove the same was obtained through
fraud or collusion and that he would be
adversely affected thereby. [Alaban v. CA]
NATURE
The purpose of such action is to have the final

and executory judgment set aside so that
there will be a renewal of litigation.
Resorted to in cases where ordinary remedies
of new trial, appeal, petition for relief, or other
appropriate remedies are no longer available
through no fault of petitioner
GROUNDS [Rule 47, Sec. 2]
Annulment may be based only on TWO

grounds:
(1) Extrinsic Fraud
(2) Lack of Jurisdiction
It is not a mode of appeal but an Independent

Civil Action.
Although Sec. 2 provides that annulment of

judgment or order may be based only on
extrinsic fraud and lack of jurisdiction,
jurisprudence recognizes DENIAL OF DUE
PROCESS as an additional ground [Sps.
Benatiro, et al. v. Heirs of Cuyos et al.] This was
recognized in the 2013 case of Leticia Diona,
represented by her Attorney-in-fact, Marcelina
Diona v. Romeo Balangue, Sonny Balangue,
Reynaldo Balangue, and Esteban Balangue, Jr.
WHEN PROPER [Rule 47, Sec. 1]
It is available when the petitioner failed to

move for new trial in, or appeal from, or file a
petition for relief against, or take other
appropriate remedies assailing the questioned
judgment or final order or resolution through
no fault attributable to him
The remedy may no longer be invoked where
the party has availed himself of the remedy of
new trial, appeal, petition for relief, or other
appropriate remedy and lost or where he has
failed to avail himself of those remedies
through his fault or negligence
Extrinsic or Collateral Fraud - Refers to any

fraudulent act of the prevailing party in the
litigation which is committed outside of the
trial of the case, whereby the defeated party
has been prevented from exhibiting fully and
fairly presenting his side of the case
WHERE FILED
Lack of Jurisdiction - Lack of jurisdiction

refers to either lack of jurisdiction over the
person of the defending party or over the
subject matter of the claim, and in either case,
the judgment or final order and resolution are
void.
Judgments, Final
Judgments, Final
Orders, or Resolutions Orders, or Resolutions
of the RTC
of the MTC
Filed with the CA
REMEDIAL LAW
Filed with the RTC
CA has exclusive and

RTC as a court of
original jurisdiction
general jurisdiction
over said action
under Sec. 19(6) BP
under Sec. 9 (2) of BP
129
129
The CA may dismiss The RTC has no such
the case outright; it
discretion, it is
has the discretion on required to consider it
whether or not to
as an ordinary civil
entertain the petition
action
NOTE: In a petition for annulment of

judgment based on lack of jurisdiction,
petitioner must show an ABSOLUTE LACK of
jurisdiction not merely abuse of jurisdictional
discretion.
As to Evidence
(1) When the ground invoked is extrinsic
fraud, extraneous evidence is admitted
(2) However, when the ground is lack of
jurisdiction, only evidence found in the
records of the case can justify nullity of
judgment
WHO CAN FILE
Petitioner need not be a party to the judgment

sought to annulled.
PAGE 115
UP LAW BOC
CIVIL PROCEDURE
PERIOD FOR FILING [Rule 47, Sec. 3]

Extrinsic Fraud
4 years from
discovery of fraud
EFFECT
OF
JUDGMENT
ANNULMENT [Rule 47, Sec. 7]
Lack of Jurisdiction
Before it is barred by
laches or estoppel
OF
Effect of annulment based on lack of

jurisdiction
(1) The same shall be set aside and
considered null and void
(2) Aggrieved party may refile the action in
the proper court
(a) This may involve a different court of
competent jurisdiction
(b) But where the reason for such
annulment was because of lack of
jurisdiction over defendant, the action
may be refilled in the same original
court provided it has proper
jurisdiction and venue
There must be a manifest showing with

petition that it was filed within the 4-yr period.
The rule does not fix the period to annul
judgment based on lack of jurisdiction but
recognizes the principle of estoppel as first
laid down by Tijam v. Sibonghanoy.
FORM AND CONTENTS OF

PETITION [Rule 47, Sec. 3]
(1) Verified petition, alleging therein:

(a) With particularity, the facts and the
law relied upon
(b) Petitioners good and substantial
cause of action or defense
(2) Filed following the Efficient Use of Paper
Rule
(3) Certified true copy of the judgment or final
order or resolution shall be attached to
the original copy of the petition
(4) Affidavits of witnesses or documents
supporting the cause of action or defense;
and
Effect of annulment based on extrinsic

fraud
(1) The same shall be set aside and
considered null and void
(2) On motion of the prevailing party on
justifiable grounds, he may be allowed to
no longer refile the action
(a) The trial court which rendered the
questioned judgment shall be ordered
to try the case anew
The prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of said original
action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the
original action. [Rule 47, Sec. 8]
PROCEEDINGS
There are two stages in the disposition of the

petition:
(1) A preliminary evaluation of the petition for
prima facie merit [Sec. 5]
The rule allows the CA to dismiss the
petition outright as in special civil
actions
If prima facie merit is found, petition is
given due course and summons is
served on respondent
(2) If prima facie merit is found, petition
given due course and issuance
summons as in ordinary civil cases
made [Sec. 6]
Procedure in ordinary civil cases
observed
REMEDIAL LAW
COLLATERAL ATTACK OF
JUDGMENTS
ON ATTACKING THE VALIDITY OF A
JUDGMENT
is
of
is
Direct Attack v. Collateral Attack:

(1) Direct attack upon a judgment is an action
or proceeding to annul it, this being the
main object of the proceeding
(2) Collateral attack upon a judgment is one
made to obtain relief other than the
setting aside of the judgment, the attack
on the judgment itself being incidental
is
NOTE: Prima facie determination is not

available in annulment of judgments or final
orders of MTCs before the RTC. [Rule 47, Sec.
10]
PAGE 116
UP LAW BOC
CIVIL PROCEDURE
When Collateral Attack Proper

This is proper only when the judgment on its
face is null and void as where it is patent that
the court which rendered said judgment has
no jurisdiction
REMEDIAL LAW
A judgment may be void for lack of due

process of law. [Spouses Benatiro v. Heirs of
Cuyos (2008))
ATTACKING A VOID JUDGMENT
It may be assailed anytime, collaterally or in a

direct action or by resisting such judgment or
final order in any action or proceeding
whenever it is invoked, unless barred by
laches. [Spouses Benatiro v. Heirs of Cuyos
(2008))
The validity of a judgment or order of the court,

which has become final and executory, may be
attacked in three ways:
(1) Only by a direct action or proceeding to
annul the same
This proceeding is a direct attack
against the order of judgment
because it is not incidental to, but
is the main object of, the
proceeding
A direct action to annul and enjoin
enforcement of the judgment
where the alleged defect is not
apparent on its face or from the
recitals contained in the judgment
See Rule 47
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 remedies are no longer
available without the fault of the petitioner,
the equitable and extraordinary remedy of
Petition for Annulment of Judgment may be
resorted to.
(2) Or by direct action, as certiorari, or by

collateral attack in case of apparent
nullity
The collateral attack must be
against a challenged judgment
which is void upon its face or that
the nullity of the judgment is
apparent from its own recitals
When all else fails, there is jurisprudence to

the effect that a patently void judgment may
be dealt with by a Main Action for Injunction.
[See Barrameda v. Moir (1913)]
JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses
Benatiro v. Heirs of Cuyos, (2008) and Agustin
v. Bacalan, (1985) on the matter of void
judgment particularly refer to Rule 47 as a
remedy against a void judgment.
This
remedy, however, should be availed of only
when the appropriate remedies are no longer
available without fault on the part of the
petitioner.
(3) Or by a Petition for Relief under Rule 38

This third manner of attacking
must be taken in the same action
or proceeding in which the
judgment or order was entered
VOID JUDGMENT
A void judgment is no judgment at all. It

cannot be the source of any right nor the
creator of any obligation. All acts performed
pursuant to it and all claims emanating from
it have no legal effect. Hence, it can never
become final and any writ of execution based
on it is void. [Polystyrene Manufacturing v.
Privatization Management (2007)]
Although Section 2 of Rule 47 of the Rules of

Court provides that annulment of a final
judgment or order of an RTC may be based
"only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence recognizes
denial of due process as additional ground
therefore [Spouses Benatiro Case].
A void judgment may be likened to a lawless

thing which can be treated as an outlaw and
slain at sight, or ignored wherever and
whenever it rears its head. [Banco EspanolFilipino v. Palanca (1918)]
A void judgment is like an outlaw which may be

slain at sight wherever or whenever it exhibits its
head. The proper remedy in such case, after
the time for appeal or review has passed, is for
the aggrieved party to bring an action to
enjoin the judgment. [Montinola v. Judge
Gonzales, 1989]
PAGE 117
UP LAW BOC
CIVIL PROCEDURE
Assuming the judgment to have been void as

alleged by the proponent of this motion, the
proper remedy was by an original proceeding
and not by motion in the cause" [Banco
Espanol v. Palanca (1918)]. A final judgment
may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
[Panlilio v. Garcia (1982)]
REMEDIAL LAW
Once rendered, the task of the Court is ended,

as far as deciding the controversy or
determining the rights and liabilities of the
litigants is concerned. Nothing more remains
to be done by the Court except to await the
parties' next move (which among others, may
consist of the filing of a motion for new trial or
reconsideration, or the taking of an appeal)
and ultimately, of course, to cause the
execution of the judgment once it becomes
'final or, to use the established and more
distinctive term, 'final and executory.
Execution, Satisfaction,
and Effect of Judgments
Execution is a matter of right upon the

expiration of the period to appeal and no
appeal was perfected from a judgment or
order that disposes of the action or
proceeding. [Rule 39, Sec. 1]
DIFFERENCE BETWEEN
FINALITY OF JUDGMENT FOR
PURPOSES OF APPEAL; FOR
PURPOSES OF EXECUTION
It can be noted that the Supreme Court made

a hairline distinction between finality of order
for appeals and for execution. It is submitted
that upon courts issuance of a judgment
touching upon the merits of a case, it is final
for the purposes of an appeal, but NOT for
execution.
The term finality of judgment for purposes of

appeal refers to interlocutory orders which:
(1) Are not decisions within the constitutional
definition [Armargo v. CA (1973)]
(2) are those that determine incidental
matters that do not touch on the merits
of the case or put an end to proceedings.
The following are examples of an
interlocutory order:
(a) An order denying a motion to dismiss;
(b) An order granting an extension of
time to file a pleading, or one
authorizing an amendment thereof;
(c) Order
granting
or
denying
applications for postponement or
inspection of documents. [Riano]
NOTE: Finality for the purposes of execution

refers to the expiration of the period to appeal
and no appeal was perfected.
WHEN EXECUTION SHALL

ISSUE
Execution is a process provided by law for the
enforcement of a final judgment. Enforcement
is part of courts jurisdiction. It is not an action
but is included in the phrase Process in an
action part of the proceedings considered as
still pending.
The word interlocutory refers to something

intervening between the commencement and
the end of a suit which decides some point or
matter but is not a final decision of the whole
controversy. [Ramiscal, Jr. v. Sandiganbayan
(2004)]
Cases where Execution may Issue even if

judgment NOT Final:
(1) Support pendente lite
(2) Judgments of inferior courts in ejectment
cases
(3) Execution pending appeal
(4) Injunction,
accounting,
receivership,
support [Rule 39, Sec. 4]
(5) Decision of the RTC in appealed civil cases
under Summary Procedure, including
forcible entry and unlawful detainer
(6) Decision of the LA reinstating dismissed
employee, insofar as reinstatement aspect
is concerned
A final judgment or order is one that finally

disposes of a case, leaving nothing more to be
done by the Court in respect thereto, e.g., an
adjudication on the merits which, on the basis
of the evidence presented at the trial, declares
categorically what the rights and obligations
of the parties are and which party is in the
right; or a judgment or order that dismisses an
action on the ground, for instance, of res
judicata or prescription.
PAGE 118
UP LAW BOC
CIVIL PROCEDURE
Writ of Execution: A judicial writ issued to an

officer authorizing him to execute the
judgment of the court.
REMEDIAL LAW
EXECUTION AS A MATTER OF
RIGHT [Rule 39, Sec. 1]
The finality of judgment has the effect of

entitling prevailing party to execution as a
matter of right. It is the ministerial duty of the
court to do execution. [Herrera]
Dispositive Portion as Subject of Execution

(1) General Rule: The dispositive portion of
the decision is that part that becomes the
subject of execution
(2) Exceptions:
(a) Where there is ambiguity, the body of
the opinion may be referred to for
purposes of construing the judgment
because the dispositive part of a
decision must find support from
decisions ratio decidendi
(b) Where
extensive
and
explicit
discussion and settlement of the issue
is found in the body of the decision
Execution as a matter of right, TWO

INSTANCES:
(1) No appeal has been perfected or period of
appeal has expired
(2) Appeal has been perfected and finally
resolved
How Done:
Case
If no appeal has
been perfected,
or the period of
appeal
has
expired
How Execution is Carried

Prevailing party applies by
motion for a writ of
execution which is granted
by the judge since it is a
matter of right
Prevailing party:
(1) Files a motion in the
court of origin,
(2) Submitting
certified
true copies of the
judgment or final
orders sought to be
enforced
If appeal has
(3) Submitting the entry
been perfected
thereof,
and
finally
(4) With notice to adverse
resolved
party
Appellate court may also
direct the court of origin to
issue the writ of execution:
(1) Upon motion in the
same case AND
(2) When the interest of
justice so requires
To Whom Issued:
(1) General Rule: Only real parties in interest
in an action are bound by judgment
rendered therein and by the writs of
execution
(2) Exceptions: There are certain cases where
the writ may be issued against non-parties
(a) One who is privy to judgment debtor
can be reached by an order of
execution and writ of demolition [Vda.
De Medina v. Cruz]
(b) Issued against one who not being
originally a party to the case submits
his interest to the court for
consideration in the same case and
invites adjudication regarding said
interest [Jose v. Blue]
(c) Where non-parties voluntarily signed
the compromise agreement or
voluntarily appeared before court
[Rodriguez v. Alikpala]
(d) Where the remedy of a person not a
party to the case which he did not
avail of, was to intervene in the case in
question involving rights over the
same parcel of land and said person
in another case was adjudged buyer in
bad faith thereof [Lising v. Plan]
(e) In an ejectment case, where 3rd party
derived his right of possession from
defendant particularly when such
right was acquired only after filing of
ejectment suit [Cordova v. Tornilla]
General Rule: It is a matter of right on the part

of the winning party when the judgment or
order becomes executory. The court cannot
refuse execution.
Exceptions: The issuance of a writ of execution
which issues as a matter of right can be
countered in any of the following cases
(1) When a PETITION FOR RELIEF or an
action to enjoin judgment is filed and a
preliminary injunction is prayed for and
granted [Rule 38, Sec. 5];
PAGE 119
UP LAW BOC
CIVIL PROCEDURE
(2) When the judgment turns out to be

INCOMPLETE OR IS CONDITIONAL since
as a matter of law, such judgment
CANNOT BE FINAL;
(3) When the judgment has been NOVATED
BY THE PARTIES
(4) When SUBSEQUENT FACTS AND
CIRCUMSTANCES transpire as to render
such execution unjust or impossible
(5) On EQUITABLE GROUNDS as when there
has been a change in the situation of the
parties
which
makes
execution
INEQUITABLE.
(6) When the judgment becomes DORMANT,
the 5-year period under Rule 39.6 having
expired without the judgment having been
revived
Under the Rule on Discretionary Execution

(also called execution pending appeal), the
court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal.
It is the execution of a judgment or final order
before it attains finality. The court which
rendered the decision can grant an execution
pending appeal if it still retains jurisdiction
over the case and is in possession of the
records at the time of the filing of the motion;
otherwise, the motion shall be acted upon by
the appellate court.
To be valid, there should be a good reason to
justify the execution of the judgment pending
appeal, the same to be stated in the order
granting it.
NOTE: Execution may only issue upon motion

with notice of hearing.
Discretionary Execution is NOT applicable in

the case of the Court of Appeals:
(1) The Rule on Discretionary Execution
contemplates a situation where a
judgment or final order rendered in the
exercise of its original jurisdiction and the
prevailing party in said decision seeks
immediate execution during the pendency
of an appeal.
(2) The CA has no authority to issue
IMMEDIATE
EXECUTION
PENDING
APPEAL OF ITS OWN DECISIONS
THEREIN.
(3) Discretionary execution is allowed
pending appeal of judgment or final order
of the trial court upon good reasons to be
stated in a special order.
Supervening Event Doctrine A supervening

event can be invoked for the modification or
alteration of a final judgment. This refers to:
(1) Facts which transpire after judgment has
become final and executory. Or
(2) New circumstances which developed after
the judgment has acquired finality
(3) Matters which the parties were not aware
of prior to or during the trial as they were
not yet in existence at that time
(4) The supervening facts or circumstances
must either bear a direct effect upon the
matters already litigated and settled or
create a substantial change in the rights
or relations of the parties therein which
render execution of the final judgment
unjust or impossible [Lim v. Jabalde]
A judgment of the CA cannot be executed

pending appeal. [Heirs of Justice JBL Reyes v.
CA, 2000]
DISCRETIONARY EXECUTION
[Rule 39, Sec. 2]
Discretionary
Execution
May issue before the
lapse of period to
appeal, and even
during appeal
Discretionary
upon
the court
Upon showing of
good
reason
for
execution
REMEDIAL LAW
When Proper and How Done

Execution as a Matter
of Right
(1) Execution pending appeal The duration

of the courts discretionary power to order
execution pending appeal depends on:
(a) Where the record on appeal is
required,
(i) The court loses jurisdiction only
over the subject matter thereof
upon approval of the record on
appeal and expiration of the time
to appeal of the other party
Period to appeal has

already lapsed and no
appeal is perfected
Ministerial duty of the
court
Provided there are no
supervening events
PAGE 120
UP LAW BOC
CIVIL PROCEDURE
(b) Where no record on appeal is

required, court may issue writ of
execution before perfection of appeal
(c) If the court lost jurisdiction, the writ
may be issued by the appellate court,
as such:
Case
How Execution is Carried
Prevailing party:
If the trial court still
(1) Files a motion with
has
jurisdiction
notice to the adverse
over the case and is
party
still in possession
(2) Motion is filed with the
of
either
the
TRIAL court
original record or
(3) Good reasons must be
record on appeal
shown
The prevailing party:
(1) Files a motion with
notice to adverse party
If the trial court has
(2) Motion is filed with the
lost jurisdiction
APPELLATE COURT
(3) Good reasons must be
shown
REMEDIAL LAW
The Supersedeas Bond

Discretionary execution may be stayed upon
approval by the proper court of a sufficient
supersedeas bond filed by the party against
whom it is directed.
(1) It is conditioned upon the performance of
the judgment or order allowed to be
executed in case it shall be finally
sustained in whole or in part
(2) Bond may be proceeded against on
motion with notice to surety
General Rule: The filing of a supersedeas bond
is sufficient to stay the enforcement of a
discretionary execution.
Exception: However, THE FILING OF
SUPERSEDEAS BOND does not entitle the
judgment debtor to the suspension of
execution as a MATTER OF RIGHT. Where the
needs of the prevailing party are URGENT, the
Court can order immediate execution despite
such SUPERSEDEAS BOND. [Regalado]
(2) Execution of several, separate, or partial

judgments may also be executed under
the same terms and conditions as
execution pending appeal.
If judgment is reversed totally or partially, or

annulled The trial court may, on motion,
issue such orders of restitution or reparation
of damages as equity and justice may warrant
under the circumstances
Requisites for Discretionary Execution:

(1) There must be a motion filed by prevailing
party with notice to adverse party
(2) There must be a hearing of the motion for
discretionary execution
(3) There must be good reasons to justify the
discretionary execution
(4) These good reasons must be stated in a
special order after due hearing
Remedy against Execution pending Appeal

The remedy is certiorari by Rule 65. The
appeal could not be an adequate remedy for
such premature execution. [Jaca v. Davao
Lumber Co.]
HOW JUDGMENT IS EXECUTED
Examples of Good Reasons:

(1) Where the goods subject of the judgment
stand to perish or deteriorate during the
pendency of the appeal [Yasuda v. CA]
(2) The award of actual damages is for an
amount fixed and certain [Radio
Communications Inc. v. Lantin]. But not an
award for moral and exemplary damages
(3) Insolvency of a defeated party [Hacienda
Navarro v. Labrador]
(4) The prevailing party is of advanced age
and in a precarious state of health and the
obligation in the judgment is nontransmissible, being for support [De Leon
v. Soriano]
(5) Where defendants were exhausting their
income and have no other property aside
from proceeds of the property subject in
litigation [Lao v. Mencias]
EXECUTION BY MOTION OR BY
INDEPENDENT ACTION [Rule 39, Sec. 6]
Modes of Enforcement of Execution:
Mode
When Enforced
Within 5 years from date of entry
By Motion
of judgment
After the lapse of 5 years from
By
date of entry and before it is
Independent barred by statute of limitations
Action
which is 10 years from date of
entry [Art. 1144(3)]
NOTE: The revived judgment may be enforced
by motion within 5 years from date of its entry
and thereafter by action before it is barred by
statute of limitations.
PAGE 121
UP LAW BOC
CIVIL PROCEDURE
Once the judgment is revived, the 10-year

prescriptive period commences to run from
the date of finality of the REVIVED
JUDGMENT and not the original judgment.
Remedies Against a Writ of Execution

(1) If there is a defect in the writ, file a motion
to quash the writ of execution
(a) Quashal is proper when:
(i) A change in the situation of the
parties
renders
execution
inequitable
(ii) Issued against wrong party
(iii) Issued without authority
(iv) Improvidently issued
(v) Defective in substance
(vi) Judgment already satisfied; and
(vii) The controversy was never
submitted to the court
(viii)Where the writ varies the terms of
the judgment
(ix) It is sought to be enforced against
property exempt from execution
(x) Where there is ambiguity in the
terms of the judgment
ISSUANCE AND CONTENTS OF A

WRIT OF EXECUTION [Rule 39, Sec. 8]
Contents of the Writ of Execution
(1) Issued in the name of the Republic from
the court which granted the motion
(2) States the name of the court, case
number and title, dispositive part of
judgment or order
(3) Requiring the sheriff or other proper
officer to whom it is directed to enforce
the writ according to its terms
(4) In all cases, it shall also specifically state
the amount of interest, cost, damages,
rents, or profits due as well as the
principal obligation
Manner of Execution
If it be against property
of judgment obligor
REMEDIAL LAW
(b) If motion to quash is denied, appeal

from said denial
To satisfy judgment
plus interest out of his
real or personal
property
(2) An order granting the issuance of the writ

is not appealable, except where:
(a) The order varies the terms of the
judgment, or
(b) Where, being vague, the court renders
what is believed to be a wrong
interpretation
If it be against real or
personal property in the
hands
of
personal To satisfy judgment
representatives, heirs, with interest out of
devisees,
legatees, such
tenants, or trustees of
judgment obligor
To sell such property
described
EXECUTION FOR JUDGMENTS

OF MONEY
If the award is for payment of money,

execution is enforced by: [Rule 39, Sec. 9]
(1) Immediate payment on demand
(2) Satisfaction by levy
(3) Garnishment of debts and credits
If it be for sale of real or

Then apply proceeds in
personal property
conformity
with
judgment
To deliver possession
of the same, describing
it, to the party entitled
thereto
IMMEDIATE PAYMENT ON DEMAND

Procedure:
(1) The officer shall demand from judgment
obligor the immediate payment of the full
amount stated in the writ and all lawful
fees
Then to satisfy any

costs, damages, rents,
If it be for delivery or
or profits covered by
possession of real or
the judgment
personal property
(2) The judgment obligor shall pay the

amount of the judgment debt
(a) Payable in Cash, Certified bank check
payable to judgment obligee, or any
other form of payment acceptable to
judgment obligee
Out of the personal

property of obligor
In case of insufficiency,
then out of real
property
PAGE 122
UP LAW BOC
CIVIL PROCEDURE
(i) In no case shall sheriff demand

that any payment by check be
made payable to him
(ii) Amount of judgment under
proper receipt directly to the
judgment
obligee
or
his
authorized
representative
if
present at time of payment
REMEDIAL LAW
(2) Characteristics of properties to be levied

(a) Properties of every kind and nature
whatsoever
(b) Which may be disposed of for value
(c) Not otherwise exempt from execution
Procedure:
(1) The judgment obligor have the option to
immediately choose which property or
part thereof may be levied upon, sufficient
to satisfy judgment
(b) If
judgment
oblige
or
his
representative is present to receive
payment:
(i) Judgment obligor shall delver
payment to executing sheriff
(ii) Sheriff shall turn over the amounts
within the same day to the clerk
which issued the writ or deposit
the amounts to a fiduciary
account
in
the
nearest
government depository bank of
the RTC of the locality
(2) If judgment obligor does not exercise the

option:
(a) The officer shall first levy on personal
properties, if any
(b) If personal properties are insufficient,
then on the real properties
(3) Sheriff shall sell only sufficient portion of
personal or real property of the judgment
obligor levied upon
(2) The judgment obligor shall pay the lawful

fees handed over to the sheriff. Sheriff
shall turn over the said amount within the
same day to the clerk that issued the writ
(4) If there is more property than is sufficient

to satisfy judgment and lawful fees, then
sell only so much as is sufficient
(3) If there is any excess it shall be delivered

to the judgment obligor. Lawful fees shall
be retained by the clerk
GARNISHMENT OF DEBTS AND

CREDITS
Garnishment is considered as a species of

attachment for reaching credits belonging to
the judgment debtor and owing to him from a
stranger to the litigation
SATISFACTION BY LEVY
Levy is the act whereby a sheriff sets apart or

appropriates for the purpose of satisfying the
command of the writ, a part or the whole of
the judgment debtors property.
The Officer may levy on:

(1) Debts due the judgment obligor and other
credits,
(2) Including bank deposits, financial
interests, royalties, commissions,
(3) And other personal property not capable
of manual delivery in possession and
control of third parties
Levy means the act or acts by which an officer

sets apart or appropriates a part or the whole
of the property of the judgment debtor for
purposes of the prospective execution sale
[Llenares v. Vandevella (1966)].
If susceptible of appropriation, the officer
removes and takes the property for safekeeping;
otherwise the same is placed under sheriffs
guards. Without valid levy having been made,
any sale of the property thereafter is void.
The process of levying shall be called

garnishment if the property involved is money,
stocks, or other incorporeal property in the
HANDS OF THIRD PERSONS. Garnishment
merely sets apart such funds but does not
constitute the creditor as owner of the
garnished property.
Conditions to be met before resort to

satisfaction by levy:
(1) If the judgment obligor cannot pay all or
part of the obligation then the officer shall
levy upon the properties of the judgment
obligor
Garnishment is not a violation of RA 1405 on

the secrecy of bank deposits. [Chinabank v.
Ortega (1973)]
PAGE 123
UP LAW BOC
CIVIL PROCEDURE
Notes: Upon service of the writ of

garnishment, the garnishee becomes a
virtual party or forced intervenor to the
case and the trial court thereby acquires
jurisdiction to bind the garnishee to comply
with its orders and processes. [BPI v. Lee
(2012)]
REMEDIAL LAW
EXECUTION OF JUDGMENTS
FOR SPECIFIC ACTS
When proper [Rule 39, Sec. 10]
(1) Resorted to if the judgment directs a party
to:
(a) Execute a conveyance of land or
personal property, or
(b) Deliver deeds or other documents, or
(c) Perform any other specific act in
connection therewith.
(2) AND the party fails to comply within the
time specified
UPs funds, being government funds, are not

subject to garnishment. Moreover, The
execution of the monetary judgment against
the UP was within the primary jurisdiction of
the COA. [UP v. Dizon (2012)]
Procedure:
(1) Levy shall be made by serving notice
upon:
(a) The person owing such debts, or
(b) Having in his possession or control
such credits to which judgment
obligor is entitled
Procedure:
(1) Court may direct the act to be done
(a) At the cost of disobedient party
(b) Or by some other person appointed by
the court
(2) In case of directing conveyance of real or
personal property located in the
Philippines:
(a) Court may divest the title of any party
and vest it in others by court order
(b) This shall have the force and effect of
conveyance executed in due form
(2) Garnishment to cover only such amount

as will satisfy judgment and lawful fees
(3) If there are 2 or more garnishees, holding
deposits or credits sufficient to satisfy
judgment, judgment obligor shall have
the right to indicate the garnishee/s who
shall be required to deliver. Otherwise, the
choice shall be made by judgment obligee
Sale of real or personal property

If judgment is rendered ordering the sale of
real or personal property, an order for
execution shall be issued describing such
property as may be ordered sold, selling it,
and applying the proceeds in conformity with
the judgments instructions.
(4) The garnishee shall make a written report

to the court within 5 days from service of
notice of garnishment. The report shall
state whether:
(a) Judgment obligor has sufficient funds
or credits to satisfy judgment, OR
(b) Judgment obligor has insufficient
funds or credits to satisfy judgment
Delivery or restitution of real property

The officer shall demand of the person against
whom the judgment for the delivery or
restitution of real property is rendered and all
persons claiming rights under him to
peaceably vacate the property within three (3)
working days, and restore possession thereof
to the judgment obligee.
(5) Garnish the amount which may be in cash,

or certified bank check issued in the name
of judgment obligee
(6) Garnished amount shall be delivered
directly to judgment obligee within 10
working days from service of notice on
said garnishee requiring such delivery
Otherwise, the officer shall oust all such

persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such
property.
(7) Follow procedure under Immediate

Payment on Demand with respect to
delivery
(8) Lawful fees shall be paid directly to court
PAGE 124
UP LAW BOC
CIVIL PROCEDURE
Any costs, damages, rents or profits awarded

by the judgment shall be satisfied in the same
manner as a judgment for money.
REMEDIAL LAW
Examples:
(1) A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital
[Vital-Gozon v. CA]
(2) A judgment directing petitioner to vacate
the land which is a judgment to deliver
possession of real property and not
special judgment. No contempt for refusal
[Moslem v. Soriano].
(3) A judgment directing defendant to
remove a fence from a certain place is a
special judgment [Marquez v. Marquez]
Removal of improvements on property

subject of execution
When the property subject of the execution
contains improvements constructed or
planted by the judgment obligor or his agent,
the officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon motion
of the judgment obligee after the hearing and
after the former has failed to remove the same
within a reasonable time fixed by the court.
EFFECT OF LEVY ON THIRD

PERSONS
Delivery of personal property

In judgment for the delivery of personal
property, the officer shall take possession of
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for
money as therein provided.
The levy on execution shall create a lien in

favor of the judgment obligee over the right,
title and interest of the judgment obligor in
such property at the time of the levy, subject
to
liens
and
encumbrances
then
existing. [Rule 39, Sec. 12]
EXECUTION OF SPECIAL
JUDGMENTS
NOTE: The power of the court in execution

extends
only
over
properties
UNQUESTIONABLY belonging to judgment
debtor.
When Proper [Rule 39, Sec. 11]
PROPERTIES EXEMPT FROM

EXECUTION
When a judgment requires performance of

any other act than those mentioned in Sec. 9
and 10.
General Rule: Except as otherwise expressly

provided by law, the following property, and
no other, shall be exempt from execution
[Rule 39, Sec. 13]
(1) The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
Special Judgment is one which can only be

complied with by the judgment obligor
because of his personal qualifications or
circumstances. It requires performance of an
act other than payment of money or sale or
delivery of property. A special judgment may
be enforced by contempt if defendant refuses
to comply
(2) Ordinary tools and implements personally

used by him in his trade, employment, or
livelihood;
Procedure:
(1) A writ of execution shall be issued.
Attached to this is a certified copy of the
judgment
(3) Three horses, or three cows, or three

carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation;
(2) Service by the officer upon:

(a) The party against whom the same is
rendered, or
(b) Any other person required thereby, or
by law, to obey the same
(4) His necessary clothing and articles for

ordinary personal use, excluding jewelry;
(3) Failure of such party to obey the judgment

is punishable by contempt
PAGE 125
UP LAW BOC
CIVIL PROCEDURE
(5) Household
furniture
and
utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
REMEDIAL LAW
Exception: However, no article or species of

property mentioned in this section shall be
exempt from:
(1) Execution issued upon a judgment
recovered for its price, or
(2) Upon a judgment of foreclosure of a
mortgage thereon.
(6) Provisions for individual or family use

sufficient for four months;
The exemptions MUST BE CLAIMED,

otherwise they are deemed waived. It is not
the duty of the sheriff to set off the exceptions
on his own initiative. [Herrera v. Mcmicking,
1909]
(7) The professional libraries and equipment

of
judges,
lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding three
hundred thousand pesos in value;
RETURN OF WRIT OF
EXECUTION
(8) One fishing boat and accessories not

exceeding the total value of one hundred
thousand pesos owned by a fisherman
and by the lawful use of which he earns
his livelihood;
Procedure for Return of Writ of Execution if

Judgment is Satisfied within 30 days
[Rule 39, Sec. 14]
(1) Writ of execution shall be returnable to
the court issuing it immediately after
judgment has been satisfied in part or in
full
(9) So much of the salaries, wages, or

earnings of the judgment obligor for his
personal services within the four months
preceding the levy as are necessary for the
support of his family;
(2) The return shall set forth the whole of the

proceedings taken
(10) Lettered gravestones;
(3) Return is filed with the court
(11) Monies, benefits, privileges, or annuities

accruing or in any manner growing out of
any life insurance;
(4) It shall also be reproduced and copies

thereof furnished to parties
Procedure if Judgment is NOT satisfied
within 30 days:
(1) Officer shall report to the court stating the
reason for non-satisfaction
(12) The right to receive legal support, or

money or property obtained as such
support, or any pension or gratuity from
the Government;
(2) The writ shall continue in effect during the

period within which judgment may be
enforced by motion
(13) Properties specially exempted by law.

(e.g., property mortgaged to the DBP
[Section 26, CA 458]; savings of national
prisoners deposited with the POSTAL
SAVINGS BANK [Act 2489]; benefits from
private retirement systems of companies
and establishments with limitations [RA
4917]; laborers wages except for debts
incurred for food, shelter, clothing and
medical attendance [Art. 1708, Civil Code];
benefit payments from SSS [Section 16, RA
1161 as amended])
(3) Officer shall make a report to the court

every 30 days on the proceedings taken
thereon, until either:
(a) Judgment is satisfied in full, or
(b) Its effectivity expires
(4) The periodic reports shall:
(a) Set forth the whole of the proceedings
taken, and
(b) Be filed with the court
(c) Be reproduced and copies thereof
furnished to parties
PAGE 126
UP LAW BOC
CIVIL PROCEDURE
NOTE: The lifetime of a writ of execution is

without limit for as long as the judgment has
not been satisfied.
REMEDIAL LAW
The timing of the filing of the claim is

important because it determines the remedies
available to the claimant:
(1) If the claim is filed under Rule 39, Sec. 16:
(a) Claimant may vindicate his claim in a
separate action
(b) Intervention is no longer allowed since
judgment has already been rendered
But it is returnable to the court issuing it

immediately after judgment has been satisfied
in full or in part.
The writ shall continue in effect during period
within which the judgment may be enforced
by motion which is 5 years from date of entry.
After the first 5 years, judgment becomes
dormant and subject to revival action.
(2) If the claim is filed under Sec. 14, Rule 57

(Attachment) or under Sec. 7, Rule 60
(Replevin)
(a) Claimant may vindicate his claim by
intervention as he has a legal interest
in the matter of litigation
(b) Intervention is allowed as these
actions are still pending in court
PROCEEDINGS WHERE
PROPERTY CLAIMED BY THIRD
PERSON
Effect of Third-Party Claim: When a third-party

claim is filed, sheriff is not bound to proceed
with the levy of the property unless judgment
creditor or latters agent posts an indemnity
bond against the claim.
CONCEPTS
Rule 39, Sec. 16 and other provisions which
provide for a mode of recovering property
allegedly to have been wrongfully taken by
sheriff pursuant to a writ of execution or other
process, refers to a STRANGER to an action.
SUMMARY
HEARING
BEFORE
COURT AUTHORIZING EXECUTION
Remedies of Third-Party Claimant:

(1) Summary hearing before the court which
authorized the execution
(2) Terceria or third-party claim filed with
the sheriff [Rule 39, Sec. 16]
(3) Action for damages on the bond posted
by the judgment creditor
(4) Independent reivindicatory action
A third-person whose property was seized by a

sheriff to answer for an obligation of a
judgment debtor may invoke the supervisory
power of the court which authorized such
execution
The aforementioned are cumulative remedies

and may be resorted to by a third-party
claimant independently of or separately from
and without need of availing of the others. [Sy
v. Discaya (1990)]
(2) Court conducts summary hearing

(a) The court may command that the
property be released from the
mistaken levy and restored to rightful
owner or possessor
(b) If claimants proofs do not persuade,
the claim will be denied by the court
Procedure:
(1) Claimant files application
For a Third-Party Claim to be Sufficient:

(1) Must be filed by a person other than the
defendant or his agent, at any time before
sale
(2) Must be under oath or supported by
affidavit stating the claimants title to, or
right of possession of, the property, and
grounds therefor
(3) Must be served upon the officer making
levy and a copy thereof upon the
judgment creditor
(3) Note
however
that
the
court
determination is limited
(a) Limited only to a determination of
whether the sheriff has acted rightly
or wrongly in performance of his
duties
(b) The court does not and cannot pass
upon the question of title. It can treat
of the matter only insofar as may be
necessary to decide if sheriff acted
correctly or not
PAGE 127
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
TERCERIA
In Spouses Sy v. Hon. Discaya (1990), SC

declared that for a third-party claim or a
terceria to prosper, the claimant must first
sufficiently establish his right on the property
This is an action for damages by claimant

against officer within 120 days from date of
filing of bond for taking or keeping the
property subject of the terceria.
REINVINDICATORY ACTION
Independent of the foregoing, a third-party

claimant may also avail of the remedy of
Terceria. Terceria is provided in Sec. 16, Rule 39.
The aforesaid remedies are nevertheless

without prejudice to any proper action that
third-party claimant may file to vindicate his
claim over the property (ownership claim).
This action is separate and independent
Procedure
(1) Claimant serves on the officer making levy
an affidavit of his title and a copy thereof
to judgment creditor
Procedure
(1) He must institute an action, distinct and
separate from that which the judgment is
being enforced, with the court of
competent jurisdiction
(2) Officer shall not be bound to keep

property
(a) Unless judgment creditor, or his
agent, on demand of officer, posts
indemnity bond not lesser nor greater
than value of property
(2) No need to file a claim in the court which

issued a writ. The latter is not a condition
sine qua non for the former.
(3) Where a third-party claim has been filed

in due form:
(a) Prevailing party can compel the sheriff
to proceed by filing of a bond to
answer
for
damages
as
a
consequence of the execution
(b) If sheriff proceeds with the sale
without such bond, he will be
personally liable for such damages as
may be sustained by and awarded to
the claimant
(3) In such proper action, validity and

sufficiency of title of claimant will be
resolved.
(4) A writ of preliminary injunction against
sheriff may be issued
RULES ON REDEMPTION
WHEN AVAILABLE
(1) For personal property there is NO right

of redemption as the sale is absolute
(2) For real property right of redemption is
available
(4) Action against Indemnity

(a) Action against indemnity bond must
be filed within 120 days from date of
filing of the bond
(b) After lapse of 120 days, no claim for
damages for taking or keeping of
property may be enforced against the
bond
WHO
MAY
REDEEM
REAL
PROPERTY SO SOLD [Rule 39, Sec. 27]
Who may redeem:
(1) Judgment obligor, or his successor in
interest, in the whole or any part of the
property
(2) Remptioner who is a creditor having a lien
by virtue of an attachment, judgment or
mortgage on the property sold,
subsequent to the lien which the property
was sold
The right of a third-party claimant to file a

terceria is founded on his title or right of
possession. Corollary thereto, before the court
can exercise its supervisory power to direct the
release of the property mistakenly levied and
the restoration thereof to its rightful owner,
the claimant must first unmistakably establish
his ownership or right of possession thereon.
[Magdalena T. Villasi v. Filomena Garcia,
substituted by his heirs, namely, Ermelinda H.
Garcia, et al, 2014]
Successors-in-interest
They include, among others, one to whom the
debtor has conveyed HIS INTEREST in the
property for purposes of redemption
PAGE 128
UP LAW BOC
CIVIL PROCEDURE
The Redemptioner
He is a creditor with a lien SUBSEQUENT to
the judgment which was the basis of the
execution sale.
REMEDIAL LAW
REDEMPTION PRICE
(1) By the Judgment Debtor or First

Redemptioner:
(a) Purchase PRICE
(b) 1% INTEREST thereon up to time of
redemption
(c) Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as interest
on such last named amount at the
same rate
(d) If purchaser is also a creditor having a
PRIOR LIEN to that of redemptioner,
other than the judgment under which
such purchase was made, the
AMOUNT of such OTHER LIEN, also
with interest
Unlike the judgment debtor, a redemptioner

must prove his right to redeem by producing
the documents required in Sec. 30, to wit:
(1) Copy of the judgment or final order under
which he claims the right to redeem
certified by the clerk wherein judgment or
final order was entered OR
(2) If he redeems upon a mortgage or other
lien, a memorandum of the record thereof,
certified by the Register of Deeds; OR
(3) An original or certified copy of any
assignment necessary to establish his
claim; OR
(4) An affidavit executed by him or his agent
showing the amount then actually due on
the lien [Sec. 30]
(2) By all Subsequent Redemptioners

(a) AMOUNT paid on last redemption
(b) 2% INTEREST thereon
(c) Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as interest
on such last named amount at the
same rate
(d) Amount of any LIENS held by said last
redemptioner prior to his own, also
with interest
If the lien of the creditor is PRIOR to the

judgment under which the property was sold:
(1) He is not a redemptioner
(2) He cannot redeem since his interests in his
lien are fully protected. Any purchaser at a
public auction takes the same subject to
such prior lien which he has to satisfy
WHEN CAN REDEMPTION BE MADE
NOTE: The redemption price for subsequent

redemption shall be the same, so the price
becomes higher and higher.
[Rule 39, Sec. 28]

Who
When
Within 1 year from date of
By the JUDGMENT
registration of certificate
DEBTOR
of sale
Within 1 year from date of
By FIRST
registration of certificate
REDEMPTIONER
of sale
Within 60 days from last
BY ALL
redemption
SUBSEQUENT PROVIDED that judgment
REDEMPTIONERS debtor has not exercised
his right of redemption
EFFECT OF REDEMPTION BY THE

JUDGMENT OBLIGOR [Rule 39, Sec. 29]
If Judgment debtor redeems the property:
(1) No further redemption is allowed
(2) He is restored to his estate
When a judgment debtor redeems the
property, what is effected is the elimination of
the lien created by the levy on attachment or
judgment on the registration of mortgage
thereon. Note that he never lost ownership so
there is no recovery of ownership.
In all cases, judgment debtor shall have the

entire 1 year period from date of registration of
sale to redeem the property. If judgment
debtor redeems, no further redemption is
allowed [Sec. 29].
Payments mentioned in Sec. 28 and 29 may

be made to the:
(1) Purchaser, or
(2) Redemptioner, or
(3) For him to the officer who made the sale
NOTE: There is no extension or interruption of

redemption period.
PAGE 129
UP LAW BOC
CIVIL PROCEDURE
The person to whom redemption payment is

made must execute and deliver to him a
CERTIFICATE OF REDEMPTION
(1) Acknowledged by a notary public or other
officer
authorized
to
take
acknowledgements of conveyances of real
property
(2) Filed and recorded in the registry of deeds
of the place which the property is situated
(3) Registrar must note the record on the
margin of the record of the certificate of
sale
RIGHTS
PENDING
REMEDIAL LAW
Two Documents which the Sheriff Executes

in case of Real Property
(1) CERTIFICATE OF SALE
After auction sale, he will execute in
favor of the purchaser the certificate of
sale under Sec. 25
From registration of said certificate, the
one year redemption period starts
Certificate of sale after execution sale is
merely a memorial of the fact of sale
and does not operate as conveyance
(2) DEED OF CONVEYANCE
Issued if after expiration of redemption
period there is no redemption
Operates to transfer to purchaser
whatever rights the judgment debtor
had in the property
The effect of a final deed of sale
transfers the right as of the time of the
levy
REDEMPTION
Right of Judgment Creditor Pending

Redemption
(1) Apply for injunction to restrain the
commission of waste on the property
Rights of the Judgment Debtor Pending
Redemption
(1) Remain in possession of the property
(2) Cannot be ejected
(3) Use the property in the same manner it
was previously used
(4) Make necessary repairs to buildings
thereon while he occupies the property
(5) Use it in the ordinary course of husbandry
(Sec. 31); and
(6) Collect rents, earning and income derived
from property until the expiration of
period of redemption
RECOVERY OF PRICE IF SALE IS

NOT EFFECTIVE [Rule 39, Sec. 34]
Purchaser may recover the purchase price
WHEN:
(1) Purchaser or his successor-in-interest fails
to recover possession the property; or
(2) Evicted due to:
(a) Irregularities in the proceedings
concerning the sale; or
(b) Judgment has been reversed or set
aside; or
(c) The property sold was exempt form
execution; or
(d) A third person has vindicated his
claim to the property
EXPIRATION OF REDEMPTION
PERIOD [Rule 39, Sec. 33]
Judgment obligor shall have the entire period
of ONE YEAR from date of registration of sale
to redeem the property
Remedies of the Purchaser

(1) File a motion in the same action or file a
separate action to recover from judgment
creditor the price paid
(2) File a motion for revival of judgment in his
name against judgment debtor; or
(3) Bring an action to recover possession of
property
Entitlement to a CONVEYANCE and

POSSESSION:
(1) To the PURCHASER
If there is no redemption made within 1
year from date of registration of the
certificate of sale
(2) To the LAST REDEMPTIONER
If there was redemption, and 60
days have elapsed and no other
redemption has been made
Notice must have been given, and the
redemption period has elapsed
Effect of revived judgment it has the same

force and effect as an original judgment
would have as of the date of revival and no
more
PAGE 130
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
amount of his debt or so much thereof

as may be necessary to satisfy the
judgment
REMEDIES
OF
JUDGMENT
CREDITOR IN AID OF EXECUTION
OR IF JUDGMENT IS NOT FULLY
SATISFIED [Rule 39, Sec. 36 43]
(4) SEC. 38 A party or other person may be

compelled to attend before the court or
commissioner to testify as provided in Sec.
36 and 37
(a) This must be done by order of the
court or by subpoena
(b) Failure to obey: Contempt
(c) All examinations and answers must
be under oath
(1) SEC. 36 If execution is returned

unsatisfied, he may cause examination of
the judgment debtor as to his property
and income
(a) When: At any time after return is
made
(b) The court issues an order requiring
the judgment debtor to appear and be
examined
(c) Limitations on examination:
(i) Judgment debtor cannot be made
to appear before a judge or
commissioner
outside
the
province where debtor resides
(ii) He may no longer be examined
after lapse of 5 years within which
a judgment may be enforced by
motion for execution [Umali v.
Coquia]
(5) SEC. 40 Order for application of

property and income to satisfaction of
judgment
(a) Court may order any property of
judgment debtor, or any money due
him, or in the hands of another to be
applied to the satisfaction of
judgment
(b) If the court finds the earning of the
judgment debtor for his personal
services are MORE than sufficient for
his familys needs, it may order
payment in FIXED MONTHLY
INSTALLMENTS
(c) Failure to do so: Punish for contempt
(2) SEC. 37 He may cause examination of

the debtor of the judgment debtor as to
any debt owed by him or to any property
of the judgment debtor in his possession
(a) Requisites:
(i) The writ must be returned
unsatisfied; and
(ii) Proof that person, corporation, or
other legal entity has property of
such judgment debtor or is
indebted to him
(b) Where?
Before
a
judge
or
commissioner appointed by him at a
time and place where such debtor
resides or is found
(c) Effect: Service of order shall bind all
credits due to judgment debtor and
all money and property
(d) This rule is not applicable if there is no
issue concerning the indebtedness of
the person
(6) SEC. 41 Appointment of a Receiver

(a) Court may appoint a receiver for the
property of judgment debtor not
exempt from execution
(b) Court may also forbid disposition or
interference with the property
(7) SEC. 42 Sale of Ascertainable Interest of
Judgment Obligor in Real Estate by
Receiver
(a) Requisites:
(i) The court finds that the judgment
debtor has an ascertainable
interest in real property
(ii) Such interest can be ascertained
without controversy
(b) If the requisites are met, the court can
order the sale of such interest.
Procedure is the same as in sale of
real estate upon execution
(3) SEC. 37 If after examination, court finds

property of the judgment debtor, either in
his own hands or that of any a person,
court may order the property applied to
the satisfaction of judgment
(a) SEC. 39 - Note that the person
indebted to judgment obligor may pay
to the sheriff holding the writ the
PAGE 131
UP LAW BOC
CIVIL PROCEDURE
(8) SEC. 43 Institution of an action to

recover property
(a) If person alleged to have property of
judgment debtor or person indebted
to him, claims an adverse interest in
the property or denies his debt
(b) Court may authorize judgment
creditor to bring an action to recover
the property, forbid its transfer
(c) Action must be instituted within 120
days from notice of order
(d) Failure is contempt
(e) Such order may be modified or
vacated at any time by the court
BAR BY FORMER JUDGMENT
Res judicata is a rule that a final judgment

rendered by a court of competent jurisdiction
on the merits is conclusive as to the rights of
the parties and their privies, and, as to them,
constitutes an absolute bar to a subsequent
action involving the same claim, demand, or
causes of action.
In Rem
(Paragrah A)
Decision
is
CONCLUSIVE upon
title the thing, will or
administration
of
condition, status or
relationship of the
person
EFFECT OF JUDGMENT OR
FINAL ORDERS
Rule 39, Sec. 47 refers to judgments which are

considered as conclusive and may be rebutted
directly by means of relief from judgment or
annulment of judgment or indirectly by
offering them in evidence under the parole
evidence rule.
e.g. land registration
DUAL ASPECT OF RES JUDICATA
Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
(1) Bar by Former Judgment - Direct Estoppel

by Judgment; covers paragraph (a) and (b)
(2) Conclusiveness of Judgment Estoppel by
Verdict, Estoppel by Record, Collateral
Estoppel by Judgment or Preclusion of
Issues or Rule of Auter Action Pendant; it
covers paragraph (c)
There is identity of
parties,
subject
matter, and causes
of action
The first judgment
constitutes as an
absolute bar to all
matters
directly
adjudged and those
that might have
been adjudged
Preclusion of claims
In Personam
(Paragraph B)
The judgment or final
order
is
CONCLUSIVE
as
between parties and
their successors in
interest, litigating for
the same thing and
under the same title
an in the same
capacity
e.g. accion
reinvindicatoria
Bar by prior judgment is a preclusion of claims

- The first judgment is a bar to the prosecution
of a second action upon the same claim,
demand, or cause of action
Immutability of Judgments - Once a judgment

attains finality it thereby becomes immutable
and unalterable
Bar by Former
Judgment
REMEDIAL LAW
Conclusiveness of
Judgment
There is only identity
of parties and subject
matter
Cause of action are
different
The first judgment is
conclusiveness only as
to matters directly
adjudged and actually
litigated in the first
action.
The second action can
be prosecuted
Preclusion of issues
only
General Rule: For res judicata to apply, trial

must be made on the merits of the case.
Exception: Section 3, Rule 17 of ROC: If plaintiff
fails to appear at the time of the trial, or to
prosecute his action for an unreasonable
length of time, or to comply with these rules
or any order of the court, the action may be
dismissed upon motion of the defendant or
upon the court's own motion . This dismissal
shall have the effect of an adjudication upon
the merits, unless otherwise provided by court.
[Development Bank v. CA]
PAGE 132
UP LAW BOC
CIVIL PROCEDURE
Res Judicata in Judgments in Rem

Judgments or final
order
Against a specific
thing
REMEDIAL LAW
RES JUDICATA v. LAW OF THE CASE

v. STARE DECISIS
Stare Decisis - When the SC has laid down a

principle of law applicable to a certain state of
facts, it will adhere to that principle and apply
to it all future cases where the facts are
substantially the same
Conclusive as to
Title of the thing
The will or
administration.
However, the probate
Probate of a will or of a will or granting of
administration of the
letters of
estate of a deceased administration shall
person
only be prima facie
evidence of the death
of the testator or
intestate;
in respect to the
personal, political, or
legal condition or
Condition, status or
status of a particular
relationship of the
person or his
person,
relationship to
another
Doctrine of the Law of the Case - Whatever is

once irrevocably established as the controlling
legal rule or decision between the same
parties in the case continues to be the law of
the case whether correct on general principles
or not, so long as the facts on which such
decision was predicated continue to be the
facts of the case before the court.
As discussed in Ayala Corp. v. Rosa-Diana
Realty, 2000:
Res Judicata
The ruling in
one case is
carried over
to another
case
between the
same parties
Res Judicata in Judgments in Personam

In other cases, the judgment or final order is,
with respect to the matter directly adjudged or
as to any other matter that could have been
missed in relation thereto, conclusive:
(1) Between the parties and
(2) Their successors in interest, by title
subsequent to the commencement of the
action or special proceeding, litigating for
the same thing and under the same title
and in the same capacity.
Law of the
Case
Operates only
in
the
particular and
single
case
where
the
ruling
arises
and is not
carried
into
other cases as
a precedent
The
ruling
adhered to in
the particular
case need not
be followed as
a precedent in
subsequent
litigation
between other
parties
CONCLUSIVENESS OF JUDGMENT
Preclusion of issues (auter action pendant)
In any other litigation between the same
parties or their successors in interest, that only
is deemed to have been adjudged in a former
judgment or final order which appears upon
its face to have been so adjudged, or which
was actually and necessarily included therein
or necessary thereto.
Issue Preclusion The first judgment
precludes the re-litigation of a particular fact
or issue in another action between the same
parties on a different cause of action.
Requisite: Identity of ISSUES
PAGE 133
Stare Decisis
Once a point of
law has been
established by
the court, that
point of law
will, generally,
be followed by
the same court
and by all
courts of lower
rank
in
subsequent
cases
where
the same legal
issue is raised
UP LAW BOC
CIVIL PROCEDURE
EFFECT OF FOREIGN
JUDGMENTS OR FINAL
ORDERS
REMEDIAL LAW
EFFECT OF FOREIGN JUDGMENTS

[Rule 39, Sec. 48]
Nature
Effect
In judgments against
Judgment is
a specific thing (in CONCLUSIVE upon the
rem)
title to the thing
Judgment is
PRESUMPTIVE
In judgments against evidence of a right as
a person (in
between parties and
personam)
their successors-ininterest by a
subsequent title
PUBLIC POLICY PRINCIPLE
A judgment by a foreign court is enforceable

only within its territorial jurisdiction.
A valid judgment rendered by a foreign
tribunal may be recognized insofar as the
immediate parties the underlying cause of
action are concerned so long as it is
convincingly shown that:
(1) There has been an opportunity for a fair
hearing before a court of competent
jurisdiction
(2) Trial upon registered proceedings has
been conducted
(3) There is nothing to indicate either a
prejudice in court and in the system of
laws under which it is sitting or fraud in
procuring the judgment [Philippine
Aluminum v. Fasgi Enterprises (2000)]
In both cases, judgment may be repelled by

evidence of:
(1) Want of jurisdiction
(2) Want of notice
(3) Collusion
(4) Fraud
(5) Clear mistake of law or fact
A foreign judgment is presumed to be valid
and binding in the country from which it
comes, until a contrary showing, on the basis
of a presumption of regularity of proceedings
and the giving of due notice in the foreign
forum.
Such limitation on the review of foreign

judgment is adopted in all legal systems to
avoid repetitive litigation on claims and issues,
prevent harassment of the parties and avoid
undue imposition on the courts.
Before our courts can give the effect of res

judicata to a foreign judgment, it must be
shown that the parties opposed to the
judgment had been given ample opportunity
to do so on grounds under Section 48 of Rule
39 of the Rules of Court. [Roehr v. Rodriguez
(2003)]
This policy of preclusion rests on principles of

comity, utility and convenience of nations.
As a generally accepted principle of
international law, it is part of the law of the
Philippines by virtue of the Incorporation
Clause [Section 2, Article II of the 1987
Constitution] [Regalado]
Two Ways of Giving Effect to Foreign
Judgment:
(1) An ordinary action to enforce the foreign
judgment may be filed in court; or
(2) It may be pleaded in an Answer or a
Motion to Dismiss.
PAGE 134
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PRELIMINARY ATTACHMENT
Provisional Remedies
DEFINITION
NATURE OF PROVISIONAL
REMEDIES
A provisional remedy issued upon order of the

court where an action is pending to be levied
upon the property of the defendant so the
property may be held by the sheriff as security
for the satisfaction of whatever judgment may
be rendered in the case [Davao Light v CA
(1991)]
Provisional remedies are writs and processes

available during the pendency of the action
which may be resorted to by a litigant for the
preservation or protection of their rights and
interests therein pending rendition, and for
purposes of the ultimate effects, of a final
judgment in the case; also known as ancillary
or auxiliary remedies.
PURPOSES
(1) To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
(2) To enable the court to acquire jurisdiction
over the action by the actual or
constructive seizure of the property in
those instances where personal service of
summons on the creditor cannot be
effected. [Quasha v. Juan (1982)]
They are applied to a pending litigation, for

the purpose of securing the judgment or
preserving the status quo, and in some cases
after judgment, for the purpose of preserving
or disposing of the subject matter. [Calo v.
Roldan (1946)]
Orders granting or denying provisional
remedies are merely interlocutory and cannot
be the subject of an appeal. They may
however be challenged before a superior court
through a petition for certiorari under Rule 65.
GROUNDS FOR ISSUANCE [Rule 57,

Sec. 1]
There are only specific situations where
preliminary attachment may issue. The
grounds are EXCLUSIVE:
The Provisional Remedies under the Rules

of Court
(1) Preliminary Attachment (Rule 57)
(2) Preliminary Injunction (Rule 58)
(3) Receivership (Rule 59)
(4) Replevin (Rule 60)
(5) Support Pendente Lite (Rule 61)
(1) Action for recovery of a specified amount

of money or damages, EXCEPT moral and
exemplary,
(a) On a cause of action arising from law,
contract, quasi-contract, delict, or
quasi-delict
(b) Against a party who is about to depart
from the Philippines with intent to
defraud his creditors;
NOTE: The enumeration above is not

exclusive. The court may invoke its equity
jurisdiction and order the appropriate
reliefs during the pendency of an action
(2) Action for money or property, embezzled

or fraudulently misapplied or converted to
his own use by either:
(a) A public officer, an officer of a
corporation, an attorney, factor,
broker, agent, or clerk, in the course of
his employment as such,
(b) OR by any other person in a fiduciary
capacity, or for a willful violation of
duty;
JURISDICTION OVER
PROVISIONAL REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction over
the main action.
Inferior courts may also grant all appropriate
provisional remedies in an action pending with
it and is within its jurisdiction [Sec. 33, (1), BP
129]
PAGE 135
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Action to recover the possession of

property unjustly or fraudulently taken,
detained or converted,
(a) When the property, or any part
thereof,
has
been
concealed,
removed, or disposed of to prevent its
being found or taken by the applicant
or an authorized person;
(3) Applicant must show by affidavit that

there is no sufficient security for the claim
sought to be enforced and that the
amount claimed in the action is as much
as the sum of which the order is granted
above all counterclaims
(4) Applicant must post a bond executed to
adverse party
NOTE: rule makes no distinction between

real and personal property [Riano]
A writ of preliminary attachment is too harsh a

provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules
require that for the writ to issue, there must be
a recitation of clear and concrete factual
circumstances manifesting that the debtor
practiced fraud upon the creditor at the time
of the execution of their agreement in that
said debtor had a preconceived plan or
intention not to pay the creditor. [Equitable v.
Special Steel (2012)]
(4) Action against a party who has been guilty

of a fraud in contracting the debt or
incurring the obligation upon which the
action is brought, OR in the performance
thereof;
NOTE: the delivery of counterfeit money or
knowingly issuing a bounced check are
considered as grounds under this rule
[Riano]
ISSUANCE AND CONTENTS

ORDER OF ATTACHMENT
(5) Action against a party who has removed

or disposed of his property, or is about to
do so, AND with intent to defraud his
creditors; or
OF
[Rule 57, Sec. 2]
When may one apply: A preliminary

attachment may be applied for
(1) At the commencement of the action or
(2) At any time before the entry of judgment.
(6) Action against a party who does not reside

and is not found in the Philippines, OR on
whom summons may be served by
publication.
Who may apply: It may be applied for by the

plaintiff OR any proper party (including a
defendant who filed a counterclaim, crossclaim, or a third party complaint)
Note: the rule also refers to persons on

whom summons may be served by
publication and against whose property,
preliminary attachment may be availed of
such as:
(1) Residents defendants whose identity
or whose whereabouts are unknown
[Rule 14, Sec. 14]
(2) Resident defendants who are
temporarily out of the country [Rule
14, Sec. 16]
Methods
to
Procure
Preliminary
Attachment:
(1) Writ may be prayed for in the complaint
itself providing the allegations warranting
its issuance
(2) May be issued pursuant to a separate
motion for attachment whenever the writ
is not prayed for in the original complaint
Three Stages in the Grant of a Preliminary
Attachment:
(1) The court issues the order granting the
application
(2) Writ of attachment issues pursuant to the
order granting the writ
(3) The writ is implemented
REQUISITES FOR PRELIMINARY

ATTACHMENT TO ISSUE:
(1) The case must be any of those where

preliminary attachment is proper [Sec. 1,
Rule 57]
(2) Applicant must file a motion whether ex
parte or with notice and hearing
NOTE: For the initial two stages, it is not

necessary that jurisdiction over person of
defendant be first obtained
PAGE 136
UP LAW BOC
CIVIL PROCEDURE
However, once implementation of writ

commences, court must have acquired
jurisdiction over the defendant for without
such jurisdiction, the court has no power or
authority to act
REMEDIAL LAW
Applicants Bond: The party applying for the

order must give a bond executed to the
adverse party
(1) Amount is fixed by the court in its order
granting the issuance of the writ
(2) Conditioned that, if the court shall finally
adjudge that applicant was not entitled to
the writ, the bond will pay:
(a) All costs which may be adjudged to
adverse party and
(b) All damages which he may sustain by
reason of attachment
Issuance of the Order of Attachment

(1) The order may be issued either:
(a) Ex parte (service of summons to
defendant required)
(b) Or upon motion with notice and
hearing
(2) The order is issued by the court in which
the action is pending or the CA, or the SC
The bond shall only be applied to all damages

sustained due to the attachment. It cannot
answer for those that do not arise by reason of
the attachment [Riano].
Contents of the Order of Attachment:

(1) It must require the sheriff to attach so
much of the property of the party against
whom it is issued as may be sufficient to
satisfy applicants demand
(a) Property must be within the
Philippines
(b) And it must not be exempt from
execution
THE
RULE
ON
PROR
OR
CONTEMPORANEOUS SERVICE OF
SUMMONS
General Rule: A writ of attachment may be
issued ex parte even before the summons is
served upon the defendant. BUT a writ may
not be implemented until jurisdiction over the
person is acquired by service of summons.
Otherwise, the implementation is null and
void. [Riano]
(2) It shall contain an amount for the

attachment bond:
(a) The amount sufficient to satisfy the
applicants demand, or
(b) The value of the property to be
attached as stated by applicant
Exceptions to Contemporaneous Service of

Summons: [Rule 57, Sec. 5]
(1) Summons could not be served personally
or by substituted service despite diligent
efforts, or
(2) Defendant is a resident of the Philippines
temporarily absent therefrom, or
(3) Defendant is a non-resident, or
(4) The action is in rem or quasi in rem.
AFFIDAVIT AND BOND

For the writ to issue, the applicant must

submit an affidavit and post bond. The
affidavit and bond required must be duly filed
with the clerk before order issues
Contents of the Affidavit: The affidavit must
establish:
(1) A sufficient cause of action exists
(2) Cause is one of those mentioned in Sec. 1
(3) No other sufficient security for the claim
sought to be enforced by action
(4) Amount due to applicant or possession of
which is entitled to recover is as much as
the sum for which the order is granted
above all legal counterclaims
MANNER OF ATTACHING
PROPERTY [Rule 57, Sec. 5]
The sheriff enforcing the writ shall attach only
so much of the property in the Philippines of
the adverse party not exempt from execution
as may be sufficient to satisfy the applicants
demand, UNLESS
(1) Party against whom writ is issued makes a
deposit with the court from which the writ
is issued, or
(2) He gives a counter-bond executed to the
applicant
PAGE 137
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(i) The executor, or administrator, or

(ii) Other personal representative of
the decedent
(c) Copy of the writ and notice:
(i) Shall be filed with the clerk in
which said estate is being settled,
and
(ii) Served upon the heir, legatee, or
devisee concerned
ATTACHMENT OF REAL AND

PERSONAL PROPERTY [Rule 57, Sec. 7]
(1) Real property, or growing crops thereon,

or any interest therein
(a) File with the Registry of Deeds:
(i) A copy of the order together with
a description of the property
(ii) And a notice that the property is
attached
(b) The registrar of deeds must index
attachments in the names of the
applicant, adverse party, or person by
whom the property is held or in whose
name it stands in the records
(c) If attachment is not claimed on the
entire area of land, description
sufficiently accurate for identification
of such shall be included in the
registration
Property in custodia legis may be attached by:

(1) Filing a copy of the writ of attachment
with the proper court or quasi-judicial
agency
(2) Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec. 7]
A previously attached property may also be
subsequently attached. But the first
attachment shall have priority over
subsequent attachments. [Riano]
(2) Personal property capable of manual

delivery
(a) Issue a corresponding receipt therefor
(b) Then sheriff takes it and safely keeps
it in his custody
PROCEEDINGS WHERE ATTACHED

PROPERTY IS CLAIMED BY THIRD
PERSON
(3) Stocks or Shares, or an Interest therein, of

any corporation or company
(a) Leave a copy of the writ and a notice
stating that these properties are
attached in pursuance of such writ
(b) Leave these documents with the
president, or managing agent thereof
A third person who has a claim to the property

attached may avail of the following remedies:
(1) File terceria or third-party claim [Rule 57,
Sec. 14]
(a) Note that a third-party claim may be
filed with the sheriff while has
possession of the properties levied
upon, this being the only time fixed for
the purpose
(b) The claimant makes an affidavit of his
title or right to possession, stating the
grounds of such right or title. The
affidavit must be served upon the
sheriff
(c) Substantial identical procedure as in
terceria in Rule 39, Sec. 16
(4) Debts, credits, bank deposits, financial

interest, royalties, commissions and other
personal property not capable of manual
delivery
(a) Leave a copy of the writ and a notice
that the debts owing, credits, and
other personal property are attached
in pursuance of such writ
(b) Leave these documents with:
(i) The person owing such debts, or
(ii) Having in his possession or under
his control, such credits or other
personal property, or
(iii) With his agent
(2) File independent

property; or
action
to
recover
(3) File motion for intervention

(a) This is available only before judgment
is rendered
(5) The interest of the party against whom

attachment is issued in property
belonging to the estate of decedent,
whether as heir, legatee, or devisee
(a) By service of a copy of the writ, and
notice that said interest is attached
(b) Service is made to:
PAGE 138
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) That bond is executed to adverse party

conditioned that the applicant will pay all
the costs which may be adjudged to
adverse party and all damages which he
may sustain by reason of the attachment,
if the court shall finally adjudge that
applicant was not entitled thereto (Sec. 4)
(3) Until that determination is made, as to
applicants entitlement to attachment, his
bond must stand and cannot be
withdrawn
DISCHARGE OF ATTACHMENT AND

COUNTER-BOND
After a writ of attachment has been enforced,
the party whose property has been attached,
or the person appearing on his behalf, may
move for the discharge of the attachment
wholly or in part on the security given.
Ways of Discharging Attachment
(1) Counterbond under Sec. 12
(2) Motion for Discharge under Sec. 13
SATISFACTION OF JUDGMENT OUT

OF PROPERTY ATTACHED [Rule 57,
Grounds for Discharge of Preliminary

Attachment:
(1) Debtor has posted a counterbond or has
made the requisite cash deposit [Sec. 12]
(2) Attachment was improperly or irregularly
issued [Sec. 13]
(a) As where there was no ground for
attachment, or
(b) The affidavit and/or bond filed are
defective or insufficient [Sec. 3]
(3) Judgment is rendered against attaching
creditor [Sec. 19]
(4) Attachment is excessive, but the
discharge shall be limited to the excess
[Sec. 13]
(5) Property attached is exempt from
execution
Sec. 15]
Procedure:
(1) Pay to judgment obligee the proceeds of
sale of perishable property
(2) If there is any balance that remains due,
sell property as may be necessary to
satisfy the balance if enough remains in
the sheriff or those of the clerk
(3) Collection of property of garnishee and
proceeds paid to judgment oblige without
need of prior permission to file action but
may be enforced in the same action
(4) Return must be made within 10 days from
receipt of writ
PRELIMINARY INJUNCTION
NOTE: There is a difference between the bond

for issuance of writ and bond for lifting the
writ
(1) Bond for issuance of writ [Sec. 4] This is
for damages by reason of the issuance of
the writ
(2) Bond for lifting of writ [Sec. 5 and 12]
This is to secure the payment of the
judgment to be recovered
DEFINITIONS AND DIFFERENCES
Injunction - a judicial writ, process, or

proceeding whereby a party is ordered to do or
refrain from doing a particular act
Preliminary Injunction - an ancillary or
preventive remedy where a court requires a
person, a party or even a court or tribunal
either to REFRAIN (prohibitory) from or to
PERFORM (mandatory) particular acts during
the pendency of an action. It is only a
temporary remedy.
Only the defendant or party whose property is

attached may move for its lifting. If the
attachment is proper, the discharge should be
by counterbond under Sec. 12 [KO Glass v.
Valenzuela]
Injunction
Main action
Effect of Dissolution on Plaintiffs

Attachment Bond
(1) Dissolution of preliminary attachment
upon security given, or a showing if its
irregular issuance, does not operate to
discharge the sureties on the attachment
bond
seeks a judgment
embodying a final
injunction
Preliminary injunction
Ancillary; exists only as
part or incident of an
independent action or
proceeding
sole object of which is to
preserve the status quo
until the merits can be
heard
Based on all evidence

based solely on initial
gathered by court to
and incomplete evidence
determine main action
PAGE 139
UP LAW BOC
CIVIL PROCEDURE
Purpose: To prevent future injury and maintain

the status quo (i.e. the last actual, peaceable,
uncontested status which preceded the
pending controversy) for [Knecht v. CA, (1993)]
Requisites:
(1) There must be a verified application
(2) The applicant must establish that:
(a) He has a right to relief or a right to be
protected and
(b) The act against which the injunction is
sought violates such right
(c) There is a need to restrain the
commission or continuance of the acts
complained of and if not enjoined
would work injustice to him
(3) A bond must be posted unless otherwise
exempted by the court
(4) The threatened injury must be incapable
of pecuniary estimation
(5) Prior notice and hearing for party/person
sought to enjoined (except in 72-hour
TROs)
The injunction should not establish new

relations between the parties but merely reestablish the pre-existing relationship
between them.
TRO v. Injunction
TRO
May be granted ex
parte if great and
irreparable injury
would result otherwise
Injunction
Cannot be granted
without notice and
hearing
A TRO is issued in order to preserve the status

quo until the hearing of the application for
preliminary injunction. [Bacolod City Water v.
Labayen (2004)]
Same requirements for
preliminary injunction.
application
REMEDIAL LAW
KINDS OF INJUNCTION
Kinds of Injunction:
(1) Preliminary Preventive Injunction
Prohibits the performance of a particular
act or acts
as
An application for a TRO shall be acted upon

only after all parties are heard in a summary
hearing, which shall be conducted within 24
hours after the sheriff's return of service
and/or the records are received by the branch
selected by raffle. [Rule 58, Sec.4]
(2) Preliminary Mandatory Injunction

Requires the performance of a particular
act or acts. This is an extreme remedy
which will be granted only on showing
that:
(a) The invasion of the right is material
and substantial
(b) Right of complainant is clear and
unmistakable
(c) There is an urgent and paramount
necessity
Status Quo Order v. Injunction

A status quo order is in the nature of a cease
and desist order. It is resorted to when the
projected proceedings in the case made the
conservation of the status quo desirable or
essential, but the affected party neither
sought such relief nor did the allegations in
his pleading sufficiently make out a case for a
temporary restraining order.
Preliminary Prohibitory
Preliminary
Injunction
Mandatory Injunction
Purpose is to prevent
Purpose is to require
a person from the
a person to perform a
performance of a
particular act
particular act
The act has already
The act had not yet been performed and
been performed
this act has violated
the rights of another
Status Quo is
Status Quo is
preserved
restored
It does NOT direct the doing or undoing of

acts but is an order to maintain the last,
actual, peaceable and uncontested state of
things which preceded the controversy.
Status Quo Ante Order
Directs the maintenance of the condition
prevailing before the promulgation of the
assailed decision.
It has the nature of a TRO. [Dojillo v.
COMELEC, 2006]
PAGE 140
UP LAW BOC
CIVIL PROCEDURE
When preventive injunction does not lie;

examples:
(1) To restrain collection of taxes [Valley
Trading v. CA (1989)], except where there
are special circumstances that bear the
existence of irreparable injury. [Churchill &
Tait v. Rafferty (1915)]
(2) To restrain the sale of conjugal properties
where the claim can be annotated on the
title as a lien, such as the husbands
obligation to give support. [Saavedra v.
Estrada (1931)]
(3) To restrain a mayor proclaimed as duly
elected from assuming his office. [Cereno
v. Dictado (1988)]
(4) To restrain registered owners of the
property from selling, disposing and
encumbering their property just because
the respondents had executed Deeds of
Assignment in favor of petitioner. [Tayag
v. Lacson (2004)]
(5) Against consummated acts. [PNB v. Adi
(1982); Rivera v. Florendo (1986); Ramos,
Sr. v. CA (1989)]
REMEDIAL LAW
GROUNDS FOR THE ISSUANCE OF

PRELIMINARY INJUNCTION
[Rule 58, Sec. 3]
Preliminary injunction may be granted

when it is established that:
(1) Applicant is entitled to the relief
demanded, or
(2) Commission, continuance, or nonperformance of the act complained of
would work injustice to applicant, or
(3) Party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some
act or acts probably in violation of the
rights of the applicant respecting the
subject of the action or proceeding
GROUNDS FOR OBJECTION TO, OR

FOR MOTION OF DISSOLUTION OF,
INJUNCTION OR RESTRAINING
ORDR [Rule 58, Sec. 6]
Grounds for objection or dissolution
(1) Upon showing of its insufficiency
When mandatory injunction does not lie;

examples
(1) To compel cohabitation [Arroyo v. Vasquez
(1921)]
(2) Cancellation
of
attachment
[Levy
Hermanos v. Lacson (1940)]
(3) Release imported goods pending hearing
before the Commissioner of Customs.
[Commissioner of Customs v. Cloribel
(1967)]
(4) To take property out of the possession or
control of one party and place it into that
of another whose title has not clearly been
established [Pio v. Marcos (1974)]
(2) Other grounds upon affidavits of the party

or person enjoined. This may be opposed
by the applicant by affidavits
(3) If it appears after hearing that although
applicant is entitled to injunction or TRO,
the issuance or continuance thereof,
would cause irreparable damage to party
enjoined while applicant can be fully
compensated for such damages as he
may suffer
(a) PROVIDED that he files a bond
(i) Amount to be fixed by the court
(ii) Conditioned that he will pay all
damages which the applicant may
suffer by denial or dissolution of
the injunction or TRO
WHEN WRIT MAY BE ISSUED
When: It may be issued at ANY stage PRIOR

to the judgment or final order
Who: It may be granted by the court where the
action or proceeding is pending. If the action
or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be
issued by said court or any member thereof.
[Rule 58, Sec. 2]
If it appears that the extent of the preliminary

injunction or restraining order granted is too
great, it may be modified.
PAGE 141
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(i) The
applicant
must
then
immediately comply with Sec. 4
as to service of summons and
documents
(ii) The Executive Judge shall then
summon the parties to a
conference and raffle the case in
their presence
TEMPORARY RESTRAINING ORDER

(TRO)
General Rule: Before preliminary injunction

may be granted, there must be prior notice to
person sought to be enjoined and there must
be a hearing
Procedure: When an application for a writ of
preliminary injunction or TRO is included in a
complaint or initiatory pleading, the case, if
filed in a multiple-sala, shall proceed as
follows:
(1) Verified complaint and bond is filed
(2) Determine if there is great or irreparable
injury or extreme urgency, which warrants
the issuance of a TRO
(a) If yes, go to Procedure for Issuance of
TRO
(3) In both cases, Notice shall then be served
to the party sought to be enjoined
(a) There
must
be
prior
and
contemporaneous
service
of
summons (exceptions also apply)
Within the 72-hr period

(i) The Presiding Judge before whom
the case is pending shall conduct
a summary hearing to determine
whether the TRO shall be
extended until application for
preliminary injunction can be
heard
(ii) In no case shall the total period of
effectivity of the TRO exceed 20
days, including the original 72
hours
Effectivity of TRO
(1) Effectivity is not extendible. No court shall
have authority to extend or renew the
same on the ground for which it was
issued
(2) If issued by the CA effective for 60 days
from service
(3) If issued by SC effective until further
orders
Procedure for Issuance of TRO:

(1) If it appears that great or irreparable
injury would result to the applicant before
the matter can be heard on notice:
(a) Summary hearing on the application
of the TRO within 24 hours after
sheriffs return of service and/or
records are received by the branch
selected by raffle
(b) The court may issue a TRO effective
for 20 days from service on the party
sought to be enjoined
TRO issued by executive

judge (multi-sala) or
TRO issued by
ordinary judge (singleordinary judge
sala)
Matter is of extreme
urgency and that grave If it appears that
injustice and irreparable great or irreparable
injury will arise unless injury would result
immediately issued
A summary hearing
May be issued ex parte
must be done
before issuance
Good for 20 days
Good for 72 hours
including first 72
hours
Issued before raffling Issued after raffling
Issued after
Issued ex parte
summary hearing
Upon the expiration of the non-extendible
period, the TRO is automatically terminated.
No judicial declaration necessary.
Within the 20 day period:

(i) The applicant must show cause
why injunction should not be
granted
(ii) The court will determine WON the
preliminary injunction shall be
granted. If granted, the court will
issue the corresponding order
(2) If the matter is of extreme urgency and
the applicant will suffer grave injustice
and irreparable injury
(a) A TRO may be issued ex parte (after
raffling of case) ordered by the
Executive judge of a multiple sala
court or the presiding judge of a
single-sala court
(b) Effective for 72 hours from issuance
PAGE 142
UP LAW BOC
CIVIL PROCEDURE
IN RELATION TO RA 8975, BAN ON

ISSUANCE OF TRO OR WRIT OF
INJUNCTION IN CASES INVOLVING
GOVERNMENT INFRASTRUCTURE
PROJECTS
REMEDIAL LAW
RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO
ATTACHMENT
When an application for a writ of preliminary

injunction or a temporary restraining order is
included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and
in the presence of the adverse party or the
person to be enjoined. In any event, such
notice
shall
be
preceded,
or
contemporaneously accompanied, by service
of summons, together with a copy of the
complaint or initiatory pleading and the
applicant's affidavit and bond, upon the
adverse party in the Philippines.
Sec. 3, RA 8975: No court, except the Supreme

Court, shall issue any TRO, preliminary
injunction or preliminary mandatory injunction
against the government, or any of its
subdivisions, officials or any person or entity,
whether public or private acting under the
government direction, to restrain, prohibit or
compel the following acts:
(1) Acquisition, clearance and development
of the right-of-way and/or site or location
of any national government project
(2) Bidding or awarding of contract/ project
of the national government as defined
under Section 2 hereof;
(3) Commencement prosecution, execution,
implementation, operation of any such
contract or project;
(4) Termination or rescission of any such
contract/project; and
(5) The undertaking or authorization of any
other lawful activity necessary for such
contract/project.
Exception:
Where the summons could not be served
personally or by substituted service despite
diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous
service of summons shall not apply. [Rule 58,
Sec.4] The executive judge of a multiple-sala
court or the presiding judge of a single sala
court may issue ex parte a TRO effective for
only 72 hours from issuance if the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury.
However, he shall immediately comply with
the provisions of Rule 38, Sec. 4 as to service
of summons and the documents to be served
therewith. [Rule 38, Sec. 5]
This prohibition shall apply in all cases,

disputes or controversies instituted by a
private party, including but not limited to
cases filed by bidders or those claiming to
have rights through such bidders involving
such contract/project.
This prohibition shall NOT APPLY when the
matter is of extreme urgency involving a
constitutional issue, such that unless a
temporary restraining order is issued, grave
injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be
fixed by the court, which bond shall accrue in
favor of the government if the court should
finally decide that the applicant was not
entitled to the relief sought.
WHEN FINAL INJUNCTION

GRANTED
If after the trial of the action it appears that

the applicant is entitled to have the act or acts
complained of permanently enjoined, the
court shall grant a final injunction perpetually
restraining the party or person enjoined from
the commission or continuance of the act or
acts or confirming the preliminary mandatory
injunction. [Rule 58, Sec. 9]
Any TRO, preliminary injunction, or

preliminary mandatory injunction issued in
violation of Sec. 3 is void and of no force and
effect. [Sec 4]
PAGE 143
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
discharge the mortgage debt, or that

the parties have so stipulated in the
contract of mortgage;
RECEIVERSHIP
NATURE
(3) After judgment, to preserve the

property during the pendency of an
appeal, or to dispose of it according to
the judgment, or to aid execution
when the execution has been returned
unsatisfied or the judgment obligor
refuses to apply his property in
satisfaction of the judgment, or
otherwise to carry the judgment into
effect;
Receiver A person appointed by the court in

behalf of all the parties to the action for the
purpose of preserving and conserving the
property in litigation and prevent its possible
destruction or dissipation if it were left in the
possession of any of the parties.
Purpose
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights of
the parties during the pendency of the main
action, during the pendency of an appeal or as
an aid in the execution of a judgment when
the writ of execution has been returned
unsatisfied.
(4) Whenever in other cases it appears

that the appointment of a receiver is
the most convenient and feasible
means of preserving, administering, or
disposing of the property in litigation.
The receivership under Rule 59 is directed to

the property which is the subject of the action
and does not refer to the receivership
authorized under banking laws and other
rules or laws. Rule 59 presupposes that there
is an action and that the property subject of
the action requires its preservation.
Receivership under Rule 59 is ancillary to the
main action. [Riano].
Specific cases where receiver was

appointed
(1) If a spouse without just cause
abandons the other or fails to comply
with his/her obligations to the family,
the aggrieved spouse may petition the
court for receivership. [Family Code,
Article 101]
(2) The court may appoint a receiver of
the property of the judgment obligor;
and it may also forbid a transfer or
other disposition of, or any
interference with, the property of the
judgment obligor not exempt from
execution. [Rule 39, Sec. 41]
(3) After the perfection of an appeal, the
trial court retains jurisdiction to
appoint a receiver of the property
under litigation since this matter does
not touch upon the subject of the
appeal. [Rule 41, Sec. 9; Acua v.
Caluag (1957)]
(4) After final judgment, a receiver may
be appointed as an aid to the
execution of judgment. [Philippine
Trust Company v. Santamaria (1929)]
(5) Appointment of a receiver over the
property in custodia legis may be
allowed when it is justified by special
circumstances, as when it is
reasonably necessary to secure and
protect the rights of the real owner.
[Dolar v. Sundiam (1971)]
The guiding principle is the prevention of

imminent danger to the property. If an action
by its nature, does not require such protection
or preservation, said remedy cannot be
applied for and granted. [Commodities
Storage v. CA, 1997]
CASES WHEN RECEIVER MAY BE

APPOINTED [Rule 59, Sec. 1]
(1) When it appears from the verified

application and other proof that the
applicant has an interest in the
property or fund which is the subject
of the action or proceeding, and that
such property or fund is in danger of
being lost, removed, or materially
injured unless a receiver be appointed
to administer and preserve it;
(2) When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in
danger of being wasted or dissipated
or materially injured, and that its
value is probably insufficient to
PAGE 144
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Powers of a Receiver
(1) Bring and defend in such capacity actions
in his own name with leave of court
(2) Take and keep possession of the property
in controversy
(3) Receive rents
(4) Collect debts due to himself as receiver or
to the fund, property, estate, person, or
corporation of which he is the receiver
(5) Compound for and compromise the same
(6) Make transfers
(7) Pay outstanding debts
(8) Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
(9) Generally, to do such acts respecting the
property as the court may authorize
(10) Invest funds in his hands, ONLY by order
of the court upon the written consent of
all the parties. [Rule 59, Sec. 6]
REQUISITES; REQUIREMENTS
BEFORE ISSUANCE OF AN ORDER
Procedure:
(1) Verified application filed by the party
requesting for the appointment of the
receiver;
(2) Applicant must have an interest in the
property or funds subject of the action;
(3) Applicant must show that the property or
funds is in danger of being lost, wasted, or
dissipated;
(4) Application must be with notice and must
be set for hearing;
(5) Before appointing a receiver, the court
shall require applicant to post a bond in
favor of the adverse party. When the
receiver is appointed, the receiver shall file
a bond then take his oath.
(6) Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully.
Liability for refusal or neglect to deliver

property to receiver:
(1) Contempt; and
(2) Be liable to the receiver for the money or
the value of the property and other things
so refused or neglected to be surrendered
together with all damages that may have
been sustained by the party or parties
entitled thereto as a consequence of such
refusal or neglect. [Rule 59, Sec. 7]
Who Appoints Receiver:

(1) Court where the action is pending
(2) CA
(3) SC
(4) During the pendency of an appeal, the
appellate court may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin.
[Rule 59, Sec. 1]
Remedies Against the Receiver

(1) No action against receiver can be
maintained without leave of court
(2) An aggrieved party may:
(a) Take the matter into the court which
appointed the receiver and ask either
for an accounting or take some other
proceeding, and ask for consequent
judgment on the acts complained of;
or
(b) Ask for leave of court to bring him an
action directly
Receivership may be denied or lifted:

(1) If the appointment was sought or granted
without sufficient cause [Sec. 3]
(2) Adverse party files a sufficient bond to
answer for damages [Sec. 3]
(3) Bond posted by applicant for grant of
receivership is insufficient [Sec. 5]
(4) Bond of the receiver is insufficient [Sec. 5]
THE RECEIVER
Who May Be Appointed As Receiver
The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. [Alcantara v. Abbas,
1963]
A clerk of court should not be appointed as a
receiver as he is already burdened with his
official duties. [Arigo v. Kayanan, 1983]
TWO KINDS OF BOND

The Applicants Bond
(1) Applicant must file a bond executed to
the party against whom the application is
presented
(a) Amount to be fixed by the court
(b) CONDITION: To the effect that
applicant will pay such party all
damages he may sustain by reason of
the appointment IN CASE the
PAGE 145
UP LAW BOC
CIVIL PROCEDURE
applicant shall have procured such

without sufficient cause
(2) The court may require additional bond
after appointment in the exercise of its
discretion as further security for such
damages [Rule 59, Sec. 2]
REMEDIAL LAW
Effect:
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver
entitled
to
reasonable
compensation to be taxed as costs against
defeated party
The Receivers Bond

(1) As a precondition before entering into his
duties, receiver must file a bond
(2) The bond is executed to such person and
in such sum as the court may direct
(3) CONDITION: To the effect that he will
faithfully discharge his duties and obey
the orders of the court [Rule 59, Sec. 4]
REPLEVIN
NATURE
Replevin is the provisional remedy seeking for

the possession of the property prior to the
determination of the main action for replevin.
Replevin may also be a main action with the
ultimate goal of recovering personal property
capable of manual delivery wrongfully
detained by a person. In this sense, it is a suit
in itself
Damages Resulting
From Appointment
Damages Arising After

Appointment
Damages which arise
Damages resulting
due to receivers
from appointment
negligence or
mismanagement
The right rests on
The right is statutory general principles of
law
The damages may
be caused before the Liability rests on the
receiver qualifies or mismanagement or
takes possession of negligence of receiver
the property
The applicants bond The receivers bond is
is responsible
responsible
Writ of Preliminay
Attachment
The purpose is to have
the property put in the
The purpose is to
custody of the court to
recover personal
secure the satisfaction
property capable of
of the judgment that
manual delivery
may be rendered in
from the defendant
favor of the plaintiff at
some future time
The property either
belongs to the
The property does not
plaintiff or one over
belong to the plaintiff
which the plaintiff
but to the defendant
has a right of
possession
May be sought only
Available even if
when the principal
recovery of property is
action is for the
only incidental to the
recovery of personal
relief sought
property
Can be sought only
when defendant is in May be resorted to
actual or
even if property is in
constructive
possession of a third
possession of the
person
property
Cannot be availed of Can be availed of even
when property is in
if property is in
custodia legis
custodia legis
Available from
Available before
commencement but
defendant answers
before entry of
judgment
Writ of Replevin
TERMINATION OF RECEIVERSHIP
Ground: The necessity for a receiver no longer

exists
Procedure:
(1) The court shall determine that the
necessity for a receiver no longer exists
(a) Motu proprio, or on motion of either
party
(2) Due notice shall be given to all interested
parties
(3) A hearing shall be conducted
(4) The court shall then settle the accounts of
the receiver
(5) The court directs delivery of the funds and
other property in his possession to the
person adjudged to be entitled to receive
them
(6) The court will then order the discharge of
the receiver
PAGE 146
UP LAW BOC
Writ of Replevin
Bond is double the
value of the property
Extends only to
personal property
capable of manual
delivery
Available to recover
personal property
even if the same is
not being concealed,
removed, or
disposed of
CIVIL PROCEDURE
REMEDIAL LAW
REQUISITES
Writ of Preliminay
Attachment
Bond is fixed by the
court
Extends to all kinds of
property whether real,
personal, or
incorporeal
Attachment to recover
possession of personal
property unjustly
detained presupposes
that the same is being
concealed, removed,
or disposed of to
prevent its being found
or taken by the
applicant
(1) Applicant is owner of the property claimed

or is entitled to possession
(2) Property is wrongfully detained by the
adverse party
(3) Property is not distrained or taken for tax
assessment or fine pursuant to law, or
seized (if seized, that the property is
exempt)
(4) Principal purpose of the action is to
recover possession of personal property
PROCEDURE [Rule 60, Sec. 2 and 3]
(1) An application is filed at the

commencement of the action or at any
time before answer of defendant
(2) Application must contain an affidavit
(3) Applicant must file a bond
(4) Approval of the bond by the court
(5) Court shall then issue an order and the
writ of replevin:
(a) It must describe the personal property
alleged to be wrongfully detained
(b) Requiring the sheriff to take such
property into his custody
NOTE: There can be no replevin and

preliminary attachment in the same case
because the purposes are different.
(1) In Rule 57, it is for security
(2) In Rule 60, it is for recovery of possession
WHEN MAY WRIT BE ISSUED
NOTE: The writ of replevin may be served

anywhere in the Philippines.
When Applied For A writ of replevin must be

applied for:
(1) At the commencement of the action, or
(2) At any time before defendant files his
answer
AFFIDAVIT AND BOND;

REDELIVERY BOND
Contents of the Affidavit
(1) That the applicant is:
(a) The owner of the property claimed
describe with particularity
(b) Or is entitled to possession
(2) Property is wrongfully detained by adverse
party
(a) Allege the cause of detention
(b) According to his best knowledge,
information, belief
(3) That the property has not been :
(a) Distrained, or
(b) Taken for a tax assessment, or
(c) Taken as a fine pursuant to law, or
(d) Seized under a writ of execution or
preliminary attachment, or under
custodia legis; if so taken, that said
property is exempt
(4) The affidavit must also state the actual
value of the property subject of replevin
and not just its probable value. This value
will be the basis of the bond.
NOTE: There can be no replevin before the

appellate courts
The provisional remedy of replevin is available
where the PRINCIPAL PURPOSE of the action
is to recover the possession of PERSONAL
property.
Who May Avail of the Remedy?
(1) Plaintiff where the complaint prays for
recovery of possession of personal
property
(2) Defendant where a counterclaim was
set out in the answer for recovery of
personal property
It is available to any other party asserting
affirmative allegations praying for the
recovery of personal property unjustly
detained.
PAGE 147
UP LAW BOC
CIVIL PROCEDURE
The Applicants Bond

(1) Executed to the adverse party
(2) Amount is DOUBLE the value of the
property stated in the affidavit
(3) Conditions of the Bond:
(a) The return to of property to adverse
party, if such return be adjudged, and
(b) The payment to adverse party of such
sum as he may recover from the
applicant in the action
REMEDIAL LAW
(3) After taking possession:

(a) Keep the property in a secure place
(b) He shall be responsible for delivery to
party entitled
Unlike a preliminary attachment and
preliminary injunction, the rule on prior or
contemporaneous jurisdiction is not provided
for in replevin.
However, the rule requires that upon such
order, the sheriff must serve a copy on the
adverse party together with the required
documents.
Return of Property [Sec. 5]

(1) If the adverse party objects to the
sufficiency of the bond, he cannot
immediately require the return of the
property even by counterbond.
A sheriffs prerogative does not give him the

liberty to determine who among the parties is
entitled to possession.
(2) If the adverse party DOES NOT object to

the sufficiency of the bond, he may require
the return of the property
(a) When: At any time before delivery to
applicant
(b) How: By filing a redelivery bond
When a writ is placed in the hands of a sheriff,

it is his duty to proceed with reasonable
celerity and promptness to execute it
according to its mandate.
The Redelivery Bond

(1) This is executed to the applicant and filed
where the action is pending
(2) Amount is double the value of the
property as stated in the affidavit of the
applicant
(3) Conditions of the Bond:
(a) The delivery thereof to the applicant, if
such delivery be adjudged, and
(b) The payment of such sum to him as
may be recovered against the adverse
party
DISPOSITION OF PROPERTY BY
SHERIFF [Rule 60, Sec. 6]
The adverse party is entitled to the return of

the property taken under writ of replevin, if:
(1) He seasonably posts a redelivery bond
(2) The applicants bond is found to be
insufficient or defective and is not
replaced with a proper bond
(3) The property is not delivered to the
plaintiff for any reason
The sheriff shall retain the property for 5 days;
Within such period, the adverse party:
(1) May object to the sufficiency of the
applicants bond or surety; or
(2) May file a redelivery bond, if he does not
object to the sufficiency of the bond
SHERIFFS DUTY IN THE

IMPLEMENTATION OF THE WRIT
Duties of the Sheriff [Rule 60, Sec. 4]
(1) Serve a copy of the order, together with
the copies of the application, the affidavit,
and bond to the adverse party
NOTE: These remedies are alternative.
(2) Take the property:

(a) If it be in the possession of the adverse
party or his agent Take the property
into custody
(b) If property is concealed in a building
or enclosure:
(i) Demand delivery of the property
(ii) If not delivered, cause the building
or enclosure to be broken open
and then take the property into
possession
PAGE 148
UP LAW BOC
CIVIL PROCEDURE
WHEN PROPERTY IS CLAIMED BY

THIRD PARTY
When third party claims the property and such

person makes affidavit of his title thereto
stating his grounds, and serves such affidavit
upon the sheriff while the latter has
possession of the property and a copy upon
the applicant, the sheriff SHALL NOT BE
BOUND to keep property under replevin or
deliver property to the applicant UNLESS the
applicant files a bond approved by the court in
favor of the third person (the bond should not
be less than the value of stated under Sec. 60,
Sec. 2; the court shall determine the value in
case of disagreement).
No claim for damages for the taking or
keeping of the property may be enforced
against the bond UNLESS the action is filed
within 120 days from filing of the bond.
The procedure in Rule 60, Sec. 7 is similar to
that in third-party claims in execution [Sec. 16,
Rule 39] and in attachment [Sec. 14, Rule 57].
Difference in Service of Affidavits:
(1) Sec. 14, Rule 57 affidavit is served upon
the sheriff while he has possession of the
attached property
(2) Sec. 7, Rule 60 affidavit is served within
5 days in which sheriff has possession (in
connection with Sec. 6)
JUDGMENT [Rule 60, Sec. 9]
After trial of the issues, the court shall

determine who has the right of possession to
and the value of the property and shall render
judgment in the alternative for the delivery
thereof to the party entitled to the same, or for
its value in case delivery cannot be made, and
also for such damages as either party may
prove, with costs.
PAGE 149
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

Preliminary Attachment
Purpose
Subject Matter
When applied/
Granted
How applied for
Requirement
Of a hearing
Preliminary Injunction
Receivership
Replevin
To have the property of adverse

party attached as security for To require a party or a court, agency,
satisfaction of judgment that may be or a person to reframe from doing a
recovered in cases falling under Sec. particular act/s
To place the property subject of an
1, Rule 57
auction or proceeding under the
control of a third party for its To recover possession of personal
preservation and administration property
To enable the court to acquire
pendente lite or as an aid to
jurisdiction over the action by the
execution
actual or constructive seizure of the Or to require the performance of
property in those instances where particular act/s
personal service of summons on
creditor cannot be effected
Personal or real property
Particular act/s
Personal or real property
At any time prior to satisfaction of

At the commencement of action
judgment
At any stage prior to final judgment
OR `At any time prior to entry of
It may be availed of even after
or final order
judgment
judgment becomes final under Sec.
41, Rule 39
File verified application and File verified application and
applicants bond
applicants bond
If application is included in initiatory
File affidavits and applicants bond pleading, adverse party should be Application may also be included in
served with summons together with initiatory pleading in actions for
a copy of initiatory pleading and foreclosure of mortgage
applicants bond
Required
EXCEPT:
Not required
Great or irreparable injury would Required
result or Extreme urgency and
applicant will suffer grave injustice
PAGE 150
Personal property
manual delivery
capable
of
At the commencement of the action

BUT before the filing of answer
File affidavits and applicants bond
Not Required
UP LAW BOC
CIVIL PROCEDURE
Preliminary Attachment
Who may grant
Courts where the action is pending,

the CA or the SC even if action is
pending in lower court
1. Sufficient cause of action

2. Case is covered by Sec. 1, Rule 57
3. No other sufficient security for
the claim exists
Requisites for
4. Amount due to applicant or
granting application
value of property he is entitled to
recover is equal to the sum which
the order of attachment is
granted
Preliminary Injunction
and irreparable injury [Sec. 5, Rule
58]
Only the court where the action is
pending
Lower court, CA or SC provided
action is pending in the same court
which issues the injunction
Also with the Sandiganbayan and
CTA
1. Applicant is entitled to relief
demanded
2. Act/s complained of would work
injustice to applicant if not
enjoined
3. Acts sought to be enjoined
probably violates applicants
rights respecting the subject of
the action or proceeding
4. Threatened injury incapable of
pecuniary estimation
PAGE 151
REMEDIAL LAW
Receivership
Replevin
Court where action is pending

The CA or SC even if action is
pending in the lower court
Only the court were action is
Appellate
court
may
allow pending
application for receivership to be
decided by the court of origin
1. Applicant has interest in 1. Applicant is owner of the
property or fund, subject matter
property claimed or is entitled
of action
to possession
2. Property or fund is in danger of 2. Property is wrongfully detained
being lost, or removed, or
by the adverse party
material injured
3. Property is not distrained or
3. Appointment is the most
taken for tax assessment or fine
convenient and feasible means
pursuant to law, or seized (if
of preserving, administering,
seized, that the property is
disposing of property in litigation
exempt)
UP LAW BOC
CIVIL PROCEDURE
Special Civil Actions
JURISDICTION AND VENUE

The Special Civil Actions (SCA) under the
Rules of Court
(1) SCAs initiated by complaints:
(a) Interpleader
(b) Foreclosure of Real Estate
Mortgage
(c) Forcible Entry and Unlawful
Detainer
(d) Partition
(e) Expropriation
IN GENERAL
NATURE
Since a civil action in general is one by which a

party sues another for the enforcement of a
right, or the prevention or redress of a wrong,
a special civil action is generally brought or
filed for the same purpose. [Riano]
ORDINARY CIVIL ACTIONS v.

SPECIAL CIVIL ACTIONS
(2) SCAs initiated by petitions:

(a) Declaratory Relief
(b) Review or Adjudication
COMELEC/COA Decisions
(c) Certiorari
(d) Prohibition
(e) Mandamus
(f) Quo Warranto
(g) Contempt
A special civil action is governed by the rules

of ordinary civil actions but there are certain
rules that are applicable only to special civil
actions.
Ordinary Civil Action
Governed by ordinary
rules
Formal demand of
ones legal rights in a
court of justice in the
manner prescribed by
the court or by the law
Must be based on a
cause of action which
means that the
defendant has violated
plaintiffs rights
Venue is determined by
either the residences of
the parties when action
is personal or by the
location of the property
when the action is real
May be filed initially in

either the MTC or RTC
They are denominated

as complaints when
filed
REMEDIAL LAW
Special Civil Action

Also governed by
ordinary rules but
subject to specific rules
prescribed
of
The venue of special civil actions is governed

by the general rules on venue EXCEPT as
otherwise indicated in the particular rule for
said special action.
Special features not

found in ordinary civil
actions
Actions for certiorari, prohibition and

mandamus should be commenced in the
proper RTC, but the same may, in proper
cases, be commenced in the SC or the CA and
a specific rule of venue is provided for quo
warranto proceedings
The concept of cause of

action in an ordinary
action does not always
fit in a special civil
action (e.g.
interpleader)
This dichotomy does not
always apply in a
special civil action (e.g.
the venue in a petition
for quo-warranto is
where the SC or CA sits)
There are special civil
actions which can be
filed with the MTC (e.g.
forcible entry and
unlawful detainer)
There are also those
which cannot be
commenced in the MTC
(e.g. certiorari,
prohibition, mandamus)
Some special civil
actions are initiated by
petitions
In the absence of special reasons, the SC will

decline original jurisdiction in certiorari,
prohibition, and mandamus since it is not a
trier of facts and, that is a function which can
be better done by the trial courts. The same
rule applies for quo warranto wherein the SC
has concurrent jurisdiction with the RTC.
Special civil actions that can be filed in or are
within the jurisdiction of inferior courts:
(1) Interpleader -- Provided that amount
involved is within its jurisdiction
(2) Ejectment suits
(3) Contempt
PAGE 152
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
INTERPLEADER
WHEN TO FILE
NATURE
Who Files the Complaint - A complaint for

interpleader is filed by the person against
whom the conflicting claims are made
Definition - A remedy whereby a person who

has property in his possession or has an
obligation to render wholly or partially,
without claiming any right in both, comes to
court and asks that the defendants who have
made conflicting claims upon the same
property or who consider themselves entitled
to demand compliance with the obligation be
required to litigate among themselves in order
to determine who is entitled to the property or
payment or the obligation [Beltran v. PHHC,
(1969)]
When to File - REASONABLE TIME

An action for interpleader should be filed
within a reasonable time after a dispute has
arisen without waiting to be sued by either of
the contending parties. Otherwise, it may be
barred by laches or undue delay.
Jurisdiction and Venue General rules on
jurisdiction and venue apply as in ordinary civil
actions.
The peculiar characteristic of an interpleader

is that there is NO CAUSE OF ACTION on the
part of the plaintiff but only a threat of cause
of action.
PROCEDURE
(1) A complaint is filed.

(2) Upon filing of complaint, the court issues
an Order [Sec. 2] requiring conflicting
claimants to interplead with one another
Purposes
(1) To compel conflicting claimants to
interplead and litigate their several claims
among themselves. [Rule 62, Sec. 1]
(2) To protect a person against double
vexation in respect of one liability [Beltran,
supra]
(3) Summons shall then be served upon the

conflicting claimants with a copy of the
complaint and the order to interplead
[Sec. 3].
REQUISITES FOR INTERPLEADER
NOTE: Interpleader applies regardless of

nature of subject matter.
(4) Each claimant has a 15-day period to file:

[Sec. 4]
(a) An answer
(b) A motion to dismiss. If filed, period to
answer is filed
(i) Grounds:
(1) Same as in Rule 16
(2) Impropriety of interpleader
action
(ii) If motion is denied, movant may
file his answer within the
remaining period but it shall not
be less than 5 days in any event
from notice of denial
Cannot be availed of to resolve the issue of

breach of undertakings made by defendants,
which should be resolved in an ordinary action
for specific performance or other relief
[Beltran, supra].
(5) From service of Answer, the claimants

may file their Reply serving copies to all
parties. Parties may file counterclaims,
cross-claims, third-party complaints,
responsive pleadings
(1) The plaintiff clams no interest in the

subject matter or his claim thereto is not
disputed
(2) The parties to be interpleaded must make
effective claims
(3) There must be at least two or more
conflicting claimants with adverse or
conflicting interests to a property in
custody or possession of the plaintiff; and
(4) The subject matter must be one and the
same
EFFECT OF FAILURE TO ANSWER:

Default.
(a) The claimant may be declared, on
motion, in default
PAGE 153
UP LAW BOC
CIVIL PROCEDURE
(b) Unlike ordinary default, default in

interpleader allows the court to
render judgment barring him from
any claim in respect to the subject
matter
REMEDIAL LAW
(2) Any person whose rights are affected by a

statute, executive order or regulation, or
ordinance, or any other governmental
regulation
(a) He must file before violation
(6) Pre-trial is conducted.
PARTIES
NATURE
(1) All persons who have or claim any interest

which would be affected by the
declaration [Rule 63, Sec. 2]
(2) If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor
General shall be notified. [Rule 63, Sec. 3]
(3) If action involves the validity of a local
government
ordinance,
the
prosecutor/attorney of the LGU involved
shall be notified. [Rule 63, Sec. 4]
Note: The enumeration of the subject matter

is EXCLUSIVE
Non-joinder of interested persons is not a

jurisdictional defect; but persons not joined
shall not be prejudiced in their interests
unless otherwise provided by the Rules.
[Baguio Citizens Action v. City Council of
Baguio, 1983]
(7) After all pleadings have been fled, the

court shall then determine the respective
rights and adjudicate their several claims
[Sec. 6]
DECLARATORY RELIEFS AND

SIMILAR REMEDIES
In Declaratory Relief, the subject matter is a
deed, will, contract, or other written
instrument, statute, executive order, or
regulation, or ordinance;
Issue is the validity or construction of the

subject matter
WHERE TO FILE
It is filed In the appropriate RTC (incapable of

pecuniary estimation)
Relief: declaration of the petitioners rights

and duties
Original jurisdiction of a petition

declaratory relief is with the RTC.
Purpose: To relieve the litigants of the

common law rule that no declaration of rights
may be judicially adjudged unless a right has
been violated and for the violation of which
relief may be granted.
for
REQUISITES OF ACTION FOR

DECLARATORY RELIEF
(1) Subject matter of controversy must be a

deed, will, contract, or other written
instrument, statute, executive order or
regulation, or ordinance. (Enumeration is
exclusive)
Characteristics
(1) The concept of a cause of action is not
applicable to declaratory relief since this
SCA presupposes that there has been no
breach or violation of the
(2) Instruments involved
(3) Unlike other judgments, judgment in an
action for declaratory relief does not
essentially entail any execution process
(2) Actual justiciable controversy or ripening

seeds of one between person whose
interests are adverse
(3) No breach of documents in question
[Rule 63, Sec. 1]
(4) Doubtful as to the terms and validity of

the document and require judicial
construction
(1) Any person interested under a deed, will,

contract or other written instrument
(a) He must file before breach
(5) Issue is ripe for judicial determination, as

where all administrative remedies have
been exhausted
WHO MAY FILE THE ACTION
PAGE 154
UP LAW BOC
CIVIL PROCEDURE
(6) Adequate relief is not available through

other means or other forms of action or
proceeding
However we must make a distinction:

(1) In those cases similar to declaratory relief,
the court is BOUND to render judgment
(2) In actions for declaratory relief, the court
MAY REFUSE to exercise the power to
declare rights and to construe
instruments
WHEN COURT MAY REFUSE TO

MAKE JUDICIAL DECLARATION
Court has DISCRETION to REFUSE to Grant
Declaratory Relief when [Rule 63, Sec. 5]
(1) The decision will not terminate the
controversy or uncertainty giving rise to
the action; or
(2) The declaration or constitution is not
necessary and proper under the
circumstances
REVIEW OF JUDGMENTS AND

FINAL ORDERS OR
RESOLUTION OF THE
COMELEC AND COA
SCOPE [Rule 64, Sec. 1]
Applicable only to judgments and final orders

of the COMELEC and COA [Rule 64, Sec. 1]
How Done: Motu proprio, or on motion
CONVERSION TO ORDINARY
ACTION
Judgments/orders of the Civil Service

Commission are now reviewable by the Court
of Appeals under Rule 43, eliminating
recourse to the Supreme Court (SC). [RA
7902; SC Revised Administrative Circular No. 195]
[Rule 63, Sec. 6]
When proper: If before the final termination of

the case, a breach or violation of the
instrument or status occurs. Then, petition is
converted into an ordinary action
An aggrieved party may bring the questioned

judgment, etc. directly to the SC on certiorari
under Rule 65. [Rule 64, Sec. 2]
Effect of Conversion: Parties shall be allowed

to file such pleadings as may be necessary or
proper
Basis: This new rule is based on the provisions

of Art. IX-A, 1987 Constitution regarding the
three constitutional commissions provided for
therein.
NOTE: If there has been breach or violation

BEFORE filing of the petition, declaratory
relief cannot be availed of.
PROCEEDINGS CONSIDERED
SIMILAR REMEDIES
REMEDIAL LAW
APPLICATION OF RULE 65 UNDER

RULE 64
AS
The aggrieved party may bring a judgment or

final order or resolution of the COMELEC and
COA to the SC on certiorari under Rule 65 and
not on appeal by certiorari under Rule 45
Actions similar to Declaratory Relief and

may be brought under Rule 63: (may be filed
with the MTC)
(1) Action for reformation [See Art. 1359-1369
Civil Code[
(2) Action to quiet title or remove cloud [See
Art. 476-481 Civil Code]
(3) Action to consolidate ownership [See Art.
1607 Civil Code]
NOTE: The petition should

EXCLUSIVELY with the SC
be
filed
Unlike in Rule 65, petition should be filed

within 30 days from notice of judgment or
final order or resolution sought to be
reviewed.
These remedies are considered similar to

declaratory relief because they also result in
the adjudication of the legal rights of the
litigants often without the need of execution
to carry the judgment into effect
Filing of MFR or MNT, if allowed under the

procedural rules of the Commission, shall
interrupt the 30-day period.
PAGE 155
UP LAW BOC
CIVIL PROCEDURE
If denied, aggrieved party may file petition

within the remaining period but it shall not be
less than 5 days in any event from notice of
denial.
REMEDIAL LAW
Rule 64
Rule 65
The filing of a MR or a
Motion for New Trial if
allowed, interrupts the
period for the filing of
The period within
the petition for
which to file the
certiorari. If the
petition if the MR or
motion is denied, the
new trial is denied, is
aggrieved party may
60 days from notice of
file the petition within
the denial of the
the remaining period,
motion.
but which shall not be
less than 5 days
reckoned from the
notice of denial.
NOTE: The Fresh Period Rule is NOT

applicable
PROCEDURE
(1) A verified petition is filed [Sec. 5] with

payment of docket and lawful fees [Sec. 4]
(2) Service of petition to the Commission and
parties concerned [Sec. 5]
(3) SC shall act on the petition:
(a) It may dismiss the petition:
(i) Failure to comply with the form
and content requirements in Sec.
5
(ii) If SC finds the petition insufficient
in form and substance [Sec. 6]
(iii) If it was filed manifestly for delay
[Sec. 6]
(iv) Questions
raised
are
too
unsubstantial
to
warrant
proceedings [Sec. 6]
(b) If sufficient in form and substance, the
SC will require the respondents to file
their Comments [Sec. 6] within 10
days from notice
(4) SC may also require oral argument or
submission of memoranda [Sec. 9]
(5) The case is then submitted for decision
[Sec. 9]
CERTIORARI, PROHIBITION,
MANDAMUS
DEFINITIONS AND DISTINCTIONS
Writ of Certiorari is a writ emanating from a

superior court directed against an inferior
court, tribunal, or officer exercising judicial or
quasi-judicial functions. The purpose of which
is to correct errors of jurisdiction.
Writ of Prohibition is a writ issued by a superior
court and directed against an inferior court,
board, officer or other person whether
exercising judicial, quasi-judicial, or ministerial
functions for the purpose of preventing the
latter from usurping jurisdiction with which it
is not legally vested.
DISTINCTION IN THE APPLICATION

OF RULE 65 TO JUDGMENTS OF
THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO
OTHER TRIBUNALS, PERSONS,
AND OFFICERS
Writ of Mandamus is a writ issued in the name

of the State, to an inferior tribunal,
corporation, board, or person, commanding
the performance of an act which the law
enjoins as a duty resulting from an office,
trust, or station.
Rule 64
Rule 65
Directed to any
Directed only to the
tribunal, board, or
judgments, final
officer exercising
orders or resolutions
judicial or quasiof COMELEC and COA
judicial functions
Filed within 30 days Filed within 60 days
from notice of the
from notice of the
judgment
judgment
PAGE 156
UP LAW BOC
CIVIL PROCEDURE
Certiorari v. Prohibition v. Mandamus

Certiorari
Directed
against
an
entity
or
person
exercising
judicial
or
quasi-judicial
functions
Prohibition
Directed
against
an
entity
or
person
exercising
judicial, quasijudicial,
or
ministerial
functions
Distinguished from Injunction
Mandamus
Injunction
Ordinary civil action
Directed
against an
entity
or
person
exercising
ministerial
functions
Directed only to the

party
litigants,
without
in
any
manner interfering
with the court
Entity
or
person
is
alleged to
Entity or person is alleged to
have:
have acted:
(1) Neglected
(1) Without jurisdiction
a ministerial
(2) In excess of jurisdiction; or
duty; or
(3) With grave abuse of
(2) Excluded
discretion amounting to lack or
another from
excess of jurisdiction
a right or
office
PURPOSE:
PURPOSE
To
have
To annul or respondent
nullify
a desist
from
proceeding
further
proceeding
Covers
discretionary
and ministerial
acts
Negative and
Corrective
Preventive
remedy
remedy
To
correct To restrain or
usurpation of prevent
the
jurisdiction
said
usurpation
Covers
discretionary
acts
REMEDIAL LAW
Injunction
Ordinary civil action
Prohibition
Special civil action
Directed to the court
itself, commanding it
to cease from the
exercise
of
a
jurisdiction to which it
has no legal claim
Mandamus
Special civil action
Directed against a
Directed against a
tribunal, corporation,
litigant
board, or officer
Purpose is to either
Purpose is for the
refrain the defendant
tribunal, corporation,
from performing an
board, or officer, to
act or to perform not
perform a ministerial
necessarily a legal
and legal duty
and ministerial duty
PURPOSE:
For
respondent
to: (1) Do the
act required,
and (2) Pay
damages
Covers
ministerial
acts
This remedy
is affirmative
or positive
or negative
PAGE 157
UP LAW BOC
CIVIL PROCEDURE
Certiorari as a Mode of Appeal and as a

Special Civil Action
REMEDIAL LAW
Certiorari as a mode
of appeal [Rule 45]
Certiorari as a special
civil action [Rule 65]
Does not stay the
judgment or order
Stays the judgment subject
of
the
appealed from
petition,
unless
enjoined
or
restrained
Parties
are
the
original parties with
The tribunal, board,
the appealing party
officer,
exercising
as the petitioner and
judicial or quasithe adverse party as
judicial functions is
the
respondent
impleaded
as
without impleading
respondents
the lower court or its
judge
May be filed with the
Filed only with the
SC,
CA,
SC
Sandiganbayan, RTC
SC may deny the
decision
motu
proprio on specific
grounds
Certiorari as a mode Certiorari as a special

of appeal [Rule 45]
civil action [Rule 65]
A continuation of the
An original action
appellate
process
and not a mode of
over the original
appeal
case
May be directed
against
an
interlocutory order of
Seeks to review final the court or where no
judgment or final appeal or plain or
orders
speedy remedy is
available
in
the
ordinary course of
law
Raises questions of
jurisdiction that is,
whether a tribunal,
board
or
officer
exercising judicial or
quasi-judicial
Raises only
functions has acted
questions of law
without jurisdiction or
in
excess
of
jurisdiction or with
grave
abuse
of
discretion amounting
to lack of jurisdiction
Filed not later than
60 days from notice
of judgment, order,
Filed within 15 days
or resolution sought
from
notice
of
to be assailed and in
judgment or final
case a motion for
order appealed from,
reconsideration
or
or of the denial of
new trial is timely
petitioners motion
filed, the 60-day
for reconsideration
period is counted
or new trial
from notice of said
denial
NOTE: An original action for Certiorari,

Prohibition, or Mandamus, is an Independent
Action, as such:
(1) Does not interrupt the course of the
principal action
(2) Does not affect the running of the
reglementary periods involved in the
proceedings
(3) Does not stay the execution of judgment
unless a TRO or writ of preliminary
injunction has been issued
ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition,

Mandamus, when does the court acquire
jurisdiction over the person of the respondent?
IT DEPENDS:
(1) IF ACTION IS FILED WITH THE RTC - We
follow rules on ordinary civil actions.
Jurisdiction is acquired by:
(a) Service of summons to respondent or
(b) By his voluntary appearance in court
Extension of 30 days
Extension no longer
may be granted for
allowed
justifiable reasons
Motion
for
Does not require a
reconsideration is a
prior motion for
condition precedent,
reconsideration
subject to exceptions
(2) IF ACTION IS FILED WITH THE CA OR SC

- Court acquires jurisdiction over
respondents by:
(a) Service on them of its orders
indicating its initial action on the
petition or
(b) By their voluntary submission to such
jurisdiction
PAGE 158
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Discretionary Act
REQUISITES
Requisites of Certiorari:
(1) There must be a controversy
(2) Respondent is exercising judicial or quasijudicial function
(3) Respondent acted without or in excess of
its jurisdiction or acted with grave abuse
of discretion amounting to lack of
jurisdiction; and
(4) There must be no appeal or other plain,
speedy, and adequate remedy
One where public

functionaries, by virtue
of a power or right
conferred upon them
by law, can act
officially under certain
circumstances,
uncontrolled by the
judgment or
conscience of others
Requisites of Prohibition:
(1) There must be a controversy
(2) Respondent is exercising judicial, quasijudicial, or ministerial functions
(3) Respondent acted without or in excess of
its jurisdiction or acted with grave abuse
of discretion amounting to lack of
jurisdiction; and
(4) There must be no appeal or other plain,
speedy, and adequate remedy
Ministerial Act
One which an officer
or tribunal performs
in a given state of
facts, in a prescribed
manner, in obedience
to the mandate of a
legal authority,
without regard to or
the exercise of his
own judgment upon
the propriety or
impropriety of the act
done
WHEN PETITION FOR CERTIORARI

IS PROPER
Only to correct errors of jurisdiction, not errors

of judgment.
Questions of fact cannot be raised in an
original action for certiorari. Only established
or admitted facts may be considered. [Suarez,
NLRC, 1998]
Requisites of Mandamus:
(1) There must be a clear legal right or duty
If there is discretion as to the taking or
non-taking of the action sought, there
is no clear legal duty, and mandamus
will not lie
Where appeal is available, certiorari will not

lie. Exceptions:
(1) Where the appeal does not constitute a
speedy and adequate remedy
(2) Where orders were also issued either in
excess or without jurisdiction
(3) For certain special considerations, as
public welfare or public policy
(4) Where, in criminal actions, the court
rejects the rebuttal evidence for the
prosecution as, in case of acquittal, there
could be no remedy
(5) Where the order is a patent nullity
(6) Where the decision in the certiorari case
will avoid future litigations
(2) The act to be performed must be practical

Within the powers of the respondent
to perform such that if the writ of
mandamus was issued, he can comply
with it, or else the essence will be
defeated
(3) Respondent must be exercising a
ministerial duty
A duty which is absolute and
imperative and involves merely its
execution
(4) The duty or act to be performed must be
existing
A correlative right will be denied if not
performed by the respondents
(5) There is no other plain, speedy, and
adequate remedy in the ordinary course of
law
WHEN PETITION FOR INJUNCTION

IS PROPER
Prohibition is a preventive remedy. However,

to prevent the respondent from performing
the act sought to be prevented during the
pendency of the proceedings for the writ, the
petitioner should obtain a restraining order
and/or writ of preliminary injuction.
[Regalado]
The office of prohibition is not to correct errors
of judgment but to prevent or restrain
usurpation by inferior tribunals and to compel
them to observe the limitation of their
jurisdictions. [Herrera]
PAGE 159
UP LAW BOC
CIVIL PROCEDURE
General Rule: Prohibition does NOT ordinarily

lie to restrain an act which is already fait
accompli.
REMEDIAL LAW
Prayers:
(1) In certiorari
(a) That the judgment be rendered
annulling
or
modifying
the
proceedings of such tribunal, board or
officer; and
(b) Granting such incidental reliefs as law
and justice may require
Exception: Writ of prohibition will lie to

prevent the unlawful creation of a new
province by those in the corridors of power
who could avoid judicial intervention and
review by merely speedily and stealthily
completing the commission of such illegality
[Tan, et al. v. COMELEC]
(2) In prohibition
commanding the respondent to desist
from further proceedings in the action
or matter specified; or
(b) Otherwise granting such incidental
reliefs as law and justice may require
WHEN PETITION FOR MANDAMUS

PROPER
The purpose of mandamus is to compel the

performance, when refused, of a ministerial
duty, this being its main objective.
(3) In mandamus
commanding
the
respondent,
immediately or at some other time to
be specified by the court, to do the act
required to be done to protect the
rights of the petitioner; and
(b) To pay the damages sustained by the
petitioner by reason of the wrongful
acts of the respondent
A writ of mandamus will not issue to control

the exercise of official discretion or judgment,
or to alter or review the action taken in the
proper exercise of the discretion of judgment,
for the writ cannot be used as a writ of error or
other mode of direct review.
However, in extreme situations generally in
criminal cases, mandamus lies to compel the
performance of the fiscal of discretionary
functions where his actuations are
tantamount to a wilful refusal to perform a
required duty. [Regalado]
EXCEPTIONS TO FILING MOTION

FOR RECONSIDERATION BEFORE
FILING PETITION
Grounds for Mandamus:

(1) When any tribunal, corporation, board,
officer
or
person,
UNLAWFULLY
NEGLECTS the performance of an act
which the law specifically enjoins as a duty
resulting from an office, trust, or station
(2) When any tribunal, corporation, board,
officer,
or
person, UNLAWFULLY
EXCLUDES another from the due and
enjoyment of a right or office to which the
other is entitled
General Rule: A MR is an essential

precondition for the filing of a petition for
certiorari, prohibition, or mandamus. It is a
plain, speedy, and adequate remedy. This is to
enable the lower court, in the first instance, to
pass upon and correct its mistakes without the
intervention of the higher court
If a MR is filed, the period shall not only be
interrupted but another 60 days shall be given
to the petitioner within which to file the
appropriate petition for certiorari or
prohibition with the superior court [SC Admin
Circular 00-2-03]
MANNER OF FILING THE PETITION
(1) A verified petition is filed in the proper

court accompanied by:
(a) Certified true copy of the judgment,
order, resolution subject thereof
(b) Copies of all pleadings and relevant
and pertinent documents
(c) Sworn certification of non-forum
shopping
(2) Contents of the petition
(a) Allegation of facts with certainty
(b) Prayer
Exceptions: MR may be dispensed with in

some cases:
(1) Where the order is a patent nullity
(2) Where questions raised in the certiorari
proceeding have been duly raised and
passed upon by the lower court , or are the
same as those raised and passed upon in
the lower court
PAGE 160
UP LAW BOC
CIVIL PROCEDURE
(3) Where there is urgent necessity for the

resolution of the question and any further
delay would prejudice the interests of the
Government
(4) Where under the circumstances, a MFR
would be useless, as where the court had
already indicated that it would deny any
motion for reconsideration of its
questioned order
(5) Where petitioner was deprived of due
process and there is extreme urgency for
relief
(6) Where, in a criminal case, relief from an
order of arrest is urgent and granting such
relief by trial court is improbable
(7) Where the proceedings in the lower court
are a nullity for lack of due process
(8) Where the proceeding was ex parte or in
which the petitioner had no opportunity to
object
(9) Where the issue raised is one purely of law
or where public interest is involved
(10) Where the subject matter of the action is
perishable
PROCEDURE
(1) A petition for

prohibition is filed
REMEDIAL LAW
(e) The COMELEC in election cases

involving an act or omission of the
MTC/RTC
(2) Order to Comment - If the petition is
sufficient in form and substance to justify
such process, the court shall issue an
order requiring the respondent(s) to
comment on the petition within 10 days
from receipt of a copy thereof.
Such order shall be served on the
respondents in such manner as the court
may direct, together with a copy of the
petition and any annexes thereto. [Rule
65, Sec. 6]
(3) Hearing or Memoranda - After the
comment or other pleadings required by
the court are filed, or the time for the filing
thereof has expired, the court may hear
the case or require the parties to submit
memoranda. [Rule 65, Sec. 8]
(4) Judgment - If after such hearing or
submission of memoranda or the
expiration of the period for the filing
thereof, the court finds that the
allegations of the petition are true, it shall
render judgment for the relief prayed for
or to which the petitioner is entitled.
certiorari/mandamus/
When filed:
(a) Not later than 60 days from notice of
judgment/order/resolution
(b) If a motion for reconsideration/new
trial is filed, the 60-day period shall
be counted from notice of denial of
motion.
(c) Extension may be granted for
compelling reasons, not exceeding 15
days. [Rule 65, Sec. 4]
The court, however, may dismiss the

petition if it finds the same to be:
(a) Patently without merit,
(b) Prosecuted manifestly for delay, or
(c) The questions raised therein are too
unsubstantial
to
require
consideration. [Rule 65, Sec. 8]
(5) Service and Enforcement of Order or
Judgment - A certified copy of the
judgment rendered shall be served upon
the court, quasi-judicial agency, tribunal,
corporation, board, officer or person
concerned in such manner as the court
may direct, and disobedience thereto shall
be punished as contempt.
Where filed: (Follow hierarchy of courts)

(a) Supreme Court
(b) Court of Appeals; Whether or not the
same is in aid of its appellate
jurisdiction BUT if it involves the acts
of a quasi-judicial agency, the petition
shall be filed only in the CA, unless
otherwise provided by law or the
Rules.
(c) Regional Trial Court, if it relates to
acts / omissions of a lower court /
corporation / board / officer / person.
RTC must exercise jurisdiction over
the territorial area
(d) Sandiganbayan, if it is in aid of its
appellate jurisdiction. [Rule 65, Sec. 4]
PAGE 161
UP LAW BOC
CIVIL PROCEDURE
RELIEFS PETITIONER IS ENTITLED

TO
REMEDIAL LAW
EFFECTS OF FILING AN
UNMERITORIOUS PETITION
The court, however, may dismiss the petition if

it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial
to require consideration. [Rule 65, Sec. 8]
In these cases, the court may award TREBLE
COSTS solidarily against petitioner and
counsel, in addition to administrative
sanctions
Petitioner may be entitled to:

(1) Injunctive relief Court may may issue
orders expediting the proceedings, and it
may also grant a temporary restraining
order or a writ of preliminary injunction for
the preservation of the rights of the
parties [Rule 65, Sec. 7]
(2) Incidental reliefs as law and justice may
require [Rule 65, Secs. 1 and 2]
(3) Other reliefs prayed for or to which the
petitioner is entitled [Rule 65, Sec. 8]
Court may impose, motu proprio, based on res

ipsa loquitur, other disciplinary sanctions for
patently dilatory and unmeritorious petitions
[AM No. 07-7-12-SC]
INJUNCTIVE RELIEF
Rule 65, Sec. 7 provides for the issuance of a
temporary restraining order, and not only for a
writ of preliminary injunction, but such order
shall be subject to the rules on the grounds
and duration thereof. [Regalado]
QUO WARRANTO
NATURE
Quo Warranto literally means by what

authority.
General Rule: The petition shall not interrupt

the course of the principal case.
It is a prerogative writ by which the

government can call upon any person to show
by what warrant he holds a public office or
exercises a public franchise.
The public respondent shall proceed with the

principal case WITHIN 10 DAYS from filing of
the petition for certiorari with the higher court,
absent a TRO or preliminary injunction, or
upon its expiration. Failure may be a ground
for an administrative charge (AM No. 07-7-12SC)
When the inquiry is focused on the legal

existence of a body politic, the action is
reserved to the State in a proceeding for quo
warranto or any other direct proceeding.
Subject Matter: The subject matter of a quo
warranto may be a public office, franchise, or
position.
Exception: Unless a TRO or preliminary

injunction has been issued against the public
respondent from further proceedings in the
case
NOTE: Rule 66 deleted an office in a

corporation created by authority of law. This
falls under the jurisdiction of the SEC under
PD 902-A.
FACTS/OMISSIONS OF MTC/RTC IN
ELECTION CASES
In election cases involving an act or an

omission of a municipal or regional trial court,
the petition shall be filed EXCLUSIVELY with
the Commission on Elections, in aid of its
appellate jurisdiction [Rule 65, Sec. 4, as
amended in AM No. 07-7-12-SC]
Jurisdiction to Issue Writ: Original jurisdiction

to issue the writ of quo warranto is vested in
the SC, CA, and RTC.
PAGE 162
UP LAW BOC
CIVIL PROCEDURE
DISTINGUISHED FROM QUO

WARRANTO IN THE OMNIBUS
ELECTION CODE
AGAINST WHOM MAY THE ACTION

BE BROUGHT [Rule 66, Sec. 1]
(1) A PERSON who USURPS, intrudes into, or

unlawfully holds or exercises a public
office, position, or franchise
(2) A PUBLIC OFFICER who does or suffers
an act, which, by provision of law,
constitutes a ground for FORFEITURE OF
OFFICE
(3) An ASSOCIATION which acts as a
corporation within the Philippines without
being legally incorporated or without
lawful authority to act
ROC Rule 66
OEC Sec. 253
Filed by whom
Solicitor General or
Public Prosecutor in
behalf of the Republic;
Individual
REMEDIAL LAW
Any voter
Where filed
COMELEC, if
against election of a
Member of
By SolGen: RTC Manila, Congress, Regional,
CA or SC; Otherwise,
Provincial or City
RTC with jurisdiction
Officer;
over territorial area
where respondent
appropriate RTC or
resides, CA or SC
MTC, if against a
municipal or
barangay officer
Actions for quo warranto against corporations

with regard to franchises and rights granted
to them, as well as their dissolution now fall
under the jurisdiction of the RTC [Securities
Regulation Code, Sec. 5.2]
WHO MAY COMMENCE THE ACTION

[Rule 66, Sec. 2 5]
General Rule: The Government, through the

Solicitor General or public prosecutor
(1) MANDATORY [Sec. 2]; When to
commence:
(a) When directed by the President, or
(b) When upon complaint or otherwise he
has good reason to believe that any
case in Sec. 1 can be established by
proof
Period for filing

Within 1 year from
Within 10 days after
ouster, or from the time
proclamation of
the right to the position
results
arose
Against whom, grounds
A person, who usurps,
intrudes into or
unlawfully holds or
exercises a public office,
position or franchise;
Ineligibility or
disloyalty to the
A public officer, who
Republic
does or suffers an act
which, by provision of
law, constitutes a
ground for forfeiture of
office
(2) DISCRETIONARY [Sec. 3]; When to

commence:
(a) This is upon permission of court
(b) Bringing such action (ex relatione) at
the request and upon the relation of
another person, PROVIDED:
(i) Officer bringing it may require an
indemnity bond
(ii) Leave of court will have to be
obtained
Exception: An individual may commence the
action [Sec. 5]; PROVIDED:
(1) He institutes the action in his own name
(a) He does not have to secure the
intervention of the Solicitor General or
public prosecutor
(b) No leave of court necessary
(2) HOWEVER, he must claim to be entitled
to the office or position usurped or
unlawfully held or exercised by another.
In fine, Rule 66 applies to quo warranto IN

GENERAL while election law governs quo
warranto against SPECIFIED elective officials.
PAGE 163
UP LAW BOC
CIVIL PROCEDURE
(a) He must aver and be able to show

that he is entitled to the office in
dispute. There must be an allegation
that respondent is either a de facto or
de jure officer
REMEDIAL LAW
Respondents neglect or refusal to

comply with the demand is punishable
by contempt
(3) Bring an action for damages against
respondent
For damages sustained by him by
reason of the usurpation
Must be commenced within 1 year after
entry
of
judgment
establishing
petitioners right to the office in question
[Sec. 11]
PERIOD FOR PLEADINGS AND

PROCEEDINGS MAY BE REDUCED
[Rule 66, Sec. 8]
Period to File: The action must be commenced

within 1 year from the date after the cause of
such ouster or the right of the petitioner to
hold such office or position arose. [Sec. 11]
EXPROPRIATION
NATURE
Laches does not attach and failure to file quowarranto proceedings does not operate
adversely against a dismissed government
employee where it was the act of responsible
government official which contributed in the
delay of filing of complaint for reinstatement
[Cristobal v. Melchor].
Eminent Domain is the right and authority of

the State, as sovereign, to take private
property for public use upon observance of
due process and payment of just
compensation.
It is a governments right to appropriate, in the
nature of a compulsory sale to the State,
private property for public use or purpose.
Reduction of Period: The court may reduce the

period for filing and for all other proceedings
in the action to secure most expeditious
determination of the matters involved therein,
consistent with the rights of the parties.
Requisites for the Valid Exercise of the

Right
(1) There must be due process of law
(2) Payment of just compensation
(3) Taking must be for public use
JUDGMENT IN QUO WARRANTO

ACTION [Rule 66, Sec. 9]
Subject Matter of Expropriation: All

properties can be expropriated, EXCEPT:
(1) Money
(futile;
because
of
just
compensation)
(2) Choses in action (conjectural in nature;
validity and its value)
When respondent is found guilty of usurping,

intruding, or unlawfully holding, judgment
rendered:
(1) That such respondent is ousted and
altogether excluded therefrom
(2) That petitioner or relator, as the case may
be, recover his costs
(3) May determine the respective rights in
and to the public office, position, or
franchise of all parties
When is Expropriation Proper:

(1) When the owner refuses to sell
(2) When he agrees to sell but an agreement
as to the price cannot be reached.
RIGHTS OF A PERSON ADJUDGED

ENTITLED TO PUBLIC OFFICE
MATTERS TO ALLEGE IN
COMPLAINT FOR EXPROPRIATION
[Rule 66, Sec. 10]
Contents of the Complaint [Rule 67, Sec. 1]

(1) State with certainty the right and purpose
of expropriation
(a) Where the right of the plaintiff to
expropriate is conferred by law,
complaint does not have to state with
certainty the right of expropriation
[MRR Co. v. Mitchel]
Rights of persons adjudged entitled to

office:
(1) Execution of the office
After taking oath of office and executing
any official bond required by the law
(2) Demand from respondent all the books
and papers appertaining to the office to
which judgment relates
PAGE 164
UP LAW BOC
CIVIL PROCEDURE
(2) Describe the real or personal property

sought to be expropriated
(3) Joining of defendants
(a) All persons owning or claiming to
own, or occupying, any part thereof or
interest therein. showing separate
interest of each defendant, as far as
practicable
(b) Make the following averments, if
needed:
(i) If title appears to be in the
Republic, although occupied by
private individuals
(ii) If title is otherwise obscure or
doubtful so that plaintiff cannot
with accuracy or certainty specify
who the real owners are
REMEDIAL LAW
Preliminary deposit:
Provide damages if court finds
that the plaintiff has no right to
expropriate
Purposes
Advance payment for just

compensation, if property is finally
expropriated
If Real Property - Equivalent to the

assessed value of the property for
purposes of taxation
Value
If Personal Property Value shall
be provisionally ascertained and
fixed by the court
With the authorized government
Where to depositary
deposit Amount is to be held by such bank
subject to the orders of the court
Deposit shall be in money
Where to File: RTC where property is located.

MTC has no jurisdiction since an action for
expropriation is incapable of pecuniary
estimation.
UNLESS, in lieu of money, court

Form of authorizes deposit of a certificate
Deposit of deposit of a government bank of
the Republic, payable on demand
to the authorized government
depositary
TWO STAGES IN EVERY ACTION

FOR EXPROPRIATION
First Stage: Determination of the authority of
the plaintiff to exercise the power of eminent
domain and the propriety of its exercise in the
context of the facts involved. This ends with
either:
(1) An order of dismissal, or
(2) An order of expropriation
After the deposit, court shall order sheriff or

proper officer to place plaintiff in possession
of the property. Such officer shall promptly
submit a report to the court with service of
copies to parties.
Second Stage: Determination of the just

compensation for the property sought to be
taken.
NOTE: Preliminary deposit is only necessary if

the plaintiff desires entry on the land upon its
institution of the action. Otherwise, he could
always wait until the order of expropriation is
issued before it enters upon the land.
NOTE: Multiple appeals is allowed in

expropriation. Aggrieved party may appeal in
each stage separately.
Once the preliminary deposit has been made,

the expropriator is entitled to a writ of
possession as a matter of right, and the
issuance of said writ becomes ministerial on
the part of the trial court [Biglang-Awa v.
Bacalla]
WHEN PLAINTIFF CAN

IMMEDIATELY ENTER INTO
POSSESSION OF THE REAL
PROPERTY, IN RELATION TO R.A.
NO. 8974
On RA 8974
On Nov. 7, 2000, Congress enacted RA 8974,
a special law to facilitate the acquisition of
right of way, site, or location for national
government infrastructure projects:
Plaintiff shall have the right to take or enter

upon possession of the real property upon:
(1) Filing of complaint or at any time
thereafter, and after due notice to
defendant
(2) Making preliminary deposit [Rule 67, Sec.
2]
PAGE 165
UP LAW BOC
CIVIL PROCEDURE
Rule 67,
Sec. 2
Application
Expropriation
in general
Government
For writ of is required to
possession
make
to issue
preliminary
deposit
Equal to
assessed
Amount of
value of real
payment or
property for
deposit
purposes of
taxation
REMEDIAL LAW
DEFENSES AND OBJECTIONS
RA 8974
Only when
national
government
expropriates
property for
national
government
infrastructure
projects
Government is
required to make
immediate
payment to owner
upon filing of
complaint
Equal to the
market value of
the property as
stated in the tax
declaration or
current relevant
zonal value of BIR,
whichever is
higher, and value
of improvements
and/or structures
using
replacement cost
method
No Objection or
Has Objection or
Defense to the Taking Defense to the Taking
What to file and serve
Notice of
Answer to the
appearance and
complaint
manifestation
Period to file
Time stated in the summons
Contents
Specifically
designating/identifying
Manifestation to the
the property in which
effect that he has no
he claims to have an
objection or defense;
interest in and the
nature and extent of
Specifically
the interest;
designating/
identifying the
property in which he
ALL his objections and
claims to be
defenses to the
interested
complaint or any
allegation therein
Prohibited
Counterclaim, crossclaim, third party
complaint in any
pleading
Remember the Applicable Rules:

(1) RA
8974
specifically
governs
expropriation for national government
infrastructure projects
(2) Sec 19, LGC governs the exercise of the
power of eminent domain by LGUs
through an enabling ordinance
NOTE: A defendant waives all defenses and

objections not so alleged, but the court, in the
interest of justice, may permit amendments to
the answer not to be made later than ten (10)
days from filing thereof.
NEW SYSTEM OF IMMEDIATE

PAYMENT
OF
INITIAL
JUST
COMPENSATION
NOTE: In any case, in the determination of just

compensation, defendant may present
evidence as to the amount of compensation to
be paid.
For the acquisition of right-of-way, site or

location for any national government
infrastructure project through expropriation,
upon the filing of the filing of the complaint,
and after due notice to the defendant, the
implementing agency shall immediately pay
the owner of the property the amount
equivalent to the sum of (1) 100 percent of the
value of the property based on the current
relevant zonal valuation of the BIR; and (2)
the value of the improvements and/or
structures as determined under Sec. 7 of RA
8974 [Sec. 4, RA 8974]
NOTE: The defendant CANNOT be declared in

default for failure to file Answer. Failure to file
an answer would result to the courts
judgment on the right to expropriate without
prejudice to the right to present evidence on
the just compensation and to share in the
distribution of the award.
PAGE 166
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Procedures:
(a) Copies of the Order shall be served on
the parties
(b) Objections to appointment:
(i) Filed with the court within 10 days
from service
(ii) Objections shall be served to all
commissioners
(iii) Resolved within 30 days after all
commissioners
shall
have
received copies
ORDER OF EXPROPRIATION
[Rule 67, Sec. 4]
Order of Expropriation - It is the order

declaring that the plaintiff has lawful right to
take the property.
When Issued: It is issued when:
(1) Objections or defenses against the right of
plaintiff to expropriate are overruled; or
(2) No party appears to defend the case
Just Compensation
Just Compensation has been defined as the
full and fair equivalent of the property taken
from its owner by the expropriator. Just
compensation means not only the correct
determination of the amount to be paid but
also the payment of the land within a
reasonable time from its taking.
Contents of the Order:

(1) That the plaintiff has a lawful right to take
the property sought to be expropriated
(2) For public use or purpose described in the
complaint
(3) Upon payment of just compensation
(a) To be determined as of the date of
taking, or
(b) The filing of the complaint, whichever
came first
Market Value
Is that sum of money which a person desirous
but not compelled to buy, and an owner
willing but not compelled to sell, would agree
on as a price to be given and received
therefore. [BPI v. CA (2004)]
Remedy of Defendant: Order of condemnation

is final, not interlocutory. Hence, it is
appealable.
Effects of the Order:
(1) Plaintiff not permitted to dismiss or
discontinue the proceeding
(a) EXCEPTION: On such terms as the
court deems just and equitable,
plaintiff may be allowed to dismiss or
discontinue
(2) Forecloses any further objections to the
right to expropriate, including the public
purpose of the same
Time when market value should be fixed:

(1) When plaintiff takes possession before
institution of proceedings, value should be
fixed as of the TIME OF TAKING
(2) When the taking coincides with or
subsequent to the commencement of
proceedings, DATE OF FILING of the
complaint should be the basis
APPOINTMENT OF
COMMISSIONERS;
COMMISSIONERS REPORT; COURT
ACTION UPON REPORT
ASCERTAINMENT OF JUST
COMPENSATION [Rule 67, Sec. 5]
Upon rendition of the Order of Expropriation,

the court issues an Order of Appointment.
Qualifications of the Commissioners:

(1) Competent and
(2) Disinterested
Order of Appointment:
(1) Court appoints not more than 3
commissioners to ascertain and report to
the court the just compensation for the
property
Proceedings by Commissioners [Rule 67,

Sec. 6]
(1) Commissioners shall first take and
subscribe an oath that they will faithfully
perform their duties. Oath shall be filed in
court together with other proceedings.
(2) Evidence may be introduced by either
party before the commissioners who are
authorized to administer oaths on
hearings before them
(2) Contents:
(a) It shall designate the time and place
of the first session of hearing to be
held by commissioner
(b) Specify the time within which their
report shall be submitted to court
PAGE 167
UP LAW BOC
CIVIL PROCEDURE
Duties of Commissioners:
(1) View and examine the property sought to
be expropriated and its surroundings, and
may measure the same
(a) Due notice to parties to attend must
first be given UNLESS the parties
consent to the contrary
(b) After this, each party may argue the
case
REMEDIAL LAW
(b) Recommit to commissioners for

further report of facts, for cause
shown
(c) Set aside the report and appoint new
commissioners;
(d) Accept the report in part and reject in
part
(e) Make such order or render such
judgment as shall secure the plaintiff
and the defendant
(2) They shall assess the consequential

damages to the property not taken and
deduct from such the consequential
benefits to be derived by owner
(a) In no case shall the consequential
benefits assessed exceed the
consequential damages
(b) In no case shall the owner be deprived
of the actual value of his property
taken
RIGHTS OF PLAINTIFF
JUDGMENT AND PAYMENT
UPON
[Rule 67, Sec. 10]
When will the right of plaintiff TO ENTER the

property sought to be appropriated or RIGHT
TO RETAIN it should he have taken immediate
possession thereof accrue?
(1) RIGHT TO RETAIN: Upon filing of
complaint, serving notice to defendant,
and after depositing the assessed value of
property for taxation purposes with
authorized government depositary [Sec. 2]
Report by Commissioners [Rule 67, Sec. 7]

Commissioners shall make a full and accurate
report to the court of all their proceedings.
Such proceeding shall not be effectual until
court has accepted their report and rendered
judgment in accordance with their
recommendations.
(2) RIGHT TO ENTER:

(a) Upon payment by plaintiff to
defendant of compensation fixed by
judgment, with legal interest from
taking [Sec. 10]
(b) After tender to defendant of amount
so fixed and payment of the costs
[Sec. 10]
Report shall be filed within 60 days from date

commissioners were notified of their
appointment. Time may be extended by court
discretion,
EFFECT
OF
JUDGMENT
Upon filing, clerk shall serve copies of the

Commissioners Report to all interested
parties. Clerk includes a notice that parties are
allowed to file objections to the report within
10 days from notice
RECORDING
OF
Contents of the Judgment

(1) Statement of the particular property or
interest therein expropriated, with
adequate description
(2) Nature of the public use or purpose for
which it is expropriated
Action Upon Commissioners Report [Rule

67, Sec. 8]
(1) When court renders judgment: Upon
(a) Filing of objections to the report or of
the agreement thereon of all
interested parties; or
(b) Expiration of 10-day period to object
from the report
In case of real estate, a certified true copy of

such judgment shall be recorded in the
registry of deeds of the place in which
property is situated. Effect is to vest title.
Title in Expropriation is vested:
(1) If PERSONAL property, upon payment of
just compensation [Sec. 10]
(2) If REAL property, upon payment of just
compensation AND registration of
property [Sec. 13]
(2) Court may:

(a) After hearing, accept the report and
render judgment in accordance
therewith
PAGE 168
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Transferee or grantee of the property

(4) Second
mortgagee
or
junior
encumbrancers or any person claiming a
right or interest in the property
subordinate to the mortgage sought to be
foreclosed to foreclose their equity of
redemption
But if the action is by the junior
encumbrancer, first mortgagee MAY
also be joined as defendant
(5) Mortgagor even if not owner of the
mortgaged property should be included to
satisfy the deficiency
FORECLOSURE OF REAL
ESTATE MORTGAGE
NATURE
Foreclosure of Mortgage is a proceedings in a

court of justice conducted according to legal
forms by which the mortgagee or his
successors or one who has by law succeeded
to the rights and liabilities of the mortgagee
undertakes to dispose of, to ban, to cut-off the
legal and equitable claims of lien holders or of
the mortgagors or those who have succeeded
to the rights and liabilities of the mortgagor.
JUDGMENT ON FORECLOSURE FOR

PAYMENT OR SALE [Rule 68, Sec. 2]
The cause of action in a foreclosure suit is

generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
therein.
If upon trial, the facts set forth in the

complaint are true, the court shall:
(1) Ascertain the amount due to the plaintiff
upon the mortgage debt or obligation
including interests, other charges
approved, costs
Foreclosure may be made:

(1) Judicially governed by Rule 68
(2) Extrajudicially proper only when so
provided in contracts in accordance with
Act. No. 3135; governed by A.M. No. 99-1005-0.
(2) Render judgment for the sum so found

due
(3) Order that the amount be paid to the
court or to judgment obligee
(a) Within a period of not less than 90
days but not more than 120 days from
entry of judgment
(b) In default of such payment, property
shall be sold at public auction to
satisfy judgment
COMPLAINT IN AN ACTION FOR

FORECLOSURE [Rule 68, Sec. 1]
Venue: A foreclosure action must be brought

in the RTC of the province where the land or
any part thereof is situated
Contents of the Complaint:
(1) The following dates:
(a) Date and due execution of the real
mortgage
(b) Date of the note or other documentary
evidence of the obligation secured by
the mortgage
(2) Its assignments, if any
(3) The following names and residences:
(a) Of the mortgagor and mortgagee
(b) Of all persons having or claiming an
interest in the property subordinate in
the right to that of the holder of the
mortgage
(4) Description of the mortgaged property
(5) Amount claimed to be unpaid
Judgment on Foreclosure is the judgment of

the court ordering the debtor to pay within
90-120 days from entry of judgment after
ascertaining the amount due to plaintiff
NOTE: Multiple appeals are allowed under
Rule 68
(1) Judgment of foreclosure is appealable
[Sec. 2]
(2) Order confirming foreclosure sale is a final
disposition with respect to the issue of
validity and regularity of the sale [Sec. 3]
(3) Deficiency judgment is a disposition on
the merits of the correctness of such
award [Sec. 6]
Defendants in a judicial foreclosure

(1) Persons obliged to pay the mortgage debt
(2) Persons who own, occupy, or control the
mortgaged premises or any part thereof
PAGE 169
UP LAW BOC
CIVIL PROCEDURE
SALE OF MORTGAGED PROPERTY;

EFFECT [Rule 68, Sec. 3]
REMEDIAL LAW
DISPOSITION OF PROCEEDS OF
SALE [Rule 68, Sec. 4]
(1) Amount realized from the foreclosure

sale, less costs of the sale, shall be paid to
the person foreclosing
(2) When there is a balance or residue after
paying the mortgage debt, the same shall
be paid to junior encumbrancers in the
order of priority as ascertained by the
court
(3) If there are no junior encumbrancers, the
residue goes to the mortgagor or his
authorized agent, or any other person
entitled to it
When Proper: When Defendant fails to pay the

amount of judgment within the period
specified, the court shall order the property to
be sold.
How: By motion and under the provisions of
Rule 39.
It is the ministerial duty of the court to order
the foreclosure of the property when the debt
is not paid within the period specified.
A motion for such order of sale is non-litigable
and may be made ex parte. [Govt of P.I. v De
las Cajigas (1931)]
DEFICIENCY JUDGMENT;
INSTANCES WHEN COURT CANNOT
RENDER DEFICIENCY JUDGMENT
NOTE: Such sale shall not affect the rights of

persons holding prior encumbrances upon the
property or a part thereof.
[Rule 68, Sec. 6]
Deficiency Judgment is judgment rendered by

the court holding defendant liable for any
unpaid balance due to the mortgagee if the
proceeds from the foreclosure sale do not
satisfy the entire debt.
Order of Confirmation - When confirmed by an

order of the court, also upon motion, it shall
operate to divest the rights in the property of
all the parties to the action and to vest their
rights in the purchaser, subject to such rights
of redemption as may be allowed by law.
In extrajudicial foreclosure, the mortgagee can

also recover by action any deficiency in the
mortgage account which was not realized in
the foreclosure sale. [PNB v. CA (1999)]
Confirmation of the sale of mortgaged real

property vests title in the purchaser including
the equity of redemption, it retroacts to the
date of the sale. It cuts off all the rights or
interests of the mortgagor and of the
mortgagee. [Lozame v Amores (1985]].
A motion for deficiency judgment may be

made only after the sale and after it becomes
known that a deficiency exists. [Governor of the
Philippine Islands v. Torralba Vda. de Santos
(1935)]
The motion for the confirmation of the sale

requires a hearing to grant an opportunity to
the mortgagor to show cause why the sale
should not be confirmed [Tiglao v Botones, 90
Phil 275], as by proof of irregularities therein
or of gross inadequacy of the price. Lack of
notice vitiates the confirmation of the sale.
If the debtor dies, the deficiency may be filed

as a claim against his estate. [Rule 86, Sec. 7]
How Done:
(1) Judgment creditor files motion for
deficiency judgment
(2) Court shall then render judgment against
defendant for any such balance for which
he may personally be liable to plaintiff
(3) Execution may then issue immediately if
balance is all due at the time of rendition
of judgment
(a) If not, plaintiff shall be entitled to
execution at such time as the balance
remaining becomes due
Writ of Possession - Upon the finality of the

order of confirmation or upon the expiration of
the period of redemption when allowed by
law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property, unless a third
party is actually holding the same adversely to
the judgment obligor.
PAGE 170
UP LAW BOC
CIVIL PROCEDURE
Instances when court CANNOT render

deficiency judgment
(1) Recto Law [Art. 1484, par. 3]
(2) When mortgagor is a non-resident and is
not found in the Philippines
(3) When mortgagor dies, mortgagee may file
his claim with the probate court [Sec. 7,
Rule 86]
(4) If mortgagor is a third person but not
solidarily liable with debtor
No deficiency judgment may be
rendered against owner who is not a
mortgagor and has not assumed
personal liability for the debt
Remedy is ordinary action against
debtor
(5) In case of a mortgage debt due from the
estate of a deceased mortgagor and the
mortgage creditor availed of the third
remedy which is to rely upon his mortgage
alone and foreclosing the same within the
statute of limitations [Sec. 7, Rule 86]
Equity of Redemption
Right of the
defendant mortgagor
to extinguish the
mortgage and retain
ownership of the
property by paying
the secured debt
within the 90 to 120
day period after entry
of judgment or even
after the foreclosure
sale but prior to its
confirmation
Period is 90-120 days
after entry of
judgment or even
after foreclosure sale
but prior to
confirmation
Governed by Rule 68
JUDICIAL FORECLOSURE vs.

EXTRAJUDICIAL FORECLOSURE
Judicial Foreclosure
Extrajudicial
Foreclosure
Requires court
No court intervention
intervention
necessary
There is only an
Right of redemption
equity of redemption
exists
Governed by Rule 68 Governed by Act 3135
No Deficiency
judgment because
There could be a
there is no judicial
Deficiency Judgment
proceeding but
recovery of deficiency is
allowed
Recovery of
Recovery of deficiency
deficiency can be
is through an
done by mere
independent action
motion
No right of
redemption, only
equity of redemption
EXCEPT: Those
granted by banks or
banking institutions
as provided by the
General Banking Act
(mortgagor may
exercise a right of
redemption)
EQUITY OF REDEMPTION vs. RIGHT

OF REDEMPTION
Equity of Redemption is the right of the

defendant mortgagor to extinguish the
mortgage and retain ownership of the
property by paying the secured debt within the
90 to 120 day period after entry of judgment
or even after the foreclosure sale but prior to
its confirmation
REMEDIAL LAW
Right of Redemption
Right of the debtor,
his successor in
interest, or any
judicial creditor of
said debtor or any
person having a lien
on the property
subsequent to the
mortgage or deed of
Period is 1 year from

date of registration of
certificate of sale
Governed by Sec. 2931, Rule 39
Extrajudicial
Foreclosure
Mortgagor has a right
to redeem the
property within one
year from registration
of the deed of sale
EXCEPT: Sec. 47 of
the General Banking
Act provides that in
case of extrajudicial
foreclosure, juridical
persons shall have
the right to redeem
until, but not after,
the registration of the
certificate of
foreclosure sale with
the Register of Deeds
which in no case shall
be more than 3
months after
foreclosure, whichever
is earlier
NOTE: What Sec. 2 and 3, Rule 68 provide for

is the mortgagors EQUITY, nor right, of
redemption. - This may be exercised by him
even beyond the period to pay the judgment
obligation and even after the foreclosure sale
itself, provided it be before the order of the
confirmation of sale
PAGE 171
UP LAW BOC
CIVIL PROCEDURE
PARTITION
WHO MAY FILE COMPLAINT; WHO

SHOULD BE MADE DEFENDANTS
[Rule 69, Sec. 1]
NATURE
Partition is the process of dividing and

assigning the property owned in common
among the various co-owners thereof in
proportion to their respective interests in said
property.
Who May File: A person having the right to

compel partition of real estate, or of personal
property, or both real and personal property
[Sec. 1, Sec. 13]
Venue: An action for partition should be filed
in the RTC of the province where the property
or part thereof is situated.
Partition may be:

(1) JUDICIAL Procedure is Rule 69
(2) EXTRAJUDICIAL No court intervention
required
Parties
(1) The plaintiff is the person who is supposed
to be a co-owner of the property
(2) Defendants are all the co-owners, who are
indispensable parties
(3) Creditors or assignees of co-owners may
also intervene and object to the partition
The partition of property may be made

voluntarily (by agreement) or compulsorily
under the Rules. Even if the parties had
resorted to judicial partition, they may still
make an amicable partition of the property.
An action for partition and accounting under
Rule 69 is in the nature of an action QUASI IN
REM. Such an action is essentially for the
purpose of affecting the defendants interest
in a specific property and not to render a
judgment against him.
WHEN CAN PARTITION BE MADE

General Rule: It can be made anytime. The
right to demand partition is imprescriptible.
REMEDIAL LAW
MATTERS TO ALLEGE IN
COMPLAINT FOR PARTITION
THE
Contents of the Complaint:

(1) Nature and extent of his title
(2) Adequate description of the real estate
sought to be partitioned
(3) Joining of Defendants All other persons
interested in the property
TWO STAGES IN EVERY ACTION

FOR PARTITION
Exception to Imprescriptibility of Right to

Partition: If a co-owner asserts adverse title to
the property. In which case, period of
prescription runs from such time of assertion
of adverse title.
First Stage: Determination of the propriety of

partition
This involves a determination of whether the
subject property is owned in common and
whether all the co-owners are made parties in
the case.
Exceptions to the Right to Ask for Partition:

(1) When there is a stipulation against it, not
exceeding 10 years [Art. 494, Civil Code]
(2) When partition is prohibited by the donor
or testator for a period not exceeding 20
years [Art. 494, 1083 Civil Code]
(3) When partition is prohibited by law (e.g.
ACP, party wall) [Art. 494, Civil Code]
(4) When the property is not subject to a
physical division and to do so would
render it unserviceable for the use for
which is it intended [Art. 495 Civil Code] or
(5) When the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled. [Art.
1084 Civil Code]
The order may also require an accounting of

rents and profits recovered by the defendant.
This order of partition is appealable. [Miranda
v. Court of Appeals (1976)]
If not appealed, then the parties may partition
the common property in the way they want. If
they cannot agree, then the case goes into the
second stage. However, the order of
accounting may in the meantime be executed.
[De Mesa v. CA (1994)]
PAGE 172
UP LAW BOC
CIVIL PROCEDURE
Second Stage: Actual partitioning of the

subject property
How Done: The court appoints not more than

3 competent and disinterested commissioners
to make the partition. [Sec. 3]
This is also a complete proceeding and the

order or decision is appealable.
Oath of the Commissioners: Before entering

into their duties, commissioners must first
make an oath that they will faithfully perform
their duties as commissioners. Such oath is to
be filed in court. [Sec. 4]
When there was a prior partition, the fact that

the share of each co-heir has not been
technically described and the title over the
whole lot remains uncancelled does not
negate such partition.
Duties of the Commissioners:

(1) They shall view and examine real estate,
after due notice to parties to attend at
such view and examination
(2) They shall hear the parties as to their
preference in the portion to be set apart to
them
(3) They shall also determine the comparative
value thereof
(4) They shall set apart the same to the
parties in lots or parcels as will be most
advantageous and equitable considering
the improvements, situation, and quality
of the parts thereof
There can be no partition again because there

is no more common property. [Noceda v. CA
(1999)]
ORDER OF PARTITION
PARTITION BY AGREEMENT
REMEDIAL LAW
AND
Order of Partition - The court issues an order of

partition AFTER the trial and the court finds
that the plaintiff has a right to partition. The
court orders the partition of the property.
The parties may make the partition proper
themselves, by agreement:
(1) After the issuance of the order of partition,
the parties will then be asked if they agree
to make partition of the property among
themselves
(2) If they agree, proper instruments of
conveyance will be executed to effect the
partition.
(3) After the execution of instruments of
conveyance, the court shall confirm the
partition through a final order.
(4) The final order of partition and the
instruments of conveyance shall be
registered with the Registry of Deeds
where the property is situated. [Rule 69,
Sec. 2]
Assignment of Real Estate to One Party
[Sec. 5]
(1) General Rule: If the commissioners should
determine that the real estate cannot be
divided without prejudice to the interests
of the parties, the court may order that the
property be assigned to one of the parties
willing to take the same PROVIDED he
pays to the other parties such amounts as
the commissioners deem equitable
(2) Exception: if one of the parties asks that
the property be sold instead of being so
assigned, then the court shall ORDER the
commissioners to sell the real estate at
public sale under such conditions and
within such time as the court may
determine
PARTITION BY COMMISSIONERS;
APPOINTMENT OF
COMMISSIONERS;
COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS
REPORT
Commissioners Report: Commissioners

shall make a full accurate report to the court.
Contents:
(1) All proceedings as to the partition, or
(2) The assignment of real estate to one of
the parties, or
(3) The sale of the same
When proper: If parties fail to agree on the

manner of partition, commissioners are
appointed to make partition.
PAGE 173
UP LAW BOC
CIVIL PROCEDURE
Upon filing of Commissioners Report:

(1) Clerk shall serve copies on all interested
parties with notice that they are allowed
to file objections
(2) Parties may file objections within 10 days
upon receipt of notice
Contents of Judgment
Effects of Judgment
If Property Is Sold And

Sale Is Confirmed By The Court
Judgment shall state
Judgment shall vest
the name of the
the real estate in the
purchaser or
purchaser(s), making
purchasers and a
the payment(s) free
definite description of
from the claims of
the parcels of real
any parties to the
estate sold to each
action.
purchaser
Hearing on the Report [Sec. 7]

(1) When Conducted:
(a) Upon expiration of the 10 day period
for filing objections; or
(b) Even before expiration but after the
interested parties have filed their
objections or their statement of
agreement therewith
A certified copy of the judgment shall in either

case be recorded in the registry of deeds of
the place in which the real estate is situated.
[Rule 69, Sec. 11]
(2) The court may:

(a) Accept the report and render
judgment in accordance therewith; or
(b) Recommit the same to commissioners
for further report of facts, for cause
shown; or
(c) Set aside the report and appoint new
commissioners; or
(d) Accept the report in part and reject in
part;
(e) Make such order and render such
judgment as shall effectuate a fair
and just partition of the real estate, or
of its value, if assigned or sold
PARTITION OF PERSONAL
PROPERTY
The provisions of Rule 69 shall apply to

partitions of estates composed of personal
property, or of both real and personal
property, in so far as the same may be
applicable. [Sec. 13]
PRESCRIPTION OF ACTION
The right of action to demand partition does

not prescribe [De Castro v. Echarri (1911)],
EXCEPT where one of the interested parties
openly and adversely occupies the property
without recognizing the co-ownership
[Cordova v. Cordova (1958)] in which case,
acquisitive prescription may set in.
JUDGMENT AND ITS EFFECTS

[Rule 69, Sec. 11]
Contents of Judgment
REMEDIAL LAW
Effects of Judgment
If a co-owner repudiates the co-ownership and

makes known such repudiation to the other
co-owners, then partition is no longer a proper
remedy of the aggrieved co-owner. He should
file an accion reivindicatoria, which is
prescriptible. [Roque v. IAC (1988)]
If Actual Partition Is Properly Made

Judgment shall vest
definitely, by metes
in each party to the
and bounds and
action in severalty the
adequate description,
portion of the real
the particular portion
estate assigned to
of the real estate
him.
assigned to each party.
If The Whole Property Is Assigned To One Of
The Parties After Payment
Judgment shall vest
in the party making
the fact of such
the payment the
payment and of the
whole of the real
assignment of the real
estate free from any
estate to the party
interest on the part of
making the payment.
the other parties.
PAGE 174
UP LAW BOC
CIVIL PROCEDURE
DISTINGUISHED FROM ACCION

PUBLICIANA, ACCION
REIVINDICATORIA, ACCION
FORCIBLE ENTRY AND

UNLAWFUL DETAINER
INTERDICTAL
NATURE
Ejectment cases are SUMMARY proceedings

intended to provide an expeditious means of
protecting actual possession of property.
The Three Kinds of Action for Recovery of

Possession
Accion
Interdictal
Summary
action for
recovery of
physical
possession
where the
dispossession
has not lasted
for more than
1 year
All cases of
forcible entry
and unlawful
detainer,
irrespective of
the amount of
damages or
unpaid
rentals sought
to be
recovered
should be
brought to the
MTC.
However, if
not brought
within 1 year,
RTC has
jurisdiction
Reason: The owners of property have no

authority to use force and violence to eject
alleged usurpers who were in prior physical
possession of it. They must file the
appropriate action in court and should not
take the law in their own hands.
NOTE: The Rule on Summary Procedure
applies only in cases filed before the MTC
DEFINITIONS AND DISTINCTIONS

Forcibly Entry
(Detentacion)
Possession of land by
defendant is unlawful
from the beginning as
he acquires
possession by force,
intimidation, strategy,
threat, or stealth
No previous demand
for defendant to
vacate the premises is
necessary
REMEDIAL LAW
Unlaful Detainer
(Desahucio)
Possession is
inceptively lawful but
it becomes illegal by
reason of the
termination of his
right to possession of
the property under his
contract with the
plaintiff
Demand is
jurisdictional if the
ground is nonpayment of rentals or
failure to comply with
lease contract
Plaintiff must prove

that he was in prior
Plaintiff need not
physical possession of
have been in prior
the premises until he
physical possession
was deprived thereof
by defendant
The 1-year period is
Period is counted
generally counted
from the date of last
from date of actual
letter of demand
entry on land
The issue centers on
The issue centers on
whether the
who was in prior
defendants right to
possession de facto.
possess has expired
or not.
Accion
Accion
Publiciana Reivindicatoria
A plenary
action for
An action for
recovery of
recovery of
real right of
ownership,
possession
which
when
necessarily
dispossession includes the
has lasted for recovery of
more than
possession
one year
RTC has jurisdiction if value

of the property exceeds
P20,000 outside Metro
Manila; exceeds P50,000
within Metro Manila.
MTC has jurisdiction if value
of property does not exceed
the above amounts
(RA 7691 expanded the
jurisdiction of 1st level courts)
HOW TO DETERMINE
JURISDICTION
In Accion Interdictal: In the proper Municipal
Trial Court
NOTE: Amount of rents and damages claimed
does not affect the jurisdiction of the MTC
because they are only incidental or accessory
to the main action
HOWEVER, municipal courts have no
jurisdiction over a FEUD case involving
agricultural tenants. Jurisdiction is with the
HLURB
PAGE 175
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Vendor may bring action for ejectment

against vendee upon failure to pay
installments
(4) FEUD lie against the very owner of the
property
(5) Action may be maintained against
government officials or agents acting in
behalf of the government, even if
government is not made a party to the
action
In accion publiciana and accion reivindicatoria:

(1) RTC has jurisdiction where the assessed
value of the property exceeds P20K or, in
MM, P50k
(2) MTC has jurisdiction if the assessed value
does not exceed said amounts
WHO MAY INSTITUTE THE ACTION

AND WHEN; AGAINST WHOM
MAINTAINED
PLEADINGS ALLOWED
Who May Institute Proceedings

[Rule 70, Sec. 1]
(1) In Forcible Entry:
(a) A person deprived of possession of
any land or building by force,
intimidation, strategy, threat, or
stealth (FISTS)
Pleadings must be VERIFIED. [Rule 70, Sec. 4]

What must be alleged in a complaint for
forcible entry:
(1) That plaintiff was in prior physical
possession of the property in litigation
until he was deprived thereof by
defendant
(2) That the dispossession was through FISTS
(3) That the complaint was filed within 1 year
from dispossession
(2) In Unlawful Detainer:

(a) Lessor, vendor, vendee or other
person against whom any land or
building is unlawfully withheld
(b) Or their legal representatives or
assigns
What must be alleged in a complaint for

unlawful detainer:
(1) That defendant is unlawfully withholding
possession from plaintiff because his right
to possess had expired
(2) That landlord has made a demand upon
tenant to comply with the terms of the
contract and to return the possession of
the property, and that the tenant failed to
satisfy the demand within 15 or 5 days, in
case of buildings
(3) That the complaint is filed within 1 year
from demand
Period of Filing: Within ONE (1) year after such

unlawful deprivation or withholding of
possession. Reckoning points:
(1) For forcible entry, it is counted from date
of entry or taking of possession
(2) For unlawful detainer, it is counted from:
(a) Date of last demand to vacate in case
of non-payment of rent or noncompliance with conditions of the
lease
(b) Date of notice to quit, in case of tacit
renewal of lease
(c) Date of revocation of the permit in
case of occupancy on mere tolerance
or under temporary permit
Allowed pleadings:
(1) Complaint
(2) Compulsory Counterclaim pleaded in the
answer
(3) Cross-claim pleaded in the answer
(4) Answer
Against whom may the action be maintained Person or persons unlawfully withholding or
depriving of possession, or any person/s
claiming under them:
(1) Action of Forcible Entry and Unlawful
Detainer (FEUD) may be maintained only
against one in possession at the
commencement of the action
(2) Tenant with right of possession may bring
action against another tenant
ACTION ON COMPLAINT
[Rule 70, Sec. 5]
From the examination of allegations in the

complaint, the court may:
(1) Dismiss the case outright on any grounds
mentioned in Rule 16
(2) If there is no ground for dismissal, court
issues summons
PAGE 176
UP LAW BOC
CIVIL PROCEDURE
Answer by defendant [Rule 70, Sec. 6]

Defendant shall file his answer within 10 days
from service of summons
REMEDIAL LAW
(b) After 5 days in case of buildings

NOTE: Demand contemplated by Sec. 2 is
jurisdictional and is always two-fold.
Effect of Failure to Answer [Rule 70, Sec. 7]

Court shall render judgment; motu proprio or
upon motion
(1) Judgment:
(a) Warranted by the facts alleged in the
complaint
(b) Limited to what is prayed for
(2) Court may reduce the amount of damages
and attorneys fees claimed
(a) For being excessive or otherwise
unconscionable
(b) In the exercise of its discretion
(c) No prejudice to applicability of Sec.
3(c), Rule 9 if there are 2 or more
defendants
Demand upon a tenant may be oral. [Jakihaca

v. Aquino, 1990]
A person who occupies the land of another at
the latter's tolerance or permission, without
any contract between them is necessarily
bound by an implied promise that he will
vacate upon demand, failing which, an action
for unlawful detainer may be instituted
against him. [Dakudao v. Consolacion, 1983]
PRELIMINARY INJUNCTION AND

PRELIMINARY MANDATORY
INJUNCTION
Court may grant preliminary injunction in

accordance with Rule 58 to prevent defendant
from committing further acts of dispossession
against plaintiff [Rule 70, Sec. 15].
Preliminary Conference [Rule 70, Sec. 8]

Preliminary conference shall be held not later
than 30 days after filing of last answer.
Submission of Affidavits and Position
Papers [Rule 70, Sec. 10]
Affidavits and position papers are to be
submitted within 10 days from receipt of the
Order stating the matters taken in the
preliminary conference.
How done: Possessor may present a motion in

the action for issuance of preliminary
mandatory injunction within 5 days from filing
of complaint to restore him in his possession.
Court shall decide the motion within 30 days
from filing.
Preliminary mandatory injunction shall be
available:
(1) At the start of the action [Rule 70, Sec. 15]
(2) On appeal to the RTC [Sec. 2] upon
motion of plaintiff within 10 days from
perfection of appeal
Rendition of Judgment [Rule 70, Sec. 11]

Court shall render judgment within 30 days
after receipt of affidavits and position papers.
WHEN DEMAND NECESSARY
Rule 70, Sec. 2 requires a prior written demand

against the lessee before the lessor can
proceed against him.
Preliminary preventive injunction is

available in either case. Note that Sec. 15
makes the provisions of Rule 58
applicable to Rule 70.
NOTE: This applies ONLY to unlawful detainer

cases.
NOTE: Note that there is no distinction as to

the type of ejectment case involved.
It is only where defendant fails to comply with

the demand within the periods provided by
Sec. 2 will his possession become unlawful.
The injunction is to restore to plaintiff in

possession
(1) If the court is satisfied that the
defendants appeal is frivolous or dilatory,
or
(2) That the appeal of plaintiff is prima facie
meritorious
Requisites before the lessor can proceed

against lessee
(1) Demand is made by lessor to lessee:
(a) Demand to pay and vacate; or
(b) Demand to comply with conditions of
the lease and to vacate
(2) Lessee fails to comply with the demand:
(a) After 15 days in the case of lands; or
PAGE 177
UP LAW BOC
CIVIL PROCEDURE
RESOLVING DEFENSE OF OWNERSHIP

[Rule 70, Sec. 16]
REMEDIAL LAW
(b) But such pronouncement is merely

provisional
(c) It does not bar or prejudice an action
between the same parties involving
title
In an action for unlawful detainer, the

question of possession is primordial while the
issue of ownership is generally unessential.
The issue of ownership should be raised by the
affected party in an appropriate action.
HOW
TO
STAY
IMMEDIATE
EXECUTION OF JUDGMENT
[Rule 70, Sec. 19]
Under BP 129, when in FEUD cases, the

defendants raise the question of ownership in
his pleadings, and the issue of ownership, the
MTCs
nevertheless
have
undoubted
competence to resolve the issue of ownership
ONLY TO DETERMINE THE ISSUE OF
POSSESSION
General rule: Judgment of the MTC against

defendant in ejectment cases is immediately
executory
Exception: When the following concur:
(1) The defendant perfects his appeal
(2) He files a sufficient supersedeas bond
To pay the rents, damages, and costs
accruing down to the time judgment
appealed from
The supersedeas bond shall be
transmitted by the MTC, with the other
papers, to the RTC Clerk
(3) He deposits with the appellate court:
(a) The amount of rent due from time to
time under the contract, or
(b) In the absence of contract, the
reasonable value of the use and
occupation of premises for the
preceding
month
or
period
determined by judgment on or before
the 10th day of each succeeding month
or period [Chua v. CA, 1998]
Guidelines laid down by the Court in Refugia,

et al. v. CA regarding the legislative
prescription in Sec. 33 (2). BP 129:
(1) Primal rule is that the principal issue must
be that of possession
(a) Ownership is merely ancillary
(b) Issue of ownership may be resolved
but only for the purpose of
determining the issue of possession
(2) It must sufficiently appear from
allegations of complaint that what
plaintiff really and primarily seeks is
restoration of possession
(3) Inferior court cannot adjudicate on the
nature of ownership where relationship of
lease has been sufficiently established
(a) UNLESS it be proven that there has
been a subsequent change in or
termination of that relationship
between parties
The judgment of the Regional Trial Court

against the defendant shall be immediately
executory, without prejudice to a further
appeal that may be taken therefrom. [Rule 70,
Sec. 21]
(4) The rule in forcible entry, but not in

unlawful detainer, is that a party who can
prove prior possession can recover such
possession even against the owner
himself
(a) Hence, it prior possession may be
ascertained in some other way,
inferior court cannot intrude into the
issue of ownership
SUMMARY PROCEDURE,
PROHIBITED PLEADINGS
General rule: All actions for FEUD shall be
governed by the summary procedure of Rule
70, irrespective of the amount of damages or
unpaid rentals sought to be recovered
Exceptions:
(1) In cases covered by the agricultural
tenancy laws
(2) When the law otherwise expressly
provides
(5) Where the question of who has prior

possession hinges on the issue of who the
real owner is
(a) Inferior court may resolve issue of
ownership
PAGE 178
UP LAW BOC
CIVIL PROCEDURE
Prohibited Motions:
(1) Motion for a BILL of particulars
(2) Motion for EXTENSION of time to file
pleadings, affidavits, or any other paper
(3) Motion for NEW trial, or for
reconsideration of a judgment, or for
reopening of trial
(4) Motion to DISMISS the complaint; Except
on the ground for lack of jurisdiction over
the subject matter or failure to comply
with Sec. 12
(5) Motion to DECLARE defendant in default
(6) DILATORY motions for postponement
REMEDIAL LAW
Criminal Contempt
Punitive in nature
Civil Contempt
Remedial in nature
Purpose is to provide a
Purpose is to preserve
remedy for an injured
the courts authority
suitor and to coerce
and to punish for
compliance with an
disobedience of its
order; for the
orders
preservation of the
rights of private persons
Intent is necessary
Intent is not necessary
Instituted by the
aggrieved party, or his
State is the real
successor, or someone
prosecutor
who has a pecuniary
interest in the right to be
protected
Prohibited Pleadings:
(1) THIRD-party complaints
(2) REPLY
(3) INTERVENTIONS
(4) PETITION for relief from judgment
(5) PETITION for certiorari, mandamus, or
issued by the court
CONTEMPT
Proof required is proof

beyond reasonable
doubt
Proof required is more

than mere
preponderance
If accused is acquitted,
there can be no appeal
If judgment is for
respondent, there can
be appeal
According to Manner of Commission

(1) DIRECT CONTEMPT act committed in
the presence of or so near the court or
judge as to obstruct or interrupt the
proceedings before the same
(2) INDIRECT CONTEMPT one not
committed in the presence of the court. It
is an act done at a distance which tends to
belittle, degrade, obstruct, or embarrass
the court and justice
NATURE
Contempt of Court is disobedience to the

court by acting in opposition to its authority,
justice, and dignity. It signifies not only a
willful disregard of disobedience to the courts
orders but also conduct tending to bring the
authority of the court and administration of
law into disrepute, or, in some manner, to
impede the due administration of justice.
Direct Contempt
Committed in the
presence of or so near a
court
Indirect Contempt
Not committed within
the presence of the
court
There is charge and
Summary in nature
hearing
Punishment:
Punishment:
If committed against
the RTC: Fine of not RTC: Fine not exceeding
exceeding P2,000
P30,000 and/or
and/or imprisonment
imprisonment not
not exceeding 10 days
exceeding 6 months
the MTC: Fine not
MTC: Fine not
exceeding P200 and or
exceeding P5,000
imprisonment not
and/or imprisonment
exceeding 1 day
not exceeding 1 month
Remedy is certiorari or
Remedy is appeal
prohibition
Otherwise known as
Otherwise known as
Contempt in Facie
Constructive Contempt
Curiae
The power to declare person in contempt of

court and in dealing with him accordingly is an
INHERENT power of the court. It is used as a
means to protect and preserve the dignity of
the court, the solemnity of the proceedings,
and administration of justice.
KINDS OF CONTEMPT; PURPOSE

AND NATURE OF EACH
According to Nature
(1) CRIMINAL CONTEMPT conduct directed
against the authority and dignity of the
court or a judge acting judicially
(2) CIVIL CONTEMPT failure to do
something ordered to be done by a court
or by a judge for the benefit of the
opposing party
PAGE 179
UP LAW BOC
CIVIL PROCEDURE
Contempt, whether direct or indirect, may be

civil or criminal depending on the nature and
effect of contemptuous act.
Remedy of a person adjudged in direct

contempt [Rule 71, Sec. 2]
(1) He cannot appeal
(2) But he may file certiorari or prohibition
(a) Execution of judgment shall be
suspended pending resolution of such
petition, PROVIDED:
(i) He files a bond fixed by the court
which rendered judgment, and
(ii) Conditioned that he will abide by
and perform the judgment should
the petition be decided against
him
The real character of the proceedings in

contempt cases is to be determined by the
relief sought or by the dominant purpose. The
proceedings are to be regarded as criminal
when the purpose is primarily punishment,
and civil when the purpose is primarily
compensatory or remedial.
DIRECT CONTEMPT
For a person to be adjudged guilty of direct

contempt, he must commit a misbehavior in
the presence of or so near a judge as to
interrupt the administration of justice
INDIRECT CONTEMPT
Specific acts constituting indirect contempt
[Rule 70, Sec. 3]
(1) MISBEHAVIOR of an officer of a court in
the performance of his official duties or in
his official transactions
(2) ABUSE of or any unlawful interference
with processes or proceedings of a court
not constituting direct contempt
(3) DISOBEDIENCE or resistance to lawful
writ, process, order, or judgment of a
court, or any unlawful intrusion to any real
property after being ejected
(4) FAILURE to obey subpoena duly served
(5) ASSUMING to be an attorney or officer of
a court, and acting as such without
authority
(6) IMPROPER conduct tending to impede,
obstruct, or degrade administration of
justice
(7) RESCUE, or attempted rescue, of a person
or property in custody of an officer
(8) Failure by COUNSEL to inform the court
of the death of his client
Grounds for Direct Contempt [Rule 71, Sec. 1]

(1) DISRESPECT toward the court;
(2) OFFENSIVE personalities toward others
(3) REFUSAL to be sworn or answer as
witness or subscribe an affidavit when
lawfully required to do so
(4) MISBEHAVIOR in the presence of or so
near a court as to obstruct or interrupt the
proceedings
(5) When the counsel WILLFULLY and
deliberately engages in forum shopping
Procedure: Summarily adjudged in contempt
by such court
By whom initiated:
(1) Generally, civil contempt proceedings
should be instituted by an aggrieved
party, or his successor, or someone who
has pecuniary interest in the right to be
protected
(2) In criminal contempt proceedings, it is
generally held that the State is the real
prosecutor
Procedural requisites for indirect contempt

proceedings:
(1) A charge in writing or an order of the court
to appear and explain
(2) An opportunity for respondent to
comment on the charge and to appear
and explain his conduct
Penalties:
Offense
If RTC or a court of
equivalent or higher
rank
If lower court:
REMEDIAL LAW
Penalty
Fine not exceeding
P2,000 and/or
Imprisonment not
exceeding 10 days
Fine not exceeding
P200 and/or
Imprisonment not
exceeding 1 day
Two modes of commencing a proceeding

for indirect contempt [Rule 70, Sec. 4]
(1) Motu proprio by the court against which
contempt was committed
(a) By order or any other formal charge
requiring respondent to show why he
should not be punished for contempt
(2) Independent action in all other cases
PAGE 180
UP LAW BOC
CIVIL PROCEDURE
(a) By a charge commenced by a verified

petition with supporting particulars
REMEDIAL LAW
Remedy of a person adjudged in indirect

contempt [Rule 71, Sec. 11]
May be appealed to the proper court as in
criminal cases, but execution shall not be
suspended until BOND is filed.
Where Charge is to be Filed [Rule 70, Sec. 5]

(1) General rule: Proceeding for Indirect
Contempt shall be filed and tried by the
court against which the contumacious
conduct was committed.
WHEN IMPRISONMENT SHALL BE

IMPOSED
When the contempt consists in the refusal or

omission to do an act which is yet in the power
of the respondent to perform, he may be
imprisoned by order of the court concerned
until he performs it. [Rule 71, Sec. 8]
(2) Exceptions:
(a) If committed against a lower court, it
may be tried by the RTC, regardless of
the imposable penalty; and
(b) If committed against the SC, it may
cause it to be investigated by the
prosecutor and filed with the RTC, or
for hearing and recommendation
where the charge involves questions
of fact
The respondent carried the keys to his prison

in his own pocket. [Galvez v. Republic Surety &
Insurance Co., Inc. (1959)]
Only the judge who ordered the confinement
of the person for contempt of court can issue
the Order of Release. [Inoturan v Limsiaco, Jr.
(2005)]
Penalties for indirect contempt

[Rule 71, Sec. 7]
Offense
If against RTC, or
court of
equivalent or
higher rank
Penalty
Fine not exceeding
P30,000 and/or
Imprisonment not
exceeding 6 months
Fine not exceeding P500,
If committed
and/or
against lower
Imprisonment not
court
exceeding 1 month
Offender may also be
ordered to make complete
restitution to the party
injured by such violation of
If contempt
the property involved or
consists in
such amount as may be
violation of a writ
alleged and proved.
of injunction, TRO,
or status quo
If there is nothing more to
order
return, offender is
personally liable for the
restitution of the money
equivalent to the lost thing
(Rosario Textile Mills v. CA)
If committed
Penalty shall depend upon
against a person the provisions of the law
or entity
which authorizes penalty
exercising quasi- for contempt against such
judicial functions
persons or entities
Rule 71, Sec. 8 does not apply to tenants who

refused or failed to pay their rentals to the
special administratrix of the property. The
non-payment of rentals, which is a civil debt,
is covered by the constitutional guarantee
against imprisonment. [Regalado]
CONTEMPT AGAINST QUASIJUDICIAL BODIES [Rule 71, Sec. 12]
Rule 71 shall apply to contempt committed

against persons, entities, bodies, or agencies
exercising quasi-judicial functions or have
suppletory effect to such rules as they may
have adopted.
RTC of the place where the contempt was
committed shall have jurisdiction.
It is not within the jurisdiction and
competence of quasi-judicial bodies to decide
indirect contempt cases. The requirement for
a verified petition must also be complied with
(e.g. DARAB has no power to decide the
contempt charge filed before it). [Land Bank v
Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on all
Quasi-Judicial entities or supplements their
rules, unless the applicable law provides
otherwise.
PAGE 181
UP LAW BOC
CIVIL PROCEDURE
Acts or violations against quasi-judicial bodies

punishable as contempt: where a person,
without lawful excuse, fails to appear, make
oath, give testimony or produce documents
when required to do so by the official or body
exercising such powers. Other acts or
violations cannot be punished as contempt
unless specifically defined in the governing
law as contempt of court or if it authorizes the
quasi-judicial body to punish for contempt,
and providing the corresponding penalty.
[People v. Mendoza (1953), 13, Ch. 3, Bk VII,
Admin Code of 1987]
PAGE 182
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
THE SPECIAL CIVIL ACTIONS
Interpleader
Jurisdiction
Venue
Personal Property:
(1) MTC if value not more than P300,000 outside Metro Manila, or
not more than P400,000 in Metro Manila [Sec. 33, BP129]
Rule 4 applies
(2) RTC value exceeds P300,000 outside Metro Manila, or P400,000
in Metro Manila, or if incapable of pecuniary estimation [Sec. 19,
If the action affects title to or possession of real property
BP129]
Venue is where the real property involved or a portion thereof is situated
Real Property
(1) MTC assessed value not more than P20,000 outside Metro
Manila or not more than P50,000 in Metro Manila [Sec. 33, BP 129]
(2) RTC value exceeds P20,000 if outside Metro Manila, or P50,000
if in Metro Manila, or incapable of pecuniary estimation [Sec. 19,
BP129]
All other actionsAt the election of the plaintiff

(1) Where plaintiff or any of the principal plaintiffs reside; or
(2) Where defendant or any of the principal defendants resides; or
(3) In case of an non-resident, where he may be found
Rule 4 applies
General Rule: In the appropriate RTC
Declaratory Relief
Review of Judgments
and Final Orders of
COMELEC/COA
Certiorari
Prohibition
Mandamus
Quo Warranto
Expropriation

Exception: Where the action is for reconveyance, cancellation or quieting

of title to real property, jurisdiction will depend on the assessed value of All other actionsAt the election of the plaintiff
the property
(1) Where plaintiff or any of the principal plaintiffs reside; or
(2) Where defendant or any of the principal defendants resides; or
(3) In case of an non-resident, where he may be found
With the SC
Via Special Civil Action of Certiorari
Certiorari rules apply
RTC, CA, SC,

RTC where the respondent is situated, where petition relates to an act or omission of a
Sandiganbayan (in aid of its appellate jurisdiction),
corporation, board, an officer, or person
COMELEC (in election cases involving an act or omission by MTC or
[Rule 65, Sec. 4]
RTC, in aid of its appellate jurisdiction_
Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area
RTC, CA, SC
where respondent resides or any of the respondent resides
Sandiganbayan (exclusive original jurisdiction over quo warranto cases
filed by the PCGG)
If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC
COMELEC (exclusive jurisdiction over cases falling under the OEC)
SEC for quo warranto against duly licensed association (Corp Code rules
File in the SEC (following the Corp Code):If petition for quo warranto is against a corporation
apply, not the ROC)
or against persons who usurp an office in a corporation
With the RTC
Where the real property involved, or a portion thereof, is situated
With the RTC
PAGE 183
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 4 applies
Partition
With the RTC

All other actionsAt the election of the plaintiff
Forcible Entry And

Unalwful Detainer
Contempt
With the MTC
MTC, RTC, CA, SC
If committed against RTC or a court of equivalent or higher rank, or against an officer

appointed by it: File with such court
If committed against a lower court. File with the RTC of the place in which lower court is
sitting
If act was committed against persons or entities exercising quasi-judicial functions: File with
the RTC of the place wherein contempt was committed
PAGE 184
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
CASES COVERED BY THE RULE
Rule shall not apply:

(1) To a civil case where plaintiffs cause of
action is pleaded in the same complaint
with another cause of action subject to
ordinary procedure
(2) To a criminal case where offense charged is
necessarily related to another criminal case
subject to ordinary procedure
Rule shall govern the summary procedure in the

MTC, MTC in Cities, MCTC in the following cases
falling within their jurisdiction:
EFFECT OF FAILURE TO ANSWER [Sec. 6]

If defendant fails to answer the complaint within
the period provided, court (motu proprio or on
motion of plaintiff) shall render judgment
Special Rules
REVISED RULES ON SUMMARY
PROCEDURE
[Sec. 1]
The judgment:
(1) As may be warranted by the facts alleged in
the complaint and
(2) Limited to what is prayed for
For Civil Cases:

(1) Cases of forcible entry and unlawful
detainer
(a) Irrespective of the amount of damages
or unpaid rentals sought to be
recovered
(b) Where attorneys fees are awarded, it
shall not exceed P20,000
The court may in its discretion reduce the

amount of damages and attorneys fees claimed
for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18
ROC, if there are 2 or more defendants
(2) All other civil cases where total amount of

plaintiffs claim does not exceed P100,000
or P200,000 in Metropolitan Manila,
exclusive of interest and costs
(a) EXCEPT: probate proceedings
PRELIMINARY CONFERENCE AND

APPEARANCES OF PARTIES [Sec. 7]
A preliminary conference shall be held not later

than 30 days after the last answer is filed.
For Criminal Cases

(1) Traffic laws, rules, and regulations violation
(2) Rental law violations
(3) Municipal or city ordinance violations
(4) All other criminal cases where penalty
prescribed by law for offense charged is
imprisonment not exceeding 6 months
and/or a fine not exceeding P1,000
(a) Irrespective of other imposable
penalties, accessory or otherwise, or of
civil liability arising therefrom
(b) In offenses involving damage to
property through criminal negligence,
this rule shall govern where imposable
fine does not exceed P10,000
Rules on pre-trial in ordinary cases shall be

applicable unless inconsistent with the
provisions of this Rule
Failure of plaintiff to appear in preliminary
conference
(1) Cause for dismissal of complaint
(2) Defendant who appears in the absence of
plaintiff shall be entitled to judgment on his
counterclaim in accordance with Sec. 6
(3) All cross-claims shall be dismissed
If sole defendant shall fail to appear
(1) Plaintiff entitled to judgment in accordance
with Sec. 6
(2) Rule shall not apply where one of 2 or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at preliminary conference
PAGE 185
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(6) Disputes involving parties who actually

reside in barangays of different cities or
municipalities, except where such barangay
units adjoin each other and the parties
thereto agree to submit their differences to
amicable settlement by an appropriate
lupon;
(7) Such other classes of disputes which the
President may determine in the interest of
Justice or upon the recommendation of the
Secretary of Justice.
KATARUNGANG
PAMBARANGAY LAW
[PD 1508; RA 7160 as amended]
SCOPE AND APPLICABILITY OF THE
RULE
RA 7610 Sec. 399-422, and 515 is applicable.

The LGC is now the governing law on
Katarungang Pambarangay. PD 1508 was
expressly repealed
The court in which non-criminal cases not

falling within the authority of the lupon under
this Code are filed may, at any time before trial
motu propio refer the case to the lupon
concerned for amicable settlement.
CASES COVERED
All disputes, civil and criminal in nature, where

parties actually reside in the SAME
CITY/MUNICIPALITY are subjected barangay
conciliation.
VENUE [RA 7610, Sec. 40])
SUBJECT MATTER FOR AMICABLE

SETTLEMENT [Sec. 408, RA 7160]
Parties
Between actual
residents of the same
barangay
Between actual
residents of different
barangays but within
same city/municipality
The lupon of each barangay shall have authority

to bring together the parties actually residing in
the same city or municipality for amicable
settlement of all disputes.
Lupon
Lupon of said barangay
Lupon of the barangay

where the respondent
or any of the
respondents actually
resides at the option of
complainant
Involving real property Lupon of barangay
or any interest therein were the real property
or the larger portion
thereof is located
Between parties arising Lupon of the barangay
at the workplace or at were the workplace or
institutions of learning institution is located
WHEN PARTIES MAY GO DIRECTLY

TO COURT
In these cases, referral to barangay conciliation
is not a condition precedent for filing a case to
court:
(1) Where one party is the government, or any
subdivision or instrumentality thereof;
(2) Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions;
(3) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
Five thousand pesos (P5,000.00);
(4) Offenses where there is no private offended
party;
(5) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon;
EXECUTION
The amicable settlement or arbitration award

may be enforced by execution by the lupon
within six (6) months from the date of the
settlement. After the lapse of such time, the
settlement may be enforced by action in the
appropriate city or municipal court. [Sec. 417, RA
7160]
PAGE 186
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) The enforcement of a barangay amicable

settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417, LGC.
REPUDIATION
Any party to the dispute may, within ten (10)
days from the date of the settlement, repudiate
the same by filing with the lupon chairman a
statement to that effect sworn to before him,
where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be
sufficient basis for the issuance of the
certification for filing a complaint as
hereinabove provided. [Sec. 418, RA 7160]
COMMENCEMENT OF SMALL CLAIMS

ACTION; RESPONSE [Sec. 5]
How commenced: By filing with the court an
accomplished and verified STATEMENT OF
CLAIM in duplicate
RULES OF PROCEDURE FOR

SMALL CLAIMS CASES
Attachments to the Statement of Claim:

(1) Certification of Non-forum Shopping
(2) Two (2) duly certified photocopies of the
actionable document/s subject of the claim
(3) Affidavits of witnesses and other evidence to
support the claim
[A.M. No. 08-8-7-SC]
SCOPE AND APPLICABILITY OF THE

RULE
This Rule shall govern the procedure in actions

before the MeTC, MTC in Cities, MTC and MCTC
for payment of money where the value of the
claim does not exceed P100,000 exclusive of
interest and costs. [Sec. 2]
NOTE: No evidence shall be allowed during the

hearing which was not attached to or submitted
together with the Claim. UNLESS good cause is
shown for admission of additional evidence.
This Rule is applicable in all actions which are;

[Sec. 4]
(1) Purely civil in nature where the claim or
relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of
money, and
(2) Civil aspect of criminal action, or reserved
upon the filing of the criminal action in
court, pursuant to Rule of 111 of the Revised
Rules of Criminal Procedure.
No formal pleading, other than the Statement

of Claim, is necessary to initiate a small claims
action.
After examination of allegations of the Claim,
the court may dismiss outright the case for any
of the grounds apparent for the dismissal of a
civil action. [Sec. 9]
If no ground of dismissal is found, the court
shall issue Summons directing defendant to
submit a verified response. [Sec. 10]
These claims or demands may be;

(1) For money owned under any of the
following;
(a) Contract of Lease;
(b) Contract of Loan;
(c) Contract of Services;
(d) Contract of Sale; or
(e) Contract of Mortgage;
The defendant shall file with the court and serve

on the plaintiff a duly accomplished and verified
Response within a non - extendible period of
ten (10) days from receipt of summons [Sec. 11].
Attachments:
(1) Certified photocopies of documents
(2) Affidavits of witnesses
(3) Evidence in support
(2) For damages arising from any of the

following;
(a) Fault or negligence;
(b) Quasi-contract; or
(c) Contract;
NOTE: No evidence shall be allowed during

hearing which was not attached or submitted
together with the Response.
PAGE 187
UP LAW BOC
CIVIL PROCEDURE
Should the defendant fail to file his response

within the required period, the court by itself
shall render judgment as may be warranted by
the facts alleged in the Statement of claim
limited to what is prayed for. The court however,
may, in its discretion, reduce the amount of
damages for being excessive or unconscionable.
[Sec. 12]
PROHIBITED
PLEADINGS
MOTIONS [Sec. 14]
REMEDIAL LAW
Failure to appear:
(1) If plaintiff fails to appear it shall be a
cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.
(2) If defendant fails to appear same effect as
failure to file Response.
HEARING; DUTY OF THE JUDGE
AND
At the beginning of the court session, the judge

shall read aloud a short statement explaining
the nature, purpose and the rule of procedure of
small claims cases. [Sec. 20]
The following pleadings, motions, and petitions

shall not be allowed in the cases covered by this
Rule:
(1) Motion to dismiss the compliant except on
(6) Memoranda;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.
At the hearing, the judge shall conduct JDR

through mediation, conciliation, early neutral
evaluation, or any other mode of JDR. [Sec. 21]
If JDR fails and the parties agree in writing that
the hearing of the case shall be presided over by
the judge who conducted the JDR, the hearing
shall so proceed in an informal and expeditious
manner and terminated within one (1) day. [Sec.
22]
Absent such agreement
(1) In case of a multi-sala court , the case shall,
on the same day, be transmitted to the
Office of the Clerk of Court for immediate
referral by the Executive Judge to the
pairing judge for hearing and decision
within five (5) working days from referral;
and
(2) In case of single sala court, the pairing
judge shall hear and decide the case in the
court of origin within five (5) working days
from referral by the JDR judge.
APPEARANCES
The parties shall appear at the designated date

of hearing personally or through a
representative authorized under a Special
Power of Attorney to:
(1) Enter into an amicable settlement,
(2) Submit of Judicial Dispute Resolution (JDR)
and
(3) Enter into stipulations or admissions of facts
and of documentary exhibits [Sec. 16]
FINALITY OF JUDGMENT
After the hearing, the court shall render its

decision on the same day, based on the facts
established by the evidence.
The decision shall immediately be entered by
the Clerk of Court in the court docket for civil
cases and a copy thereof forthwith served on the
parties.
No attorney shall appear in behalf of or

represent a party at the hearing, unless the
attorney is the plaintiff or defendant. [Sec. 17]
The decision shall be final and unappealable.

[Sec. 23]
PAGE 188
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
All members of the Court shall share the

extra copies of annexes in the interest of
economy of paper.
EFFICIENT USE OF PAPER RULE

[A.M. No. 11-9-4-SC]
FORMAT AND STYLE
In the Court of Appeals and

Sandiganbayan,
(1) One original (properly marked) and
(2) Two copies with their annexes;
All pleadings, motions and similar papers

intended for the court and quasi-judicial bodys
consideration and action (court-bound papers)
shall:
(1) Be written in single space with one-and-a
half space between paragraphs,
(2) Use an easily readable font style of the
partys choice, of 14-size font, and on a 13
inch by 8.5- inch white bond paper
the
In the Court of Tax Appeals,

(1) One original (properly marked) and
(2) 2 copies with annexes
On appeal to the En Banc:
(a) One Original (properly marked)
(b) 8 copies with annexes; and
All decisions, resolutions and orders issued by

courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court
shall comply with these requirements. Similarly
covered are the reports submitted to the courts
and transcripts of stenographic notes.
In other courts,
(1) One original (properly marked)
(2) With the stated annexes attached to it.
ANNEXES SERVED ON ADVERSE

PARTY
MARGINS AND PRINTS
The parties shall maintain the following

margins on all court-bound papers:
(1) Left hand margin of 1.5 inches from the
edge;
(2) Upper margin of 1.2 inches from the edge;
(3) Right hand margin of 1.0 inch from the
edge;
(4) Lower margin of 1.0 inch from the edge.
A party required by the rules to serve a copy of

his court-bound on the adverse party need not
enclose copies of those annexes that based on
the record of the court such party already has in
his possession.
In the event a party requests a set of the
annexes actually filed with the court, the part
who filed the paper shall comply with the
request within five days from receipt.
Every page must be consecutively numbered.
COPIES TO BE FILED
APPLICABILITY
Unless otherwise directed by the court, the

number of court- bound papers that a party is
required or desires to file shall be as follows:
This Rule applies to all courts and quasi-judicial

bodies under the administrative supervision of
the Supreme Court.
In the Supreme Court,

(1) One original (properly marked) and 4 copies
(2) Two sets of annexes, one attached to the
original and an extra copy
If the case is referred to the Court En Banc:
(a) Parties shall file 10 additional copies.
(b) For the En Banc, the parties need to
submit only 2 sets of annexes, one
attached to the original and an extra
copy.
PAGE 189
UP LAW BOC
SPECIAL PROCEEDINGS
PAGE 190
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Preliminary Matters
Special proceedings - A remedy by which a party
seeks to establish a status, right or a particular
fact [Rule 1, Sec. 3(c)].
APPLICABLE RULES
If special rules are provided, they shall apply.
But in the absence of special provisions, the
rules provided for in ordinary actions shall be,
as far as practicable, applicable in special
proceedings. [Rule 72, Sec. 2].
There are special proceedings which are not
part of the ROC (e.g. Writs of amparo and
habeas data).
The
distinction
between
final
and
interlocutory orders in civil actions for
purposes of determining the issue of
applicability is not strictly applicable to orders
in special proceedings. Rule 109 specifies the
orders from which appeals may be taken
[Regalado].
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings
[Matute v. CA (1969)].
SUBJECT MATTER AND

APPLICABILITY OF GENERAL
RULES
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. [Sec. 1, Rule 72]
PAGE 191
In the absence of special provisions, the rules

provided for in ordinary actions shall be, as far
as
practicable, applicable
in
special
proceedings. [Sec. 2, Rule 72]
DIFFERENCE BETWEEN ACTION

AND SPECIAL PROCEEDING
Ordinary Civil Action
Special Proceeding
To protect/enforce a To
establish
right
or
prevent/ right/status/fact
redress a wrong
Involves 2 or more May involve only 1 party

parties
Governed by ordinary Governed by special
rules supplemented by rules, supplemented by
special rules
ordinary rules
Courts of GENERAL Courts of
jurisdiction
jurisdiction
LIMITED
Initiated by pleading, Initiated by petition,

and parties respond parties
respond
through an answer
through an opposition
Laws on pleadings Laws on
applicable: filing of an generally
answer, counterclaim, applicable.
cross-claim, third-party
complaint
pleadings
not
Period of appeal only Period to appeal is 30

15 days and notice of days. Record of appeal
appeal is sufficient.
is required in addition
to a notice of appeal.
Action - formal demand of ones right in a court
of justice in the manner prescribed by the court
or by the law.
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.
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS

Special Proceeding
Venue
Settlement of the Estate Residence of the decedent
of a Deceased Person
If non-resident, place where he had an estate
Jurisdiction
MTC if gross value of
the 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 of RTC
the decedent or if non-resident, place where he had
estate
Reversion where land lies in whole or in part
RTC
Unclaimed Balances Act where deposits are located RTC
Appointment
of Where minor resides
Family Court
Guardians
Where incompetent resides
RTC
Appointment
of Where will was allowed or
RTC
Trustees
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 or Family Court, CA, SC
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 data If concerning public
or information is gathered, collected, or stored, at the data
files
or
option of the petitioner
government offices, SC,
CA or Sandigabayan
Amparo
Where the threat, act or omission was committed or RTC, Sandiganbayan,
any of its elements occurred
CA, SC or any justice
thereof
Change of Name
Judicial - where petitioner resides
RTC
Administrative:
Local Civil Registry/
Local civil registry where the record sought to be Philippine consulate
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
PAGE 192
UP LAW BOC
Special Proceeding
Appointment
of
Representative
of
Absentee/ Declaration
of Absence
Cancellation
/
Correction of Entries in
Civil Registries
Petition for declaration
of nullity, annulment,
legal separation
SPECIAL PROCEEDINGS
REMEDIAL LAW
Venue
Where Absentee resides before his disappearance
Jurisdiction
RTC
Judicial - Where corresponding civil registry is located RTC

Administrative - Same as change of name
Local Civil Registry/
Philippine consulate
Where petitioner or respondent has been residing for Family Court
at least 6 months prior to the date of filing
If non-resident petitioner, where he may be found at
the election of the petitioner
Settlement of Estate of
Deceased Persons, Venue
and Process
Modes of Settlement of Estate [Herrera]
(1) Extrajudicial Settlement of Estate [Rule 73,
Section 1]
(2) Summary Settlement of Estate of Small
Value [Rule 74, Section 2]
(3) Partition [Rule 69]
(4) Probate of Will [Rule 75-79]
(5) Petition for Letters of Administration [Rule
79]
Uriarte vs. CFI (1970)

Thus, if in the course of intestate proceedings
pending before a court of first instance, it is
found that the decedent had left a last will,
proceedings for the probate of the latter should
replace the intestate proceedings even if at that
stage an administrator had already been
appointed, the latter being required to render
final account and turn over the estate in his
possession to the executor subsequently
appointed. This, however, is understood to be
without prejudice; that should the alleged last
will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
General Rule: Jurisdiction assumed by a court
shall not be contested in a suit or proceeding,
JURISDICTION
JURISDICTION OF RTCS
When the value of the estate exceeds P300,000

or P400,000 in Metro Manila. [SC Circular 2199]
JURISDICTION OF MTCS
Exceptions:
(1) In an appeal from that court, in the original
case, OR
(2) When the want of jurisdiction appears on
the record.
When the value of the estate does not exceed

P300,000 or P400,000 in Metro Manila. [SC
Circular 21-99]
VENUE IN JUDICIAL SETTLEMENT OF

ESTATE
Sandoval v. Santiago (1949)

Court first taking cognizance shall exercise
jurisdiction to the exclusion of all other courts
and cannot be divested by subsequent act of
interested parties.
Inhabitant
of
the RTC of the province in
Philippines at time of which he resides
death (citizen/alien)
Testate proceedings take precedence over

intestate proceedings of the same estate.
PAGE 193
Decedent
Venue
Inhabitant of foreign RTC of any province in

country
which he had estate
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 73 relates to venue and not to jurisdiction.

The place of residence of the deceased in
settlement of estates, probate of will, and
issuance of letters of administration does not
constitute an element of jurisdiction over the
subject matter. It is only constitutive of venue.
Meaning of term resides
Resides the personal, actual or physical
habitation of a person, actual residence of place
of abode and not to his permanent residence or
domicile. [Festin]
EXTENT OF JURISDICTION
PROBATE COURT
OF
Probate court is of limited jurisdiction

General rule: Probate court cannot decide
questions as to ownership of property alleged to
be part of the estate of the deceased but
claimed by some other person to be his
property.
Exceptions:
(1) In a provisional manner to determine
whether said property should be included or
excluded in the inventory, without prejudice
to final determination of title in a separate
action [Cuizon v Ramolete (1984)]
(2) With consent of all the parties, without
prejudice to third persons [Trinidad v. CA
(1991)]
(3) If the question is one of collation or
advancement [Coca v. Borromeo (1978)]
(4) When the estate consists of only one
property [Portugal v. Portugal-Beltran
(2005)]
POWERS AND DUTIES OF PROBATE COURT
Dariano vs. Fernandez Fidalgo (1909)
It is the duty of courts of probate jurisdiction to
guard jealously the estates of the deceased
person by intervening in the administration
thereof in order to remedy or repair any injury
that may be done thereto
REMEDIAL LAW
In Re: Baldomero Cosme (1937)

There seems, however, to be a general
tendency, in the absence of express and specific
restrictions to the contrary, to uphold the
exercise by the probate court of such incidental
powers as are, within the purview of their grant
of authority, reasonably necessary to enable
them to accomplish the objects for which they
were invested with jurisdiction and to perfect
the same.
Summary Settlement of
Estates
General Rule: Judicial Settlement
Exception:
(1) Extrajudicial Settlement of Estate
(2) Summary Settlement of Estate of Small
Value
Extrajudicial Settlement
Summary Settlement
Court intervention not Summary judicial

required
adjudication needed
No will (intestate)
Will may or may not

exist (intestate/testate)
No debts
Debts may or may not

exist
Heirs are all of age, or

minors are represented
by judicial or legal reps
Instituted only at the May be instituted by
instance
and
by any interested party
agreement of all heirs even by a creditor of
the estate without the
consent of the heirs.
Value of the estate is Gross value of estate
IMMATERIAL
may
not
exceed
P10,000
Bond filed with
Bond filed with and to
Register of Deeds in an be determined by the
amount equal to the
court
value of the personal
property
PAGE 194
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
EXTRAJUDICIAL SETTLEMENT
BY AGREEMENT BETWEEN
HEIRS, WHEN ALLOWED
BOND REQUIREMENT
Requisites [Sec. 1, Rule 74]

(1) Decedent died intestate
(2) No debts OR the heirs have already paid
such at the time of partition
(3) Heirs are all of age OR the minors are
represented by their judicial or legal
representatives
(4) Settlement made in public instrument filed
with the register of deeds
(5) Fact of the extrajudicial settlement shall be
published in a newspaper of general
circulation 3 times a week, once each week.
File a bond equal to the value of the personal

property involved as certified to under oath by
the parties, conditioned upon the payment of
any just claim that may be filed of deprived heirs
and creditors. [Sec. 1, Rule 74]
Required only if personal property is involved

because real estate is subject to lien
VALIDITY OF ORAL PARTITION
PROCEDURE
Such is VALID, because there is no law that

requires partition among heirs to be in writing to
be valid. [Pada Kilario v. CA (2000)]
Death of the decedent

Division of estate in public instrument or
affidavit of adjudication
The requirement under Rule 74.1 is merely for

the protection of creditors and the heirs
themselves against tardy claims. Where there
are no creditors, the requirements no longer
apply.
Filing of the public instrument, or affidavit of

adjudication if there is only one heir, and bond
equivalent to the amount of personal property
with the proper Registry of Deeds
VALIDITY OF COMPROMISE
AGREEMENT
Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks
in a newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may direct
Such is VALID, binding upon the parties as

individuals, upon the perfection of the contract,
even without previous authority of the court to
enter into such agreement. [Borja v. Vda. De
Borja (1972)]
Hearing to be held not less than 1 month nor

more than 3 months from the date of the last
publication of notice
If there is no
disagreement
between the
heirs
If there is
disagreement
If only one heir
The extrajudicial settlement is not binding on

any person who:
(1) Has not participated in the extrajudicial
settlement; or
(2) Had no notice thereof. [Sec. 1, Rule 74]
NO PRECLUSION FROM INSTITUTING

ADMINISTRATION PROCEEDINGS
The parties may divide the

estate among themselves by
means of a public instrument
filed in the office of register of
deeds.
They may divide the estate in
an ordinary action of partition.
He may adjudicate to himself
the entire estate by means of
an affidavit filed in the
Registrar of Deeds.
PAGE 195
Sec. 1, Rule 74 does not preclude the heirs from

instituting administration proceedings, even if
the estate has no debts or obligations, if they do
not desire to resort for good reasons to an
ordinary action for partition. While Sec. 1 allows
the heirs to divide the estate among themselves
as they may see fit, or to resort to an ordinary
action for partition, the said provision does not
compel them to do as if they have good reasons
to take a different course of action. [Pereira v CA
(1989)]
UP LAW BOC
SPECIAL PROCEEDINGS
TWO-YEAR PRESCRIPTIVE PERIOD

Claim by creditors and deprived heirs must be
filed within 2 years from the time of
distribution/publication.
PRESUMPTION OF NO DEBTS
It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of
administration within 2 years after the death of
the decedent. [Sec. 4, Rule 74]
AFFIDAVIT OF SELFADJUDICATION BY SOLE HEIR

If there is only one heir, he may adjudicate to
himself the entire estate by means of an
affidavit filed in the office of register of deeds.
[Sec. 1, Rule 74]
BOND REQUIREMENT
File a bond equal to the value of the personal

property involved as certified to under oath by
the parties, conditioned upon the payment of
any just claim that may be filed [Sec. 1, Rule 74]
SUMMARY SETTLEMENT OF
ESTATES OF SMALL VALUE
REMEDIAL LAW
Upon fulfillment of the requisites, the court may

proceed summarily without the appointment of
an executor/administrator and without delay,
(1) to grant, if proper, allowance of the will, if
any there be
(2) to determine who are persons legally
entitled to participate in the estate
(3) to apportion and divide among them after
the payment of such debts of the estate
(4) persons in own right if of lawful age, or their
guardians, will be entitled to receive and
enter into possession of the portions of the
estate so awarded to them respectively.
[Sec. 2, Rule 74]
PROCEDURE
Death of the decedent
Application for summary settlement with an
allegation that the gross value of the estate
does not exceed P10K
Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks
in a newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may direct
WHEN ALLOWED
(1) Gross value of estate does not exceed

P10,000
(2) Fact is made to appear to the RTC
(3) Through petition of an interested person
(4) Upon hearing
Held not less than 1 month nor more than
3 months
Counted from the date of the last
publication of a notice
(5) Notice
Which shall be published once a week for
3 consecutive weeks
In a newspaper of general circulation in
the province
It is not required that publication be for a
complete 21 days. What is required is that
it be published for once a week for 3
consecutive weeks.
(6) Notice to interested persons as the court
may direct. (Sec. 2, Rule 74]
PAGE 196
Hearing to be held not less than 1 month nor

more than 3 months from the date of the last
publication of notice
Court to proceed summarily, without appointing
an executor/administrator
(executor/administrator), and to make orders as
may be necessary
Grant allowance of the will, if any
Determine persons entitled to estate
Pay debts of estate which are due
Filing of bond fixed by the court
Partition of estate
UP LAW BOC
SPECIAL PROCEEDINGS
There is no requirement regarding the lack of

debts (unlike extrajudicial partition) in summary
settlement of estates of small value since the
court will make provisions for such in its
resolution of the proceedings.
REMEDIES OF AGGRIEVED
PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF
ESTATE
(1) CLAIM AGAINST THE BOND OR
THE REAL ESTATE WITHIN TWO
YEARS
BOND AND REAL ESTATE REMAIN
CHARGED
Rule: bond and real estate shall remain charged
with a liability to creditor, heirs or other persons
for the full period of 2 years after such
distribution, notwithstanding any transfers of
real estate that may have been made.
When applicable: there is an heir or other person
who
(1) has been unduly deprived of his lawful
participation in the estate:
He shall have a right to compel the
settlement of the estate in the courts for
the purpose of satisfying such lawful
participation
(2) has been unduly deprived of his lawful
participation payable in money: The court
having jurisdiction of the estate may, by
order for that purpose, after hearing,
settle the amount of such debts or
lawful participation, and
may issue execution against the bond or
against the real estate belonging to the
deceased, or both. [Sec. 4, Rule 74]
When not applicable:
(1) To persons who have participated or taken
part or had notice of the extrajudicial
partition
(2) When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or
heirs of the decedent have taken part in the
extrajudicial settlement or are represented
by themselves or through guardians)
PAGE 197
REMEDIAL LAW
This is only a Bar against the parties who had

taken part in the extrajudicial proceedings, but
not against third persons not parties thereto
PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
If on the date of the expiration of the period of 2
years, the person authorized to file a claim is:
(1) a minor or mentally incapacitated, or is in
prison or
(2) outside the Philippines,
he may present his claim within 1 year after such
disability is removed. [Sec. 5, Rule 74]
(2) ACTION AGAINST DISTRIBUTES

After the two years has passed, claimant must
file an ordinary action against the distributees
within the statute of limitations.
The court shall order how much and in what
manner each distributee shall contribute in the
payment thereof. [Sec. 4, Rule 74]
(3) ACTION TO ANNUL A DEED OF

EXTRAJUDICIAL PARTITION
Prescriptive period: within 4 years from the

discovery of the fraud (deemed to have taken
place when said instrument was filed with the
Register of Deeds and new certificates of title
were issued in the name of respondents).
[Gerona v. De Guzman, 11 SCRA 154 (1964)]
HOWEVER, in Amerol v. Bagumbaran (1987), the
Court applied Article 1144 (NCC) which stated
that actions upon an obligation created by law
must be brought within 10 years from the time
the right of action accrues. Since implied or
constructive trusts are obligations created by
law, then the prescriptive period to enforce the
same prescribes in 10 years. Thus, an action for
reconveyance based on an implied or
constructive trust must perforce prescribe in 10
years and not otherwise.
The ruling in the Gerona case was reiterated in
Pedrosa v. CA (2001).
(4) NEW ACTION TO ANNUL

SETTLEMENT WITHIN
REGLEMENTARY PERIOD OF TWO
YEARS
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Production and Probate of

Will
(5) REOPENING BY INTERVENTION

BEFORE RENDITION OF JUDGMENT
WITHIN THE REGLEMENTARY
PERIOD OF TWO YEARS
Jerez v. Nietes (1969)
Within the reglementary period, the judge of a
probate court has the power to reopen estate
proceedings even after the issuance of an order
approving a project of partition and closing the
proceedings. Rather than requiring an allegedly
preterited party to air his grievances in a
separate and independent action, he may within
the reglementary period claim his relief sought
in the same case by reopening the same even
after a project of partition and final accounting
had been approved. This is proper to avoid
needless delay in the resolution of cases.
(6) PETITION FOR RELIEF
Petition for Relief on the ground of fraud,

accident, mistake or excusable negligence within
60 days after the petitioner learns of the
judgment, final order or other proceedings to be
set aside and not more than 6 months after
such judgment or order is entered or taken [Rule
38]
(7) RESCISSION IN CASE OF

PRETERITION
Probate or allowance of wills is the act of

proving in court a document purporting to be
the last will and testament of the deceased for
the purpose of its official recognition,
registration and carrying out its provision in so
far as they are in accordance with law. [Festin]
NATURE OF PROBATE
PROCEEDING
(1) In Rem
(2) Mandatory
(3) Imbued with public policy, thus
imprescriptible and the doctrine of estoppel
does not apply
General Rule: A probate proceeding only looks
at extrinsic validity.
Extrinsic validity - due execution of the will
(whether or not the testator, being of sound
mind, freely executed the will in accordance
with the formalities prescribed by law)
Exception:
Principle of Practical Consideration
The probate court may pass upon the intrinsic
validity of the will because there is apparent
defect in its face this is also known as the
principle of practical consideration [Nepomuceno
v CA (1985)]. (Ex. When on the face of the will
the petitioner appears to be preterited)
But the remedy of certiorari is available, where
the grounds for dismissal are indubitable (e.g.
grave abuse of discretion of the judge when
there is clearly preterition and the said judge
still continues the probate proceedings)
EFFECT OF PROBATE OF WILL
Decree of probate is conclusive as to its due

execution, subject to the right of appeal. (Thus,
no suit for forgery of a will, which has been duly
probated and such order becoming final)
PAGE 198
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
DUTY OF CUSTODIAN, EXECUTOR

Rodelas v Aranza (1982)
General Rule: If a holographic will has been lost
or destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will.
Exception: A photostatic copy or xerox of the
holographic will may be allowed because
comparison can be made with the standard
writings of the testator.
WHO MAY PETITION FOR

PROBATE; PERSONS ENTITLED
TO NOTICE
Petitioner for the allowance of the will
(1) Executor
(2) Devisee
(3) Legatee
(4) Other person interested in the estate
(5) Testator himself, during his lifetime [Sec. 1,
Rule 76]
MEANING OF INTEREST IN ESTATE
An interested party is one who would be

benefited by the estate such as an heir or one
who has claim against the estate like a creditor.
[Sumilang v. Ramagosa (1967)]
JURISDICTION, HOW ACQUIRED
(1) Attaching a mere copy of will to the petition

or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and
compliance with Sec. 3-4 Rule 76.
a) Publication for 3 weeks of the order
b) Notice to all interested persons (If by
mail, 20 days before hearing; if through
personal service, 10 days before hearing)
If testator files for probate of his will, no
publication is required and notice is only to the
compulsory heirs. [Sec. 3, Rule 76]
PAGE 199
The person who has custody of the will shall

deliver the will to the court having jurisdiction
or, to the executor within 20 days after he
knows of the death of the testator. [Sec. 2, Rule
75]
The person named executor shall present the
will to the court having jurisdiction, unless the
will has reached it in any manner, and signify
acceptance/refusal of the trust within 20 days
after he knows of the death of the testator or
after he knows that he is named executor. [Sec.
3, Rule 75]
Penalty for neglect without excuse satisfactory to
the court: Fine not exceeding P2,000 [Sec. 4,
Rule 75]
PERSON RETAINING WILL MAY BE
COMMITTED TO PRISON
(1) Has custody of will
(2) There is a court order directing him to deliver
the will
(3) Neglects without reasonable cause to deliver
the same [Sec. 5, Rule 75]
Allowance or
Disallowance of Will
CONTENTS OF PETITION FOR
ALLOWANCE OF WILL
(1) Jurisdictional facts

(a) Death of the decedent
(b) Residence at the time of death in the
province where the probate court is
sitting Or if he is an inhabitant of a
foreign country, his leaving his estate in
such province
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
(3) Probable value and character of the
property of the estate
(4) Name of the person for whom letters are
prayed
UP LAW BOC
SPECIAL PROCEEDINGS
(5) If the will has not been delivered to the

court, the name of the person having
custody of it. [Sec. 2, Rule 76]
DEFECT IN PETITION
Defect in petition will not void the allowance of

the will, or the issuance of letters testamentary
or of administration with the will annexed. [Sec.
2, Rule 76]
GROUNDS FOR DISALLOWING A

WILL
(1) If not executed and attested as required by
law
(2) If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution
(3) If executed under duress, or the influence of
fear, or threats
(4) If procured by undue and improper pressure
and influence, on the part of the beneficiary,
or of some other person for his benefit
(5) If the signature of the testator was procured
by fraud or trick, and he did not intend that
the instrument should be his will at the time
of fixing his signature thereto [Sec. 9, Rule
76]
Note: The grounds for disallowance of will are
exclusive.
REPROBATE
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper Court
of First Instance in the Philippines (now RTC).
[Sec. 1, Rule 77]
REQUISITES FOR ALLOWANCE
(1) Copy of the will

(2) Order or decree of the allowance in foreign
country
(3) Filed with a petition for allowance in the
Philippines by executor or other person
interested
(4) Court having jurisdiction shall fix a time and
place for the hearing
(5) Cause notice thereof to be given as in case
of an original will presented for allowance.
[Sec. 2, Rule 77]
PAGE 200
REMEDIAL LAW
Evidence necessary for reprobate [Vda. De Perez

v. Tolete (1994)]
(1) the due execution of the will in accordance
with the foreign laws;
(2) the testator has his domicile in the foreign
country and not in the Philippines;
(3) the will has been admitted to probate in
such country;
(4) the fact that the foreign tribunal is a probate
court, and
(5) the laws of a foreign country on procedure
and allowance of wills
EFFECT
The will shall have the same effect as if

originally proved and allowed in such court.
Letters Testamentary and

of Administration
WHEN AND TO WHOM LETTERS
OF ADMINISTRATION ARE
GRANTED
Letters Testamentary issued to the executor
named in the will, if s/he is competent, accepts
the trust, and gives the required bond. [Sec. 4,
Rule 78]
Letters of Administration issued to an
administrator when
(1) No executor named or
(2) Executor or executors are incompetent,
refuse the trust, or fail to give bond or
(3) Person dies intestate. [1st para., Sec. 6, Rule
78]
WHO ARE INCOMPETENT TO SERVE

AS EXECUTORS OR
ADMINISTRATORS
(1) Minor
(2) Non-resident
(3) One who, in the opinion of the court, is unfit
to exercise the duties of the trust by reason
of drunkenness, improvidence, want of
understanding or integrity or conviction of an
offense involving moral turpitude. [Sec. 1,
Rule 78]
UP LAW BOC
SPECIAL PROCEEDINGS
An executor of an executor cannot administer

the estate of the first testator. [Sec. 2, Rule 78]
ORDER OF PREFERENCE
ORDER OF PREFERENCE IN THE
GRANT OF ADMINISTRATION
(1) Surviving spouse or

next of kin, or both, or
to such person as the surviving spouse, or
next of kin requests to have appointed, if
competent and willing to serve.
(2) If those in (1) be incompetent or unwilling, or
if the husband or widow, or next of kin,
neglects for 30 days after the death of the
person to apply for administration or to
request that administration be granted to
some other person, it may be granted to one
or more of the principal creditors, if
competent and willing to serve.
(3) If there is no (2), it may be granted to such
other person as the court may select. (Sec.
6, Rule 78)
Next of kin are those entitled by law to receive
the decedents properties. [Gonzalez v.
Aguinaldo, et al., (1990)]
REASON
FOR
PREFERENCE
ORDER
OF
Those who would reap the benefit of a wise,

speedy and economical administration of the
estate, or, on the other hand, suffer the
consequences of waste, improvidence or
mismanagement, have the highest interest and
most influential motive to administer the estate
correctly. [Gonzalez v. Aguinaldo, et al., (1990)]
Mere failure to apply for letters of
administration does not remove preference. [1
ALR 1247]
General Rule: The court cannot set aside order
of preference
Exception:
If the person enjoying such preferential rights is
1) Unsuitable
2) Incompetent
3) Unwilling
PAGE 201
REMEDIAL LAW
4) Neglect to apply for letters 30 days after the

death of the decedent
Court may reject order of preference when
circumstances warrant. [Villamor v. Court of
Appeals, (1988)]
The order of preference is not absolute for it
depends on the attendant facts and
circumstances of each case. The selection of an
administrator lies in the sound discretion of the
trial court. [In Re Suntay, (2007)]
30-DAY PERIOD MAY BE WAIVED
Just as the order of preference is not absolute

and may be disregarded for valid cause, so may
the 30-day period be likewise waived under the
permissive tone in paragraph (b) of said rule
which merely provides that said letters as an
alternative, may be granted to one or more of
the principal creditors. [Herrera]
Co-administrators may be appointed. [Matute v.
Court of Appeals (1969)]
OPPOSITION TO ISSUANCE OF
LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF
PETITION FOR
ADMINISTRATION
Who may oppose - Any person interested in will
[Sec. 1, Rule 79]
MEANING OF INTERESTED PERSON
One who would be benefited by the estate, such

as an heir, or one who has a claim against the
estate, such as a creditor; thus interest must be
immaterial and direct, not merely indirect or
contingent. [Saguinsin v. Lindayag, 6 SCRA 874]
GROUNDS
(1) Incompetency of the person/s named in the

will as executor/s, or
(2) Contestants right to the administration
[Sec. 4, Rule 79]
UP LAW BOC
SPECIAL PROCEEDINGS
FORM REQUIRED
State in writing the grounds why letter should
not issue; the court shall then hear and pass
upon sufficiency of such grounds. [Sec. 1, Rule
79]
CONTENTS
1) Jurisdictional facts
2) Name, age and residence of heirs and the
name and age of creditors
3) Probable value of the estate
4) Name of person to whom letter is prayed
[Sec. 2, Rule 79]
JURISDICTIONAL FACTS
(1) Death of the testator
(2) His/her residence at the time of death in the
province where the probate court is sitting
or,
(3) If an inhabitant of a foreign country, his/her
having left his estate in such province [Diez
v. Serra, (1927)]
PUBLICATION AND NOTICE
Publication of notice for 3 weeks successively
and notice to heirs, creditors and interested
persons, if place of residence is known, are
jurisdictional. [Sec. 3, Rule 79 and Secs. 3 & 4,
Rule 76]
SIMULTANEOUS FILING OF OPPOSITION
AND PETITION
A petition may, at the same time, be filed for
letters of administration to himself, or to any
competent person or person named in the
opposition. [Sec. 4, Rule 79]
Lack of interest in the proceedings is equal to
lack of legal capacity to institute proceedings.
[Herrera]
Appointment of regular administrator is final
and thus, appealable.
PAGE 202
REMEDIAL LAW
POWERS AND DUTIES OF

EXECUTORS AND
ADMINISTRATORS;
RESTRICTIONS ON THE
POWERS
Executor
Administrator
Named by the testator Appointed when:

in
his
will
and (1) Testator did not
subsequently
appoint an executor
appointed by the court. (2) The appointment
was refused
(3) The will was
disallowed
(4) No will (intestate
succession)
Executor
Administrator
Has the duty to present No such duty as

will to the court within regards
the
20 days after
administrator.
(1) he knows of the
death of the testator or
(2) he knew that he was
appointed as executor
Unless the will has
reached in another
manner.
The
testator
may Bond is required unless
provide that he may exempted by law.
serve without a bond
but the court shall
direct him to post a
bond conditioned only
to pay debts.
Compensation
Apply Sec. 7 of Rule
provided in the will 85.
controls,
unless
renounced.
If theres no provision
for compensation, Sec.
7 of Rule 85 shall
apply.
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
GENERAL POWERS AND DUTIES OF

EXECUTORS AND ADMINISTRATORS
RESTRICTIONS ON POWERS OF
EXECUTORS AND ADMINISTRATORS
(1) HAVE ACCESS TO PARTNERSHIP BOOKS

AND PROPERTY AT ALL TIMES
(1) EXECUTOR
OR
ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND
INCOME
(a) Have access to, and may examine and take

copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on
request, shall exhibit to him all such books,
papers, and property in their hands or
control. [Sec. 1, Rule 84]
Failure to freely permit the exercise of the may
subject any partner for contempt.
(2) KEEP BUILDINGS
REPAIR
IN
TENANTABLE
(a) Houses and other structures and fences

belonging to the estate, and
(b) Deliver the same in such repair to the heirs
or devisees when directed so to do by the
court. [Sec. 2, Rule 84]
(3) RIGHT
TO
POSSESSION
AND
MANAGEMENT OF THE REAL AND
PERSONAL PROPERTIES
(a) So long as it is necessary for the payment of
the debts and the expenses of
administration
(b) Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of
the other co-owners since this is not within
the powers of administrator. [Sec. 3, Rule
84]
When the estate of a deceased is already
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the
Court. [Estate of Olave v. Reyes (1983)]
PAGE 203
Chargeable in his account with the whole of the

estate which has come into his possession, at
the value of the appraisement contained in the
inventory:
(a) With all the interest,
(b) Profit
(c) Income of such estate and
(d) With the proceeds of as much of the estate
as is sold by him, at the price at which it was
sold. [Sec. 1, Rule 85]
(2) PROHIBITED FROM PROFITING BY
INCREASE OR LOSING BY DECREASE IN
VALUE
(a) No executor/administrator shall profit by
the increase, or suffer loss by the decrease
or destruction, without his fault, of any part
of the estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if
justly made
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement [Sec. 2, Rule
85]
(e) Not accountable for debts due the deceased
which remain uncollected without his fault
[Sec. 3, Rule 85]
(3) ACCOUNTABLE FOR INCOME FROM
REALTY USED BY HIM
If the executor/administrator uses or occupies
any part of the real estate himself, he shall
account for it as may be agreed upon between
him and the parties interested, or adjusted by
the court with their assent and if the parties do
not agree upon the sum to be allowed, the
same may be ascertained by the court, whose
determination in this respect shall be final. [Sec.
4, Rule 85]
UP LAW BOC
SPECIAL PROCEEDINGS
(4) ACCOUNTABLE IF HE NEGLECTS OR

DELAYS TO RAISE OR PAY MONEY
(a) Neglects or unreasonably delays to raise
money, by collecting the debts or selling the
real or personal estate of the deceased, or
(b) Neglects to pay over the money he has in
his hands, and the value of the estate is
thereby lessened or unnecessary cost or
interest accrues, or the persons interested
suffer loss.
(c) Damages sustained may be charge and
allowed against executor or administrator in
his/her account; liable on his/her bond.
[Sec. 5, Rule 95]
(5) ONLY NECESSARY EXPENSES SHALL BE
ALLOWED
(a) The
amount
paid
by
an
executor/administrator for costs awarded
against him shall be allowed in his
administration account [Sec. 6, Rule 85]
(b) Unless it appears that the action or
proceeding in which the costs are taxed was
prosecuted or resisted without just cause,
and not in good faith.
(c) When the executor is an attorney, cannot
charge against estate any professional fees
for legal services rendered. [Sec. 7, Rule 85]
Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for purpose of liquidation,
payment of debts, and distribution of the
residue among persons entitled thereto.
[Hermanos v. Abada (1919)]
Attorneys fees as expenses of administration
Administrator may not recover attorneys fees
from estate.
(6) EXECUTOR OR ADMINISTRATOR TO
MAKE INVENTORY AND RENDER
ACCOUNT
Inventory
Of all real and personal estate of the deceased
which has come into his possession or
knowledge within 3 months after his
appointment [Sec. 1, Rule 83]
PAGE 204
REMEDIAL LAW
Not included:
(1) Wearing apparel of surviving husband or
wife and minor children
(2) The marriage bed and bedding
(3) Such provisions and other articles as will
necessarily be consumed in the subsistence
of the family of the deceased [Sec. 2, Rule
83]
Widows allowance
The widow and minor or incapacitated children
shall, during the settlement of the estate,
receive such allowance under the direction of
the court [Sec. 3, Rule 83]
Accounting mandatory
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Sec. 8, Rule 85]
The fact that the heirs of the estate have
entered into an extrajudicial settlement and
partition in order to put an end to their
differences cannot in any way be interpreted as
a waiver of the objections of the heirs to the
accounts submitted by the administrator. [Joson
v. Joson (1961)]
Examination on Oath by Court
As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof [Sec. 9, Rule 85]
The heirs, legatees, distributees, and creditors of
the estate shall have the same privilege as the
executor/administrator of being examined on
oath on any matter relating to an administration
account. (Sec. 9, Rule 85)
APPOINTMENT OF SPECIAL
ADMINISTRATOR
WHEN APPOINTED
(1) When there is delay in granting letters

testamentary or administration, or
(2) By any cause, including an appeal from
allowance or disallowance of a will. [Sec. 1,
Rule 80]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Sec. 8, Rule 86 provides that a special

administrator may be appointed with respect to
the settlement of the claim of an
executor/regular administrator against the
estate.
(4) May sell only such perishable and other

property as the court orders sold.
(5) Not liable - to pay any debts of the
deceased unless so ordered by the court.
[Sec. 2, Rule 80]
PROCEDURE FOR APPOINTMENT
WHEN SPECIAL
DUTIES
There must first be notice and publication.

Notice through publication of the petition is a
jurisdictional requirement even in the
appointment of a special administrator. [De
Guzman v. Angeles (1988)]
Appointment of special administrator lies
entirely in the sound discretion of the court. [De
Gala v. Gonzales, 53 Phil. 104 (1929)]
Regular Administrator
Special Administrator
Appointed by the court

in
the
following
instances:
(1) Testator did not
appoint an executor
(2) The appointment
was refused
(3) The will was
disallowed
(4) No will (intestate
succession)
Appointed by the court

when:
(1) there is DELAY in
granting
letters
testamentary
or
administration
(2) when the executor
is a claimant of the
estate
(3) by any cause,
including an appeal
from allowance or
disallowance of a
will
Should pay the debts Cannot pay debts of

of the estate
the
estate
unless
ordered by the court.
Order of Appointment Order of Appointment
is final and appealable. is interlocutory and is
not appealable
POWERS AND DUTIES OF SPECIAL

ADMINISTRATOR
(1) Take possession and charge of the goods,

chattels, rights, credits, and estate of the
deceased, and
(2) Preserve
the
same
for
the
executor/administrator
afterwards
appointed, and
(3) For that purpose may commence and
maintain suits as administrator.
PAGE 205
ADMINISTRATOR
CEASES
When letters testamentary/administration are

granted on the estate of the deceased
(1) He
shall
deliver
to
the
executor/administrator the goods, chattels,
money, and estate of the deceased in his
hands.
(2) The executor/administrator may prosecute
to final judgment suits commenced by such
SA. [Sec. 3, Rule 80]
Appointment of Special Administrator is
interlocutory and is not appealable. [Garcia v.
Flores, 101 Phil. 781 (1957)]
GROUNDS FOR REMOVAL OF

ADMINISTRATOR
REVOCATION OF ADMINISTRATOR
When the decedents will is allowed and proved

after a letters of administration has been issued,
the administration is deemed revoked.
REMOVAL
OF
EXECUTOR
ADMINISTRATOR
OR
Grounds
(1) Neglects to:

(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the
court, or a duty expressly provided by
these rules
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable
discharge the trust. [Sec. 2, Rule 82]
to
UP LAW BOC
SPECIAL PROCEEDINGS
REMOVAL OF SPECIAL
ADMINISTRATORS
Ocampo v Ocampo (2010)
The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness and
the application of the order of preference under
Section 6 of Rule 78, as would be proper in the
case of a regular administrator, do not obtain.
As long as the discretion is exercised without
grave abuse, and is based on reason, equity,
justice, and legal principles, interference by
higher courts is unwarranted.
EFFECT OF REMOVAL, DEATH, OR

RESIGNATION
(1) The remaining executor/administrator may

administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If there is no remaining executor/
administrator, administration may be to any
suitable person. [Sec. 2, Rule 82]
Acts of the executor/administrator before
removal/resignation are valid. [Sec. 3, Rule 82]
Claims Against the Estate

ESTATE BURDENED WITH LIEN
OF CREDITORS
Upon the death of the person, all his property is
burdened with all his debts, his debts creating
an equitable lien thereon for the benefit of the
creditors.
And such lien continues until the debts are
extinguished either by the payment,
prescription, or satisfaction in one of the modes
recognized by law. [Suiliong & Co. v. Chio
Tayaan, 12 Phil. 13]
PURPOSE OF PRESENTATION
OF CLAIMS AGAINST ESTATE
(1) To protect the estate of the deceased.
PAGE 206
REMEDIAL LAW
(2) Executor/administrator will be able to

examine each claim, determine whether it is
a proper one which should be allowed.
(3) To appraise the administrator and the
probate court of the existence of the claim
so that a proper and timely arrangement
may be made for its payment in full or by
pro-rata portion in the due course of the
administration. [Estate of Olave v. Reyes
(1983)]
TIME WITHIN WHICH CLAIMS

SHALL BE FILED; EXCEPTIONS
General Rule: Claims must be filed within the
time specified by the court in its notice which
shall not be less than 6 months nor more than 12
months from the date of the first publication of
the notice. [Sec. 2, Rule 86]
EXCEPTION
BELATED CLAIMS
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed provided they are filed within 1
month from the expiration of such period but in
no case beyond the date of entry of the order of
distribution. [Danan v. Buencaminao (1981); Sec.
2, Rule 86]
Publication for 3 consecutive weeks and posting
in 4 public places in the province and in 2 public
places in the municipality where the decedent
last resided. [Sec. 4, Rule 86]
STATUTE OF NON-CLAIMS
CLAIMS COVERED (Exclusive)
(1) Claims for money against the decedent

arising from contract
- Express or implied
- Due or not
- Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent.
[Sec. 5, Rule 86]
UP LAW BOC
SPECIAL PROCEEDINGS
The period, once fixed by the courts, is

mandatory.
General Rule: Claim must be filed within the
time fixed by the notice otherwise they are
barred forever. [Sec. 5, Rule 86]
Purpose: to settle the estate with dispatch, so
that the residue may be delivered to the persons
entitled thereto without their being afterwards
called upon to respond in actions for claims.
Exceptions:
(1) When set forth as counterclaims in any
action that the executor/administrator may
bring against the claimants [Sec. 5, Rule 86]
(2) Belated claims [Sec. 2, Rule 86]
CONTINGENT CLAIM WHEN

ALLOWED
(1) When it becomes absolute;

(2) Presented
to
the
court
or
executor/administrator within 2 years from
the time limited for other creditors to
present their claims; and
(3) Not disputed by executor/administrator
IF DISPUTED
It may be proved and allowed or disallowed by
the court as the facts may warrant [Sec. 5, Rule
88]
Mutual claims may be set off against each other
in such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be
considered the true balance against the estate,
as though the claim had been presented directly
before the court in the administration
proceedings
The presentation of a money claim may be
waived. [Ignacio v. Pampanga Bus co., Inc.,
(1967)]
If obligation solidary - file claim against
decedent as if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Sec. 6, Rule 86]
PAGE 207
REMEDIAL LAW
ALTERNATIVE REMEDIES OF A
MORTGAGE CREDITOR UPON DEATH
OF DEBTOR:
(1) Waive the security and claim the entire debt

from the estate as an ordinary claim creditor is
deemed to have abandoned the mortgage and
he cannot thereafter file a foreclosure suit if he
fails to recover his money claim against the
estate
(2) Foreclose mortgage judicially and prove any
deficiency as an ordinary claim suit should be
against the executor or administrator as party
defendant; Creditor may obtain deficiency
judgment if he fails to fully recover his claim
(3) Rely solely on the mortgage and foreclose it
before it is barred by prescription without right to
claim for deficiency includes extrajudicial
foreclosure of sale and its exercise precludes
one from recovery of any balance of debt
against the estate and frees the estate from
further liability.
CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST THE
ESTATE
PROCEDURE TO FOLLOW IF THE EXECUTOR
OR ADMINISTRATOR HAS A CLAIM
AGAINST THE ESTATE HE REPRESENTS
(1) Executor/Administrator shall give notice
thereof, in writing, to the court
(2) The court shall appoint a special
administrator who shall have the same
powers and liabilities as the general
executor/administrator in the adjustment of
such claim.
(3) The court may order the executor or
administrator to pay to the special
administrator necessary funds to defend
such claim. (Sec. 8, Rule 86)
UP LAW BOC
SPECIAL PROCEEDINGS
PAYMENT OF DEBTS
DEBTS PAID IN FULL IF ESTATE
SUFFICIENT
(1) After all money claims heard and

ascertained; and
(2) It appears that there are sufficient assets to
pay the debts
Executor/administrator shall pay the same
within the time limited for that purpose. [Sec. 1,
Rule 88]
The probate court may hold in abeyance
intestate proceedings pending determination of
a civil case against the administrator.
The heirs of the estate may not demand the
closing of an intestate proceeding at anytime
where there is a pending case against the
administrator of the estate. The court can
rightfully hold in abeyance until the civil case is
settled. [Dinglasan v. Chia, (1956)]
PART OF ESTATE FROM WHICH DEBT

PAID WHEN PROVISION MADE BY
WILL
(1) Testator provided for payment of debt

Expenses of administration, or family
expenses shall be paid according to such
provisions
(2) If not sufficient
The part of the estate not disposed of by will
shall be appropriated for the purpose (Sec.
2,Rule 88)
PERSONALTY FIRST CHARGEABLE

FOR DEBTS, THEN REALTY
General Rule: Personal estate not disposed of by

will shall be FIRST chargeable [Sec. 3, Rule 88]
Exceptions:
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the
participants for the estate
PAGE 208
REMEDIAL LAW
In which case
The whole of the real estate not disposed of
by will, or so much thereof as is necessary, may
be sold, mortgaged, or otherwise encumbered for
that purpose by the executor/administrator,
Court approval must be obtained first, and
Any deficiency shall be met by contributions
in accordance with the provisions of Sec. 6 of
this rule. [Sec. 3, Rule 88]
ESTATE TO BE RETAINED TO MEET

CONTINGENT CLAIMS
If court is satisfied that such claim is valid:
(1) It may order the executor/administrator to
retain in his hands sufficient estate for the
purpose of paying the contingent claim
when such becomes absolute.
(2) If estate insolvent - Retain a portion equal
to the dividend of the other creditors. [Sec.
4, Rule 88]
PAYMENT OF CONTINGENT CLAIM
If allowed - Creditor shall receive payment to

the same extent as the other creditors if the
estate retained by the executor/administrator is
sufficient.
Claim not presented after becoming absolute
and allowed within 2 year period The assets
retained
in
the
hands
of
the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the
order of the court to the persons entitled
But the assets so distributed may still be
applied to the payment of the claim when
established, and the creditor may maintain an
action against the distributees to recover the
debt, and such distributees and their estates
shall be liable for the debt in proportion to the
estate they have respectively received. [Sec. 5,
Rule 88]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
COURT TO FIX CONTRIBUTIVE

SHARES
WHERE
DEVISEES,
LEGATES, OR HEIRS HAVE BEEN IN
POSSESSION
INSOLVENT
RESIDENT
WITH
FOREIGN CREDITORS AND FOREIGN
CLAIMS PROVEN IN ANOTHER
COUNTRY
(2) Liability of heirs and distributes
The court shall:

(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims
proved against the deceased person in the
Philippines
(3) So that a just distribution of the whole
estate may be made equally among all its
creditors
(1) Possession before debts and expenses are

paid
Court shall
- Hear and settle the amount of their
several liabilities
- Order how much and in what manner
each shall contribute
- May issue execution as circumstances
require. [Sec. 6, Rule 88]
Heirs are not required to respond with their
own property for the debts of their deceased
ancestors. But after partition of an estate,
the heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively received
from the estate. [Govt of P.I. v. Pamintuan,
55 Phil. 13 (1930)]
ORDER OF PAYMENT IF ESTATE IS

INSOLVENT
Executor/administrator pays the debts against

the estate, observing the provisions of Articles
1059 and 2239 to 2251 of the Civil Code.
(Preference of credits) [Sec. 7, Rule 88]
DIVIDENDS TO BE PAID
PROPORTION TO CLAIMS
IN
If no assets sufficient to pay credits of any one

class of creditors after paying preferred credits,
Each creditor within such class shall be paid
dividend in proportion to his claim. No creditor
of any one class shall receive any payment until
those of the preceding class are paid. [Sec. 8,
Rule 88]
INSOLVENT NON-RESIDENT
His estate found in the Philippines shall be so

disposed of that his creditors here and
elsewhere may receive each an equal share, in
proportion to their respective credits. [Sec. 9,
Rule 88]
PAGE 209
(1) Executor/administrator in the Philippines

had knowledge of the presentation of such
claims in such country; and
(2) Executor/administrator had opportunity to
contest such allowance
But the benefit of this and the preceding

sections shall not be extended to the creditors
in another country if the property of such
deceased person there found is not equally
apportioned to the creditors residing in the
Philippines and the other creditor, according to
their respective claims. [Sec. 10, Rule 88]
ORDER OF PAYMENT OF DEBTS
Before the expiration of the time limited for the

payment of the debts
(1) The court shall order the payment thereof,
and the distribution of the assets received
by the executor/administrator for that
purpose among the creditors,
(2) As the circumstances of the estate require
and in accordance with the provisions of this
rule [Sec. 11, Rule 88]
APPEAL TAKEN FROM A DECISION

OF THE COURT CONCERNING THE
CLAIM
The court may:

(1) Suspend the order for payment or order the
distribution among creditors whose claims
are definitely allowed
(2) Leave
in
the
hands
of
executor/administrator sufficient assets to
pay the claim disputed and appealed.
UP LAW BOC
SPECIAL PROCEEDINGS
When a disputed claim is finally settled, the

court shall order the claim to be paid out of the
assets retained to the same extent and in the
same proportion with the claims of other
creditors. [Sec. 12, Rule 88]
FROM TIME TO TIME FURTHER

ORDERS OF DISTRIBUTION
(1) Whole of the debts not paid on first

distribution; and
(2) If the whole assets not distributed or other
assets afterwards come to the hands of
executor/administrator. [Sec. 13, Rule 88]
CREDITORS TO BE PAID
ACCORDANCE WITH TERMS
ORDER
IN
OF
When an order is made for the distribution of

assets among creditors, the executor or
administrator shall, as soon as the time of
payment arrives, pay the creditors the amounts
of their claims, or the dividend thereon, in
accordance with the terms of such order. [Sec.
14, Rule 88]
COURT SHALL ALLOW EXECUTOR

OR ADMINISTRATOR A TIME FOR
DISPOSING THE ESTATE AND
PAYING DEBTS AND LEGACIES
PERIOD ALLOWED TO ORIGINAL OR
EXECUTOR OR ADMINISTRATOR
Not exceeding 1 year
Two years when special circumstances require
[Sec. 15, Rule 88]
EXTENSION ALLOWED TO SUCCESSOR OF
DEAD EXECUTOR OR ADMINISTRATOR
Not exceeding 6 months at a time and
not exceeding six months beyond the
time allowed to original executor or
administrator or
Not exceeding two years and a half.
[Moran 525, 1980 Ed.; Sec. 16, Rule 88]
GROUNDS FOR EXTENSION
(1) Original executor/administrator dies
(2) New administrator appointed
PAGE 210
REMEDIAL LAW
Requisites
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
(3) Court must hear the application.
REAL PROPERTY MAY, UPON

ORDER, BE SOLD, MORTGAGED,
ENCUMBERED TO PAY DEBTS
when:
(1) Personal estate is insufficient to pay the
debts
(2) Sale of personal estate may injure the
business of persons interested in the estate
(3) Property appropriated by testator in his will
is insufficient to pay debts [Sec. 2, Rule 89]
Sold, even if not to pay the debts when:
Sale will be beneficial to the heirs, devisees,
legatees and other interested persons and is not
inconsistent with the provisions of the will [Sec.
4, Rule 89]
WRIT OF EXECUTION FOR PAYMENT

OF CLAIMS
General Rule: The probate court does not have

the power to issue writs of execution for the
payment of claims against the estate. [Aldamiz
v. Judge of CFI-Mindoro (1949)]
Exceptions:
(1) To satisfy the distributive shares of devisees,
legatees, and heirs in possession of the
decedents assets.
(2) To enforce payment of expenses of the
partition.
(3) To satisfy the costs when a person is cited for
examination in probate proceedings.
UP LAW BOC
SPECIAL PROCEEDINGS
Actions by and Against

Executors and
Administrators
REMEDIAL LAW
WHEN RECOVERY OF
PROPERTY FRAUDULENTLY
CONVEYED BY DECEASED MAY
BE RECOVERED
ACTIONS THAT MAY BE

BROUGHT AGAINST
EXECUTORS AND
ADMINISTRATORS
ACTIONS TO BE BROUGHT AGAINST
ADMINISTRATORS
(1) Recover real or personal property or interest
therein
(2) Or to enforce a lien thereon and
(3) Actions to recover damages for an injury to
a person or property [Aguas v. Llenos (1962);
Sec. 1, Rule 87]
(1) There is deficiency of assets and the

deceased, in his lifetime, had conveyed real
or personal property, right or interest
therein, or debt or credit with intent to
defraud his creditors or avoid any right, debt
or duty; or
(2) Had so conveyed such property, right,
interest, debt or credit that by law the
conveyance would be void as against the
creditors; and
(3) The subject of the attempted conveyance
would be liable to attachment by any of
them in his lifetime. [Sec. 9, Rule 87]
RECOVERY BY THE
EXECUTOR/ADMINISTRATOR OF
CONVEYED
ACTIONS WHICH MAY NOT

BROUGHT AGAINST
ADMINISTRATORS
Claim for the recovery of money or debt or

interest
cannot
be
brought
against
executors/administrators. [Aguas v. Llenos
(1962)]
EXECUTOR OR ADMINISTRATOR
MAY BRING OR DEFEND ACTIONS
WHICH SURVIVE DEATH
For the recovery or protection of the property or

rights of the deceased [Sec. 2, Rule 87]
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished. [Javier v. Araneta, 93 Phil. 1115;
Aguas v. Llenos, supra]
PAGE 211
(1) Commence and prosecute to final judgment

an action for the recovery of such property,
right, interest, debt or credit for benefit of
the creditors
(2) Provided, creditors make an application and
pay such part of the costs and expenses or
give security therefor. [Sec. 9, Rule 87]
If a person before granting letters testamentary
or administration
(1) Embezzles or alienates
(2) Any of the money, goods, chattels, or effects
of such deceased
Consequence: Such person shall be liable to an
action in favor of the executor/administrator of
the estate for double the value of the property
sold, embezzled, or alienated, to be recovered
for the benefit of such estate. [Sec. 8, Rule 87]
UP LAW BOC
SPECIAL PROCEEDINGS
RECOVERY BY CREDITOR OF
CONVEYED
REMEDIAL LAW
LIQUIDATION
Any creditor may commence and prosecute to

final judgment a like action for the recovery of
the subject of the conveyance or attempted
conveyance if the following requisites are
satisfied:
(1) If
failed
to
commence such action
(a) With court permission
(b) In
the
name
of
the
(c) He files a bond, conditioned to
indemnify the executor/administrator
against the cost and expenses incurred
by such action
(2) If conveyance or attempt is made in favor of
No need for court permission
No need for Bond.
Action shall be brought in the name of
all the creditors
EFFECT
Such creditor shall have a lien upon any
judgment recovered by him in the action for
such costs and other expenses incurred therein
as the court deems equitable. [Sec. 10, Rule 87]
Distribution and Partition

Before there could be a distribution of estate, the
following stages must be followed:
(1) Liquidation of the estate i.e. payment of
obligations of the deceased.
(2) Collation and Declaration of heirs - to
determine to whom the residue of the
estate should be distributed.
Determination the right of a natural child
Determination of proportionate shares of
distributes.
Afterwards, the residue may be distributed and
delivered to the heirs. [Herrera]
PAGE 212
General Rule: Before an order of distribution or

assignment, it must be shown that the debts,
funeral
expenses
and
expenses
of
administration, allowances,
taxes,
etc.,
chargeable to the estate have been paid.
Exception: The distributees give a bond
conditioned on the payment of above
obligations [Sec. 1, Rule 90]
The part distributed must not be subject to any
controversy or appeal. [Sec. 2, Rule 109]
PROJECT OF PARTITION
A project of partition is merely a proposal for the
distribution of the hereditary estate which the
court may accept or reject. [Solivio v. CA, (1990)]
The executor/administrator has no duty to
prepare and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the
condition of the estate. [3 Moran 541, 1980 Ed.]
It is the court that makes that distribution of the
estate and determines the persons entitled
thereto
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to
the persons entitled to the same, naming them
and the proportions, or parts, to which each is
entitled.
Such persons may demand and recover their
respective
shares
from
the
executor/administrator, or any other person
having the same in his possession.
If there is a controversy as to who are heirs or
shares such shall be heard and decided as in
ordinary cases. [Sec. 1, Rule 90]
UP LAW BOC
EFFECT OF FINAL
DISTRIBUTION
SPECIAL PROCEEDINGS
DECREE
OF
(1) In rem and binding against the whole world.

(2) All persons having interest in the subject
matter involved, whether they are notified or
not, are equally bound. [Philippine Savings
Bank v. Lantin (1983)]
(3) The court acquires jurisdiction over all
persons interested, through the publication
of the notice prescribed and any order that
may be entered therein is binding against
all of them. [Ramon v. Ortuzar (1951)]
(4) The only instance where a party interested
in a probate proceeding may have a final
liquidation set aside is when he is left out by
reason of circumstances beyond his control
or through mistake or inadvertence not
imputable to negligence. [Vda. De Alberto v.
CA (1989)]
REMEDY OF AN HEIR ENTITLED

TO RESIDUE BUT NOT GIVEN
HIS SHARE
The better practice for the heir who has not received
his share is to
(1) Demand his share through a proper motion

in the same probate or administrative
proceedings, or
(2) Motion for reopening of the probate or
administrative proceedings if it had already
been closed, and not through an
independent action. [Guilas v. Judge of the
CFI of Pampanga, (1972)]
INSTANCES WHEN PROBATE

COURT MAY ISSUE WRIT OF
EXECUTION
General Rule: Writ of Execution is not allowed in
probate proceedings [Vda de Valera v. Ofilada,
59 SCRA 96]
Exceptions:
(1) To satisfy the contributive shares of
devisees, legatees and heirs in possession of
the decedents assets [Sec. 6, Rule 88]
(2) To enforce payment of expenses of
partition, provided:
- No sufficient effects are retained in the
hands of the executor or administrator
at the time of distribution
PAGE 213
REMEDIAL LAW
Expenses of partition are to be paid by

interested parties in proportion to their
respective shares or interest
- Such apportionment are settled and
allowed by the court
- Any person interested in the partition
does not pay his/her proportion or
share [Sec. 3, Rule 90]
(3) To satisfy the costs when a person is cited
for examination in probate proceedings
[Sec. 13, Rule 142]
Trustees
DISTINGUISHED FROM
EXECUTOR OR
ADMINISTRATOR
Araneta v. Perez (1962)
A trustee, like an executor/administrator, holds
an office of trust, particularly when the trustee
acts as such under judicial authority.
The duties of executor/administrator are
however, fixed and/or limited by law whereas
those of the trustee of an express trust are,
usually governed by the intention of the trustor
or the parties, if established by contract.
Besides, the duties of trustees may cover a wider
range than those of executor/administrator of
the estate of deceased persons.
BOND
Trustee must file bond before performing duties
(1) Filed with the clerk of court
(2) Amount fixed by the judge
(3) Payable to the government of Philippines
(4) Sufficient and available for the protection of
any party in interest
If the trustee fails to furnish a bond as required
by the court, he fails to qualify as such.
Nonetheless, the trust is not defeated by such a
failure to give bond, he is considered to have
declined or resigned the trust. [Sec. 5, Rule 98]
UP LAW BOC
SPECIAL PROCEEDINGS
WHEN EXEMPT
(1) When testator has directed such exemption;
or
(2) All persons beneficially interested in the
trust, request such exemption
Exemption may be cancelled by the court at any
time. [Sec. 5, Rule 98]
CONDITIONS
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the
time of the making of such inventory shall
have come to his possession or knowledge.
Exemption from inventory:
(a) When trustee is not the original trustee
appointed
(b) Courts discretion
(c) If an inventory has already been filed
(2) Faithful management
That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the
will of the testator or the provisions of the
instrument or order under which he is
appointed
(3) Accounting
That he will render upon oath at least once
a year until his trust is fulfilled, unless he is
excused in any year by the court, a true
account of the property in his hands and the
management and disposition thereof, and
will render such other accounts as the court
may order
(4) Settlement of account and delivery of estate.
That at the expiration of his trust he will
settle his account in court and pay over and
deliver all the estate remaining in his hands,
or due from him on such settlement, to the
person or persons entitled to thereto. [Sec.
6, Rule 98]
PAGE 214
REMEDIAL LAW
REQUISITES FOR THE REMOVAL

AND RESIGNATION OF A
TRUSTEE
(1) Petition by parties beneficially interested
(2) Due notice to the trustee
(3) Hearing
GROUNDS FOR REMOVAL AND

RESIGNATION OF A TRUSTEE
GROUNDS FOR REMOVAL
(1) Removal appears essential in the interest of

petitioner;
(2) Trustee is insane;
(3) Otherwise incapable of discharging his
trust; or
(4) Evidently unsuitable
RESIGNATION
He may resign but the court will determine if

resignation is proper
EXTENT OF
TRUSTEE
AUTHORITY OF
NATURE OF POSSESSION
The possession of the property by the trustee is
not an adverse possession, but only a
possession in the name and in behalf of the
owner of the same.
A trustee may acquire the trust estate by
prescription provided there is a repudiation of
the trust, such repudiation being open, clear
and unequivocal, known to the cestui que trust
[Salinas v. Tuazon (1931)].
TERRITORIALITY OF AUTHORITY OF
TRUSTEE
The powers of a trustee appointed by a

Philippine court cannot extend beyond the
confines of the territory of the Republic.
This is based on the principle that his authority
cannot extend beyond the jurisdiction of the
Republic, under whose courts he was
appointed. [Herrera]
UP LAW BOC
SPECIAL PROCEEDINGS
Escheat
REMEDIAL LAW
PROCEDURE
A proceeding where the real and personal

property of a person deceased in the
Philippines, who dies without leaving any will
and without any legal heirs, becomes the
property of the State.
It is an incident or attribute of sovereignty and
rests on the principle of ultimate ownership by
the state of all property within its jurisdiction.
WHEN TO FILE
(1) Person dies intestate;

(2) Left properties in the Philippines; and
(3) Leaves no heir or person by law entitled to
the same [Sec. 1, Rule 91]
REQUISITES FOR FILING OF

PETITION
(1) A person died intestate
(2) He left no heirs or persons by law entitled to
the same
(3) Deceased left properties [City of Manila v.
Archbishop of Manila, 36 Phil. 815]
Escheat proceedings must be initiated by the
Government through the Solicitor General.
The Court must fix a date and place for
hearing, which shall not be more than 6
months after the entry of the order
Solicitor General or his representative in behalf of

the Republic of the Philippines to file the petition:
Deceased was a resident of the Philippinesin
the RTC of the province where he last resided
Deceased was a non-residentin the RTC of the
province in which he had an estate
Actions for reversion or escheat of properties
alienated in violation of the Constitution or of
any statutein the province where the land lies
in whole or in part
If the petition is sufficient in form and substance,
the court shall fix a date and place for the hearing
The court shall direct a copy of the order to be
published before the hearing at least once a week
for 6 consecutive weeks in some newspaper of
general circulation published in the province, as
the court shall deem best
The court shall hear the case and judge whether
or not the estate shall be escheated
If the court rules in favor of the Republic,
It shall assign the personal estate to the
municipality or city where the deceased last
resided, and the real estate to the municipalities
or cities, respectively, in which the same is
situated.
If the deceased never resided in the Philippines,
the whole estate may be assigned to the
respective municipalities or cities where the
same is located.
Such estate shall be for the benefit of public
schools, and public charitable institutions and
centers in said municipalities or cities.
The right of escheat may be waived, either

expressly or impliedly. [Roman Catholic
Archbishop of Manila v. Monte de Peidad, et al.,
68 Phil. 1]
PAGE 215
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDY OF RESPONDENT
AGAINST PETITION; PERIOD
FOR FILING A CLAIM
REMEDIAL LAW
KINDS OF GUARDIANS [Regalado]
PERIOD TO APPEAL AND CLAIM THE

ESTATE
Appeal must be made within 5 years from date

of judgment; otherwise, barred forever [Sec. 5,
Rule 91]
FILED BY WHOM
Devisee, legatee, heir, widow, widower, or

other person entitled to such estate appears
Such person shall have possession of and title
to the same, or if sold, the municipality or city
shall be accountable to him for the proceeds
after deducting reasonable charges for the
care of the estate [Sec. 5, Rule 91]
PERIOD FOR FILING CLAIM
5 years from date the property was delivered to

the State [Sec. 5, Rule 91]
(1) Legal Guardian deemed as guardian by

provision of law, without need of court
appointment [Art. 320, CC; Art. 225, FC]
(2) Guardian ad Litem appointed by the court
to prosecute or defend a minor, insane or
person declared to be incompetent, in a
court action
(3) Judicial Guardian appointed by the court
in pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased
war veterans and other incompetent
persons.
a. Guardian over the person
b. Guardian of the property
c. General guardian (both person and
property)
The Rules on Guardianship in the Rules of Court
govern
guardianship
of
incompetent.
Guardianship of minor is now governed by AM
03-02-05-SC.
GUARDIANSHIP OF INCOMPETENT
PROCEDURE
Guardianship
Filing of Petition
Guardianship - the power of protective authority

given by law and imposed on an individual who
is free and in the enjoyment of his rights, over
one whose weakness on account of his age or
other infirmity renders him unable to protect
himself. [Herrera]
Guardian - person lawfully invested with power
and charged with the duty of taking care of a
person who for some peculiarity or status or
defect of age, understanding or self-control is
considered incapable of administering his own
affairs. [Herrera]
BASIS: PARENS PATRIAE
It is the States duty to protect the rights of

persons/individuals
who
because
of
age/incapacity are in an unfavorable position
vis--vis other parties [Nery v. Lorenzo (1972)].
PAGE 216
Court issues order setting time for hearing

Notice to the incompetent and persons
mentioned in the petition
Publication only if incompetent is a nonresident
Hearing
If granted, service of judgment to the Local Civil
Registrar and payment of bond of the guardian.
GENERAL
POWERS
DUTIES OF GUARDIANS
AND
(1) Care and custody of the person of his ward

and management of his property.
(2) Management of his property only.
(3) Management of property within the
Philippines (in case of non-resident ward).
[Sec. 1, Rule 96]
UP LAW BOC
SPECIAL PROCEEDINGS
SPECIFIC DUTIES
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of the
real property of the ward, if the same is
sufficient
(b) Real property of the ward upon
obtaining an order for its sale or
encumbrance. [Sec. 2, Rule 96]
(2) To settle all accounts of his ward [Sec. 3,
Rule 96]
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects [Sec. 3,
Rule 96]
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose [Sec. 3, Rule 96]
(5) To manage the property of the ward frugally
and without waste, and apply the income
and profits thereon, insofar as may be
necessary, to the comfortable and suitable
maintenance of the ward. If such income
and profits be insufficient for that purpose,
to sell or encumber the real or personal
property, upon being authorized by the
court to do so [Sec. 4, Rule 96]
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court after
hearing
(b) Notice to relatives of the ward, and
(c) A careful investigation as to the
necessity and propriety of the proposed
action. [Sec. 5, Rule 96]
(7) To submit to the court a verified inventory of
the property of the ward:
(a) Within three months after his
appointment
(b) Annually, and
(c) Whenever required upon the application
of an interested person. [Sec. 7, Rule 96]
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition [Sec. 4,
Rule 96]
PAGE 217
REMEDIAL LAW
(9) To render to the court for its approval an

accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required. [Secs.
7 & 8, Rule 96]
REIMBURSEMENT OF REASONABLE
EXPENSES
The court may authorize reimbursement to the

guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
[Sec. 8, Rule 96]
PAYMENT OF COMPENSATION
Court may order payment of reasonable

compensation not exceeding 10% of the net
income of the ward. [Sec. 8, Rule 96]
EMBEZZLEMENT, CONCEALMENT,
OR CONVEYANCE OF WARDS
PROPERTIES
COMPLAINT FILED BY WHOM
(1) The guardian or ward, or
(2) Any person having actual or prospective
interest in the property of the ward.
COURT EXAMINATION
The court may:
(1) require any person suspected of having
embezzled, concealed, or disposed of any
money, goods or interest, or a written
instrument belonging to the ward or his
property to appear for examination
concerning any thereof, and
(2) issue such orders as would secure the
property against such embezzlement,
concealment or conveyance [Sec. 6, Rule 96]
UP LAW BOC
SPECIAL PROCEEDINGS
SELLING AND ENCUMBERING THE

PROPERTY OF THE WARD
GROUNDS
(1) When the income of a property under
guardianship is insufficient to maintain and
educate the ward
(2) When it is for the benefit of the ward that
his personal or real property or any part
thereof be sold, mortgaged or otherwise
encumbered, and the proceeds invested in
safe and productive security, or in the
improvement or security of other real
property. [Sec. 1, Rule 95]
ORDER FOR SALE OR ENCUMBRANCE
Contents:
(1) Grounds for the sale or encumbrance.
(2) Manner of sale (public or private)
(3) Time and manner of payment
(4) Security, if payment deferred
(5) Additional bond from guardian, if required.
[Sec. 4, Rule 95]
INVESTMENT OF PROCEEDS AND

MANAGEMENT OF PROPERTY
REMEDIAL LAW
(2) To FAITHFULLY EXECUTE THE DUTIES OF

HIS TRUST, to manage and dispose the
property according to this rule for the best
interests of the ward, and to provide for his
proper care, custody and education
(3) To render a TRUE AND JUST ACCOUNT of
all the property of the ward in his hands,
and of all proceeds or interest derived from
them, and of the management and
disposition of the same, at the time
designated by this rule and such other times
as the court directs and at the expiration of
his trust, to settle his accounts with the
court and deliver and pay over all the
property, effects, and monies remaining in
his hands, or due from him on such
settlement, to the person lawfully entitled
thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
[Sec. 1, Rule 94]
RULE ON GUARDIANSHIP OVER

MINORS
[A.M. NO. 03-02-05-SC]
The court may authorize and require the

guardian to invest the proceeds of sales or
encumbrances, and any other money of his
ward in his hands, in real or personal property,
for the best interests of the ward.
General Rule: The father and the mother shall

jointly exercise legal guardianship over the
property of their unemancipated common child
without the necessity of a court appointment.
[Sec. 3; also Art. 225, FC]
The court may make such other orders for the

management, investment, and disposition of
the property and effects, as circumstances may
warrant. [Sec. 1, Rule 95]
In case of disagreement, the fathers decision

shall prevail, unless there is a judicial order to
the contrary. [Art. 225, FC]
CONDITIONS OF THE BOND OF

THE GUARDIAN
(Applicable for both Guardianship of Minors and

incompetents)
(1) To make and return to the court, within
three months after the issuance of his
letters of guardianship, a TRUE AND
COMPLETE INVENTORY of all the real and
personal property of his ward which shall
come to his possession or knowledge or to
the possession or knowledge of any other
person in his behalf
PAGE 218
However, if the market value of the property or

the annual Income of the child exceeds
P50,000.00, the parent concerned shall furnish
a bond.
PETITION FOR APPOINTMENT OF

GUARDIAN
WHO MAY FILE
(1) Resident minor
(a) Any relative
(b) Other person on behalf of a minor
(c) The minor himself, if 14 years of age or
over
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
(d) The Secretary of DSWD or the Secretary

of DOH, in the case of an insane minor
who needs to be hospitalized. [Sec. 2]
No defect in the petition or verification shall

render void the issuance of letters of
guardianship. [Sec. 7]
(2) Non-resident minor

(a) Any relative or friend of such minor
(b) Anyone interested in his property, in
expectancy or otherwise. [Sec. 12]
WHO MAY FILE OPPOSITION

(1) Any interested person [Sec. 10]
(2) The social worker ordered to make the case
study report, if he finds that the petition for
guardianship should be denied. [Sec. 9]
WHERE TO FILE
Resident minor - Family Court of the province or
city where the minor actually resides
Non-resident minor - Family Court of the
province or city where his property or any part
thereof is situated [Sec. 3]
GROUNDS FOR FILING
(1) Death, continued absence, or incapacity of
his parents
(2) Suspension, deprivation or termination of
parental authority
(3) Remarriage of his surviving parent, if the
latter is found unsuitable to exercise
parental authority
(4) When the best interests of the minor so
require. [Sec. 4]
(1) Jurisdictional facts
(2) Name, age and residence of the prospective
ward
(3) Ground rendering the appointment
necessary or convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of
their parental authority
(5) Remarriage of the minors surviving parent
(6) Names, ages, and residences of relatives
within the 4th civil degree of the minor, and
of persons having him in their care and
custody
(7) Probable value, character and location of
the property of the minor
(8) Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied
by a certification against forum shopping.
PAGE 219
How filed
If by interested person - by filing a written
opposition. [Sec. 10]
If by social worker by filing an intervention if
based on finding the petition should be denied.
[Sec. 9]
Grounds for Opposition
(1) Majority of the minor
(2) Unsuitability of the person for whom letters
are prayed.
UP LAW BOC
SPECIAL PROCEEDINGS
PROCEDURE
Filing of petition.
Court shall fix a time and place for hearing.
Notice requirement
Court shall cause reasonable notice to be given
to:
The persons mentioned in the petition
The minor, if he is 14 years of age or over
- For non-resident minors, notice shall be
given to the minor by publication or any
other means as the court may deem
proper.
The court may also direct other general or
special notice to be given.
Case Study Report
Court shall order a social worker to conduct a
case study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance
before the scheduled hearing.
Hearing
Compliance with notice requirement must
be shown.
The prospective ward shall be presented to
the court. If the minor is non-resident, the
court may dispense with his presence.
At the discretion of the court, the hearing on
guardianship may be closed to the public.
The records of the case shall not be
released without court approval.
Issuance or denial of letters of guardianship.
Service of final and executory judgment or order
upon the Local Civil Registrar of the
municipality or city where the minor resides and
the Register of Deeds of the place where his
property or part thereof is situated, who shall
annotate the same in the corresponding title,
and report to the court their compliance within
fifteen days from receipt of the order.
PAGE 220
REMEDIAL LAW
ORDER OF PREFERENCE OF APPOINTMENT

(in default of parents or a court-approved
guardian)
(1) The surviving grandparent. In case several
grandparents survive, the court shall select
any of them taking into account all relevant
considerations.
(2) The oldest brother or sister of the minor
over 21 years of age, unless unfit or
disqualified.
(3) The actual custodian of the minor over 21
years of age, unless unfit or disqualified.
(4) Any other person, who in the sound
discretion of the court, would serve the best
interests of the minor
QUALIFICATIONS
The court shall consider the guardians:
(1) Moral character
(2) Physical, mental and psychological
condition
(3) Financial status
(4) Relationship of trust with the minor
(5) Availability to exercise the powers and
duties of a guardian for the full period of the
guardianship
(6) Lack of conflict of interest with the minor
(7) Ability to manage the property of the minor.
[Secs. 5 & 10]
Grounds are not exhaustive. [Herrera]
POWERS AND DUTIES
In general
(1) Guardian of resident minor: Care and
custody of the person of his ward and the
management of his property, or only the
management of his property.
(2) Guardian
of
non-resident
minor:
Management of all his property within the
Philippines [Sec. 17]
BONDS OF GUARDIANS
Before a guardian enters upon the execution of
his trust, or letters of guardianship issue, he
must file a bond as determined by the Court.
[Sec. 14]
Whenever necessary, the court may require the
guardian to post a new bond and may discharge
from further liability the sureties on the old
bond. [Sec. 15]
UP LAW BOC
SPECIAL PROCEEDINGS
LIABILITY
In case of breach of any of its conditions, the
guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any
other person legally interested in the property.
[Sec. 15]
REMOVAL, RESIGNATION, AND

TERMINATION OF GUARDIANSHIP
REMOVAL
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust
(2) Is found to be unsuitable
(3) Wasted or mismanaged the property of the
ward
(4) Failed to render an account or make a
return for thirty days after it is due. [Sec. 14]
RESIGNATION
Ground: Any justifiable cause.
Upon the removal or resignation of the
guardian, the court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same. [Sec. 24]
TERMINATION
Grounds
(1) The ward has come of age.
(2) The ward has died.
How
(1) Court motu proprio terminates guardianship
(2) Upon verified motion of any person allowed
to file a petition for guardianship.
The guardian shall notify the court of the fact of
coming of age or death of the ward within 10
days of its occurrence. [Sec. 25]
PAGE 221
REMEDIAL LAW
The final and executory judgment or order

removing a guardian or terminating the
guardianship shall be served upon the Local
Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of
the province or city where his property or any
part thereof is situated, who shall enter the final
and executory judgment or order in the
appropriate books in their offices. [Sec. 26]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Adoption
A juridical act which creates between two persons a relation similar to that which results from filiation.
[Prasnick v. Republic, 98 Phil. 669 (1956)]
Objective: Best interest of the child
DOMESTIC ADOPTION v. INTER-COUNTRY ADOPTION

Domestic Adoption (RA 8552)
Governing Body DSWD
Adoption need not be the last resort
When may
adoption be
resorted to
(1) Any FILIPINO CITIZEN (regardless of
where residing)
(a) of legal age
(b) at least sixteen (16) years older than
the adoptee, (may be waived when
the adopter is the biological parent
of the adoptee, or is the spouse of
the adoptee's parent)
(c) in possession of full civil capacity
and legal rights,
(d) of good moral character, has not
been convicted of any crime
involving
moral
turpitude,
emotionally and psychologically
capable of caring for children,
(e) who is in a position to support and
care for his/her children in keeping
Who may adopt
with the means of the family.
(2) Any ALIEN possessing the same
qualifications as above stated for
Filipino nationals: Provided,
(a) that he/she has been living in the
Philippines for at least three (3)
continuous years prior to the filing
of the application for adoption and
maintains such residence until the
adoption decree is entered,
(b) that his/her country has diplomatic
relations with the Republic of the
Philippines,
PAGE 222
Inter-Country Adoption (RA 8043)

Inter-country Adoption Board (ICAB)
Adoption only as last resort: No child shall
be matched to a foreign adoptive family
unless it is satisfactorily shown that the
child cannot be adopted locally [Sec.11]
(1) FILIPINO
CITIZEN
permanently
residing abroad may file an application
for inter-country adoption of a Filipino
child if he/she:
(a) is at least twenty-seven (27) years of
age
(b) at least sixteen (16) years older than
the child to be adopted, at the time
of application unless the adopter is
the parent by nature of the child to
be adopted or the spouse of such
parent:
(c) has the capacity to act and assume
all rights and responsibilities of
parental authority under his
national laws, and has undergone
the appropriate counseling from an
accredited counselor in his/her
country;
(d) has not been convicted of a crime
involving moral turpitude;
(e) is in a position to provide the proper
care and support and to give the
necessary moral values and
example to all his children,
including the child to be adopted
(f) if married, his/her spouse must
jointly file for the adoption;
(g) is eligible to adopt under his/her
national law;
UP LAW BOC
SPECIAL PROCEEDINGS

(c) he/she has been certified by
his/her diplomatic or consular
office
or
any
appropriate
government agency that he/she
has the legal capacity to adopt in
his/her country, and
(d) that his/her government allows the
adoptee to enter his/her country as
his/her adopted son/daughter;
(e) that the requirements on residency
and certification of the alien's
qualification to adopt in his/her
country may be waived for the
following:
(i) a former Filipino citizen who
seeks to adopt a relative within
the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within the fourth (4th) degree of
consanguinity or affinity of the
Filipino spouse; or
REMEDIAL LAW

(h) agrees to uphold the basic rights of
the child as embodied under
Philippine
laws,
the
U.N.
Convention on the Rights of the
Child, and to abide by the rules and
regulations issued to implement
the provisions of this Act;
(i) comes from a country with whom
the Philippines has diplomatic
relations and whose government
maintains a similarly authorized
and accredited agency and that
adoption is allowed under his/her
national laws;
(j) possesses all the qualifications and
none of the disqualifications
provided herein and in other
applicable Philippine laws. [Sec. 9]
(2) ALIEN with above qualifications [Sec.
9]
(3) The GUARDIAN with respect to the

ward after the termination of the
guardianship and clearance of his/her
financial accountabilities. [Sec. 7]
When 16 year difference may be waived:
(1) If adopter is the biological parent of
adoptee
(2) If adopter is the spouse of adoptees
parent [Sec. 7]
(a) Any person below eighteen (18) years of (a) Filipino children [Sec. 3(a)]
age who has been administratively or
judicially declared available for adoption; (b) Below 15 years of age [Sec. 3(b)]
Who may be
adopted
(b) The legitimate son/daughter of one (c) Who are legally free, meaning children
spouse by the other spouse;
who have been voluntarily or involuntarily
committed to the DSWD [Sec. 3(f) and Sec.
(c) An illegitimate son/daughter by a 8]
qualified adopter to improve his/her status
to that of legitimacy;
PAGE 223
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW

(d) A person of legal age if, prior to the
adoption, said person has been
consistently considered and treated by the
adopter(s) as his/her own child since
minority;

IRR of 2004 adds that:
Any child who has been voluntarily or
involuntarily
committed
to
the
Department as dependent, abandoned or
neglected pursuant to the provisions of the
Child and Youth Welfare Code may be the
(e) A child whose adoption has been subject of Inter-Country Adoption xxx [Sec.
previously rescinded; or
26]
(f) A child whose biological or adoptive
parent(s) has died: Provided, That no
proceedings shall be initiated within six (6)
months from the time of death of said
parent(s). [Sec. 8]
Petition for adoption shall be filed with
Family Court of the province or city where
the prospective adoptive parents reside
[Sec. 6, Adoption Rule]
IRR of 2004 provides that:

Application shall be filed with the Board or
the Central Authority or the Foreign
Adoption Agency in the country where the
applicant resides. In case of foreign
nationals who file petition for adoption
under RA 8552 or Domestic Adoption
Law, the Court after finding petition to be
sufficient in form and substance and
proper case for inter-country adoption
shall immediately transmit the petition to
the board for appropriate action. [Sec. 30]
Where adoptive parents reside [Sec. 14]
Venue
Trial Custody
Either with the Philippine RTC having

jurisdiction over the child, or with the Intercountry Board through an intermediate
agency, in the country of the adoptive
parents [Sec. 10]
Takes place in the Philippines
PAGE 224
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW

Only upon petition of adoptee, never by No provision limiting act of rescission only
adopters. However, the adopter may to adoptee.
disinherit the adoptee. [Sec. 19]
In IRR, the procedure is provided for when
adoption process is terminated:
SECTION
47.
DISRUPTION
AND
TERMINATION OF PLACEMENT. - In the
event of serious damage in the
relationship between the child and the
applicant/s
where
the
continued
placement of the child is not in his/her
best interests, the Central Authority
and/or the FAA shall take the necessary
measures to protect the child, in
particular, to cause the child to be
withdrawn from the applicant/s and to
arrange for his/her temporary care.
The Central Authority and/or FAA shall
exhaust all means to remove the cause of
the unsatisfactory relationship which
impedes or prevents the creation of a
mutually
satisfactory
adoptive
relationship. A complete report should be
immediately forwarded to the Board with
actions taken as well as recommendations
and appropriate plans. Based on the
report, the Board may terminate the preadoptive relationship.
Rescission
SEC. 48. NEW PLACEMENT FOR CHILD. In the event of termination of the preadoptive relationship, the Board shall
identify from the Roster of Approved
Applicants a suitable family with whom to
place the child. The Central Authority
and/or the FAA may also propose a
replacement family whose application
shall be filed for the approval of the Board.
No adoption shall take place until after the
Board has approved the application of
such replacement family.
PAGE 225
UP LAW BOC
SPECIAL PROCEEDINGS
DOMESTIC ADOPTION ACT

RA 8552 (Domestic Adoption Act) and the Rule
on Adoption govern the domestic adoption of
Filipino children.
General Rule: Husband and wife shall adopt
jointly
REMEDIAL LAW
(2) LEGITIMACY
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and
obligations provided by law to legitimate
children born to them without discrimination of
any kind. Adoptee is entitled to love, guidance,
and support. [Sec. 17, RA 8552]
Exceptions:
1) If one spouse seeks to adopt the legitimate
child of other
2) If one spouse seeks to adopt his own
illegitimate child, provided the other spouse
has signified his/her consent
3) If spouses are legally separated [Sec. 7(c),
RA 8552]
(3) SUCCESSION
Adopter and adoptee shall have reciprocal
rights of succession without distinction from
legitimate filiation, in legal and intestate
succession. If adoptee and his/her biological
parents had left a will, the law on testamentary
succession shall govern. [Sec. 18, RA 8552]
PROCEDURE
The Clerk of Court shall keep a book of

adoptions showing the date of issuance of the
decree in each case, compliance by the Civil
Registrar with the courts order, and all
incidents arising after the issuance of the
decree. [Sec. 17, Adoption Rule (AR)]
Order of hearing
Publication at least once a week for three
consecutive weeks in newspaper of general
circulation in province or city where the court is
situated. Court shall notify the Solicitor General
if the petition prays for a change of name
BOOK OF ADOPTIONS
CONFIDENTIALITY
PROCEEDINGS
OF
ADOPTION
All hearings in adoption cases, after compliance

with the jurisdictional requirements shall be
confidential and shall not be open to the public.
Child and Home Study Report

Hearing within six months from issuance of
Order
If the court finds that the disclosure of the

information to a third person is necessary for
security reasons or for purposes connected with
or arising out of the adoption and will be for the
best interests of the adoptee, the court may,
upon proper motion, order the necessary
information to be released, restricting the
purposes for which it may be used. [Sec. 15, RA
8552]
Supervised Trial Custody for at least six (6)

months
Decree of Adoption
Amendment of Birth Certificate
EFFECTS OF ADOPTION
RESCISSION OF ADOPTION
(1) PARENTAL AUTHORITY

All legal ties between the biological parents and
adoptee are severed, and the same shall be
vested on the adopter, except if the biological
parent is the spouse of the adopter [Sec. 16, RA
8552]
Who may file: ADOPTEE

(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the
assistance of the DSWD
(3) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.
[Sec. 19, RA 8552]
PAGE 226
UP LAW BOC
SPECIAL PROCEEDINGS
Grounds: Committed by the adopter

(1) Repeated physical and verbal maltreatment
despite having undergone counseling
(2) Attempt on the life of the adoptee
(3) Sexual assault or violence
(4) Abandonment or failure to comply with
parental obligations.
Adoption, being in the best interests of the
child, shall not be subject to rescission by the
adopter.
However, the adopter may disinherit the
adoptee for causes provided in Article 919 of the
Civil Code. [Sec. 19, RA 8552]
Where to file: Family Court of the city or province
where the adoptee resides. [Sec. 20, AR]
When to file:
(1) Within 5 years after reaching age of majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery from
such incompetency. [Sec. 21, AR]
EFFECTS OF RESCISSION OF
ADOPTION
(1) RESTORATION OF PARENTAL AUTHORITY
to original parent if adoptee is a minor
(2) RECIPROCAL RIGHTS AND OBLIGATIONS
of adopter and adoptee are EXTINGUISHED
(3) CANCELLATION
of
amended
birth
certificate and RESTORE ORIGINAL
(4) SUCCESSIONAL RIGHTS SHALL REVERT to
its status PRIOR TO ADOPTION, as of the
date of final judgment of rescission
(5) VESTED RIGHTS shall be RESPECTED [Sec.
20, RA 8552]
INTER-COUNTRY ADOPTION
RA 8043 (Inter-country Adoption Act) governs
the adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing
abroad. [Sec. 3 (a)]
PAGE 227
REMEDIAL LAW
WHEN ALLOWED
Inter-country Adoption as the Last Resort; Best
Interest of the child as objective
The Inter-country Adoption Board (ICAB) shall
ensure that all possibilities for adoption of the
child under the Family Code (domestic adoption)
have been exhausted and that inter-country
adoption is in the best interest of the child [Sec.
7, RA 8043]
FUNCTIONS OF THE RTC
(1) Filing of petition may be made with the

Family Court having jurisdiction over the
place where the child resides or may be
found. [Sec. 28, AM 02-6-02 SC or AR Part
II]
(2) Court shall determine whether or not
petition is sufficient in form and substance
and a proper case for inter-country
adoption.
(3) Transmit the petition to the ICAB for
appropriate action.
BEST INTEREST OF THE MINOR

STANDARD
The rule that there should be no contact

between the adoptee and his/her biological
parents shall not apply in exceptional cases
where the childs best interests are at stake [Sec.
39, IRR of RA 8043]
In case physical transfer fails to occur, the ICAB
shall take appropriate steps for the protection of
the best interests of the child. [Sec. 44, IRR of
RA 8043]
Placement may be terminated if it is not in the
best interests of the child. [Sec. 48, IRR of RA
8043]
Any doubt or vagueness in the provisions of
these Rules shall be interpreted in
consideration of the best interests of the child.
[Sec. 61, IRR of RA 8043]
UP LAW BOC
SPECIAL PROCEEDINGS
Writ of Habeas Corpus

Essentially a writ of inquiry, granted to test the
right under which a person is detained, and to
relieve a person if such restrain is illegal
Extends to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled
thereto. [Sec. 1, Rule 102]
Can only be suspended in cases of rebellion or
invasion and when public interest requires it.
[Art. III Sec. 15]
VITAL PURPOSES:
In General
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned
without sufficient cause
(3) To deliver them from unlawful custody
[Villavicencio v. Lukban (1919)]
TEMPORARY
RELEASE
CONSTITUTE RESTRAINT
REMEDIAL LAW
MAY
ELEMENTS
(a) Where a person continued to be unlawfully
denied one or more of his constitutional
rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely
involuntary but appear to be unnecessary
(d) Where a deprivation of freedom originally
valid has in light of subsequent
developments become arbitrary [Moncupa
v. Enrile (1986)]
General Rule: Release of detained person,
whether permanent or temporary, makes the
petition for habeas corpus moot.
Prime specification of the application for a writ

of habeas corpus is restraint of liberty.
[Moncupa v. Enrile (1986)]
Exceptions:
1) Doctrine of Constructive Restraint- Unless
there are restraints attached to his release
which precludes freedom of action in which
case the Court can still inquire into the
nature of his involuntary restraint
In the case of minors

(1) Prosecuted for the purpose of determining
the right of custody of a child.
(2) Question of identity is relevant and material
and must be convincingly established.
[Tijing v. CA (2008)]
The essential object and purpose of the writ

of habeas corpus is to inquire into all
manner of involuntary restraint. Any
restraint which will preclude freedom of
action is sufficient. [Villavicencio v Lukban
(1919)]
The underlying rationale is not the illegality of

the restraint but the right of custody. [Tijing v.
CA (2001)]
2) Violation of freedom from threat by the

apparent threat to life, liberty and security
of their person from the following facts:
(1) Threat of killing their families if they
tried to escape
(2) Failure of the military to protect them
from abduction
(3) Failure of the military to conduct
effective investigation [Secretary of
Justice v. Manalo]
WHO MAY ISSUE THE WRIT

(1) The SC,CA, and RTC have concurrent
jurisdiction to issue WHC (Sec.2, Rule 102)
(2) Family courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the WHC in relation to custody
of minors
NATURE
Not a suit between private parties, but an

inquisition by the government, at the suggestion
and instance of an individual, but still in the
name and capacity of the sovereign. [Alimpoos
v. CA, 106 SCRA 159 (1981)]
PAGE 228
UP LAW BOC
SPECIAL PROCEEDINGS
Proceedings in habeas corpus are separate and

distinct from the main case from which the
proceedings spring.
The question whether one shall be imprisoned is
always distinct from the question of whether the
individual shall be convicted or acquitted of the
charge on which he is tried, and therefore these
questions are separate, and may be decided in
different courts [Herrera, citing 4 Cranch, 75, 101]
In the case of People v. Valte (1922), it was stated
that the writ of habeas corpus is not designed to
interrupt the orderly administration of the laws
by a competent court acting within the limits of
its jurisdiction, but is available only for the
purpose relieving from illegal restraint.
Proceedings on habeas corpus to obtain release
from custody under final judgment being in the
nature of collateral attack, the writ deals only
with such radical defects as render the
proceeding or judgment absolutely void, and
cannot have the effect of appeal, writ of error or
certiorari, for the purpose of reviewing mere
error and irregularities in the proceedings.
[People v. Valte (1922)]
WHC MAY BE USED WITH WRIT OF

CERTIORARI FOR PURPOSES OF
REVIEW
The two writs may be ancillary to each other

where necessary to give effect to the supervisory
powers of higher courts.
WHC reaches the body of the jurisdictional
matters, but not the record. Writ of certiorari
reaches the record but not the body [Galvez v.
CA (1994)]
While generally, the WHC will not be granted
when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases. [Herrera, citing 39
C.J.S. Habeas corpus 13, 486-488]
PAGE 229
REMEDIAL LAW
WHC IS NOT THE PROPER REMEDY

FOR THE CORRECTION OF ERRORS
OF FACT OR LAW
Exception: Error affects courts jurisdiction

(making the judgment void) [Herrera]
WHC does not lie where the petitioner has the
remedy of appeal or certiorari. [Galvez v. CA
(1994)]
WHC IS NOT PROPER:

To assert or vindicate denial of right to bail
[Galvez v. CA (1994)]
For correcting errors in appreciation of fact or
law [Sotto v. Director of Prisons (1962)]
WHC IS PROPER:
Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v. Galang,
(1963)]
Where the court has no jurisdiction to impose
the sentence [Banayo v. President of San
Pablo, 2 Phil. 413 (1903)]
WHO MAY APPLY:

1) The party for whose relief it is intended, or
2) By some person on his behalf [Sec. 3, Rule
102]
Some person any person who has a legally
justified interest in the freedom of the person
whose liberty is restrained or who shows some
authorization to make the application [Velasco
v. CA (1995)]
REQUISITES OF APPLICATION:
(1) That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty
(2) The officer or name of the person by whom
he is so imprisoned or retrained or if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended
(3) The place where he is so imprisoned or
restrained, if known
(4) A copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority, such
fact shall appear.
UP LAW BOC
SPECIAL PROCEEDINGS
PROCEDURE:
(1) Application for the writ by petition [Sec. 3,

Rule 102]
(2) Grant or disallowance by court or judge
[Secs. 4 & 5, Rule 102]
(3) Clerk of Court issues the writ under the seal
of court (in case of emergency, by the judge
himself) [Sec. 5. Rule 105]
(4) Service:
By whom: sheriff or other proper officer
How: leaving the original with the person
to whom it is directed and preserving a
copy on which to make return
To whom: officer in custody or any officer
(when in custody of person other than an
officer) [Sec. 7, Rule 105]
(5) Execution and return:
Officer brings the person before the judge,
and
Officer makes due return [Sec. 8, Rule 102]
CONTENTS OF THE RETURN

Made by the person or officer in whose custody
the prisoner is found:
(1) Whether he has or has not the party in his
custody or power, or under restraint
(2) If he has the party in his custody or power,
or under restraint, the authority and the true
and whole cause thereof, set forth at large,
with a copy of the writ, order execution, or
other process, if any, upon which the party is
held
(3) If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason
of which he cannot, without danger, be
bought before the court or judge
(4) If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what time,
for what cause, and by what authority such
transfer was made. [Sec. 10, Rule 102]
PAGE 230
REMEDIAL LAW
The return or statement shall be signed by the

person who makes it; and shall also be sworn by
him if the prisoner is not produced, and in all
other cases, unless the return is made and
signed by a sworn public officer in his official
capacity. [Sec. 11, Rule 102]
WHEN THE RETURN

CONSIDERED EVIDENCE, AND
WHEN ONLY A PLEA
When the prisoner is in custody under a warrant
of commitment in pursuance of law, the return
shall be considered prima facie evidence of the
cause of restraint.
If he is restrained of his liberty by any alleged
private authority, the return shall be considered
only as a plea of the facts therein set forth, and
the party claiming the custody must prove such
facts. (Sec. 13, Rule 102)
DISTINCTION BETWEEN
PEREMPTORY WRIT AND
PRELIMINARY CITATION
Preliminary citation requires the respondent to

appear and show cause why the peremptory
writ should not be granted
Peremptory writ unconditionally commands
the respondent to have the body of the detained
person before the court at a time and place
therein specified [Lee Yick Hon v. Collector of
Customs, (1921)]
WHEN WRIT NOT PROPER OR

APPLICABLE
WHC will not issue where:
(1) The person alleged to be restrained of his
liberty is in custody of an officer
(2) Under process issued by the court or judge
(3) By virtue of a judgment or order of a court of
record
(4) The Court or judge had jurisdiction to issue
the process, render the judgment or make
the order. [Sec. 4, Rule 102]
UP LAW BOC
SPECIAL PROCEEDINGS
The operative act is detention or restraint

(whether or not physical). If there is none, no
WHC will issue despite the possibility of
respondent being liable to civil, criminal, or
administrative action.
Judicial discretion is exercised in the issuance of
the writ, and will not issue as a matter of course
[Eugenio, Sr. v. Velez (1990)]
Improper arrest or lack of preliminary
investigation is not a valid ground for the
issuance of WHC. The proper remedy is a
motion to quash the warrant of arrest and/or
information before the trial court [Ilagan v.
Enrile, 1985]
Posting of a bail is not a waiver of the right to
challenge the validity of the arrest, and
therefore the right to resort to WHC [Sec. 26,
Revised Rules of Criminal Procedure]
A person discharged on bail is not entitled to
WHC, because such person is not imprisoned or
restrained of his liberty in such a way as to
entitle him to the WHC. [Tan Me Nio v. Collector
of Customs, (1916)
WHEN DISCHARGE NOT

AUTHORIZED
REMEDIAL LAW
(b) The filing before a trial court a

complaint which issued a hold
departure order and denied motion to
dismiss and to grant bail [Velasco v.
CA(1995)]
(c) Filing of an information for the offense
for which the accused is detained bars
the availability of WHC [Velasco v. CA
(1995)]
DISTINGUISHED FROM WRIT OF

AMPARO AND HABEAS DATA
See Annex A.
CUSTODY OF MINORS AND

WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF
MINORS
(A.M. NO. 03-04-04-SC)
APPLICABILITY
Applies to petitions for custody of minors and

writs of habeas corpus in relation thereto.
Discharge from custody will not be allowed if:

(1) Jurisdiction appears after the writ is
allowed, despite any informality or defect in
the process, judgment, or order.
(2) Person is charged with or convicted of an
offense in the Philippines
(3) Person is suffering imprisonment under
lawful judgment [Sec. 4, Rule 102]
(4) If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with
an offense punishable by death [Sec. 14,
Rule 102]
(5) Even if the arrest of a person is illegal, due
to supervening events
(a) Issuance of a judicial process
[Sayo v. Chief of Police of Manila (1948)]
Judicial process is defined as a writ,
warrant, subpoena, or other formal
writing issued by authority of law.
[Malaloan v. CA (1994)]
PAGE 231
Rules of Court shall apply suppletorily. [Sec. 1]
PETITION FOR RIGHTFUL CUSTODY
A verified petition for the rightful custody of a

minor may be filed by any person claiming such
right.
Party against whom it may be filed shall be
designated as the respondent. [Sec. 2]
WHERE TO FILE
Filed with the Family Court of the province or
city where the petitioner resides or where the
minor may be found. [Sec. 3]
CONTENTS
(1) The personal circumstances of the
petitioner and of the respondent
(2) The name, age and present whereabouts of
the minor and his or her relationship to the
petitioner and the respondent
UP LAW BOC
SPECIAL PROCEEDINGS
(3) The material operative facts constituting

deprivation of custody
(4) Such other matters which are relevant to
the custody of the minor [Sec. 4]
Verified and accompanied with a certificate
against forum shopping signed by the petitioner
personally. [Sec. 4]
If court is satisfied that the petition is sufficient
in form and substance, it shall direct the clerk of
court to issue summons, which shall be served
together with a copy of the petition personally
on the respondent. [Sec. 5]
ANSWER TO THE PETITION
General rule: Motion to dismiss the petition is

not allowed. Any other ground that might
warrant the dismissal of the petition may be
raised as an affirmative defense in the answer.
Exception: On the ground of lack of jurisdiction
over the subject matter or over the parties. [Sec.
6]
REMEDIAL LAW
Pre-trial brief contains the following:

(1) A statement of the willingness of the parties
to enter into agreements that may be
allowed by law, indicating its terms
(2) A concise statement of their respective
claims together with the applicable laws
and authorities
(3) Admitted facts and proposed stipulations of
facts
(4) The disputed factual and legal issues
(5) All the evidence to be presented
(6) The number and names of the witnesses
and their respective affidavits
(7) Such other matters as the court may require
to be included.
Failure to file the pre-trial brief or to comply
with its required contents has same effect as
failure to appear at the pre-trial. [Sec. 10]
If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed.
Verified Answer Personally verified and filed

within 5 days after service of summons. [Sec. 7]
Unless his counsel or a duly authorized

representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner. [Sec. 11]
Case study upon the filing of the verified

answer or the expiration of the period to file it,
the court may order a social worker to make a
case study of the minor and the parties and to
submit to the court at least 3 days before pretrial. [Sec. 8]
If the respondent has filed his answer but fails

to appear at the pre-trial, the petitioner shall be
allowed to present his evidence ex parte. The
Court shall then render judgment on the basis
of the pleadings and the evidence thus
presented. [Sec. 9]
MANDATORY PRE-TRIAL
At the pre-trial, the parties may agree on the

custody of the minor. If the parties fail to agree,
the court may refer the matter to a mediator
who shall have 5 days to effect an agreement
between the parties. If the issue is not settled
through mediation, the court shall proceed with
the pre-trial. [Sec. 12]
Notice - 15 days after the filing of the answer or

the expiration of the period to file answer, the
court shall issue an order:
(1) Fixing a date for the pre-trial conference
(2) Directing the parties to file and serve their
respective pre-trial briefs
(3) Requiring the respondent to present the
minor before the court.
The notice of its order shall be served separately
on both the parties and their respective
counsels. [Sec. 9]
PAGE 232
After an answer has been filed or after

expiration of the period to file it, the court may
issue a provisional order awarding custody of
the minor to:
(1) Both parents jointly
(2) Either parent
UP LAW BOC
SPECIAL PROCEEDINGS
(3) The grandparent, or if there are several

grandparents, the grandparent chosen by
the minor over 7 years of age and of
sufficient discernment
(4) The eldest brother or sister over 21 years of
age
(5) The actual custodian of the minor over 21
years of age
(6) Any other person or institution the court
may deem suitable. [Sec. 13]
INTERIM RELIEFS
(1) Temporary visitation rights - court shall

provide in its order awarding provisional
custody appropriate visitation rights to the
non-custodial parent or parents.
Unless the court finds said parent or parents
unfit or disqualified.
The temporary custodian shall give the
court and non-custodial parent or parents
at least 5 days' notice of any plan to change
the residence of the minor or take him out
of his residence for more than 3 days. [Sec.
15]
(2) Hold Departure Order the minor child
shall not be brought out of the country
without prior order from the court while the
petition is pending.
The Court, motu proprio or upon application
under oath, may issue ex parte a hold departure
order, addressed to the Bureau of Immigration
and Deportation (BID), directing it not to allow
the departure of the minor from the Philippines
without court permission.
The Family Court issuing the hold departure
order shall furnish the DFA and the BID of the
DOJ a copy of the hold departure order within
24 hours from its issuance.
The court may recall the hold departure order
motu proprio or upon verified motion of any of
the parties after summary hearing. [Sec. 16]
PAGE 233
REMEDIAL LAW
(3) Protection Order (PO) - court may issue a

PO requiring any person:
(a) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party,
or from any other specific place
(b) To cease and desist from harassing,
intimidating, or threatening such minor
or the other parent or any person to
whom custody of the minor is awarded
(c) To refrain from acts or omission that
create an unreasonable risk to minor
(d) To permit a parent, or a party entitled to
visitation by a court order or a
separation agreement, to visit the minor
at stated periods
(e) To permit a designated party to enter
the residence during a specified period
of time in order to take personal
belongings not contested in a
proceeding pending with the Family
Court
(f) To comply with such other orders as are
necessary for the protection of the
minor. [Sec. 17]
JUDGMENT
Court shall render judgment awarding the

custody of the minor to the proper party
considering the best interests of the minor.
If both parties are unfit to have the care and
custody of the minor, the court may designate
either the paternal or maternal grandparent of
the minor, or his oldest brother or sister, or any
reputable person to take charge of such minor,
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. [Sec. 18]
UP LAW BOC
SPECIAL PROCEEDINGS
APPEAL
Appeal from the decision shall be allowed,
unless the appellant has filed a motion for
reconsideration or new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within 15
days from notice of the denial of the motion for
reconsideration or new trial and serving a copy
on the adverse parties. [Sec. 19]
REMEDIAL LAW
Petition may also be filed with the appropriate

regular courts in places where there are no
Family Courts.
The petition may be filed with the SC, CA, or
with any of its members and shall be
enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court
or to any regular court within the region where
the petitioner resides or where the minor may
be found for hearing and decision on the merits.
Upon return of the writ, the court shall decide
the issue on custody of minors. [Sec. 20]
WRIT OF HABEAS CORPUS IN

RELATION TO CUSTODY OF MINORS
A verified petition for a writ of habeas corpus
involving custody of minors is filed with the
Family Court. The writ shall be enforceable
within the judicial region the Family Court
belongs.
HOWEVER, the petition may be filed with a
regular court in the absence of the presiding
judge of the Family Court provided that the
regular court shall refer the case to the Family
Court as soon as its presiding judge returns to
duty.
PAGE 234
UP LAW BOC
Rights involved
Situations
applicable
Party
authorized to
file
Respondents
Before which
court or judicial
authority filed
SPECIAL PROCEEDINGS
REMEDIAL LAW
COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS

HABEAS CORPUS (RULE 102)
RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Right to liberty
Petition for the rightful custody of a minor
Rightful custody of the aggrieved party
Actual violation of the aggrieved partys right to Unlawful deprivation of rightful custody, or
liberty, or rightful custody [Sec. 1]
A minor is being kept from a parent by the other
parent (e.g. which parent shall have the care
and custody of a minor, when such parent is in
the midst of nullity or legal separation
proceedings). [Herrera; Secs. 2 & 20]
Party for whose relief it is intended or by some Any person claiming rightful custody this
person in his behalf [Sec. 1]
covers:
(1) Unlawful deprivation of the custody of a
minor
(2) Which parent shall have the care and
custody of a minor [Herrera]
May or may not be an officer
(1) RTC or any judge thereof
A verified petition for a writ of habeas corpus
(2) CA or any member thereof in instances involving custody of minors shall be filed with
authorized by law
the Family Court. The writ shall be enforceable
(3) SC or any member thereof [Sec. 2]
within its judicial region to which the Family
(4) Special jurisdiction given to first level courts Court belongs.
in the absence of RTC judges in a province or
city [Sec. 35, BP 129]
However, the petition may be filed with the
(5) In aid of appellate jurisdiction of the regular court in the absence of the presiding
Sandiganbayan [RA 8249 further expanding judge of the Family Court, provided, however,
its jurisdiction]
that the regular court shall refer the case to the
Family Court as soon as its presiding judge
returns to duty.
The petition may also be filed with the
appropriate regular courts in places where there
are no Family Courts. [Sec. 20]
The verified petition shall allege the following:
(1) The personal circumstances of the petitioner
and of the respondent
(2) The name, age and present whereabouts of
the minor and his or her relationship to the
(3) The material operative facts constituting
deprivation of custody and
(4) Such other matters which are relevant to the
custody of the minor.
Signed, verified either by the party for whose

relief it is intended, or by some person in his
behalf and shall set forth:
(1) That the person in whose behalf the
application is made is imprisoned or
restrained on his liberty;
(2) The officer or name of the person by whom
he is so imprisoned or restrained or, if both
are unknown or uncertain, such officer or
person may be described by an assumed
Contents of the
appellation, and the person who is served
petition
with the writ shall be deemed the person The verified petition shall be accompanied by a
intended;
certificate against forum shopping, which the
(3) The place where he is so imprisoned or petitioner must sign personally. [Sec. 4]
restrained, if known;
(4) A copy of the commitment or cause of
detention of such person, if it can be procured
without impairing the efficiency of the remedy
or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.
[Sec. 3]
PAGE 235
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Writ of Amparo
the protection of law [Sec. of National

Defense v. Manalo (2008)]
WRIT OF AMPARO
The writ applies only to the right to life, liberty

and security of persons and not property.
Came originally from Mexico and evolved into

many forms
(1) Amparo libertad for protection of personal
freedom
(2) Amparo contra leyes for judicial review of
the constitutionality of statutes
(3) Amaparo casacion judicial review of
constitutionality and legality of judicial
decisions
(4) Amparo agrario for protection of peasants
rights
Right to security as a guarantee of protection

by the government, is violated by the apparent
threat to the life, liberty and security of their
person.
Literally means to protect
AM No 7-9-12-SC (Rules on the Writ of Amparo)

[Amparo Rule]
was promulgated by the
Supreme Court by virtue of the 1987
Constitution stating that the SC has the power
to [p]romulgate rules concerning the
protection and enforcement of constitutional
rights [Art VIII Sec. 5].
COVERAGE
Available to any person whose right to life,
liberty and security is violated or threatened
with violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
The writ shall cover:
(1) Extralegal killings (killings committed
without due process of law) and
(2) Enforced disappearances [Sec. 1, Amparo
Rule]
ELEMENTS OF ENFORCED
DISAPPEARANCE:
(a) An arrest, detention or abduction of a
person by a government official or
organized groups or private individuals
acting with the direct or indirect
acquiescence of the government
(b) The refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
PAGE 236
DISTINGUISHED FROM WRIT OF

HABEAS CORPUS AND HABEAS
DATA
See Annex A.
DISTINGUISHED FROM SEARCH

WARRANT
Secretary of Defense v. Manalo (2008)
The production order under the Amparo Rule
should not be confused with a search warrant
for law enforcement under Article III, Section 2 of
the 1987 Constitution.
The Constitutional provision is a protection of
the people from the unreasonable intrusion of
the government, not a protection of the
government from the demand of the people
such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or
things under Section 1, Rule 27 of the Rules of
Civil Procedure i.e. Upon motion of any party
showing good cause therefor, the court in which
an action is pending may (a) order any party to
produce and permit the inspection and copying
or photographing, by or on behalf of the moving
party, of any designated documents, papers,
books of accounts, letters, photographs, objects
or tangible things, not privileged, which
constitute or contain evidence material to any
matter involved in the action and which are in his
possession, custody or control...
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
WHO MAY FILE
(1) Aggrieved party

(2) Any member of the immediate family
namely: the spouse, children and parents of
the aggrieved party
(3) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph or
(4) Any concerned citizen, organization,
association or institution if there is no
known member of the immediate family or
relative of the aggrieved party.
(1) The personal circumstances of the

petitioner;
(2) The name and personal circumstances of
the respondent responsible for the threat,
actor omission or if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits;
(4) The investigation conducted, if any,
specifying the names, the personal
circumstances and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
(5) The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission; and
(6) The relief prayed for.
The filing of a petition by the aggrieved party

suspends the right of all other authorized
parties to file similar petitions. [Sec. 2]
RATIO FOR PREFERENCE
(1) Necessary
for
the
prevention
of
indiscriminate and groundless filing of
petitions for amparo which may even
prejudice the right to life, liberty or security
of the aggrieved party
(2) Untimely resort to the writ by a nonmember of the family may endanger the life
of the aggrieved party
WHERE TO FILE
(1) RTC where the threat, act or omission was

committed or any of its element occurred
(2) Sandiganbayanunlike the writ of habeas
corpus, because public officials and
employees will be respondents in amparo
petitions
(3) Court of Appeals
(4) Supreme Court
(5) Any justice of such courts [Sec. 3]
May be filed on any day, including Saturdays,
Sundays, and holidays; from morning until
evening.
PAGE 237
May include a general prayer and equitable

reliefs.
Signed and verified [Sec. 5]
No docket fees and other lawful fees. [Sec. 4]
CONTENTS OF RETURN
Upon the filing of the petition, the court shall
order the issuance of the writ.
The respondent shall file a verified written
return together with supporting affidavits within
72 hours after service of the writ.
Contents:
(1) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission
UP LAW BOC
SPECIAL PROCEEDINGS
(2) The steps or actions taken by the

respondent to determine the fate or
whereabouts of the aggrieved party and the
person responsible for the threat, act or
omission
(3) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party and
(4) If the respondent is a public official or
employee the return shall further state the
actions that have been or will still be taken.
(5) The return shall also state matters relevant
to the investigation, its resolution and the
prosecution of the case.
No general denial allowed. [Sec. 9]
TO WHOM RETURNABLE
(1) If filed with RTC, returnable to RTC or any

judge
(2) If filed with Sandiganbayan, CA or any
justice, returnable to such court or any
justice or the RTC where the threat, act or
omission was committed or any of its
elements occurred.
(3) If filed with the SC, returnable to the SC or
any justice, or to the CA, SB or any of its
justices, or the RTC where the threat, act or
omission was committed or any of its
elements occurred. [Sec. 3]
OMNIBUS WAIVER RULE
Defenses not pleaded deemed waived.

All defenses shall be raised in the return,
otherwise, they shall be deemed waived. [Sec.
10]
EFFECT OF FAILURE TO FILE A

RETURN
In case the respondent fails to file a return, the

court, justice or judge shall proceed to hear the
petition ex parte.
PROCEDURE FOR HEARING ON

THE WRIT
SUMMARY HEARING
REMEDIAL LAW
BUT: The court, justice, or judge may call for a

preliminary conference to simplify the issues and
determine the possibility of obtaining
stipulations and admissions from the parties.
[Sec. 13]
PROHIBITED
MOTIONS
PLEADINGS
AND
(1) Motion to dismiss

(2) Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings
(3) Dilatory motion for postponement
(4) Motion for a bill of particulars
(5) Counterclaim or cross-claim
(6) Third-party complaint
(7) Reply
(8) Motion to declare respondent in default
(9) Intervention
(10) Memorandum
(11) Motion for reconsideration of interlocutory
orders or interim relief orders and
(12) Petition for certiorari, mandamus or
prohibition against any interlocutory order.
[Sec. 11]
Allows motion for new trial and petition for
relief from judgment.
JUDGMENT
The court shall render judgment within ten (10)

days from the time of petition is submitted for
decision.
ARCHIVING AND REVIVAL OF CASES
If the case cannot proceed for valid cause, the

court shall not dismiss the petition but shall
archive it. If after the lapse of two (2) years from
the notice of archiving, the petition shall be
dismissed for failure to prosecute. [Sec. 20]
INSTITUTION
ACTIONS
OF
SEPARATE
The Rule shall neither preclude the filing of

separate criminal, civil or administrative actions
nor suspend the filing of criminal, civil or
administrative actions. [Sec. 21]
But a claim for damages should instead be filed
in a proper civil action.
Hearing on the petition shall be summary.
PAGE 238
UP LAW BOC
SPECIAL PROCEEDINGS
If the evidence so warrants, the amparo court

may refer the case to the Department of Justice
for criminal prosecution, because the amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent.
EFFECT OF FILING OF A
CRIMINAL ACTION
When a criminal action has been commenced,

NO SEPARATE PETITION for the writ shall be
filed.
Reliefs under the writ shall be available by
motion in a criminal case.
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of amparo. [Sec. 22]
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 amparo, the latter shall be consolidated
with the criminal action.
After consolidation, the procedure under this
Rule shall continue to apply to the disposition of
the reliefs on the petition. [Sec. 23]
REMEDIAL LAW
That the petitioner or the aggrieved party and

any member of the immediate family be
protected in a government agency or by an
accredited person or private institution capable
of keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule,
the protection may be extended to the officers
concerned. [Sec. 14(a)]
Different from the inspection and production
order in that the temporary protection order and
the witness protection order do not need a
verification and may be issued motu proprio or
ex parte.
(2) INSPECTION ORDER.
Issued only upon verified motion and after due
hearing
Directed to any person in possession or control
of a designated land or other property, to permit
entry for the purpose of inspecting, measuring,
surveying, or photographing the property or any
relevant object or operation thereon.
The order shall expire five (5) days after the day
of its issuance, unless extended for justifiable
reasons. [Sec. 14(b)]
Requires hearing, may be availed of both the
If the court, justice or judge gravely abuses his
or her discretion in issuing the inspection order,
the aggrieved party is not precluded from filing
a petition for certiorari with the Supreme Court
INTERIM RELIEFS AVAILABLE

TO PETITIONER AND
RESPONDENT
When: Upon filing of the petition or at any time
before final judgment
INTERIM RELIEFS AVAILABLE TO

THE PETITIONER
(1) TEMPORARY PROTECTION ORDER.
Issued upon motion or motu proprio
PAGE 239
(3) PRODUCTION ORDER

Issued only upon verified motion and after due
hearing
Directed to any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Grounds for Opposition

1) National security
2) Privileged nature of the information
In which case the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition. [Sec. 14(c)]
IF RESPONDENT IS A
OFFICIAL OR EMPLOYEE
Not the same as search warrant for law

enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a protection of
the people from unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as
respondents
Cannot invoke the presumption that official duty

has been regularly performed to evade
responsibility or liability
More similar to production of documents or

things under Sec. 1 Rule 27 of Rules of Civil
Procedure.
(4) WITNESS PROTECTION ORDER
Issued upon motion or motu proprio
Order may refer the witnesses to:
a) The Department of Justice for admission to
the Witness Protection, Security and Benefit
Program.
b) Other government agencies, or to accredited
persons or private institutions capable of
keeping and securing their safety. (Sec. 14(d))
INTERIM RELIEFS AVAILABLE TO

THE RESPONDENT
(1) INSPECTION ORDER
(2) PRODUCTION ORDER [Sec. 15]
Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent. [Sec. 15]
PUBLIC
Must prove that extraordinary diligence as

required as required by the applicable laws,
rules and regulations was observed in the
performance of duty.
IF RESPONDENT IS A PRIVATE
INDIVIDUAL OR ENTITY
Must prove that ordinary diligence as required

by applicable laws, rules and regulations was
observed in the performance of duty. [Sec. 17]
Sec. of Justice v. Manalo (supra)
With the secret nature of an enforced
disappearance and the torture perpetrated on
the victim during detention, it logically holds
that much of the information and evidence of
the ordeal will come from the victims
themselves.
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture or landmarks where detained.
Writ of Habeas Data

SCOPE OF WRIT
The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty
or security is violated or threatened by an
unlawful act or omission of a public official or
employee, or of a private individual or entity
engaged in the gathering, collecting or storing
of data or information regarding the person,
family, home and correspondence of the
aggrieved party. [Sec. 1]
AVAILABILITY OF WRIT
QUANTUM OF PROOF IN
APPLICATION FOR ISSUANCE
OF WRIT: SUBSTANTIAL
EVIDENCE
Any aggrieved party may file a petition for the

writ of habeas data.
The parties shall establish their claims by

substantial evidence.
PAGE 240
However, in cases of extralegal killings and

enforced disappearances, the petition may be
filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children
and parents; or
UP LAW BOC
SPECIAL PROCEEDINGS
(b) Any ascendant, descendant or collateral

relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph. [Sec. 2]
REMEDIAL LAW
See Annex A.
data or information, and the purpose for

its collection;
(b) the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or information;
and
(c) the currency and accuracy of the data or
information held; and
(3) Other allegations relevant to the resolution
of the proceeding.
A general denial of the allegations in the

petition shall not be allowed. [Sec. 10]
DISTINGUISHED FROM HABEAS

CORPUS AND AMPARO
A verified written petition for a writ of habeas
data should contain:
(1) The personal circumstances of the petitioner
and the respondent;
(2) The manner the right to privacy is violated or
threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(3) The actions and recourses taken by the
petitioner to secure the data or information;
(4) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in control
of the data or information, if known;
(5) The reliefs prayed for, which may include the
updating, rectification, suppression or
destruction of the database or information or
files kept by the respondent.
In case of threats, the relief may include a prayer
for an order enjoining the act complained of;
and
(6) Such other relevant reliefs as are just and
equitable. [Sec. 6]
CONTENTS OF THE RETURN

The respondent shall file a verified written
return together with supporting affidavits within
five (5) work days from service of the writ, which
period may be reasonably extended by the
Court for justifiable reasons.
CONTENTS:
(1) The lawful defenses such as national security,

state secrets, privileged communication,
confidentiality of the source of information of
media and others;
(2) In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
(a) disclosure of the data or information
about the petitioner, the nature of such
PAGE 241
INSTANCES WHEN PETITION

MAY BE HEARD IN CHAMBERS
A hearing in chambers may be conducted:

(1) Where the respondent invokes the defense
that the release of the data or information in
question shall compromise national security
or state secrets, or
(2) When the data or information cannot be
divulged to the public due to its nature or
privileged character. [Sec. 10]
CONSOLIDATION
When a criminal action is filed subsequent to

the filing of a petition for the writ, the latter
shall be consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of habeas data, the petition shall be
consolidated with the criminal action. [Sec. 21]
EFFECT OF FILING OF CRIMINAL

ACTION
When a criminal action has been commenced,
NO SEPARATE PETITION for the writ shall be
filed.
The reliefs under the writ shall be available to
an aggrieved party by motion in the criminal
case.
The procedure under this Rule shall govern the
disposition of the reliefs available
under the writ of habeas data. [Sec. 22]
INSTITUTION OF SEPARATE ACTION
The filing of a petition for the writ of habeas

data shall not preclude the filing of separate
criminal, civil or administrative actions. [Sec. 20]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
DIFFERENCES UNDER THE APPLICABLE RULES [RULE 103, RULE 108,

RA 9048]
Applicability
Nature
Rule 103
Rule 108
RA 9048
Substantial Changes in Substantial changes in Change of First Names or
name
entries in the civil registry Nicknames
(other than name)
Change brought about by
clerical or typographical errors
(includes day and month in the
date of birth or sex), except
nationality, age, or status
Judicial
Judicial
Administrative
Natural person having

direct
and
personal
interest in the correction
of error in an entry in the
civil register
A natural person having direct

and personal interest in the
change of first name or
nickname in the civil register.
RTC of the province in RTC of the province where

which
the
person the civil registry is located
desiring to change his
name resides.
The local civil registry office of

the city or municipality where the
record being sought to be
corrected/changed is kept.
1. The person desiring to

change his name
2. Some other person on
Who May File
his behalf
EXCEPTIONS:
(1) If the petitioner has already
migrated to another place in
the country, the petition shall
be filed with local civil
registrar of the place where
the interested party is
presently
residing
or
domiciled
Where Filed
(2) If the petitioner is a Filipino

citizen presently residing or
domiciled in a foreign country,
the petition shall be filed in
the
nearest
Philippine
Consulate.
Standing of
the LCR
Notice
requirement
Not a party to the Made a party to the

proceeding
proceeding
as
a
respondent
No mention of notice to The court shall cause
be sent
reasonable notice to be
given to persons named in
the petition
PAGE 242
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Title: In Re: Petition for
Change of Name of X,
also known as Y and Z, to
ABC. X, Petitioner.
Names or Aliases of the
Applicant (must appear
in the caption of the
petition)
Omission is fatal to the
petition
Rule 108
RA 9048
(1) Facts necessary to establish
the merits of the petition.
(2) A showing that the petitioner
is competent to testify to the
matters stated.
(3) Particular erroneous entry or
entries which are sought to
be corrected and/or the
change sought to be made.
To allow a reader of the

published petition to
notice the said aliases
Contents of
Petition
REMEDIAL LAW
Petitioner has been a

bona fide resident of the
province
where
the
petition is filed for at
least 3 years prior to the
date of such filing.
Cause for which the
change of the petitioner's
name is sought
Petitioner must show a
proper or compelling
reason for the change of
name + the fact that he
will be prejudiced by the
use of his official name.
Name asked for
The petition shall be Verified petition
signed and verified.
Form of
Petition
PAGE 243
(1) In the form of an affidavit

(2) Verified
(3) Subscribed and sworn to
before
any
person
authorized by law to
administer oaths.
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
(1) Filing of petition for
change of name.
REMEDIAL LAW
Rule 108
(1) Filing of petition
RA 9048
(1) Filing of petition and its
supporting papers in 3 copies
(2) Court
shall
to be distributed to:
promulgate an order
The concerned city or
fixing the time and
municipal civil registrar or
place for hearing the
the consul general
petition and cause
The Office of the Civil
reasonable notice to
Registrar General
be given to the
The petitioner
persons named in the
petition.
(2) The City or Municipal
(2) Court
shall
promulgate an order
fixing a date and
place for hearing the
petition. The date set
for the hearing shall
NOT be:
Within 30 days prior to
an election AND
Registrar or the Consul
Within 4 months after Civil registrar and all
General shall post the
the last publication of persons who have or claim
petition in a conspicuous
the notice.
any interest which would
place for ten 10 consecutive
be affected thereby shall
(1) Court shall direct a be made parties to the
days after he finds the
copy of the order to proceeding
petition and its supporting
be published before
documents sufficient in form
(1) Court shall direct a
the hearing
and substance.
copy of the order to be
published before the (3) The petition shall be
At least once a week
Procedure for
hearing
for 3 successive
published at least once a
Changing of
weeks
At least once a week for
week for 2 consecutive weeks
Name
3 successive weeks
in a newspaper of general
In some newspaper
circulation.
of general circulation
In some newspaper of
published in the
general
circulation
province.
published
in
the (4) The City or Municipal
Registrar or the Consul
province.
General shall render a
(2) Hearing shall be
(2)
File
opposition
decision not later than 5
conducted.
Within 15 days from
working days after the
The SolGen or the
notice of the petition or
proper provincial or
completion of the posting
from the last date of
city
fiscal
shall
and/
or
publication
publication
appear on behalf of
requirement.
He
shall
the Government of
transmit
a
copy
of
his
(3) Hearing
shall
be
the Republic.
decision together with the
conducted.
records of the proceedings to
(3) Judgment granting
the Office of the Civil
or
denying
the
Court may expedite the
proceedings and also
Registrar General within 5
change of name.
grant
preliminary
working days from the date
injunction
for
of the decision.
preservation of rights of
the parties
PAGE 244
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Rule 103
Rule 108
RA 9048
(4) Copy of judgments (4)Judgment granting or
shall be furnished the
denying the change of Where the petition is denied by
the city or municipal civil
civil registrar of the
name.
registrar or the consul
municipality or city
general, the petitioner may
where the court (5)Copy of judgments
either appeal the decision to
shall be furnished the
issuing the same is
the civil registrar general or
civil registrar concerned
situated, who shall
file the appropriate petition
who
shall
annotate
the
with the proper court.
forthwith enter the
same in the records
same in the civil
(5) The Civil Registrar General
register.
shall, within 10 working days
from receipt of the decision
granting a petition, exercise
the power to impugn such
decision by way of an
objection.
Grounds for objection
(a) The error is not clerical or
typographical
(b) The correction of an entry
or entries in the civil
register is substantial or
controversial as it affects
the civil status of a person
(c) The basis used in
changing the first name or
nickname of a person
does not fall under one of
the valid grounds.
If the civil registrar general fails
to exercise his power to impugn
the decision of the city or
municipal registrar or of the
consul general within the
period, such decision shall
become final and executory.
(6) The civil registrar general
shall immediately notify the
city or municipal civil
registrar or the consul
general of the action taken
on the decision.
PAGE 245
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Rule 108
REMEDIAL LAW
RA 9048
(7) Upon receipt of the notice
thereof, the city or municipal
civil registrar or the consul
general shall notify the
petitioner of such action.
(8) Appeal. The petitioner may
seek reconsideration with the
civil registrar general or file
the appropriate petition with
the proper court.
Any interested person

Opposition
Grounds for
Change of
Name
Republic v. Hernandez
(1996)
Valid
Grounds
for
Change of Name
(1) The
name
is
ridiculous, tainted
with dishonor or
extremely difficult to
write or pronounce.
(2) Change results as a
legal consequence
of legitimation
(3) The change will
avoid confusion.
(4) A sincere desire to
adopt a Filipino
name to erase signs
of former alienage
(Ang
Chay
vs.
Republic, 1970)
(5) Having continuously
used and been
known
since
childhood by a
Filipino
name,
having
been
unaware of alien
parentage (Uy vs.
Republic, 1965)
Civil registrar and any

person having or claiming
interest under the entry
whose cancellation or
correction is sought
Entries
subject
to
cancellation or correction:
(1) Birth
(2) Marriage
(3) Death
(4) Legal separation
(5) Judgment
of
annulment
(6) Judgment declaring
marriage null and
void
(7) Legitimation
(8) Adoption
(9) Acknowledgment of
natural children
(10) Naturalization
(11) Election, loss or
recovery
of
citizenship
(12) Civil interdiction
(13) Judicial
determination
of
filiation
(14) Voluntary
emancipation
of
minor
(15) Changes of name
PAGE 246
N/A
NOTE: The Civil Registrar
General is given the power to
object to the decision of the
Local Civil Registrar.
Sec. 4: Grounds for Change of
First Name or Nickname
(1) The first name or nickname
is ridiculous, tainted with
dishonor
or
extremely
difficult
to
write
or
pronounce.
(2) The new first name or
nickname
has
been
habitually and continuously
used by the petitioner and
he has been publicly known
by the first name or
nickname in the community.
(3) The change will avoid
confusion.
Change of Name and

Cancellation or Correction
of Entries in the Civil
Registry
Oshito vs. Republic (1967)

Verification is a formal, not a jurisdictional,
requirement. The lack of verification is not a
ground for dismissing the petition. However,
before setting the petition for hearing, the court
should have required the petitioner to have the
petition verified.
Go Chiung Beng vs. Republic (1972)
All aliases of the applicant must be set forth in
the petitions title. Such defect is fatal, even if
said aliases are contained in the body of the
petition.
GROUNDS FOR CHANGE OF

NAME
Republic v. Hernandez (1996)
VALID GROUNDS FOR CHANGE OF

NAME
Secan Kok vs. Republic (1973)

A change of name granted by the court affects
only a petitioner. A separate petition for change
of name must be filed for his/her spouse and
children.
(1) The name is ridiculous, tainted with

dishonor or extremely difficult to write or
pronounce.
(2) Change results as a legal consequence of
legitimation
(3) The change will avoid confusion.
(4) A sincere desire to adopt a Filipino name to
erase signs of former alienage (Ang Chay vs.
Republic, 1970)
(5) Having continuously used and been known
since childhood by a Filipino name, having
been unaware of alien parentage (Uy vs.
Republic, 1965)
Silverio vs. Republic (2007)

A persons first name cannot be changed on the
ground of sex reassignment. RA 9048 does not
sanction a change of first name on the ground
of sex reassignment. Before a person can legally
change his given name, he must present proper
or reasonable cause or any compelling reason
justifying such change. In addition, he must
show that he will be prejudiced by the use of his
true and official name. Silverio failed to show, or
even allege, any prejudice that he might suffer
as a result of using his true and official name.
Rather than avoiding confusion, changing
petitioners first name may only create grave
complications in the civil registry and the public
interest.
Laperal vs. Republic (1962)

Legal separation is not a ground for the female
spouse to apply for a change of name under
Rule 103.
No Yao Siong v. Republic (1966)
The name that can be changed is the name that
appears in the civil register, and not in the
baptismal certificate or that which the person is
known in the community.
No law allows the change of entry in the birth

certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction
of clerical or typographical errors. A correction
in the civil registry involving the change of sex is
not a mere clerical or typographical error. The
birth certificate of petitioner contained no error.
All
entries
therein,
including
those
corresponding to his first name and sex, were all
correct. No correction is necessary.
Ong Huan Tin v. Republic (1967)

An alien may petition for change of name but he
must be domiciled in the Philippines.
PAGE 247
UP LAW BOC
SPECIAL PROCEEDINGS
People vs. Cagandahan (2008)

Intersexuality is a valid ground for change of
name and change of entry of sex in the civil
registry. Where the person is biologically or
naturally intersex the determining factor in his
gender classification would be what the
individual, having reached the age of majority,
with good reason, thinks of his sex. Sexual
development in cases of intersex persons makes
the gender classification at birth inconclusive. It
is at maturity that the gender of such persons is
fixed.
Failure to implead the local civil registrar as well
as all persons who have or claim any interest did
not render the petition fatally defective.
Cagandahan furnished the local civil registrar a
copy of the petition, the order to publish, and all
pleadings, orders or processes in the course of
the proceedings. There was therefore
substantial compliance of the provisions of Rules
103 and 108 of the Rules of Court
Absentees
PURPOSE OF THE RULE
In Re: Petition for Declaration of Absence of
Roberto L. Reyes (1986)
The declaration of absence made in accordance
with the provisions of the Civil Code has for its
SOLE PURPOSE to enable the taking of the
necessary precautions for the administration of
the estate of the absentee.
There is a need to have a person judicially
declared an absentee when:
(1) he has properties which have to be taken
cared of or administered by a representative
appointed by the Court [Article 384, Civil
Code];
(2) the spouse of the absentee is asking for
separation of property [Article 191, Civil
Code]; or
(3) his wife is asking the Court that the
administration of an classes of property in
the marriage be transferred to her [Article
196, Civil Code].
PAGE 248
REMEDIAL LAW
General Rule: No independent action for

declaration of presumption of death [Nicolai v.
Szatrow, 1948)]
Exception: For purpose of contracting a second
marriage [Article 41, Family Code]
WHO MAY FILE; WHEN TO FILE

PETITION FOR APPOINTMENT OF A
REPRESENTATIVE [PAR] TO
PROVISIONALLY REPRESENT
ABSENTEE WHEN A PERSON:
(1) Disappears from his domicile, his

whereabouts being unknown
(2) Has not left an agent to administer his
property or the power conferred upon the
agent has expired. [Sec. 1, Rule 107]
WHO MAY FILE PAR
(1) Any interested party

(2) Relative
(3) Friend [Sec. 1, Rule 107]
PETITION FOR DECLARATION

OF ABSENCE AND
APPOINTMENT OF TRUSTEE OR
ADMINISTRATOR [PDA]
FILED AFTER 2 YEARS:
(1) From the disappearance of and without any

news from the absentee OR
(2) Since the receipt of the last news about him.
FILED AFTER 5 YEARS:
If the absentee left an administrator of his

property. [Sec. 2, Rule 107]
WHO MAY FILE PDA AND BE

APPOINTED
(1) The spouse present

(2) The heirs instituted in a will, who may
present an authentic copy of the same
(3) The relatives who would succeed by the law
of intestacy
(4) Those who have over the property of the
absentee some right subordinated to the
condition of his death. [Sec. 2, Rule 107]
UP LAW BOC
SPECIAL PROCEEDINGS
WHEN TERMINATED
(1) Absentee appears personally or through an
agent
(2) Absentees death is proved and heirs appear
(3) Third person appears, showing that he
acquired title over the property of the
absentee
Cancellation or Correction
of Entries in the Civil
Registry
ENTRIES SUBJECT TO
CANCELLATION OR
CORRECTION UNDER RULE 108,
IN RELATION TO RA 9048
REMEDIAL LAW
APPROPRIATE ADVERSARY PROCEEDING

One where the trial court has conducted
proceedings where all relevant facts have been
fully and properly developed, where opposing
counsel have been given opportunity to
demolish the opposite partys case, and where
the evidence has been thoroughly weighed and
considered. [Elosida v. Local Civil Registrar of
Quezon City (2002)]
PROCEDURAL
REQUIREMENTS
ADVERSARY PROCEEDING
OF
AN
Parties Civil registrar and all persons who

have or claim any interest which would be
affected are made parties [Sec. 3, Rule 108]
Notice and publication Reasonable notice to
be given to the persons named in the petition,
and publication once a week for 3 consecutive
weeks [Sec. 4, Rule 108]
Opposition 15 days from notice of petition, or
from last date of publication of notice [Sec. 5,
Rule 109]
RULE 108: SUBSTANTIAL CHANGES IN
ENTRIES IN THE CIVIL REGISTRY,

EXCLUDING NAME (GOVERNED BY RULE
103)
Substantial Change change that affects the
civil status, citizenship, or nationality of a party.
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
(6) Judgments declaring marriages void from
the beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name [Sec. 2, Rule 108]
Such changes have public interest implications
and must only be made upon approval of the
Court.
Cancellation or correction of substantial errors
is allowed provided proceeding is adversary.
[Chiao Ben Lim v. Zosa (2004)]
PAGE 249
UNDER RA 9048, AS AMENDED BY

RA 10172: CLERICAL OR
TYPOGRAPHICAL ERRORS
General Rule: Entry in a civil register shall be
changed or corrected with a judicial order.
Exception:
Clerical or typographical errors and
Change of first name or nickname, the day and
month in the date of birth or sex of a person
where it is patently clear that there was a
clerical or typographical error or mistake in the
entry, which can be corrected or changed by the
concerned city or municipal civil registrar or
consul general in accordance with the
provisions of this Act and its implementing rules
and regulations. [Sec. 1, RA 9048, as amended]
Clerical or typographical error - A mistake
committed in the performance of clerical work
in writing, copying, transcribing or typing an
entry in the civil register that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the
understanding (Patent)
UP LAW BOC
SPECIAL PROCEEDINGS
(3) Can be corrected or changed only by

reference to other existing record or
records
(4) Does not involve the change of
nationality, age, status or sex of the
petitioner. [Sec. 2(3), RA 9048, as
amended]
The procedure recited in Rule 103 regarding
change of name and in Rule 108 concerning the
cancellation or correction of entries in civil
registry are separate and distinct. They may not
be substituted one for the other. If both reliefs
are to be sought in the same proceedings all the
requirements of Rule 103 and 108 must be
complied with. [Republic v. Valencia (1986)]
Appeals
in
Proceedings
Special
JUDGMENTS AND ORDERS FOR

WHICH APPEAL MAY BE TAKEN
(1) If it allows or disallows a will
(2) If it wholly determines who are the lawful
heirs or the distributive shares
(3) If it wholly or partially allows or disallows a
claim against a decedents estate, or any
claim presented on the decedents estate, or
any claim presented on the estates behalf
on offset to claim against it
(4) If it settles the account of an
executor/administrator/trustee/guardian
(5) If it constitutes a final determination in the
lower court of the rights of the party
appealing in proceedings relating to estate
settlement or administration of a
trustee/guardian
Exception: Appointment of a special
administrator is not appealable
Remedy: Petition for certiorari under Rule
65, if there is grave abuse of discretion.
(6) If it is the final order/judgment rendered in
the case, and affects the substantial rights
of the person appealing [Sec. 1, Rule 109]
Exception: Orders granting/denying a
MFR/MNT
PAGE 250
REMEDIAL LAW
While some of the items in Rule 109. Sec. 1 may

be considered as interlocutory under ordinary
special actions, the nature of special
proceedings declares them as appealable as
exceptions to Rule 41, Sec. 1.
WHEN TO APPEAL
In a special proceeding, the period of appeal is
30 days. [Sec. 3, Rule 41]
The appeal period may be interrupted by the
filing of an MFR/MNT. Once the appeal period
expires without an appeal/MF/MNT, the order
becomes final. [Sec. 3, Rule 41]
However, habeas corpus, amparo and habeas
data cases have different periods of appeal. See
Annex A.
MODES OF APPEAL
NOTICE and RECORD ON APPEAL
REQUIRED [Sec. 3, Rule 41]
Rule 109 contemplates multiple appeals during
the pendency of special proceedings. A record
on appeal in addition to the notice of appeal
is thus required to be filed as the original
records of the case should remain with the trial
court to enable the rest of the case to proceed in
the event that a separate and distinct issue is
resolved by said court and held to be final.
However, a record on appeal is not necessary
where no other matter remained to be heard
and determined by the trial court after it issued
the appealed order granting the petition for
cancellation of birth record and change of
surname in the civil registry. [Republic v. Nishina
(2010)]
RULE ON ADVANCE
DISTRIBUTION
Notwithstanding a pending controversy/appeal
in estate settlement proceedings, the court may
permit that the estates parts which are not
affected by the controversy/appeal be
distributed, upon compliance with Rule 90. [Sec.
2, Rule 109]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Annex A
WRIT MATRIX (Comparison of the Writs)
WHC Writ of Habeas Corpus
WD Writ of Habeas Data
RWD Rules on Habeas Data
CA - Court of Appeals
RTC Regional Trial Court
Nature, scope,
function
Limitations
Who may file
Habeas Corpus
1. All cases of illegal
confinement and detention
which any person is
deprived of his liberty
2. Deprived of rightful
custody of any person is
withheld from the person
entitled [Sec. 1]
Actual violation before writ
issues. Note Villavicencio v.
Lukban on applicability of
the writ in case of
constructive restraint.
May be suspended in cases
of invasion or rebellion
when public safety requires
it [Art. III Sec. 15, 1987
Const.]
By a petition signed and
verified by the party for
whose relief it is intended,
or by some person on his
behalf [Sec. 3]
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Amparo
Involves right to life, liberty
and security violated or
threatened with violation by
an unlawful act or omission
of a public official or
employee or a private
individual or entity
Habeas Data
Involves the right to privacy
in life, liberty or security
violated or threatened by
an unlawful act or omission
of a public official or
employee, or of a private
individual or entity engaged
in the gathering, collecting
It covers extralegal killings or storing of data or
and
enforced information regarding the
disappearances or threats person, family, home and
thereof. [Sec. 1]
correspondence of the
aggrieved party. [Sec. 1]
Shall not diminish, increase Shall not diminish, increase
or modify substantive rights or modify substantive rights
[Sec. 23]
[Sec. 23]
Petition filed by the
aggrieved party or by any
qualified person or entity in
the following order:
(1) Any member of the
immediate family
(2) Any ascendant,
descendant or
collateral relative of
the aggrieved within
the 4th civil degree of
consanguinity or
affinity
(3) Any concerned citizen,
organization,
association or
institution
Filing by the aggrieved
suspends the right of all
others [Sec. 2]
PAGE 251
Any aggrieved party may

file a petition for the WHD
However, in cases of
extralegal killings and
enforced disappearances,
the petition may be filed by
(also successive):
(1) Any member of the
immediate family of
the aggrieved
(2) Any
ascendant,
descendant
or
collateral relative of
the aggrieved party
within the fourth civil
degree
of
consanguinity
or
affinity [Sec. 2]
UP LAW BOC
Where filed
Where
enforceable
Where
returnable
SPECIAL PROCEEDINGS
Habeas Corpus
Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within his judicial district
(Sec. 2)
(4) MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region [Sec. 35
BP 129]
If SC or CA issued,
anywhere in the Philippines
If granted by the RTC or
judge
thereof,
it
is
enforceable in any part of
the judicial region [Sec 21,
BP 129 which modified the
term judicial district in Sec 2,
Rule 102 into judicial region]
where the judge sits
Amparo
Filed on any day and at any
time:
(1) SB, CA, SC, or any
justice of such courts
(2) RTC of place where
the threat, act, or
omission
was
committed or any
element
occurred
[Sec. 4]
REMEDIAL LAW
Habeas Data
Petition may be filed with
RTC where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored, at the
option of petitioner
If public data files of
government offices, petition
shall be filed with the SC,
CA, or SB [Sec. 3]
Writ shall be enforceable Writ shall be enforceable

anywhere in the Philippines anywhere in the Philippines
[Sec. 4]
[Sec. 3]
If the one that granted the If the one that granted the If issued by:
writ:
writ:
(1) The SC or any of its
(1) Is the SC or CA, or a (1) Is the SC or any of its
justices, before such
member
thereof,
justices,
returnable
Court or any justice
returnable before such
before such court or
thereof, or CA or SB or
court or any member
any justice thereof, or
any of its justices, or
thereof or an RTC
before the SB or CA or
the RTC of the place
(2) An RTC, or a judge
any of their justices, or
where the petitioner
thereof,
returnable
to any RTC of the
or
respondent
before himself [Sec. 2]
place
where
the
resides/has
threat, act or omission
jurisdiction over the
was committed or any
place where the data
of
its
elements
or information is
occurred
gathered, stored or
collected
PAGE 252
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
Docket Fees
Essential
allegations/
Contents of
petition
Upon the final disposition

of such proceedings the
court or judge shall make
such order as to costs as
the case requires [Sec. 19]
Signed and verified either

by the party for whose relief
it is intended or by some
person on his behalf,
setting forth:
(1) The person in whose
behalf whose the
application is made is
imprisoned
or
(2) Name of the person
detaining another or
assumed appellation
(3) Place where he is
imprisoned
or
(4) Cause of detention
[Sec. 3]
Amparo
(2) The SB or CA or any of
their
justices,
returnable before such
court or any justice
thereof, or to any RTC
of the place where the
threat,
act,
or
omission
was
committed or any of
its elements occurred
(3) The RTC or any judge
thereof,
returnable
judge [Sec. 3]
REMEDIAL LAW
Habeas Data
(2) The CA or SB or any of
its justices, before
such court or any
justice thereof, or the
RTC
(same
with
scenario: SC issued
and then returned in
RTC)
(3) RTC,
returnable
judge [Sec. 4]
Petitioner
shall
be None for indigent petitioner
exempted
from
the
payment of the docket and Petition shall be docketed
other lawful fees
and
acted
upon
immediately,
without
Court, justice or judge shall prejudice to subsequent
docket the petition and act submission of proof of
upon it immediately [Sec 4] indigency not later than 15
days from filing [Sec. 5]
Signed and verified and Verified and written petition
shall allege:
shall contain:
(1) The
personal (1) Personal
circumstances of the
circumstances
of
petitioner
petitioner
and
(2) Name or appellation
respondent
and circumstances of (2) Manner the right to
the respondent
privacy is violated or
(3) The right to life,
threatened and its
liberty, and security
effects
violated or threatened (3) Actions and recourses
with violation,
taken by the petitioner
(4) The
investigation
to secure the data or
conducted, if any, plus
information
circumstances of each
(4) The location of the
(5) The
actions
and
files, registers, or
recourses taken by the
databases,
the
petitioner
government
office,
(6) Relief prayed for
and the person in
charge or control
May include a general (5) The reliefs prayed for
prayer for other just and
equitable reliefs [Sec. 5]
Such other relevant reliefs
as are just and equitable
[Sec. 6]
PAGE 253
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
When proper
Service
Court or judge must, when

a petition is presented and
it appears that it ought to
issue, grant the same and
then:
the clerk of court (CoC)
shall issue the writ under
the seal of the court or
in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it
Habeas Data
Upon the filing of the

petition, the court, justice,
or judge shall immediately
order the issuance of the
writ if on its face it ought to
issue
CoC shall issue the writ
under the seal of the
court or
In case of urgent
necessity, the justice or
the judge may issue the
writ under his or her own
hand, and may deputize
Also proper to be issued
any officer or person to
when the court or judge
serve it. [Sec. 6]
has examined into the
cause of restraint of the
prisoner, and is satisfied
that he is unlawfully
imprisoned [Sec. 5]
Upon filing of the petition,

the court, justice, or judge
shall immediately order the
issuance of the writ if on its
face it ought to issue.
CoC shall issue the writ
under the seal of the
court and cause it to be
served within 3 days from
issuance or
In case of urgent
necessity, the justice or
judge may issue the writ
under his or her own
hand, and may deputize
any officer or person to
serve it [Sec. 7]
Writ may be served in any

province by the
(a) sheriff,
(b) other proper officer, or
(c) person deputed by the
court or judge
The writ shall be served

upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on which
to make a return of service
In case the writ cannot
be served personally on
the respondent, the
rules on substituted
service shall apply
[Sec. 8]
The writ shall be served

upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on which
to make a return of service
In case the writ cannot be
served personally on the
respondent, the rules on
substituted service shall
apply [Sec. 9]
May or may not be an Respondent is a public

officer [Sec. 6]
official or employee or
private individual or entity
[Sec. 1]
A
public
official
or
employee or a private
individual or entity engaged
in gathering, collecting or
storing data [Sec. 1)
Service is made by leaving

the original with the person
to whom it is directed and
preserving a copy on which
to make return of service
If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
[Sec. 7]
Respondent
Amparo
REMEDIAL LAW
PAGE 254
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Habeas Corpus
Amparo
Habeas Data
The officer to whom the Respondent files the return Respondent files the return
writ is directed shall convey [Sec. 9]
[Sec. 10]
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
How executed
and returned
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 [Sec. 8]
When to file
return
Contents of
return
On the day specified on the Within 5 working days after Same with WA [Sec. 10]
writ [Sec. 8]
service of the writ [Sec. 9]
When the person to be
produced is imprisoned or
restrained by an officer, the
person who makes the
return shall state, and in
other cases the person in
whose custody the prisoner
is found shall state in
writing to the court or judge
before whom the writ is
returnable:
(1) Truth of custody/
power
over
the
aggrieved party
(2) If he has custody or
power,
or
under
restraint, the authority
and the cause thereof,
with a copy of the writ,
order, execution or
other process, if any
upon which the party
Within 5 working days after

service of the writ, the
respondent shall file a
verified written return
together with supporting
affidavits
which
shall,
contain:
(1) Lawful defenses
(2) The steps or actions
taken to determine
the
fate
or
whereabouts of the
aggrieved party
(3) All
relevant
information in the
possession of the
respondent pertaining
to the threat, act or
omission against the
aggrieved party
PAGE 255
(1) Lawful defenses such

as national security,
state
secrets,
privileged
communications,
confidentiality of the
source of information
of media etc.
(2) In case of respondent
in
charge,
in
possession
or
in
control of the data or
information subject of
the petition:
(a) A disclosure of the
data or info about
the petitioner, the
nature of such
data
or
information, and
the purpose for its
collection
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
is held
(3) If the party is in his
custody or power, and
is
not
produced,
particularly the nature
and gravity of the
sickness or infirmity
(4) If he has had the party
in his custody or
power,
and
has
transferred
such
custody or restraint to
another, particularly to
whom, at what time,
for what cause, and by
what authority such
transfer was made.
[Sec. 10]
Formalities of
return
Penalties
For refusing to
issue or serve
For faulty
return
Return or statement shall

be signed and sworn to by
the person who makes it if
the
prisoner
is
not
produced,
Unless the return is made
and signed by a sworn
public officer in his official
capacity [Sec. 11]
CoC who refuses to issue
the writ after allowance
and demand, or
A person to whom a writ
is directed, who:
(1) neglects/refuses to
obey or make return
of the same according
to the command
thereof,
(2) or makes false return,
(3) or upon demand
made by or on behalf
of
the
prisoner,
refuses to deliver to
the
person
Amparo
(4) If the respondent is a
public
official
or
employee, the return
shall further state
acts:
(a) To verify identity
of aggrieved party
(b) To recover and
preserve evidence
(c) To identify and
collect
witness
statements
(d) To
determine
cause,
manner,
location, and time
of
death
or
disappearance
(e) To identify and
apprehend
persons involved
(f) Bring suspected
offenders before a
competent court
[Sec.9]
the respondent shall file a
affidavits [Sec. 9]

the
writ
after
its
allowance, or
A deputized person who
refuses to serve the
same,
shall be punished by the
court, justice or judge for
contempt without prejudice
to other disciplinary actions
(Sec. 7)
REMEDIAL LAW
Habeas Data
(b) The
steps or
actions taken by
the respondent to
ensure
the
security
and
confidentiality of
the
data
or
information
(c) The currency and
accuracy of the
data
or
information held
Other allegations relevant
to the resolution of the
proceeding [Sec.10]
Respondent shall file a

affidavits [Sec. 10]

the
writ
after
its
allowance, or
A deputized person who
refuses to serve the same,
shall be punished by the
court, justice, or judge for
contempt without prejudice
to other disciplinary actions
(RWD Sec. 8)
The court, justice, or judge

punish
with
The court, justice, or may
judge may order the imprisonment or fine a
respondent who refuses respondent who commits
PAGE 256
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
demanding, within 6
hours a true copy of
the warrant or order
of commitment,
shall forfeit to the party
aggrieved the sum of
P1000, recoverable in a
proper action, and may also
be punished for contempt
[Sec. 16]
Is period of
return
extendable?
Is a general
denial allowed?
Defenses not
pleaded
REMEDIAL LAW
Amparo
Habeas Data
to make a return, or who contempt by:
makes a false return, or (1) Making a false return
any
person
who
or
otherwise disobeys or (2) Refusing to make a
resist a lawful process or
return or
order of the court to be (3) Any
person
who
punished for contempt
otherwise disobeys or
Contempt or may be
resists
a
lawful
imprisoned or imposed
process or order of the
a fine [Sec. 16)
court [Sec. 11]
No, not even on highly Yes, by the court, for
meritorious grounds.
justifiable reasons [Sec. 10]
Not allowed [Sec. 9]
Not allowed [Sec. 10]
If not raised in return

deemed waived [Sec 10]
Court or justice shall Court, judge, or justice shall

proceed to hear the petition hear the motion ex parte,
ex parte [Sec. 12]
granting the petitioner such
reliefs as the petition may
Effect of failure
warrant
to file return
Unless the court in its
discretion requires the
petitioner
to
submit
evidence [Sec. 14]
Summary. However, the Summary. With possibility
court, justice, or judge may of preliminary conference
call for a preliminary similar to the WA [Sec. 14]
conference to simplify the Hearing on chambers may
issues
and
look
at be
conducted
where
possibility of obtaining respondent invokes the
Nature of
stipulations and admissions defense of national security
Hearing
from the parties.
or state secrets, or the data
Hearing shall be from is of privileged character
day to day until [Sec. 12]
completed same priority
as petitions for WHC
[Sec. 13]
As specified in the writ [Sec. As specified in the writ, not As specified in the writ, not
8]
later than 7 days from the later than 10 working days
Date and time
issuance of the writ [Sec. 6] from the date of issuance
of hearing
writ [Sec. 7]
PAGE 257
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
In custody of minors: a
motion to dismiss, except on
the ground of lack of
jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]
Prohibited
pleadings
Clear
and
convincing
evidence [Dizon v. Eduardo
(1988)]
Note: no provision in Rule
Burden of
but in Dizon v. Eduardo, the
Proof/Standard
SC
used
clear
and
of Diligence
convincing evidence, a
stricter
standard
than
preponderance of evidence
but less stricter that proof
beyond reasonable doubt.
Yes. Consonant with Sec.
13, stating that if warrant of
Presumption of
commitment is in pursuance
Official duty
with law, serves as prima
facie cause of restraint
Amparo
Motion to dismiss, Motion for
extension of time to file
opposition, affidavit, position
paper and other pleadings,
Dilatory
motion
for
postponement, Motion for
bill
of
particulars,
Counterclaims or crossclaims,
Third-party
complaint, Reply, Motion to
declare
respondent
in
default,
Intervention,
Memorandum, Motion for
reconsideration
of
interlocutory
orders
or
interim relief orders, petition
for certiorari, mandamus, or
prohibition [Sec.11]
Establish
claims
by
substantial evidence
if respondent is a private
individual or
entity,
ordinary diligence
if public official or
employee, extraordinary
diligence [Sec. 17]
Public official or employee

cannot
invoke
the
presumption that official
duty has been regularly
performed [Sec. 17]
The court shall render
judgment within 10 days
Judgment
from the time the petition is
submitted
for
decision [Sec. 18]
Within 48 hours from notice 5 working days from the date
of the judgment of final of
notice
of
adverse
Appeal
order appealed [Sec. 39, BP judgment to the SC under
129]
Rule 45 [Sec. 19]
Consolidated with a criminal
Consolidation of
action filed subsequent to
actions
the petition [Sec. 23]
Effect of filing
criminal action
REMEDIAL LAW
Habeas Data
Same as WA [Sec. 13, RWD]
Substantial
evidence
required to prove the
allegations in the petition
[Sec. 16]
Within 10 days from the time

the petition is submitted for
decision [Sec. 16]
5 working days from the date

of
notice
of
adverse
judgment to the SC under
Rule 45 [Sec. 19]
Consolidated
with
a
criminal
action
filed
subsequent to the petition
[Sec. 21]
No more separate petition Same as WA [Sec. 21]
shall be filed.
Reliefs
available by motion in the
criminal case [Sec. 22]
PAGE 258
UP LAW BOC
CRIMINAL PROCEDURE
PAGE 259
REMEDIAL LAW
UP LAW BOC
CRIMINAL PROCEDURE
General Matters
JURISDICTION OVER SUBJECT
MATTER AND JURISDICTION
OVER PERSON OF THE ACCUSED
DISTINGUISHED
Jurisdiction over subject
matter
Jurisdiction over person

of the accused
Conferred by law and

can never be acquired
solely by consent of the
accused
May be acquired by
consent of the accused
or by waiver of
objections
Right to object is never

waived; the absence of
jurisdiction over the
subject matter may be
raised at any stage of
the proceeding
Right to object may be

waived; failure of the
accused to object in
time would constitute
waiver
JURISDICTION
MATTER
OVER
SUBJECT
This refers to the right to act or the power and

authority to hear and determine a cause (Gomez
v. Montalban (2008)).
It is conferred by law and determined by the
allegations of the complaint [People v. Catalan
(2012)].
General rule: Under the principle of adherence of
jurisdiction or continuing jurisdiction, where a
court has already obtained and is exercising
jurisdiction over a controversy, its jurisdiction to
proceed to the final determination of the cause is
not affected by new legislation placing
jurisdiction over such proceedings in another
tribunal [Palana v. People (2007)]. It is not
affected by subsequent legislation.
REMEDIAL LAW
JURISDICTION OVER THE PERSON OF

THE ACCUSED
This is acquired either by:

(1) Arrest of the accused; or
(2) Voluntary appearance or submission of the
accused to the jurisdiction of the court
[Antiporda v. Garchitorena (1999), citing Arula
v. Espino (1969)].
Voluntary appearance of the accused is
accomplished by:
(1) By filing pleadings seeking affirmative relief,
except in case of special appearance to
challenge the jurisdiction of the court over the
person is not voluntary submission [Garcia v.
Sandiganbayan (2009)];
(2) By giving bail.
REQUISITES FOR EXERCISE OF

CRIMINAL JURISDICTION
(1) Subject matter jurisdiction, that is, whether or
not the court has jurisdiction over the offense
by virtue of the imposable penalty and its
nature;
(2) Jurisdiction over the person of the accused;
(3) Territorial jurisdiction, which refers to venue or
the place where the case is to be tried.
The action should be instituted and tried in the
municipality or territory where offense has been
committed or where any one of the essential
ingredients thereof took place (Sec. 15(a), Rule
110).
For transitory/ continuing offenses, the courts of
the territories where the essential ingredients of
the crime took place have concurrent jurisdiction.
The first court taking cognizance of the case will
exclude the others [People v. Grospe (1988)].
Exception: The exception is where the succeeding

statute expressly provides, or is construed to the
effect that it is intended to operate to actions
pending before its enactment [Palana v. People
(2007)].
PAGE 260
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
JURISDICTION OF CRIMINAL COURTS

REGULAR (CIVIL) COURTS
MTC/MeTC/MCTC
RTC
Sandiganbayan
(1) Exclusive original jurisdiction

over all violations of city or
municipal
ordinances
committed
within
their
respective
territorial
jurisdiction [Sec. 32(1), BP
129];

in all criminal cases not
within
the
exclusive
jurisdiction of any court,
tribunal or body [Sec. 20, BP
129];

in those cases expressly
enumerated in PD 1606, as
amended by RA 8249,
violations of RA 3019, RA
1379, and Chapter II, Sec. 2,
Title VII, Book II, RPC;

over all offenses punishable
with
imprisonment
not
exceeding
6
years
irrespective of the amount of
fine, and regardless of other
imposable accessory or other
penalties, including the civil
liability arising from such
offenses
or
predicated
thereon, irrespective of kind,
nature, value, or amount
thereof [Sec. 32(2), BP 129];
over
offenses
involving
damage to property through
criminal negligence they
shall have exclusive original
jurisdiction thereof [Sec.
32(2), BP 129; RA 7691];
For Nos. 1-3, cases falling within
the exclusive jurisdiction of the
RTC and Sandiganbayan are
not included.
(1) Cases classified under the
Revised Rules on Summary
Procedure [SC Resolution,
October 15, 1991];
(a) Violations of traffic
laws,
rules,
or
regulations;
(b) Violations of rental law;
(2)
Exclusive
appellate
jurisdiction over all cases
decided by the MTC within
its territorial jurisdiction [Sec.
22, BP 129];
(3) Criminal cases where one or

more of the accused is below
18 years of age but not less
than 15 years, or where one
or more of the victims is a
minor at the time of the
commission of the offense
(RA 9344);
(4)
Cases against minors

cognizable
under
the
Dangerous Drugs Act, as
amended [RA 8369 (Family
Courts Act of 1997)];
(5) Violations of RA 7610 (Child

Abuse Act);
(6) Cases of domestic violence
against women and children.
If an act committed against
women and children likewise
constitute a criminal offense,
the accused or batterer shall
be subject to criminal
proceedings
and
the
corresponding penalties (RA
8369 (Family Courts Act of
1997));
PAGE 261
The officials enumerated are:

(a) Officials of the executive
branch occupying the
positions
of
regional
director
and
higher,
otherwise classified as
Grade 27 and higher, of the
Compensation and Position
Classification Act of 1989
(RA 6758);
(b) Members of Congress
and
officials
thereof
classified as Grade'27'and
up under the Compensation
and Position Classification
Act of 1989;
(c) Members of the judiciary
without prejudice to the
provisions
of
the
Constitution;
(d) Chairmen and members
of
Constitutional
Commissions,
without
prejudice to the provisions
of the Constitution;
(e) All other national and
local officials classified as
Grade 27
UP LAW BOC
CRIMINAL PROCEDURE
MTC/MeTC/MCTC
(c)
Cases where the

penalty prescribed by
law for the offense
charged
is
imprisonment
not
exceeding 6 months, or
a fine not exceeding
P1,000,
or
both,
irrespective of other
imposable
penalties,
accessory or otherwise,
or of the civil liability
arising therefrom;
(d) Offenses involving
damage to property
through
criminal
negligence (imposable
fine does not exceed
P10,000);
REMEDIAL LAW
RTC
Sandiganbayan
(7) Violations of intellectual

property rights [AM 03-0303-SC (2003); RA 8293];
(2) Other offenses or felonies

whether
simple
or
complexed
with
other
crimes committed by public
officials and employees in
relation to their office. The
following must concur:
(a) Accused is any one of the
public
officials
enumerated
in
subsection (a) of Sec. 4 of
RA 8249, grade 27 or
higher
(8) Money Laundering Cases

(RA 9160), except those
committed by public officers
and private persons who are
in conspiracy with such
public officers shall be under
the jurisdiction of the
Sandiganbayan.
(b) Accused commits any

other offense or felony,
than those specified in
subsection (a), whether
simple or complexed with
other crimes
(2) Violations of BP 22 [AM 0011-01-SC (2003)];

(3) Special jurisdiction to decide
on applications for bail in
criminal cases in the
absence of all RTC judges in
a province or city [Sec. 35,
BP 129].
(c) The offender commits

such other offense or
felony in relation to his
office
(3) Cases filed in pursuant to
and in connection with EO 1,
2, 14, 14-A (1986).
MILITARY COURTS
General rule: Ordinary courts will have jurisdiction

over cases involving members of the armed
forces, and other persons subject to military law,
regardless of who the co-accused or victims are.
Exception: When the offense is service-oriented, it
will be tried by the court martial, provided that
the President may, in the interest of justice, order
or direct, at any time before arraignment, that
any such crimes or offenses be tried by the proper
civil courts.
WHEN INJUNCTION MAY BE

ISSUED TO RESTRAIN CRIMINAL
PROSECUTION
Exceptions:
(1) When necessary in the protection of the
constitutional rights of the accused;
(2) When necessary for the orderly administration
of justice or to avoid oppression or multiplicity
of suits;
(3) Where there is a prejudicial question which is
sub judice;
(4) Where acts of the officer are without or in
excess of authority;
(5) When the prosecution in under an invalid law
or stature;
(6) When double jeopardy is apparent;
(7) Where the charges are manifestly false;
(8) Where there is no prima facie case and a
motion to quash has been denied.
General rule: Courts will not issue injunction.
PAGE 262
UP LAW BOC
CRIMINAL PROCEDURE
Prosecution of Offenses
REMEDIAL LAW
WHO MAY FILE; CRIMES THAT

CANNOT BE PROSECUTED DE
OFFICIO
CRIMINAL ACTIONS; HOW

INSTITUTED
CASES THAT CANNOT BE

PROSECUTED DE OFFICIO
IN GENERAL
A criminal action is commenced by the filing of a

complaint or information. The complaint may be
filed either with the MTC or with a public
prosecutor for purposes of conducting a
preliminary investigation.
(1) Adultery and concubinage [Sec. 5, Rule 110];

(2) Seduction, abduction, and acts of
lasciviousness;
(3) Defamation which consists of imputation of
any of the foregoing offenses.
OFFENSES REQUIRING PRELIMINARY

INVESTIGATION
WHO MAY FILE COMPLAINT
For offenses which require preliminary

investigation (i.e., under Sec. 1, Rule 112, where the
penalty prescribed by law is at least four years,
two months and one day), the criminal action is
instituted by filing the complaint with the
appropriate officer for preliminary investigation
[Sec. 1(a), Rule 110].
OTHER OFFENSES
For all other offenses, or in offenses cognizable

by inferior courts (MTCs or MCTCs), the complaint
or information is filed directly with said courts or
the complaint is filed with the fiscal [Sec. 1(b),
Rule 110].
METROPOLITAN MANILA AND OTHER

CITIES
In Metropolitan Manila and other chartered cities,

the complaint shall be filed with the office of the
public prosecutor unless otherwise provided in
their charters [Sec. 1(b), Rule 110].
(1) For adultery and concubinage, the offended

spouse. Both guilty parties should be included if
both are alive [Sec. 5, Rule 110]. However,
prosecution will not prosper if the offended party
consented to the offense.
(2) For seduction, abduction and acts of
lasciviousness, the offended party or her parents,
grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by them
[Sec. 5, Rule 110].
General rule: If the offended party is a minor, he
or she has the right to initiate the prosecution of
such offenses independently of his/her parents,
grandparents, or guardians.
Exceptions: He may not do so when he is:
(1) Incompetent, or
(2) Incapable of doing so
(3) For oral defamation, the complaint can only
be brought upon instance and upon complaint
of the offended party.
EVENTS SUBSEQUENT TO FILING
EFFECT OF INSTITUTION ON
PRESCRIPTIVE PERIOD
The institution of a criminal action shall interrupt

the running of the period of prescription of the
offense charged unless otherwise provided in
special laws [Sec. 1, Rule 110].
As per People v. Pangilinan (2012), there is no
more distinction between cases under the RPC
and those covered by special laws with respect to
the interruption of the period of prescription.
DEATH OF OFFENDED PARTY

Death after filing the complaint would not
deprive the court of the jurisdiction. The State
shall initiate the action on behalf of the offended
party in case of his death/incapacity and he has
no known parents/grandparents/guardians.
In adultery/concubinage, death does
extinguish the criminal liability of accused.
PAGE 263
not
UP LAW BOC
CRIMINAL PROCEDURE
DESISTANCE BY OFFENDED PARTY

Desistance does not bar the People of the
Philippines from prosecuting the criminal action,
but it operates as a waiver of the right to pursue
civil indemnity.
PARDON BY OFFENDED PARTY
(1) In rape, seduction, abduction and acts of
lasciviousness of a minor, the pardon will be
effective if given by both parents and the
offended party;
(2) In seduction, abduction and acts of
lasciviousness, express pardon by the offended
party, parents, grandparents or guardian will
prevent prosecution [Sec. 5, Rule 110]:
(a) The parents/grandparents/guardian of the
offended minor (in that order) cannot
extend a valid pardon without conformity of
the offended party, even if the latter is a
minor [US v. Luna (1902)];
(b) If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.
General rule: Pardon must be made before the
filing of the criminal complaint in court.
Exception: In rape, where marriage between the
offender and the offended party would be
effective as pardon even when the offender has
already commenced serving his sentence.
If there is more than one accused, the pardon
must be extended to all offenders.
Pardon or desistance extinguishes civil liability.
Pardon or express condonation has the effect of
waiving the civil liability with regard to the
interest of the injured party. Liability arising from
an offense is extinguished in the same manner as
other obligations.
Pardon
Consent
Refers to past acts
Refers to future acts
In order to absolve
the accused from
liability, it must be
extended to both
offenders
In order to absolve
the accused from
liability,
it
is
sufficient even if
granted only to the
offending spouse
CRIMINAL
ENJOINED
REMEDIAL LAW
ACTIONS;
WHEN
General rule: The prosecution of a criminal case

may not be enjoined by prohibition/injunction
[Domingo v. Sandiganbayan (1986)]
Exceptions:
(1) To afford protection to the constitutional rights
of the accused;
(2) Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
(3) There is a prejudicial question which is sub
judice;
(4) The acts of the officer are without or in excess
of authority;
(5) The prosecution is under an invalid
law/ordinance/regulation;
(6) When double jeopardy is clearly apparent;
(7) The court has no jurisdiction over the offense;
(8) A case of persecution rather than prosecution;
(9) The charges are manifestly false and
motivated by the lust for vengeance;
(10) There is clearly no prima facie case against
the accused and MTQ on that ground has
been denied [Samson v. Guingona (2000)];
(11) Preliminary injunction has been issued by the
SC to prevent the threatened unlawful arrest
of petitioners.
CONTROL OF PROSECUTION
General rule: All criminal actions commenced by

a complaint or information shall be prosecuted
under the direction and control of the prosecutor
[Sec. 5, Rule 110].
Exception: In case of heavy work schedule of the
public prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be
authorized in writing by the Chief of the
Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to the
approval of the court.
However, the criminal action is still prosecuted
under the direction and control of the public
prosecutor [Riano (2011)].
PAGE 264
UP LAW BOC
CRIMINAL PROCEDURE
EXTENT OF PROSECUTORS CONTROL

PRIOR TO FILING OF THE CASE
These matters are within the control and
supervision of the prosecutor:
(1) What case to file;
(2) Whom to prosecute;
(3) Manner of prosecution;
(4) Right to withdraw information before
arraignment even without notice and hearing.
AFTER FILING OF THE CASE
It is the prosecutors duty to proceed with the
presentation of his evidence. The prosecutor has
no power to dismiss the action without the courts
consent.
LIMITATIONS OF CONTROL BY THE COURT
(1) The prosecution is entitled to notice of hearing;
(2) The court must await for a petition for review
(maximum of 60 days);
(3) The prosecutions stand to maintain
prosecution should be respected by the court;
(4) The court must make its own independent
assessment of evidence in granting or
dismissing motion to dismiss; otherwise, the
judgment is void.
EFFECTS OF LACK OF INTERVENTION OF
FISCAL
Although the private prosecutor had previously
been authorized by the special counsel to present
the evidence for the prosecution, in view of the
absence of the City Fiscal at the hearing, it cannot
be said that the prosecution of the case was
under the control of the City Fiscal. It follows that
the evidence presented by the private prosecutor
at said hearing could not be considered as
evidence for the plaintiff [People v. Beriales
(1976)].
SUFFICIENCY OF COMPLAINT OR
INFORMATION
DEFINITION
Sec. 3, Rule 110. A complaint is a sworn written
statement charging a person with an offense,
subscribed by the offended party, any peace
officer or other public officer charged with the
enforcement of the law violated
REMEDIAL LAW
An information is an accusation in writing,

charging a person with an offense, subscribed by
the prosecutor and filed with the court [Sec. 4,
Rule 110; People v. Cinco (2009)].
TEST OF SUFFICIENCY
A complaint or information is sufficient if it states:

(1) The name of the accused;
(2) The designation of the offense given by the
statute;
(3) The acts or omissions complained of as
constituting the offense;
(4) The name of the offended party;
(5) The approximate date of the commission of
the offense; and
(6) The place where the offense was committed
[Sec. 6, Rule 110].
The test for sufficiency of the complaint or
information is whether the crime is described in
intelligible terms with such particularity as to
apprise the accused with reasonable certainty of
the offense charged [Lazarte v. Sandiganbayan
(2009)].
An accused is deemed to have waived his right to
assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
participated in the trial [Frias v. People (2007)].
Consequently, objections as to form cannot be
made for the first time on appeal. The accused
should have moved for a bill of particulars or for
quashal of information before arraignment,
otherwise he is deemed to have waived his
objections to such a defect [People v. Teodoro
(2009)].
DESIGNATION OF OFFENSE
The complaint of information shall:
(1) State the designation of the offense given by
the statute;
(2) Aver the acts and omissions constituting the
offense; and
(3) Specify the qualifying and aggravating
circumstances.
If there is no designation of the offense, reference
shall be made to the section or section of the
statute punishing it [Sec. 8, Rule 110].
PAGE 265
UP LAW BOC
CRIMINAL PROCEDURE
This is a procedural requirement to safeguard the

right of the accused to be informed of the nature
and cause of the accusation against him.
Specific acts of accused do not have to be
described in detail in the information, as it is
enough that the offense be described with
sufficient particularity to make sure the accused
fully understands what he is being charged with
[Guy v. People (2009)].
CAUSE OF THE ACCUSATION

IN GENERAL
The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated
(1) In ordinary and concise language; and
(2) Not necessarily in the language used in the
statute; but
(3) In terms sufficient to enable a person of
common understanding to know what offense
is being charged as well as its qualifying and
aggravating circumstances and for the court
to pronounce judgment [Sec. 9, Rule 110].
Qualifying and aggravating circumstances must
be alleged. Otherwise, they are not to be
considered even if proven during the trial.
WHERE
THE
EXCEPTIONS
LAW
PRESCIBES
General rule: Where the law alleged to have been

violated prohibits generally acts therein defined
and is intended to apply to all persons
indiscriminately,
but
prescribes
certain
limitations/exceptions from its violation, the
indictment/information is sufficient if it alleges
facts which the offender did as constituting a
violation of law, without explicitly negating the
exception, as the exception is a matter of defense
which the accused has to prove.
Exception: Where the statute alleged to have
been violated applies only to specific classes of
persons and special conditions and the
exemptions from its violation are so incorporated
in the language defining the crime that the
ingredients of the offense cannot be accurately
and clearly set forth if the exemption is omitted,
then the indictment must show that the accused
REMEDIAL LAW
does not fall within the exemptions. Simply put, if

the exception is needed for defining the offense,
then the information should negate the exception
[US v. Chan Toco (1908)].
WHERE COMPLEX CRIME IS CHARGED
Where what is alleged in the information is a

complex crime and the evidence fails to support
the charge as to one of the component offenses,
the defendant can only be convicted of the
offense proven.
DUPLICITY OF THE OFFENSE;

EXCEPTION
Duplicity of the offense in an information or
complaint means the joinder of two or more
separate and distinct offenses in one and the
same information or complaint.
General rule: The information must charge only
one offense [Sec. 13, Rule 110].
Exception: Multiple offenses may be charged
when the law prescribes a single punishment for
various offenses.
REMEDY
The filing of a motion to quash is the remedy in

case of duplicity of offense in an information.
Objection to a complaint or information which
charges more than one offense must be timely
interposed before trial (Sec. 3, Rule 120). Failure
to do so constitutes a waiver [People v. Tabio
(2008)] and the court may convict the accused of
as many offenses as are charged and proved, and
impose on him the penalty for each offense [Sec.
3, Rule 120].
MODES OF COMMITTING OFFENSE

NOT DUPLICITOUS
General rule: In case of crimes susceptible of
being committed in various modes, the
allegations in the information of the various ways
of committing the offense would be regarded as a
description of only one offense and information is
not rendered defective.
PAGE 266
UP LAW BOC
CRIMINAL PROCEDURE
Exceptions:
(1) Complex crimes;
(2) Special complex crimes;
(3) Continuous crimes;
(4) Crimes susceptible of being committed in
various modes;
(5) Crimes which another offense is an ingredient
[People v. Camerino (1960)].
AMENDMENT OR SUBSTITUTION
OF COMPLAINT OR
INFORMATION
AMENDMENT
IN
FORM
SUBSTANCE BEFORE PLEA
AND
General rule: It must be made before the accused

enters his plea.
Exception: If the amendment downgrades the
nature of the offense charged in, or excludes any
accused from, the complaint/information, it can
be made only upon motion of the prosecutor,
with notice to the offended party and with leave
of court. The court is mandated to state its
reasons in resolving the motion of the prosecutor
and to furnish all parties, especially the offended
party, of copies of its order [Sec. 14, Rule 110].
AMENDMENT AFTER
DURING TRIAL
PLEA
AND
AS TO FORM
Amendment as to form can only be made under
two conditions:
(1) Leave of court must be secured;
(2) It does not cause prejudice to the rights of the
accused [Sec. 14, Rule 110].
The test as to whether or not a defendant is
prejudiced by the amendment of information is:
(1) Whether or not a defense under the
information as it originally stood would be
available after the amendment is made, and
(2) Whether or not any evidence the defendant
might have would be equally applicable to the
information in the one form as in the other.
[People v. Casey (1981)].
REMEDIAL LAW
AS TO SUBSTANCE
Substantial matter in a complaint is the recital of
facts constituting the offense charged and
determinative of the jurisdiction of the court. All
other matters are merely of form [Almeda v.
Villaluz (1975)].
General rule: Amendment as to substance at this
state of the case is proscribed [People v. Zulueta
(1951)].
Exception: Amendment may be allowed if it is
beneficial to the accused [Ricarze v. CA (2007)].
SUBSTITUTION
Substitution a complaint or information may be
substituted if it appears at any time before
judgment that a mistake has been made in
charging the proper offense, the court shall
dismiss the original complaint or information
upon the filing of a new one charging the proper
offense, provided the accused would not be
placed in double jeopardy [Sec. 14, Rule 110].
Subject to the Sec. 19, Rule 119, when it becomes
manifest at any time before judgment that a
mistake has been made in charging the proper
offense and the accused cannot be convicted of
the offense charged or any other offense
necessarily included therein, the accused shall
not be discharged if there appears good cause to
detain him. The court shall commit the accused
to answer the proper offense and dismiss the
original case upon the filing of the proper
information.
Limitations:
(1) No judgment has yet been rendered;
(2) The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein;
(3) The accused would not be placed in double
jeopardy.
PAGE 267
UP LAW BOC
CRIMINAL PROCEDURE
AMENDMENT AND
DISTINGUISHED
Amendment
SUBSTITUTION
Substitution
Formal or substantial
changes
Substantial changes
Can
be
effected
without leave of court
Must be with leave of

court
Only as to form, there

is no need for another
PI and retaking of plea
Another PI is entailed
and accused has to
plead anew
The
amended
information refers to
the same offense
charged in the original
information or to an
offense
which
is
included in the original
charge; can invoke
double jeopardy
Involves a different
offense which does not
include those provided
in the original charge;
cannot invoke double
jeopardy [Teehankee v.
Madayag (1992)]
VENUE OF CRIMINAL ACTIONS
General rule: In all criminal prosecutions, the

action must be instituted and tried in the courts
of the municipality or territory where:
(1) The offense was committed; or
(2) Any of its essential ingredients occurred [Sec.
15(a), Rule 110].
This is the principle of territoriality. Venue in
criminal cases is jurisdictional. The court has no
jurisdiction to try an offense committed outside
its territorial jurisdiction. It cannot be waived, or
changed by agreement of the parties, or by the
consent of the defendant.
Thus, where an offense is wholly committed
outside the territorial limits wherein the court
operates, said court is powerless to try the case.
For the rule is that one cannot be held to answer
for any crime committed by him except in the
jurisdiction where it was committed [Hernandez v.
Albano (1967)]. The place where the accused was
arrested is of no moment.
Exceptions:
(1) Felonies under Article 2, RPC, which are
cognizable by the proper court where criminal
action was first filed;
REMEDIAL LAW
(2) Those committed on a railroad train, aircraft,

or any other public or private vehicle in the
court of its trip, which may be instituted and
tried in the court of any municipality or
territory where such train, aircraft, or other
vehicle passed during such trip, including
place of departure and arrival;
(3) Those committed on board a vessel in the
course of its voyage, which may be instituted
and tried in the proper court of the first port of
entry or of any municipality or territory
through which vessel passed, subject to the
generally accepted principles of international
law;
(4) Piracy, which has no territorial limits and may
be instituted anywhere [People v. Lol-lo and
Saraw (1922)];
(5) Libel, which may be instituted at the election
of the offended part or suing party in the
province or city, subject to Article 360, RPC;
(6) In cases filed under BP 22, which may be filed
in the place where the check was dishonored
or issued, or in case of a cross-check, in the
place of the depositary or collecting bank;
(7) For violations of RA 10175 (Cybercrime
Prevention Act of 2012), the RTCs have
jurisdiction over any violation of the provisions
of the Act, including any violation committed
by a Filipino national regardless of the place of
commission [Sec. 21];
(8) In exceptional circumstances, where, to
ensure a fair trial and impartial inquiry, the SC
have the power to order a change of venue or
place of trial to avoid miscarriage of justice
[Art. VII, Sec. 5, Constitution)].
INTERVENTION OF OFFENDED
PARTY
General rule: An offended party has the right to
intervene in the prosecution of a crime, where the
civil action for recovery of civil liability is instituted
in the criminal action [Sec. 16, Rule 110].
Note: This is still subject to the control of the
prosecutor [Phil. Rabbit Bus Lines v. People
(2004)].
PAGE 268
UP LAW BOC
CRIMINAL PROCEDURE
Exceptions:
(1) Where, from the nature of the crime and the
law defining and punishing it, no civil liability
arises in favor of a private offended party;
(2) Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has waived
the same or has expressly reserved his right to
institute a separate civil action or he has
already instituted such action;
(3) Offended party has already instituted action
for civil claims.
RESERVATION OF RIGHT TO FILE

CIVIL ACTION
The civil action may also proceed independently

of the criminal action when reservation to
institute the civil action separately is made. The
reservation shall be made before the prosecution
starts presenting its evidence and under
circumstances affording the offended party a
reasonable opportunity to make such reservation
[Sec. 1, Rule 111]
SEPARATE ACTION FILED BY THE

ACCUSED
No counterclaim, cross-claim or third-party

complaint may be filed by the accused in the
criminal case, but any cause of action which could
have been the subject thereof may be litigated in
a separate civil action [Sec. 1, Rule 111].
Prosecution of Civil Action

RULE ON IMPLIED INSTITUTION
OF CIVIL ACTION WITH
CRIMINAL ACTION
General rule: The civil action for the recovery of
civil liability arising from the offense charged is
deemed instituted with the criminal action.
Exception: The civil action is not deemed so
instituted if the offended party:
(1) Waives the civil action;
(2) Institutes the civil action prior to the criminal
action; or
(3) Reserves the right to institute it separately
[Sec. 1, Rule 111].
WHEN CIVIL ACTION MAY

PROCEED INDEPENDENTLY
INDEPENDENT CIVIL ACTIONS
REMEDIAL LAW
Under the Rules, only civil liability arising from the

crime charged is deemed instituted. Hence, the
civil actions under the Civil Code, specifically
Articles. 32, 33, 34, and 2176, remain separate,
distinct, and independent of any criminal
prosecution although based on the same act
[Phil. Rabbit Bus Lines Inc. v. People (2004)].
WHEN SEPARATE CIVIL ACTION

IS SUSPENDED
After the criminal action has been commenced,

the separate civil action arising therefrom cannot
be instituted until final judgment has been
entered in the criminal action [Sec. 2, Rule 111].
The civil action, which should be suspended after
the institution of the criminal action, is that
arising from delict or crime.
Civil actions under Articles 32, 33, 34 and 2176,
Civil Code, are exempted from the rule that after a
criminal action has been commenced, the civil
action which has been reserved cannot be
instituted until final judgment has been rendered
in the criminal action [Sec. 3, Rule 111].
EFFECT OF DEATH OF THE ACCUSED

OR CONVICT ON CIVIL ACTION
Upon the death of the accused or convict,

criminal liability is extinguished [Article 89, RPC].
PAGE 269
UP LAW BOC
CRIMINAL PROCEDURE
As regards civil liability:

(1) When death occurs before the arraignment, the
case is dismissed without prejudice to filing of
civil action against estate of the deceased
(Sec. 4, Rule 111);
(2) When death occurs after arraignment and
during pendency of criminal action, it
extinguishes civil liability arising from the
delict;
(3) When death occurs during pendency of appeal
extinguishes criminal liability and the civil
liability based thereon [People v. Ayochok
(2010)].
Independent civil actions instituted under Articles
32, 33, 34 and 2176, Civil Code, or those instituted
to enforce liability arising from other sources of
obligation may be continued against the estate or
legal representative of the accused after proper
substitution or against his estate.
As regards the parties in the civil action, the heirs
of the accused may be substituted without
requiring
the
appointment
of
an
executor/administrator. The court may appoint
guardian ad litem for the minors.
The court shall order the legal representatives to
appear and be substituted within 30 days from
notice.
PREJUDICIAL QUESTION
ELEMENTS
A prejudicial question is that which arises in a

case the resolution of which is a logical antecedent
of the issue involved therein, and the cognizance
of which pertains to another tribunal.
Under Sec. 7, Rule 111, the elements of a
prejudicial question are:
(1) The previously instituted civil action involves
an issue similar or intimately related to the
issue raised in the subsequent criminal action;
and
(2) The resolution of such issue determines
whether or not the criminal action may
proceed.
A civil action may be considered prejudicial when
the following concur:
REMEDIAL LAW
(1) The civil case involves facts intimately related

to those upon which the criminal prosecution
would be based;
(2) In the resolution of the issue/s raised in the
civil action, the guilt/innocence of the accused
would necessarily be determined;
(3) Jurisdiction to try the action is lodged in
another tribunal [Magestrado v. People
(2009)];
(4) The action is instituted prior to the institution
of the criminal action [Pimentel v. Pimentel
(2010)].
Ratio: The rule seeks to avoid two conflicting
decisions in the civil case and in the criminal case
[Sy Thiong Siou vs Sy Chim (2009)].
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 [Sec. 2, Rule
111].
Exception: If there exists a prejudicial question
which should be resolved first before an action
could be taken in the criminal case.
WHERE TO FILE
SUSPENSION
PETITION
FOR
(1) Office of the prosecutor (in the PI stage);

(2) Court conducting the PI; or
(3) Court where criminal action has been filed for
trial, at any time before the prosecution rests
[Sec. 6, Rule 111].
Note: The Rules preclude a motu proprio
suspension of the civil action [Riano (2011)].
RULE ON FILING FEES IN CIVIL

ACTION DEEMED INSTITUTED
WITH THE CRIMINAL ACTION
Filing fees apply when damages are being
claimed by the offended party, to be paid upon
filing of the criminal action.
General rule: The actual damages claimed or
recovered by the offended party are not included
in the computation of the filing fees [Sec. 1, Rule
111].
PAGE 270
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
When the amount of damages, other than actual,

is specified in the complaint or information filed
in court, then the corresponding filing fees shall
be paid by the offended party upon the filing
thereof in court for trial.
WAIVER OF RIGHT
In any other case (i.e., when the amount of

damages is not so alleged in the complaint or
information filed in court), the corresponding
filing fees need not be paid and shall simply
constitute a first lien on the judgment, except on
an award for actual damages [General v. Claravall
(1991)].
When the accused waives his right to preliminary

investigation, the fiscal may forthwith file the
corresponding information with the proper court
[People v. Perez (1960)].
Exceptions: In criminal actions for violation of BP

22, the amount of the check involved shall be
considered as the actual damages for which no
separate civil action is allowed. In estafa cases,
the filing fees shall be paid based on the amount
involved [AM 04-2-04].
Preliminary Investigation
NATURE OF RIGHT
DEFINITION
The right to preliminary investigation is a

personal right which the accused may waive
either expressly or by implication.
An application for or admission to bail shall not

bar the accused from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him provided
that he raises the challenge before entering his
plea [Sec. 26, Rule 114].
WHEN RIGHT DEEMED WAIVED
(1) Express waiver or by silence [Herrera, Remedial

Law, Vol. IV (2007)];
(2) Failure to invoke it during arraignment [People
v. De Asis (1993)]; and
(3) Consenting to be arraigned and entering a
plea of not guilty without invoking the right to
PI [People v. Bulosan (1988)].
It is an inquiry or proceeding to determine

whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof, and should be held for trial [Sec. 1, Rule
112].
The waiver, whether express or implied, must be

in a clear and unequivocal manner [Herrera
(2007)].
A PI is merely inquisitorial, and it is often the

only means of discovering the persons who may
reasonably be charged with a crime, to enable
the prosecutor to prepare his complaint or
information. It is not a trial of the case on the
merits and does not place the persons against
whom it is taken in jeopardy.
WHEN RIGHT NOT DEEMED WAIVED
RIGHT TO PRELIMINARY
INVESTIGATION
The right cannot be raised for the first time on

appeal [Pilapil v. Sandiganbayan (1993)].
(1) Failure to appear before the prosecutor during
the clarificatory hearing or when summoned,
when the right was invoked at the start of the
proceeding [Larranaga v. CA (1998)]; or
(2) When the accused filed an application for bail
and was arraigned over his objection and the
accused
demand
that
preliminary
investigation be conducted [Go v. CA (1992)].
The right to preliminary investigation is a

statutory right in those instances where it is
required, and to withhold it would violate the
constitutional right to due process [People v.
Oandasa (1968)].
It is not a mere formal or technical right but a
substantial right.
PAGE 271
UP LAW BOC
PURPOSES OF
INVESTIGATION
CRIMINAL PROCEDURE
PRELIMINARY
(1) To determine whether or not a crime has been

committed and whether or not there is
probable cause to believe that the accused is
guilty [Raro v. Sandiganbayan (2000)];
(2) To secure the innocent against hasty,
malicious and oppressive prosecution, and to
protect him from an open and public
accusation of a crime, from the trouble,
expense, anxiety of a public trial, and also
protect the state from useless and expensive
trials [Tandoc v. Resultan (1989)].
WHO MAY CONDUCT

DETERMINATION OF EXISTENCE
OF PROBABLE CAUSE
Probable cause means the existence of such facts
and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted.
REMEDIAL LAW
COMELEC
The COMELEC may conduct investigation as
regards election offenses [Art. IX-C, Sec. 2(6),
Constitution; Sec. 265, Omnibus Election Code].
OMBUDSMAN
Art. XI, Sec. 12, Constitution. The Ombudsman and
his deputies, as protectors of the people, shall act
promptly on complaints filed in any form or
manner against public officials or employees of
the Government, or any subdivision, agency or
instrumentality thereof, including GOCCs and
shall, in appropriate cases, notify the
complainants of the action taken and the result
thereof
The Ombudsman is authorized to conduct
preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction
of the Sandiganbayan, but also those within the
jurisdiction of regular courts as well.
In general, the following may conduct the

determination of existence of probable cause:
(1) Provincial/city prosecutors and their
assistants;
(2) National and regional state prosecutors;
(3) Other officers as may be authorized by law
[Sec. 2, Rule 112, as amended by AM 05-8-26SC].
PROSECUTOR
The prosecutor makes a determination of

probable cause for purposes of indictment. Such
finding will not be disturbed by the court unless
there is finding of grave abuse of discretion.
COURT
The court makes a determination of probable

cause for purposes of issuance of warrant of
arrest.
Note: RTC judges have no power to conduct PI;
and MTC judges cannot conduct PI anymore after
AM 05-8-26-SC eliminated judges of the MTC
and MCTC from those authorized to conduct a PI
effective October 3, 2005.
PAGE 272
UP LAW BOC
PROCEDURE FOR
INVESTIGATION
CRIMINAL PROCEDURE
PRELIMINARY
Clarificatory Hearing
Hearing is conducted only if there are
such facts and issues to be clarified from
a party or a witness.
Filing of the Complaint

(1) Stating the respondents name and
address
(2) Include the affidavits of complainant
and the witnesses, and other documents
to establish probable cause, which must
be subscribed and sworn to before a
prosecutor or government official
authorized to administer oath or notary
public
(3) In such number of copies as there are
respondents, plus 2 copies for the official
file [Sec. 3(a), Rule 112].
Action of the Investigating Officer
(1) Within 10 days after the filing of the
complaint, the investigating officer will
either:
(a) Dismiss, if he finds no ground to
continue; or
(b) Issue a subpoena to the
respondent,
attaching
the
complaint and other documents. If
subpoena is not possible, the
investigating officer shall decide
based on what complainant
presented;
(2) Respondent has the right to examine
the evidence submitted by complainant,
and copy evidence at his expense [Sec.
3(b), Rule 112].
Defendants Counter-affidavit
It must be made within 10 days from
receipt of complaint, and must comply
with the same requirements as a
complaint [Sec. 3(c), Rule 112].
REMEDIAL LAW
The investigator must conduct a hearing

within 10 days from receipt of the
counter-affidavit. The hearing must be
finished in 5 days.
Parties may be present evidence, but
they have no right to examine or crossexamine. Questions of parties shall be
submitted to the investigating officer.
Within 10 day after the investigation, the
officer shall determine whether or not
there is sufficient ground to hold
respondent for trial [Sec. 3(e), Rule 112].
RESOLUTION
OF
THE
INVESTIGATING PROSECUTOR
If he finds probable cause to hold respondent for
trial, he shall prepare a resolution and certify
under oath in the information that:
(1) He or an authorized officer has personally
examined the complainant and his witnesses;
(2) That there is reasonable ground to believe
that a crime has been committed and that the
accused is probably guilty thereof;
(3) That the accused was informed of the
complaint and evidences against him;
(4) That he was given opportunity to submit
controverting evidence
If he finds no probable cause, he shall recommend
the dismissal of the complaint [Sec. 4, Rule 112].
If not made within 10 days, the

investigating officer shall resolve the
complaint based on the evidence
presented by the complainant [Sec. 3(d),
Rule 112].
PAGE 273
UP LAW BOC
CRIMINAL PROCEDURE
REVIEW
Within 5 days from resolution, the

investigating officer will forward the case
to the prosecutor or to the Ombudsman
in
cases
cognizable
by
the
Sandiganbayan in the exercise of its
original jurisdiction.
Within 10 days from receipt of the

resolution, the prosecutor/ombudsman
will act on the case.
WHEN WARRANT OF ARREST MAY

ISSUE
If the judge finds probable cause, he shall issue a

warrant of arrest, or a commitment order if the
accused has already been arrested, and hold him
for trial.
The PI conducted by the prosecutor is executive in
nature. It is for the purpose of determining
whether or not there exists sufficient ground for
the filing of information.
No complaint/information may be filed

or dismissed by an investigating
prosecutor without the prior written
authority or approval of the prosecutor
or ombudsman.
REMEDIAL LAW
The PI conducted by the judge which is properly

called preliminary examination is for the
determination of probable cause for the issuance
of warrant of arrest [P/Supt. Cruz v. Judge Areola
(2002)].
In case the investigation officer

recommends the dismissal of the
complaint
but
the
prosecutor/Ombudsman disagrees, the
latter may file the in-formation himself
or any deputy or order any prosecutor to
do so without conducting a new PI.
CASES NOT REQUIRING

PRELIMINARY INVESTIGATION
NOR COVERED BY THE RULE ON
SUMMARY PROCEDURE
These are cases punishable by imprisonment of
less than 4 years, 2 months and 1 day, and filed
with the prosecutor or MTC/MCTC.
The DOJ Secretary may file the

information without conducting another
PI or dismiss the information filed by the
prosecutor. The DOJ Secretary may
review resolutions, via petition for review
to the Secretary of Justice, of his
subordinates in criminal cases despite
the information being filed in court [Sec.
4, Rule 112; Community Rural Bank of
Guimba v. Talavera (2005)); see also DOJ
Circ. No. 70].
The resolution of the Secretary of Justice may be

nullified in a petition for certiorari under Rule 65
on grounds of grave abuse of discretion resulting
to lack or excess of jurisdiction [Ching v. Sec. of
Justice (2006)].
The DOJ resolution is appealable administratively
before the Office of the President and the
decision of the latter may be appealed before the
CA pursuant to Rule 43 [De Ocampo v. Sec. of
Justice (2006)].
If filed directly with the prosecutor, Sec. 3(a), Rule

112 applies. Thus, the complaint must be filed
(1) Stating the respondents name and address;
(2) Include the affidavits of complainant and the
witnesses, and other documents to establish
probable cause, which must be subscribed
and sworn to before a prosecutor or
government official authorized to administer
oath or notary public; and
(3) In such number of copies as there are
respondents, plus 2 copies for the official file.
The prosecutor shall act on the complaint based
on the affidavits and other supporting documents
submitted by the complainant within 10 days
from its filing.
PAGE 274
UP LAW BOC
CRIMINAL PROCEDURE
A complaint, which complies with Sec.

3(a), Rule 112, is filed.
Within 10 days after the filing of the

complaint/information, if the judge finds
no PC after personally evaluating the
evidence or after personally examining in
writing and under oath the complainant
and his witnesses in the form of
searching questions and answers, he
shall dismiss the same.
The judge may require submission of

additional evidence within 10 days from
notice, to determine the existence of PC.
If the judge still

finds
no
PC
despite
the
additional
evidence, he shall
dismiss the case
within 10 days
from
its
submission
or
expiration of said
period.
REMEDIAL LAW
After the filing of the complaint/information in

court without a PI, the accused may within 5 days
from the time he learns of its filing, ask for a PI
with the same right to adduce evidence in his
defense as provided in Rule 112 [Sec. 6, 3rd par.,
Rule 112].
RESTRAINING PRELIMINARY
INVESTIGATION
General rule: The power of the Fiscal to

investigate crimes committed within his
jurisdiction will, ordinarily, not be restrained.
Exceptions: Extreme cases may exist where relief
in equity may be availed of to stop a purported
enforcement of a criminal law where it is
necessary:
(1) For the orderly administration of justice;
(2) To prevent the use of the strong arm of the
law in an oppressive and vindictive manner;
(3) To avoid multiplicity of actions;
(4) To afford adequate protection to
constitutional rights; and
(5) In proper cases, because the statute relied
upon is unconstitutional, or was held invalid
[Ladlad v. Velasco (2007)].
If the judge finds

PC, he shall issue
a warrant of arrest
or a commitment
order (if already
arrested) and hold
him for trial.
If the judge is
satisfied that there
is no need to place
the accused under
custody, he may
issue
summons
instead.
INQUEST
DEFINITION
REMEDIES OF ACCUSED IF
THERE WAS NO PRELIMINARY
INVESTIGATION
EFFECT OF DENIAL OF RIGHT
The absence of PI:

(1) Does not impair the validity of the information
or otherwise render it defective;
(2) Does not affect the jurisdiction of the court;
(3) Does not constitute a ground for quashing the
information.
The trial court, instead of dismissing the
information, should hold in abeyance the
proceedings and order the public prosecutor to
conduct a PI [Villaflor v. Vivar (2001)].
An inquest is an informal and summary

investigation conducted by a public prosecutor in
criminal cases involving persons arrested and
detained without the benefit of a warrant of
arrest issued by the court for the purpose of
determining whether or not said persons should
remain under custody and correspondingly be
charged in court [DOJ-NPS Manual].
General rule: PI is required to be conducted
before a complaint/ information is filed for an
offense where the penalty prescribed by law is at
least 4 years, 2 months and 1 day, without regard
to the fine. [Sec. 1, Rule 112]
Exception: When a person is lawfully arrested
without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.
PAGE 275
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
However, before the complaint or information is

filed, the person arrested may ask for a PI, but he
must sign a waiver of the provisions of Article 125,
RPC in the presence of his counsel.
Notwithstanding the waiver, he may apply for bail
and the investigation must be terminated within
15 days from its inception [Sec. 6, Rule 112].
Arrest
PROCEDURE
PARLIAMENTARY IMMUNITY
An inquest is considered commenced upon

receipt by the Inquest Officer from the law
enforcement authorities of the complaint/referral
documents which should include:
(1) Affidavit of arrest, investigation report,
statement of the complainant and witnesses,
all of which must be subscribed and sworn to
before him;
(2) Other supporting evidence gathered by the
police in the course of the latter's investigation
of the criminal incident involving the arrested
or detained person.
It must be terminated within the period
prescribed under the provisions of Article 125,
RPC.
Thus, if after the inquest proceedings:
(1) There is no probable cause, the case is
dismissed;
(2) The accused wants a PI and is willing to waive
Article 125, a preliminary investigation
conducted;
(3) The arrest was without warrant, but there
possibly is PC, the accused is released for
regular PI;
(4) There is PC and the arrest was valid, an
information is filed.
DEFINITION
Arrest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense (Sec. 1, Rule 113).
Senators and Members of the House of
Representatives, while Congress is in session and
for offenses punishable by not more than 6 years
imprisonment are immune to arrest [Art. VI, Sec.
11, Constitution].
DIPLOMATIC IMMUNITY
Ambassadors and ministers of foreign countries

and their duly registered domestics subject to the
principle of reciprocity are immune to arrest [RA
75].
Note: Diplomatic immunity is not limited to
immunity from arrest only.
HOW MADE
(1) By an actual restraint of a person to be

arrested;
(2) By his submission to the custody of the person
making the arrest [Sec. 2, 1st par., Rule 113].
It is enough that there be an intent on the part of
one of the parties to arrest the other and an
intent on the part of the other to submit, under
the belief and impression that submission is
necessary [Sanchez v. Demetriou (1993)].
No violence or unnecessary force shall be used in
making an arrest [Sec. 2, 2nd par., Rule 113].
Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required.
Sec. 6, Rule 113. An arrest may be made on any
day and at any time of the day or night
PAGE 276
UP LAW BOC
CRIMINAL PROCEDURE
ARREST WITHOUT WARRANT,

WHEN LAWFUL
General rule: No peace officer or person has the

power or authority to arrest anyone without a
warrant except in those cases expressly
authorized by law [Umil v. Ramos (1991)].
Exceptions:
(1) In flagrante delicto [Sec. 5(a), Rule 113];
(2) Hot pursuit arrest [Sec. 5(b), Rule 113];
(3) Arrest of escaped prisoner [Sec. 5(c),, Rule 113];
(4) Other lawful warrantless arrests:
(a) Where a person who has been lawfully
arrested escapes or is rescued [Sec. 13, Rule
113]; any person may immediately pursue
or retake him without a warrant at any
time and in any place within the
Philippines;
(b) By the bondsman, for the purpose of
surrendering the accused [Sec. 23, Rule 114];
(c) Where the accused who is released on bail
attempts to leave the country without
permission of the court where the case is
pending [Sec. 23, Rule 114].
IN FLAGRANTE DELICTO
A peace officer or a private person may, without

warrant, arrest a person when the person to be
arrested:
(1) Has committed;
(2) Is actually committing; or
(3) Is attempting to commit an offense in the
presence of the peace officer or private person
who arrested him [Sec. 5(a), Rule 113].
Requisites:
(1) The person to be arrested must execute an
overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and
(2) Such overt act is done in the presence or
within the view of the arresting officer
[Zalameda v. People (2009); People v. Laguio
(2007)].
In his presence means:
(1) He sees the offense, even though at a distance;
(2) He hears the disturbances created by the
offense and proceeds at once to the scene; or
(3)
REMEDIAL LAW
Offense is continuing or has been

consummated at the time arrest is made
[People v. Evaristo (1992)].
The following are instances of this type of arrest

without warrant:
(1) An arrest made after an entrapment does not
require a warrant inasmuch as it is considered
a valid warrantless arrest pursuant to Sec.
5(a), Rule 113 [Teodicio v. CA (2004)]. This is
different from instigation, which means luring
the accused into a crime that he, otherwise,
had no intention to commit, in order to
prosecute him, and leads to acquittal [People
v. Dansico (2011)].
(2) When a person is caught in flagrante as a
result of the buy-bust operation, the policemen
are not only authorized but are also under
obligation to apprehend the drug pusher even
without a warrant of arrest [People v. de Lara
(1994)].
HOT PURSUIT ARREST

warrant, arrest a person when an offense has just
been committed and the officer or private person
has probable cause to believe, based on personal
knowledge of facts or circumstances, that the
person to be arrested has committed it [Sec. 5(b),
Rule 113].
Requisites:
(1) An offense has just been committed. There
must be a large measure of immediacy
between the time the offense was committed
and the time of the arrest. If there was an
appreciable lapse of time between the arrest
and the commission of the crime, a warrant of
arrest must be secured [People v. del Rosario
(1999); People v. Agojo (2009)]; and
(2) The person making the arrest has probable
cause to believe, based on personal knowledge
of facts, that the person to be arrested has
committed it.
Probable cause must be based on personal
knowledge which means an actual belief or
reasonable grounds of suspicion [Abelita III v.
Doria (2009)].
PAGE 277
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Note: Where a warrantless arrest is made under

the in flagrante and hot pursuit exceptions, the
person arrested without a warrant shall forthwith
arrested delivered to the nearest police station or
jail [Sec. 5, 2nd par., Rule 113].
A waiver of the right to question an illegal

warrantless arrest does not also mean a waiver of
the inadmissibility of evidence seized during an
illegal warrantless arrest [People v. Nuevas,
(2007)].
ARREST OF ESCAPED PRISONER
WHEN CURED
(1) When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People
(2009); People v. Alunday (2008)];
(2) By the filing of an information in court and the
subsequent issuance by the judge of a warrant
of arrest [Sanchez v. Demetriou (1993)].

warrant, arrest a person when the person to be
arrested is a prisoner who has escaped [Sec. 5(c),
Rule 113]:
(1) From a penal establishment or place where he
is serving final judgment or temporarily
confined while his case is pending; or
(2) While being transferred from one confinement
to another.
Escapee may be immediately pursued or rearrested without a warrant at any time and in any
place within the Philippines [Sec. 13, Rule 113].
Ratio: At the time of arrest, the escapee is in
continuous commission of a crime (i.e., evasion of
service of sentence).
RULES ON ILLEGALITY OF ARREST

EFFECT
The legality of the arrest affects only the
jurisdiction of the court over the person of the
accused [People v. Nuevas (2007)].
WAIVER
Any objection involving the arrest or the procedure
in the courts acquisition of jurisdiction over the
person of an accused must be made before he
enters his plea; otherwise the objection is
deemed waived [Zalameda v. People (2009)].
There is waiver if the accused voluntarily enters
his plea and participates during trial, without
previously invoking his objections thereto [Leviste
v. Hon Alameda (2010); Borlongan v. Pea (2010)].
An application for or admission to bail shall not
bar the accused from challenging the validity of
his arrest or the legality of the warrant issued,
provided that he raises the objection before he
enters his plea [Sec. 26, Rule 114].
METHOD OF ARREST
BY OFFICER WITH WARRANT
DUTIES OF ARRESTING OFFICER
(1) Execution of warrant [Sec. 4, Rule 113]:
(a) The head of the office to whom the warrant
of arrest was delivered shall cause the
warrant to be executed within 10 days from
its receipt;
(b) The officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant within 10 days after
expiration of the period to execute.
(c) In case of the officers failure to execute, he
shall state the reasons therefor.
(2) The officer shall inform the person to be
arrested of the cause of the arrest and the fact
that a warrant has been issued for his arrest
[Rule 113, Sec. 7].
(a) This duty does not apply:
(i) When the person to be arrested flees;
(ii) When he forcibly resists before the
officer has opportunity to so inform him;
(iii) When the giving of such information
will imperil the arrest.
(b) The officer need not have the warrant in his
possession at the time of the arrest but
after the arrest, if the person arrested so
requires, the warrant shall be shown to him
as soon as practicable [Sec. 7, Rule 113].
(c) This is not a case of a warrantless arrest but
merely an instance of an arrest effected by
the police authorities without having the
warrant in their possession at that precise
moment [Mallari v. CA (1996)].
PAGE 278
UP LAW BOC
CRIMINAL PROCEDURE
(3) The officer executing the warrant shall arrest

the accused and deliver him to the nearest
police station or jail without unnecessary delay
[Sec. 3, Rule 113];
(4) No violence or unnecessary force shall be
used in making an arrest [Sec. 2, 2nd par.,
Rule 113].
RIGHTS OF THE ARRESTING OFFICER
(1) To summon assistance (Sec. 10, Rule 113). He
may orally summon as many persons as he
deems necessary to assist him in effecting the
arrest.
(2) To break into building or enclosure (Rule 113,
Sec. 11), when the following concur:
(a) The person to be arrested is or is
reasonably believed to be in said building;
(b) He has announced his authority and
purpose of entering therein; and
(c) He has requested and been denied
admittance.
(3) To break out from the building/enclosure
when necessary to liberate himself [Sec. 12,
Rule 113];
(4) To search the person arrested for dangerous
weapons or anything which may have been
used or constitute proof in the commission of
an offense without a warrant [Sec. 13, Rule
126].
Note: Nos. 2 and 3 are also applicable where
there is a valid warrantless arrest.
BY OFFICER WITHOUT WARRANT
General rule: The officer shall inform the person

to be arrested of:
(1) His authority; and
(2) The cause of the arrest [Sec. 8, Rule 113].
Exceptions:
(1) When the person to be arrested is engaged in
the commission of the offense;
(2) When he is pursued immediately after its
commission;
(3) When he has escaped, flees or forcibly resists
before the officer has the opportunity to so
inform him; or
(4) When the giving of such information will
imperil the arrest.
REMEDIAL LAW
BY PRIVATE PERSON (CITIZENS

ARREST)
(1) The private person shall inform the person to

be arrested of the intention to arrest him and
the cause of the arrest [Rule 113, Sec. 9], except
in the same cases as those for arrest by an
officer without a warrant.
(2) The private person must deliver the arrested
person to the nearest police station or jail, and
he shall be proceeded against in accordance
with Sec. 7, Rule 112. Otherwise, the private
person may be held liable for illegal detention.
REQUISITES
OF
A
WARRANT OF ARREST
VALID
ESSENTIAL REQUISITES
The warrant must:

(1) Be issued upon probable cause determined
personally by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce; and
(2) Particularly describe the person to be arrested
[Art. III, Sec. 2, Constitution].
WHEN ISSUED
A judge issues a warrant of arrest upon the filing

of the information by the public prosecutor and
after personal evaluation by the judge of the
prosecutors resolution and supporting evidence
[Sec. 5(a), Rule 112].
The judge does not have to personally examine
the complainant and his witnesses. Established
doctrine provides, he shall personally evaluate
the report and the supporting documents
submitted by the fiscal regarding the existence of
probable cause:
(1) If he finds probable cause, he shall issue a
warrant of arrest; or
(2) If on the basis thereof he finds no probable
cause, he may disregard the fiscals report and
require the submission of supporting affidavits
of witnesses [People v. Gray (2010); AAA v.
Carbonell (2007)].
PAGE 279
UP LAW BOC
CRIMINAL PROCEDURE
DETERMINATION OF PROBABLE
CAUSE FOR ISSUANCE OF
WARRANT OF ARREST
Probable cause, in connection with the issuance
of a warrant of arrest, assumes the existence of
facts and circumstances that would lead a
reasonably discreet and prudent man to believe
that a crime has been committed and that it was
likely committed by the person sought to be
arrested [People v. Tan (2009)].
Probable cause demands more than suspicion
but it requires less than evidence that would
justify conviction [People v. Gabo (2010)].
PROBABLE CAUSE OF FISCAL

AND JUDGE DISTINGUISHED
Fiscal
Judge
Executive
determination of PC
Judicial determination
of PC
Determination of PC to
hold a person for trial
Determination of PC to
issue a warrant of
arrest
Whether or not there is

reasonable ground to
believe
that
the
accused is guilty of the
offense charged and
should be held for trial
Whether or not a
warrant
of
arrest
should be issued
The determination of probable cause for issuing a

warrant of arrest is made by the judge. The
preliminary investigation proper whether or not
there is a reasonable ground to believe that the
accused is guilty of the offense charged is the
function of the investigating prosecutor [AAA v.
Carbonell (2007)].
REMEDIAL LAW
Bail
NATURE
DEFINITION
Bail is the security given for the release of a

person in custody of the law, furnished by him or
a bondsman, to guarantee his appearance before
any court as required under conditions
hereinafter specified [Sec. 1, Rule 114].
PURPOSE
(1) To relieve an accused from imprisonment until

his conviction and yet secure his appearance
at the trial [People v. Hon. Donato (2011)];
(2) To honor the presumption of innocence until
his guilt is proven beyond reasonable doubt
[Art. III, Sec. 14, Constitution]; and
(3) To enable him to prepare his defense without
being subject to punishment prior to
conviction [Cortes v. Judge Catral (1997)].
REQUIREMENT OF CUSTODY
General rule: Custody of the law is required

before the court can act on an application for bail
[Miranda v. Tuliao (2006)].
Exceptions: Custody is not required in cases of
witnesses posting bail:
(1) When bail is required to guarantee the
appearance of a material witness (Sec. 14, Rule
119);
(2) When bail is required to guarantee the
appearance of a prosecution witness in cases
where there is substitution of the information
[Riano (2011), citing Sec. 14, Rule 110].
WHEN A MATTER OF RIGHT;

EXCEPTIONS
Bail is a matter of right:
(1) Before or after conviction pending appeal by
the MTC;
(2) Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua or life imprisonment [Sec. 4, Rule 114].
PAGE 280
UP LAW BOC
CRIMINAL PROCEDURE
General rule: Bail is not available when evidence

of guilt is strong in capital offenses or those
punishable by death, reclusion perpetua or life
imprisonment.
Exception: When the accused is a minor, he is
entitled to bail regardless of whether the
evidence of guilt is strong.
CAPITAL OFFENSE
Sec. 6, Rule 114. A capital offense is an offense
which under the law existing at the time of
commission and of the application for admission
to bail is punishable by death
The capital nature of the offense is determined by
the penalty prescribed by law and not the one
actually imposed.
Note: RA 9346 (An Act Prohibiting the Imposition
of Death Penalty in the Philippines) enacted on
June 24, 2006 (which repealed RA 8177 and RA
7659) prohibited the imposition of death penalty.
Under Sec. 7, RA 9346, it stated that [c]apital
offense or an offense punishable by reclusion
perpetua or life imprisonment.
EXTRADITION PROCEEDINGS
General rule: Right to bail is available only in

criminal proceedings and does not apply to
extradition proceedings because extradition
courts do not render judgments of conviction or
acquittal [Gov. of USA v. Purganan and Jimenez
(2002)].
Exception: Only upon a clear and convincing
evidence:
(1) That once granted, the applicant will not be
flight risk or will not pose danger to the
community; and
(2) That there exists special humanitarian and
compelling circumstances.
Note: Bail is a matter of discretion in extradition
proceedings [Govt. of HK Special Administrative
Region v. Olalia (2007)].
REMEDIAL LAW
WHEN NOT AVAILABLE

Right to bail is also not available:
(1) To military personnel accused under general
courts martial [Comendador v. de Villa (1991)];
(2) After a judgment of conviction has become
final;
(3) If he applied for probation before finality, he
may be allowed temporary liberty under his
bail;
(4) After the accused has commenced to serve his
sentence [Sec. 24, Rule 114].
WHEN
A
DISCRETION
MATTER
OF
(1) Before conviction, in offenses punishable by

death, reclusion perpetua or life imprisonment
and evidence of guilt is not strong;
(2) Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.
No. 2 refers to conviction by the trial court, which
has not become final, as the accused still has the
right to appeal. It may be filed in and acted upon
by the RTC despite the filing of notice of appeal,
provided that it has not transmitted the original
record to the appellate court.
If the RTC decision changed nature of the offense
from non-bailable to bailable, the application for
bail can be resolved only by the appellate court
[Sec. 5, Rule 114].
If the conviction by the trial court is for a capital
offense, the accused convicted of a capital offense
is no longer entitled to bail, and can only be
released when the conviction is reversed by the
appellate court [Art. III, Sec. 13, Constitution].
Note: In hearing the petition for bail, the
prosecution has the burden of showing that the
evidence of guilt is strong [Sec. 8, Rule 114].
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be cancelled
upon showing by the prosecution, with notice to
the accused, of any of the following:
(1) Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused;
PAGE 281
UP LAW BOC
CRIMINAL PROCEDURE
(2) The accused previously escaped from legal

confinement, evaded sentence or violated bail
conditions without valid justification;
(3) Commission of offense while under probation,
parole or conditional pardon by the accused;
(4) Probability of flight;
(5) Undue risk that the accused may commit
another crime during pendency of appeal.
In deportation proceedings, bail is discretionary
upon the Commissioner of Immigration and
Deportation [Harvey v. Defensor-Santiago (1990)].
HEARING OF APPLICATION FOR

BAIL IN CAPITAL OFFENSES
IN GENERAL
At the hearing of an application for bail filed by a

person in custody for the commission of an
offense punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong [Sec. 8,
Rule 114].
Evidence of guilt in the Constitution and the Rules
refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
MINORS CHARGED WITH CAPITAL

OFFENSE
If the person charged with a capital offense is

admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless
of whether the evidence of guilt is strong. The
reason for this is that one who faces a probable
death sentence has a particularly strong
temptation to flee.
This reason does not hold where the accused has
been established without objection to be minor
who by law cannot be sentenced to death.
REMEDIAL LAW
DUTIES OF JUDGE HEARING THE

PETITION FOR BAIL
(1) Notify the prosecutor of the hearing and

require him to submit his recommendation;
(2) Conduct a hearing of the application
regardless of whether or not prosecution
refuses to present evidence to show that the
guilt of the accused is strong;
(3) Decide whether the evidence of guilt of the
accused is strong based on the summary of
the evidence of the prosecution;
(4) If the guilt of the accused is not strong,
discharge the accused upon the approval of
the bail bond. Otherwise, petition should be
denied [Riano (2011), citing Narciso v. Santa
Romana-Cruz (2000)].
Note: Evidence presented during the bail hearing
are automatically reproduced at the trial [Sec. 8,
Rule 114].
WHERE APPLICATION FOR BAIL IS

FILED
General rule: The application may be filed with

the court where the case is pending.
Exceptions:
(1) If the judge of the court where the case is
pending is absent or unavailable, the
application may be filed with any
RTC/MTC/MeTC/ MCTC judge in the province,
city or municipality;
(2) Where the accused is arrested in a province,
city/municipality other than where the case is
pending, the application may be filed with any
RTC of the said place. If no judge is available,
then with any MeTC/MTC/MCTC judge in the
said place. Judge who accepted the
application shall forward it, together with the
order of release and other supporting papers
where the case is pending;
(3) When a person is in custody but not yet
charged, he may apply with any court in the
province or city/municipality where he is held
[Sec. 17, Rule 114].
Note: Where the grant of bail is a matter of
discretion, or the accused seeks to be released on
recognizance, the application may only be filed in
the court where the case is pending, on trial, or
appeal.
PAGE 282
UP LAW BOC
CRIMINAL PROCEDURE
GUIDELINES IN FIXING AMOUNT

OF BAIL
The considerations are primarily, but not limited,

to the following:
(1) Financial ability of the accused;
(2) Nature and circumstances of the offense;
(3) Penalty for the offense charged;
(4) Character and reputation of the accused;
(5) Age and health of the accused;
(6) Probability of the accused appearing at the
trial;
(7) Forfeiture of other bail;
(8) Fact that accused was a fugitive from justice
when arrested;
(9) Pendency of other cases where the accused is
on bail.
WHEN BAIL IS NOT REQUIRED
Bail is not required:

(1) When a person has been in custody for a
period equal to or more than the possible
maximum imprisonment of the offense
charged to which he may be sentenced;
(2) If the maximum penalty is destierro, he shall
be released after 30 days of preventive
imprisonment [Sec. 16, Rule 114];
(3) In cases filed with the MTC/MCTC for an
offense punishable by an imprisonment of less
than 4 yrs, 2 mos. and 1 day, and the judge is
satisfied that there is no necessity for placing
the accused under custody [Riano (2011), citing
Sec. 8, Rule 112];
(4) In cases where a person is charged with
violation of a municipal/city ordinance, a light
felony and/or criminal offense, the penalty of
which is not higher than 6 months
imprisonment and/or a fine of 2000 or both
where it is established that he is unable to
post the required cash or bail bond [Sec. 1, RA
6036].
REMEDIAL LAW
(3) When accused is found to have previously

escaped legal confinement, evaded sentence,
or jumped bail;
(4) When accused is found to have violated Sec. 2,
RA 6036, which provides that the violation of
the accused of the sworn statement (required
instead of bail) shall justify the court to order
his immediate arrest, if the failure of the
accused to report is not justified;
(5) Accused is a recidivist or habitual delinquent
or has been previously convicted for an offense
to which the law/ordinance attaches an
equal/greater penalty or for two/more
offenses to which it attaches a lighter penalty
(6) Accused committed the offense while on
parole or under conditional pardon;
(7) Accused has previously been pardoned for
violation of municipal/city ordinance for at
least two times [Riano (2011), citing Sec. 1, RA
6036].
INCREASE OR REDUCTION OF
BAIL
After the accused is admitted to bail and for good
cause, the court may increase or decrease the
amount.
INCREASED BAIL
The accused may be committed to custody if he
does not give bail in the increased amount within
a reasonable period of time [Sec. 20, Rule 114].
REDUCED BAIL
A person in custody for a period equal to or more

than the minimum of the principal penalty
prescribed for the offense charged may be
released on a reduced bond [Sec. 16, Rule 114].
Bail is nonetheless required when:

(1) When accused was caught committing the
offense in flagrante;
(2) When accused confesses to the commission of
the offense unless he later repudiates the
same in a sworn statement or in open court as
having been extracted through force or
intimidation;
PAGE 283
UP LAW BOC
CRIMINAL PROCEDURE
FORFEITURE AND
CANCELLATION OF BAIL
FORFEITURE OF BAIL
If the accused failed to appear in person as

required, the bondsmen are given 30 days within
which to:
(1) Produce the body of the principal or give
reason for the non-production. The bondsmen
may:
(a) Arrest the accused;
(b) Cause him to be arrested by a police officer
or any other person of suitable age or
discretion upon written authority endorsed
on a certified copy of the undertaking.
(2) Explain why the accused failed to appear:
(a) If the bondsmen fail to do these, judgment
is rendered against them, jointly and
severally, for the amount of the bail.
(b) Bondsmens liability cannot be mitigated
or reduced, unless the accused has been
surrendered or is acquitted [Sec. 21, Rule
114].
Bondsmen can prevent the accused from leaving
country by arresting him or asking for him to be
re-arrested by a police officer upon written
authority [Sec. 23, Rule 114]
CANCELLATION OF BAIL
APPLICATION BY BONDSMEN
Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled
upon:
(1) Surrender of the accused; or
(2) Proof of his death.
AUTOMATIC CANCELLATION
(1) Upon acquittal of the accused
(2) Upon dismissal of the case
(3) Upon execution of judgment of conviction
[Sec. 22, Rule 114].
REMEDIAL LAW
APPLICATION NOT A BAR TO

OBJECTIONS
ON
ILLEGAL
ARREST, LACK OF OR IREGULAR
PRELIMINARY INVESTIGATION
Bail is no longer a waiver of these objections [Sec.
26, Rule 114; Leviste v. Alameda (2011)].
Thus, provided that the proper objections are
timely raised (i.e., before accused enters a plea),
an application or an admission to bail shall not
bar the accused from challenging or questioning
the:
(1) Validity of his arrest;
(2) Legality of the arrest warrant;
(3) Regularity of preliminary investigation;
(4) Absence of preliminary investigation.
The court shall resolve the objections as early as
practicable but not later than the start of the trial
of the case.
HOLD/ALLOW DEPARTURE
ORDER AND BUREAU OF
IMMIGRATION WATCHLIST
The accused may be prohibited from leaving the
country during the pendency of his case [People v.
Uy Tuising (1935); Manotoc v. CA (1986)]. If the
accused released on bail attempts to depart from
the Philippines without the permission of the
court where his case is pending, he may be rearrested without warrant [Sec. 23, Rule 114].
A hold-departure order may be issued only by the
RTCs in criminal cases within their exclusive
jurisdiction [SC Circ. No. 39-97].
SC Circular 39-97 deals only with criminal cases
pending in the RTC. As to those cases pending in
the MTC as well as those under preliminary
investigation, the DOJ promulgated DOJ Circular
No. 41 governing the issuance of HDO, Watchlist
Orders, and Allow Departure Orders.
PAGE 284
UP LAW BOC
When it
may issue
Validity
Grounds for
lifting or
cancellation
CRIMINAL PROCEDURE
REMEDIAL LAW
Hold Departure Order
Watchlist Order
(1) Against the accused, irrespective of

nationality, in criminal cases falling within
the jurisdiction of first-level courts (MeTC,
MTC, MCTC);
(2) Against the alien whose presence is
required either as a defendant,
respondent, or witness in a civil or labor
case pending litigation, or any case before
an administrative agency of the
government;
(3) Against any person, either motu
proprio, or upon the request by the Head
of a Department of the Government, the
Chief Justice of the Supreme Court for the
Judiciary; the Senate President or the
House Speaker for the Legislature, when
the adverse party is the Government or
any of its agencies or instrumentalities, or
in the interest of national security, public
safety or public health.
(1) Against the accused, irrespective of

nationality, in criminal cases pending
before the RTC;
(2) Against the respondent, irrespective of
nationality, in criminal cases pending
preliminary investigation, PFR, or MR
before the DOJ or any of its prosecution
offices;
(3) Against any person pursuant to the
Anti-Trafficking in Persons Act of 2003 (RA
9208) or in the interest of national
security, public safety or public health.
An HDO is valid for 5 years reckoned from

the date of its issuance, unless sooner
terminated.
A watchlist order is valid 60 days

reckoned from the date of its issuance,
unless sooner terminated or extended for
a non-extendible period of not more than
60 days.
(1) When the validity period has already

expired;
(2) When the accused has been allowed
to leave the country during the pendency
of the case, or has been acquitted of the
charge, or the case in which the
warrant/order of arrest was issued has
been dismissed or the warrant/order of
arrest has been recalled.
(1) When the validity period has already

expired;
(2) When the accused has been allowed
by the court to leave the country during
the pendency of the case, or has been
acquitted of the charge;
(3) When the PI is terminated, or when the
PFR or MR has been denied and/or
dismissed.
ADOs may issue for exceptional reasons to

allow the person to leave upon submission of
the following:
(1) An affidavit of purpose, including an
undertaking to report to the DOJ
immediately upon return;
(2) Authority to travel or travel clearance from
the court or appropriate government office or
from the investigating prosecutor.
PAGE 285
UP LAW BOC
CRIMINAL PROCEDURE
Rights of the Accused
REMEDIAL LAW
The purpose is served by arraignment (Borja v.

Mendoza (1977)). The title of the complaint, or
the designation of the offense charged or the
particular law violated is not controlling. No
information for a crime will be sufficient if it
does not accurately and clearly allege the
elements of the crime charged [People v.
Dimaano (2005)].
RIGHT TO BE PRESUMED
INNOCENT UNTIL THE
CONTRARY IS PROVED BEYOND
REASONABLE DOUBT
The presumption of regularity in the

performance of official duty cannot by itself
overcome the presumption of innocence nor
constitute proof beyond reasonable doubt.
[People v. Sanchez (2008)]
RIGHT TO BE PRESENT AND

DEFEND IN PERSON AND BY
COUNSEL AT EVERY STATE OF
THE PROCEEDINGS
The Rules or the law may, however, provide for a

presumption of guilt [Hizon v. CA (2009)].
RIGHT TO BE PRESENT
General rule: Presence of the accused during

the criminal action is not required and shall be
based on his sole discretion.
In such case, Hizon v. CA (2009) stressed that

the statutory presumption is merely prima facie.
At no instance can the accused be denied the
right to rebut the presumption.
Exceptions: Presence of the accused

mandatory:
(1) For purposes of identification;
(2) At arraignment; [Sec. 1(b), Rule 116];
(3) At the promulgation of judgment.
Proof beyond reasonable doubt does not mean

such a degree of proof as, excluding possibility
of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof
which produces conviction in an unprejudiced
mind. [Sec.2, Rule 133]
is
Exception to the exception: If the conviction is

for a light offense. [Sec. 6, Rule 120]
Where the evidence in a criminal case is evenly

balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused
[People v. Erguioza (2008)]. This is the
equipoise rule.
The right to be present at trial is deemed waived

when:
(1) The accused is absent without just cause at
the trial of which he had notice; or
(2) The accused under custody escapes, until
custody over him is regained.
RIGHT TO BE INFORMED OF
THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM
TRIAL IN ABSENTIA
An accused cannot be convicted of an offense,

unless it is clearly charged in the complaint or
information [People v. Ortega (1997)].
The charge must be set forth with sufficient
particularity to enable the accused to
intelligently prepare his defense [Balitaan v. CFI
of Batangas (1982)].
Requisites:
(1) Prior arraignment;
(2) Proper notice of the trial;
(3) Failure to appear is unjustifiable [Parada v.
Veneracion (1997)].
In this case, there is waiver of right to be
present, the right to present evidence and right
to cross-examine witnesses [Gimenez v.
Nazareno (1988)].
PAGE 286
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
accused is permissible [Villafor vs. Summers

(1920)].
RIGHT TO COUNSEL
(1)
It means reasonably effective legal

assistance [Gideon v. Wainright (1963)];
(2) It is absolute and may be invoked at all
times, even on appeal [Telan v. CA (1991)];
(3) Duty to appoint counsel de oficio is
mandatory only at the time of arraignment
[Sayson v. People (1988)];
(4) Violation of this right entitles the accused to
new trial [People v. Serzo (1997)]. The right to
counsel may be waived but to insure that the
waiver is voluntary and intelligent, the waiver
must be in writing and in the presence of the
counsel of the accused [People v. Del Castillo
(2004)]. It must also not be contrary to law,
public order, public policy, morals or good
customs;
(5) Even a person under investigation for an
offense shall the right to have a competent
and independent counsel preferably of his
own choice. Included in this right is the right
to be informed of his right to counsel [Art. III,
Sec. 12(1), Constitution; Sec. 2(b) RA 7438].
The right is applicable to one who is compelled

to produce a document, and one who is
compelled to furnish a specimen of his
handwriting, for in both cases, the witness is
required to furnish evidence against himself
[People v. Nicandro (1986)].
An accused occupies a different tier of
protection from an ordinary witness. He is
entitled:
(1) To be exempt from being a witness against
himself; and
(2) To testify as witness in his own behalf.
But if he offers himself as a witness he may be
cross-examined as any other witness; however,
his neglect or refusal to be a witness shall not in
any manner prejudice or be used against him
[People v. Judge Ayson (1989)].
Thus, the right may be waived by the failure to
timely assert the right, that is, by answering an
incriminating question (Beltran v. Samson (1929))
when the accused testifies in his own behalf and
is cross-examined on matters covered by the
direct examination (Sec. 1(f), Rule 115). The
questions on cross examination should be on
matters related to his direct examination
[People v. Judge Ayson (1989)].
RIGHT TO DEFEND IN PERSON
The accused may be allowed to defend himself

in person when it sufficiently appears to the
court that he can properly protect his rights
without the assistance of counsel [Sec. 1(c), Rule
115].
RIGHT TO TESTIFY AS WITNESS

IN HIS BEHALF
RIGHT TO CONFRONTATION
This is subject to cross-examination on any

matter covered by his direct examination [Sec.
1(d), Rule 115]. Silence will not, in any manner,
prejudice him.
This applies to any witness against the accused

at the trial.
Where the adverse party is deprived of the right
to cross-examine the persons who executed the
affidavits, said affidavits are generally rejected
for being hearsay [Estrella v. Robles (2007)].
RIGHT AGAINST SELFINCRIMINATION
The right against self-incrimination has no

application to juridical persons [BASECO v.
PCGG (1987)].
However, either party may utilize as part of its

evidence the testimony of a witness who is
deceased, out of or cannot with due diligence be
found in the Philippines, unavailable or
otherwise unable to testify, given in another
case or proceeding, judicial or administrative,
provided they involve the same parties and
subject matter and the adverse party had the
opportunity to cross-examine him [Sec. 1(f), Rule
115].
The constitutional guaranty, that no person

shall be compelled in any criminal case to be a
witness against himself, is limited to a
prohibition against compulsory testimonial selfincrimination. The corollary to the proposition is
that, an ocular inspection of the body of the
PAGE 287
UP LAW BOC
CRIMINAL PROCEDURE
This right is waived by non-appearance.

[Carredo v. People (1990)].
REMEDIAL LAW
RIGHT TO APPEAL
The right does not apply in a preliminary

investigation. They parties may, however,
submit to the investigating officers questions
which may be asked to the party or witness
concerned [Sec. 3(e), Rule 112].
Identification by a witness of the accused is
inadmissible if the accused had no opportunity
to confront witness [People v. Lavarias (1968)].
In all criminal prosecutions, the accused shall

have the right to appeal in the manner
prescribed by law [Hilario v. People (2008)].
An appeal in criminal case opens the entire case
for review and the appellate court may correct
even unassigned errors [People v. Tambis
(2008)].
The right to appeal is a statutory right and the
requirements must be complied with; otherwise,
the right is lost [People v. Sabellano (1991)].
If the accused escapes from confinement,
appeal is not allowed unless he voluntarily
surrenders within period for appeal [People v.
Omar (1991)].
RIGHT TO COMPULSORY
PROCESS
This right may be invoked by the accused to
secure the attendance of witnesses and the
production of evidence in his behalf.
The right to appeal is lost by the unjustified

failure to appear at the promulgation of
judgment of conviction [Villena v. People (2011)].
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)].
RIGHTS OF PERSONS UNDER

CUSTODIAL INVESTIGATIONS
RIGHT TO SPEEDY, IMPARTIAL

AND PUBLIC TRIAL
In determining whether or not the right to

speedy disposition of cases has been violated,
this Court has laid down the following
guidelines [Tan v. People (2009); Olbes v.
Buemio (2009)]:
(1) Length of the delay;
(2) Reasons for such delay;
(3) Assertion or failure to assert such right by
the accused; and
(4) Prejudice caused by the delay.
Custodial Investigation involves any questioning

initiated by law enforcement officers after a
person has been taken into custody or otherwise
deprived of his freedom of action in any
significant way [Aquino v. Paiste (2008)].
It shall include the practice of issuing an
invitation to a person who is investigated in
connection with an offense he is suspected to
have committed, without prejudice to the
liability of the inviting officer for any violation
of law.
IN GENERAL
When the accused is denied of this right, he may

pursue the following remedies:
(1) Motion to dismiss [Corpuz v. Sandiganbayan
(2004)];
(2) Mandamus [Lumanlao v. Peralta (2006)].
A persons under custodial investigation has the

following rights:
(1) To be assisted by counsel at all times;
(2) To remain silent;
(3) To be informed, in a language known to and
understood by him, of his rights to remain
silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under custodial investigation;
(4) To be allowed visits by and conferences with
specified persons.
The accused is not entitled to a dismissal where

delay was caused by proceedings or motions
instituted by him. A dismissal based on a
violation of the right to speedy trial is equivalent
to an acquittal and double jeopardy may attach
even if the dismissal is with the consent of the
accused [Condrada v. People (2003)].
PAGE 288
UP LAW BOC
CRIMINAL PROCEDURE
RIGHT TO BE ASSISTED BY COUNSEL

AT ALL TIMES
REMEDIAL LAW
RIGHT TO BE ALLOWED VISITS
Waiver of the right to counsel must be made

with the assistance of counsel [Art. III, Sec. 1(1),
Constitution].
This applies specifically in the following
instances:
(1) Signing of the written custodial report;
(2) Signing of the written extra-judicial
confession.
(3) Signing of the waiver to the provisions of Art.
125, RPC.
For a valid extrajudicial confession made by a
person arrested, detained or under custodial
investigation, the following must concur:
(1) It shall be in writing and signed by such
person; and
(2) It must be signed in the presence of his
counsel or, in the latters absence, upon a
valid waiver.
A person under custodial investigation has a

right to be allowed visits by and conferences
with:
(1) Any member of his immediate family, which
includes his or her spouse, fianc or fiance,
parent or child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew or
niece, and guardian or ward;
(2) Any medical doctor; or
(3) Priest or religious minister, chosen by him or
by any member of his immediate family or by
his counsel, or by any national NGO duly
accredited by the Commission on Human
Rights or by any international NGO duly
accredited by the Office of the President.
CONSEQUENCES OF VIOLATION OF
CUSTODIAL RIGHTS
FAILURE TO INFORM
The arresting public officer or employee, or any
investigating officer, shall suffer a fine of
P6,000 or a penalty of imprisonment of not less
than 8 years but not more than 10 years, or
both.
The investigating officer who has been
previously convicted of a similar offense shall
suffer the penalty of perpetual absolute
disqualification [Sec. 4, 1st par., RA7438].
In the event of a valid waiver, it must be signed

in the presence of any of the parents, elder
brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as
chosen by him.
If he cannot afford to have his own counsel, he
must be provided with a competent and
independent counsel by the investigating
officer.
OBSTRUCTION,
PREVENTION
OR
PROHIBITION OF RIGHT TO VISITS AND
CONFERENCES
Any person guilty thereof shall suffer the
penalty of imprisonment of not less than 4 years
nor more than 6 years and a fine of P4,000.00
[Sec. 4, 2nd par., RA7438].
The modifier competent and independent in the

1987 Constitution is not an empty rhetoric. It
stresses the need to accord the accused, under
the uniquely stressful conditions of a custodial
investigation, an informed judgment on the
choices explained to him by a diligent and
capable lawyer [Lumanog v. People (2010)]
The assisting counsel may be any lawyer, except
those:
(1) Directly affected by the case;
(2) Charged with conducting preliminary
investigation;
(3) Charged with the prosecution of crimes. [Sec.
3, RA 7438].
PAGE 289
UP LAW BOC
CRIMINAL PROCEDURE
Arraignment and Plea
PROCEDURE OF ARRAIGNMENT
ARRAIGNMENT AND PLEA;

HOW MADE
The Court shall issue an order directing

the public prosecutor to submit the
record of the PI to the branch COC for
the latter to attach the same to the
record of the case.
The court shall inform the accused of his

right to counsel and ask him if he desires
to have one. Unless the accused is
allowed to defend himself in person or
has employed counsel of his choice, the
court must assign a counsel de oficio to
defend him.
(1) If the accused plead not guilty, either:

(a) He raises an affirmative defense,
that is, he admits the charge but
raises exempting or justifying
circumstances, in which case the
order of trial is reversed;
(b) He raises a negative defense, that
is, he denies the charge, in which
case regular trial proceeds;
(2) If the accused pleads guilty:
(a) For a non-capital offense, the court
will promulgate a judgment of
conviction;
(b) For a capital offense, the
prosecution is still required to
prove guilt beyond reasonable
doubt;
(3) If the accused does not enter any
plea, a plea of not guilty is entered by
the court.
DEFINITION
This is the stage where the accused is formally

informed of the charge against him by reading
before him the information/complaint and
asking him whether he pleads guilty or not
guilty [Sec. 1(a), Rule 116].
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja
v. Mendoza (1977))
DUTY OF THE
ARRAIGNMENT
COURT
REMEDIAL LAW
BEFORE
The court shall:

(1) Inform the accused of his right to counsel;
(2) Ask him if he desires to have one; and
(3) Must assign a counsel de oficio to defend
him, unless the accused:
(a) Is allowed to defend himself in person; or
(b) Has employed a counsel of his choice
[Sec. 6, Rule 116].
Before arraignment and plea, the accused may
avail of any of the following:
(1) Bill of particulars to enable him to properly
plead and prepare for trial;
(2) Suspension of arraignment; upon motion, he
may ask for suspension of arraignment to
pursue a petition for review before the DOJ
Secretary under Sec. 11, Rule 116, for a period
of suspension shall not exceed 60 days from
filing of petition with the reviewing office;
(3) Motion to quash the complaint or
information on any of the grounds under Sec.
3, Rule 117 in relation to Sec. 1, Rule 117;
(4) Challenge the validity of the arrest or legality
of the warrant or assail the regularity or
question the absence of preliminary
investigation of the charge.
The time of the pendency of a motion to quash

or for a bill of particulars or other causes
justifying suspension of the arraignment shall
be excluded in computing the period [Sec. 1(g),
Rule 116].
HOW MADE
(1) In open court where the complaint or
information has been filed or assigned for
trial;
(2) By the judge or clerk of court;
(3) By furnishing the accused with a copy of the
complaint or information;
If the accused does not question the legality of

the arrest or search, this objection is deemed
waived.
PAGE 290
UP LAW BOC
CRIMINAL PROCEDURE
(4) Reading it in a language or dialect known to

the accused;
(5) Asking the accused whether he pleads guilty
or not guilty.
REMEDIAL LAW
(4) Generally, judgment is void if accused has

not been validly arraigned.
(5) If accused went into trial without being
arraigned, subsequent arraignment will cure
the error provided that the accused was able
to present evidence and cross examine the
witnesses of the prosecution during trial.
WHEN HELD
General rule: The accused should be arraigned
within 30 days from the date the court acquires
jurisdiction over his person.
If an information is amended in substance which

changes the nature of the offense (not merely as
to form), arraignment on the amended
information is mandatory [Teehankee v.
Madayag (1992)].
Exceptions: When the law provides for another

period, arraignment should be held within said
period, as in the following cases:
(1) When an accused is under preventive
detention, his case should be raffled within 3
days from filing and accused shall be
arraigned within 10 days from receipt by the
judge of the records of the case [RA 8493
(Speedy Trial Act)];
(2) Where the complainant is about to depart
from the Philippines with no definite date of
return, the accused should be arraigned
without delay [RA 4908].
WHEN A PLEA OF NOT GUILTY

SHOULD BE ENTERED
(1) When the accused so pleaded;
(2) When he refuses to plead;
(3) When he makes a conditional or qualified
plea of guilt [Sec. 1(c), Rule 116];
(4) When the plea is indefinite or ambiguous;
(5) When he pleads guilty but presents
exculpatory evidence [Sec. 1(d), Rule 116].
In case of failure of the offended party to appear

despite due notice, the court may allow the
accused to enter a plea of guilty to a lesser
offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone [Sec. 1(f), Rule 116; AM No. 03-109-SC Part B(2)].
If the accused who pleaded guilty presents

exculpatory evidence, his plea of guilt is
withdrawn. The judge must order the accused to
plead again or at least direct that a new plea of
not guilty be entered for him, otherwise there
shall be no standing plea for the accused. This
is significant because if there is no standing
plea, the accused cannot invoke double
jeopardy later on.
In case of failure of accused to appear despite

due notice, there is no arraignment in absentia
[Nolasco v. Enrile (1985)]. The presence of the
accused is not only a personal right but also a
public duty, irrespective of the gravity of the
offense and the rank of the court.
WHEN ACCUSED MAY ENTER A

PLEA OF GUILTY TO A LESSER
OFFENSE
Requisites:
(1) The lesser offense is necessarily included in
the offense charged;
(2) The plea must be consistent with the
consent of both the offended party and the
prosecutor, except when the offended party
fails to appear despite due notice;
(3) The penalty for the lesser offense is not more
than two degrees lower than the imposable
penalty for the crime charged.
There can be no trial in absentia without first

arraigning the accused; otherwise, the
judgment is null and void.
SPECIFIC RULES
(1) Trial in absentia may be conducted only after
valid arraignment.
(2) Accused must personally appear during
arraignment and enter his plea; counsel
cannot enter plea for the accused.
(3) Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary.
PAGE 291
UP LAW BOC
CRIMINAL PROCEDURE
DURING ARRAIGNMENT
REMEDIAL LAW
The judge must ask whether the accused was

assisted by counsel during custodial
investigation and PI; ask questions on age,
educational attainment and socio-economic
status; and ask the defense counsel whether or
not he conferred with the accused [People v.
Nadera (2000)].
At arraignment, the accused, with the consent

of the offended party and prosecutor, may be
allowed by the trial court to plead guilty to a
lesser offense which is necessarily included in
the offense charged.
AFTER ARRAIGNMENT BUT BEFORE

TRIAL
Ratio: This is to enjoin courts to proceed with

more care where the possible punishment is in
its severest form and to avoid improvident pleas
of guilt [People v. Samontanez (2000)].
After arraignment but before trial, the accused

may still be allowed to plead guilty to said
lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or
information is necessary [Sec. 2, Rule 116].
People v. Pastor (2002) listed guidelines for

conducting a search inquiry:
(1) Ascertain from the accused himself:
(a) How he was brought into the custody of
the law;
(b) Whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations; and
(c) Under what conditions he was detained
and
interrogated
during
the
investigations. This is intended to rule out
the possibility that the accused has been
coerced or placed under a state of duress
either by actual threats of physical harm
coming from malevolent quarters or
simply because of the judge's intimidating
robes.
(2) Ask the defense counsel a series of questions
as to whether he had conferred with, and
completely explained to, the accused the
meaning and consequences of a plea of
guilty.
(3) Elicit information about the personality
profile of the accused, such as his age, socioeconomic
status,
and
educational
background, which may serve as a
trustworthy index of his capacity to give a
free and informed plea of guilty.
(4) Inform the accused the exact length of
imprisonment or nature of the penalty under
the law and the certainty that he will serve
such sentence. For not infrequently, an
accused pleads guilty in the hope of a lenient
treatment or upon bad advice or because of
promises of the authorities or parties of a
lighter penalty should he admit guilt or
express remorse. It is the duty of the judge to
ensure that the accused does not labor
AFTER TRIAL HAS BEGUN
After the prosecution has rested its case, a

change of plea to a lesser offense may be
granted by the judge, with the approval of the
prosecutor and the offended party if the
prosecution does not have sufficient evidence to
establish the guilt of the accused for the crime
charged. The judge cannot on its own grant the
change of plea.
ACCUSED PLEADS GUILTY TO

CAPITAL OFFENSE; DUTY OF
THE COURT
(1) Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of the pleas;
(2) Require prosecution to present evidence to
prove the guilt and precise degree of
culpability of the accused;
(3) Ask the accused if he desires to present
evidence in behalf and allow him to do so if
he desires [Sec. 3, Rule 116].
Note: A plea of guilty to a capital offense does
not result to an immediate rendering of
judgment.
SEARCHING INQUIRY
The procedure in Sec. 3, Rule 116, when the

accused pleads guilty to a capital offense, is
mandatory.
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.
PAGE 292
UP LAW BOC
CRIMINAL PROCEDURE
under these mistaken impressions because a

plea of guilty carries with it not only the
admission of authorship of the crime proper
but also of the aggravating circumstances
attending it, that increase punishment.
(5) Inquire if the accused knows the crime with
which he is charged and fully explain to him
the elements of the crime which is the basis
of his indictment. Failure of the court to do
so would constitute a violation of his
fundamental right to be informed of the
precise nature of the accusation against him
and a denial of his right to due process.
(6) All questions posed to the accused should
be in a language known and understood by
the latter.
(7) The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty.
The accused must be required to narrate the
tragedy or reenact the crime or furnish its
missing details.
REMEDIAL LAW
The withdrawal of a plea of guilty is not a

matter of right of the accused but of sound
discretion of the trial court [People v. Lambino
(1958)].
The reason for this is that trial has already
begun and the withdrawal of the plea will
change the theory of the case and put all past
proceedings to waste. Moreover, at this point,
there is a presumption that the plea was made
voluntarily
GROUNDS FOR SUSPENSION

OF ARRAIGNMENT
UNSOUND MENTAL CONDITION OF
THE ACCUSED AT THE TIME OF THE
AGREEMENT
When the accused can neither comprehend the

full import of the charge nor can he give an
intelligent plea, the court shall order his mental
examination and, if necessary, his confinement.
IMPROVIDENT PLEA OF GUILTY

TO A CAPITAL OFFENSE
The need for suspension may be determined

from physical and outward manifestations at
the time of arraignment indicative of a mental
disorder which the court had observed and
defense counsel had called attention to [People
v. Alcalde (2002)].
DEFINITION
An improvident plea is one without proper

information as to all the circumstances affecting
it; based upon a mistaken assumption or
misleading information/advice [Blacks Law
Dictionary].
In People v. Dungo (1991), there are three major

criteria to determine insanity:
(1) Delusion test, where insanity is manifested by
a false belief for which there is no reasonable
basis and which would be incredible under
the given circumstances;
(2) Irresistible impulse test, where the accused
has lost the power to choose between right
and wrong, to avoid the act in question, his
free agency being at that time destroyed.
(3) Right and wrong test, where a perverted
condition of mental and mortal faculties
afflicts the accused as to render him
incapable of distinguishing between right
and wrong.
General rule: An improvident plea should not be

accepted. If accepted, it should not be held to
be sufficient to sustain a conviction [People v. De
Ocampo Gonzaga (1984)]. The case should be
remanded to the lower court for further
proceedings.
Exception: If the accused appears guilty beyond
reasonable doubt from the evidence adduced by
the prosecution and defense.
WHEN IMPROVIDENT PLEA MAY BE

WITHDRAWN
At any time before judgment of conviction

becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty.
PAGE 293
UP LAW BOC
CRIMINAL PROCEDURE
Motion to Quash
In People v. Pascual (1993), there are two tests to

determine insanity:
(1)Test of cognition, which requires complete
deprivation of intelligence in committing the
criminal act. It is the test adopted in this
jurisdiction.
(2) Test of volition, which requires a total
deprivation of free will.
EXISTENCE
QUESTION
OF
REMEDIAL LAW
FORM AND CONTENT
At any time before entering his plea, the

accused may move to quash the complaint or
information [Sec. 1, Rule 117].
The motion must:
(1) Be in writing;
(2) Be signed by the accused/his counsel; and
(3) Distinctly specify the factual and legal
grounds [Sec. 2, Rule 117].
PREJUDICIAL
Rationale: A prejudicial question would be

determinative of guilt or innocence.
It may be raised during PI. If the information is
filed in court, it may be raised as ground to
suspend the arraignment.
In cases covered by the Rules on Summary

Procedure, MTQ is allowed only if made on the
grounds of lack of jurisdiction or failure to
comply with barangay conciliation proceedings
[Sec. 19, Rules on Summary Procedure].
PENDENCY
REVIEW
GROUNDS
OF
PETITION
FOR
When the accused filed a petition for review of

the resolution of the prosecutor with the DOJ or
the Office of the President, the accused may file
a motion to suspend the arraignment and
secure a ruling on his petition for review within
60 days from the filing of the petition [DOJ Circ.
No. 70].
IN GENERAL
The following grounds for MTQ are exclusive:

(1) Facts charged do not constitute an offense;
(2) Court trying the case has no jurisdiction over
the person of the accused;
(4) Officer who filed the information had no
authority to do so;
(5) The information does not conform
substantially to the prescribed form;
(6) More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
(7) Criminal action or liability has been
extinguished;
(8) Averments which, if true, would constitute a
legal excuse or justification;
(9) Accused has been previously convicted or
acquitted of the offense charged, or the case
against him was dismissed or otherwise
terminated without his express consent [Sec.
3, Rule 117].
Rationale: This is to observe judicial courtesy

and avoid legal complications in case the
resolution would be different from the offense
for which the accused was arraigned, especially
if it would upgrade the offense.
If petition for review is not resolved within 60
days, court may insist on the arraignment.
With the arraignment of the accused, the DOJ
Secretary can no longer entertain the appeal or
petition for review because petitioner had
already waived or abandoned the same.
[Gandarosa v. Flores (2007).
PAGE 294
UP LAW BOC
CRIMINAL PROCEDURE
Note: Although the rule is that grounds not

asserted in the motion to quash are waived, the
following objections are not subject to waiver:
(1) Facts charged do not constitute an offense;
extinguished;
(4) Double jeopardy.
REMEDIAL LAW
Exceptions:
(1) Facts already admitted by the prosecution
[People v. Navarro (1997)];
(2) Undisputed facts apparent from the records
of the PI and not denied by the prosecutor
[Salonga v. Pano (1985)];
(3) Undisputed or undeniable facts that destroy
the prima facie truth accorded to allegations
of the information [People v. de la Rosa
(1988)];
(4) The Rules expressly permits the investigation
of facts alleged [People v. Alagao (1966);
Sec.s 2(f) and (h), 4 and 5].
FACTS CHARGED DO NOT

CONSTITUTE AN OFFENSE
An information which does not charge an

offense or does not allege essential elements of
a crime is void.
COURT HAS NO JURISDICTION OVER

THE OFFENSE CHARGED
The test is whether or not the facts alleged, if

hypothetically admitted, would establish the
essential elements of the offense, as defined by
law without considering matters aliunde [People
v. Romualdez (2008)].
This refers to jurisdiction over the subject matter,

which is The power to adjudge concerning the
general question involved.
In a criminal prosecution, the place where the
offense was committed not only determines
venue, but is an essential element of jurisdiction
[Sec. 15, Rule 110; Lopez v. City Judge (1966)].
That the missing element may be proved during

the trial or that the prosecution has presented
evidence to establish the same cannot have the
effect of validating the void information or of
proving an offense which does not exist [People v.
Asuncion (1988)].
In private crimes, the complaint of the offended

party is necessary to confer authority to the
court.
The defect is not cured by a failure to move to

quash or by a plea of guilty [Suy Sui v. People
(1953)].
COURT HAS NO JURISDICTION OVER

THE PERSON OF THE ACCUSED
Instead of dismissing, however, the court should

give the prosecution an opportunity to amend
the information.
When the accused files a MTQ based on this

ground, he must do so only on this ground. If he
raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou (1993)].
Should the prosecutor fail to make the

amendment or should the information suffer
from the same defect despite amendment, the
MTQ shall be granted [Sec. 4, Rule 117].
When the objection is raised, the court should

resolve it before conducting trial to avoid
unnecessary expenditure of time and money
[Mead v. Argel (1982)].
When the court dismisses the case, the

prosecutor should file a valid information, not a
petition for review for certiorari.
General rule: In the MTQ, facts other than those
alleged in the complaint/information may not
be considered by the court.
PAGE 295
UP LAW BOC
CRIMINAL PROCEDURE
OFFICER WHO FILED THE

INFORMATION HAD NO AUTHORITY
TO DO SO
REMEDIAL LAW
MORE THAN ONE OFFENSE IS

CHARGED
General rule: The complaint or information must

charge only one offense [Sec. 13, Rule 110)]
Authority to file and prosecute criminal cases is

vested in:
(1) Provincial fiscals and their assistants.
(2) City fiscals and their assistants.
(3) Chief State Prosecutor and his deputies
(4) Other officers authorized by law (e.g.,
Ombudsman, COMELEC).
Exceptions:
(1) Those cases in which existing laws prescribe
a single punishment for various offenses;
(2) Complex and compound crimes, except
where one offense was committed to conceal
another;
(3) An offense incidental to the gravamen of the
offense charged;
(4) A specific crime set forth in various counts,
each of which may constitute a distinct
offense.
The prosecutor who signed the information

must have territorial jurisdiction to conduct
preliminary investigation of the offense [Cudia v.
CA (1998)].
An information filed in the Sandiganbayan must
be signed by a graft investigating officer with
prior approval of the Ombudsman.
However, this ground is waivable. The accused

may be convicted of all the offenses alleged and
proved if he goes to trial without objecting to
the inclusion of two or more separate offenses
in the same information [People v. Villamor
(1998)].
For election offenses, it must be signed by the

duly deputized prosecutors and legal officers of
the COMELEC.
Lack of authority of the officer is not cured by
silence, acquiescence, express consent or even
by amendment.
If the criminal acts are committed on different

occasions, each constitutes a separate offense.
CRIMINAL ACTION OF LIABILITY HAS

BEEN EXTINGUISHED
COMPLAINT OR INFORMATION
DOES NOT CONFORM
SUBSTANTIALLY TO THE
PRESCRIBED FORM
Criminal liability is extinguished by:

(1) Death of the accused, but liability for
pecuniary penalties is extinguished only if
death occurs before final judgment;
(2) Service of sentence, which must be by virtue
of a final judgment and in the form
prescribed by law;
(3) Amnesty;
(4) Absolute pardon;
(5) Prescription of the crime;
(6) Prescription of the penalty;
(7) Pardon in private offenses.
The formal and substantial requirements are

provided for in Secs. 6 to 12, Rule 110.
General rule: Lack of substantial compliance
renders the accusatory pleading nugatory.
Exception: Mere defects in matter of form may
be cured by amendment.
Objections not raised are deemed waived, and
the accused cannot seek affirmative relief on
such ground nor raise it for the first time on
appeal [People v. Garcia (1997)].
Protection from prosecution under a statute of

limitation is a substantive right. [People v.
Sandiganbayan (1992)]
Vague or broad allegations are generally not

grounds for a MTQ. The correct remedy is to file
for a bill of particulars [Sec. 9, Rule 116].
PAGE 296
UP LAW BOC
CRIMINAL PROCEDURE
MOTION TO QUASH AND

DEMURRER DISTINGUISHED
Motion to quash
EFFECTS OF SUSTAINING THE

MOTION TO QUASH
Filed before entering

plea
Filed
after
prosecution
rested its case
Does not go into the

merits of the case
Based upon the

inadequacy of the
evidence adduced by
the prosecution
Grounds are stated in

Rule 117
Ground
is
insufficiency
of
evidence to convict
FILING ANOTHER
COMPLAINT/INFORMATION
the
has
Does not require a

prior leave of court
May be filed either

with leave or without
leave of court
Grant
does
not
necessarily follow a
dismissal (Court may
order the filing of a
new complaint or
information)
Grant is deemed an
acquittal and would
preclude the filing of
another information or
appeal
by
the
prosecution
If the court, in denying

the motion to quash
acts with grave abuse
of discretion, then
certiorari or prohibition
lies
The order denying the

motion for leave to file
a demurrer shall not
be reviewable by
appeal or by certiorari
before judgment
If the court denies
the
demurrer
to
evidence filed with
leave of court, the
accused may adduce
evidence
in
his
defense. When the
demurrer is filed
without leave, the
accused waives the
right
to
present
evidence and submits
the case for judgment
[Sec. 23, Rule 119]
REMEDIAL LAW
General rule: Court may order that another

complaint or information be filed [Sec. 5, Rule
117].
Exception: The court may not do so if MTQ was
based on the following:
extinguished;
(2) Double jeopardy.
DISCHARGE OF THE ACCUSED
General rule: If in custody, the accused shall not

be discharged unless admitted to bail [Sec. 5,
Rule 117]. The order granting the MTQ must
state either release of the accused or
cancellation of his bond.
Exception: When there is no order to file another
complaint/information or, if there is one, when
no new information is filed within the time
specified in the order or within such further time
as the court may allow for good cause, the
accused shall be discharged.
Exception to the exception: The accused will not
be discharged if he is in custody for another
charge.
REMEDIES OF THE PROSECUTION
General rule: The prosecution may amend the

information to correct the defects if the TC
makes the order, and thereafter prosecute on
the basis of the amended information [Sec. 4,
Rule 117].
Exception: Prosecution is precluded where the
ground for quashal would bar another
prosecution for the same offense.
The prosecution may appeal from the order of
quashal to the appellate court.
If the information was quashed because it did
not allege the elements of the offense, but the
facts so alleged constitute another offense
under a specific statute, the prosecution may
file a complaint for such specific offense where
dismissal is made prior to arraignment and on
MTQ [People v. Purisima (1978)].
PAGE 297
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Order granting MTQ
RULE OF DOUBLE JEOPARDY
Interlocutory
Final Order
Not
appealable
absent a showing of
GAD. If there is GAD,
then file petition for
certiorari
Immediately
appealable
but
subject to rules on
double jeopardy
When a person is charged with an offense and

the case is terminated either by acquittal or
conviction or in any other manner without the
express consent of the accused, the latter cannot
again be charged with the same or identical
offense [Sec. 3(i), Rule 117].
Does not dispose of

the case upon its
merits
Disposes of the case

upon its merits
Proper
remedy:
appeal after the trial
Proper
remedy:
appeal the order
Consequence:
Arraignment
Consequence:
Amend information
if possible
Order denying MTQ
KINDS OF DOUBLE JEOPARDY
(1) No person shall be put twice in jeopardy for

the same offense;
(2) When an act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution for the
same act [Art. III, Sec. 21, Constitution].
SAME OFFENSE
The offenses are penalized either by different
Sec.s of the same law or by different statutes.
The essential elements of each must be
examined.
Note: The remedy for an order denying a MTQ is

to go to trial, without prejudice to reiterating the
special defenses invoked in their MTQ [Serana v.
Sandiganbayan (2008)]. However, if the court in
denying the motion to quash acts without or in
excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies
[Lazarte v. Sandiganbayan (2009); Javier v.
Sandiganbayan (2009)].
The test is whether or not evidence that proves

one likewise proves the other [People v. Ramos
(1961)].
It is not necessary to have absolute identity
[People v. Relova (1987)].
General rule: There is identity between the two
offenses not only when the second offense is
exactly the same as the first, but also when the
second offense is an attempt to or frustration of
or is necessarily included in the offense charged
in the first information.
EXCEPTION TO THE RULE THAT

SUSTAINING THE MOTION IS
NOT A BAR TO ANOTHER
PROSECUTION
General rule: Grant of the MTQ will not be a bar
to another prosecution for the same offense
[Sec. 6, Rule 117].
Exception: It will bar another prosecution when
the ground for the quashal is either:
(1) The criminal action or liability has been
extinguished; or
(2) The accused has been previously convicted,
or in jeopardy of being convicted, or
acquitted of the offense charged.
DOUBLE JEOPARDY
The right against double jeopardy prohibits the
prosecution for a crime of which he has been
previously convicted or acquitted [Caes v. IAC
(1989)].
PAGE 298
Exceptions:
(1) The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
(2) The facts constituting the graver charge
became known or were discovered only after
a plea was entered in the former complaint
or information;
(3) The plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party except when
offended party failed to appear during such
arraignment.
UP LAW BOC
CRIMINAL PROCEDURE
SAME ACT
An offense penalized by ordinance is, by
definition, different from an offense penalized
under a statute. Hence, they would never
constitute double jeopardy.
REMEDIAL LAW
WITHOUT EXPRESS CONSENT

This refers only to dismissal or termination of
the case. It does not refer to the conviction or
acquittal [People v. Labatete (1960)].
If consent is not express, dismissal will be
regarded as final (i.e., with prejudice to refilling)
[Caes v. IAC (1989)].
However, the second sentence of the

constitutional protection was precisely intended
to extend to situations not covered by the first
sentence. Although the prior offense charged
under an ordinance be different from the
offense charged under a national statute, the
constitutional protection is available provided
that both arise from the same act or set of acts.
[People v. Relova (1987)].
Even with the consent of the accused, however,

dismissal has the effect of acquittal when
predicated on:
(1) Insufficiency of the prosecutions evidence or
(2) Denial of the right to a speedy trial [Alamario
v. CA (2001)].
WHEN DISMISSAL CONSTITUTES
ACQUITTAL
Dismissal constitutes acquittal when it is
granted:
(1) Upon demurrer to evidence;
(2) Due to violation of right to speedy trial (even
if dismissal was upon motion of the accused
or with his express consent).
REQUISITES TO SUCCESSFULLY
INVOKE DOUBLE JEOPARDY
(1) A first jeopardy must have attached;

(2) The first jeopardy must have been validly
terminated; and
(3) The second jeopardy must be for the same
offense or the second offense necessarily
includes or is necessarily included in the
offense charged in the first information, or is
an attempt to commit the same or a
frustration thereof [People v. Espinosa
(2003)].
REQUISITES FOR FIRST JEOPARDY

TO ATTACH
(1) The accused has been convicted/acquitted,

or
the
case
against
him
was
dismissed/terminated without his express
consent;
(2) The conviction, acquittal or dismissal was
made by the court with competent
jurisdiction;
(3) There is a valid complaint or information or
other formal charge is sufficient in form and
substance to sustain conviction;
(4) The accused pleaded to the charge [Riano
(2011), citing several cases; People v. Honrales
(2010)].
Dismissal
Acquittal
Does not decide the

case on the merits.
Does not determine
innocence or guilt
Always based on the

merits. Defendants
guilt was not proven
beyond reasonable
doubt
Double jeopardy will

not always attach
Double
jeopardy
always attaches
PROVISIONAL DISMISSAL
DEFINITION
Provisional dismissal is dismissal without

prejudice to its being refiled or revived. Cases
are provisionally dismissed where there has
already been arraignment and the accused
consented to a provisional dismissal.
However, a dictated, coerced and scripted

verdict of acquittal is a void judgment. It neither
binds nor bars anyone [Galman v.
Sandiganbayan (1986)].
PAGE 299
UP LAW BOC
CRIMINAL PROCEDURE
GROUNDS
Sec. 8 does not state the grounds for provisional
dismissal. However, according to the case of Los
Baos v. Pedro (2007), the delimitation of the
grounds available in MTQ suggests that where
the grounds cited are those listed under Sec. 3,
then the appropriate remedy is to file a motion
to quash, and not any other remedy.
Conversely, where a ground does not appear
under Sec. 3, then a motion to quash is not a
proper remedy. A motion for provisional
dismissal may then apply if the conditions
required by Sec. 8 obtain.
REMEDIAL LAW
(4) The public prosecutor is served with a copy

of the order of provisional dismissal of the
case [People v. Lacson (2003)].
A case may be revived by:
(1) Refiling of the information;
(2) Filing of a new information for the same
offense or one necessarily included in the
original offense charged.
General rule: Upon revival of the case, there is
no need for a new PI.
Exceptions:
(1) If the original witnesses have recanted their
testimonials or have died;
(2) If the accused is charged under a new
criminal complaint for the same offense;
(3) If the original charge is upgraded;
(4) If the criminal liability is upgraded from
accessory to principal.
WHEN
DISMISSAL
BECOMES
PERMANENT (TIME BAR RULE)
(1) One year after issuance of the order without

the case having been revived for offenses
punishable:
(a) By imprisonment not exceeding 6 years;
(b) By fine of any amount;
(c) By both [Sec. 8, Rule 117];
(2) Two years after issuance of the order without
the case having been revived for offenses
punishable by imprisonment of more than 6
years.
Pre-Trial
APPLICATION OF
AFFIDAVIT RULE
The State may revive beyond the periods

provided there is a justifiable necessity for the
delay.
The Court is not mandated to apply Sec.
8retroactively simply because it is favorable to
the accused. The time-bar under the new rule
was fixed for the benefit of the State and the
accused, and not for the accused only [People v.
Lacson (2003)].
The following are conditions sine qua non for
the application of the time-bar rule:
(1) The prosecution with the express conformity
of the accused or the accused moves for the
provisional (sin perjucio) dismissal of the
case; or both the prosecution and the
accused move for a provisional dismissal of
the case (Sec. 8, Rule 117);
(2) The offended party is notified of the motion
for the provisional dismissal of the case
(3) The court issues an order granting the
motion and dismissing the case provisionally;
PAGE 300
JUDICIAL
Under Sec. 9, AM 12-8-8-SC:

(1) This Judicial Affidavit Rule shall apply to all
criminal actions:
(a) Where the maximum of the imposable
penalty does not exceed six years;
(b) Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or
(c) With respect to the civil aspect of the
actions, whatever the penalties involved are.
(2) The prosecution shall submit the judicial
affidavits of its witnesses not later than five
days before the pre-trial, serving copies if the
same upon the accused. The complainant or
public prosecutor shall attach to the
affidavits such documentary or object
evidence as he may have, marking them as
Exhibits A, B, C, and so on. No further judicial
affidavit, documentary, or object evidence
shall be admitted at the trial.
UP LAW BOC
CRIMINAL PROCEDURE
(3) If the accused desires to be heard on his

defense after receipt of the judicial affidavits
of the prosecution, he shall have the option
to submit his judicial affidavit as well as
those of his witnesses to the court within ten
days from receipt of such affidavits and serve
a copy of each on the public and private
prosecutor, including his documentary and
object evidence previously marked as
Exhibits 1, 2, 3, and so on. These affidavits
shall serve as direct testimonies of the
accused and his witnesses when they appear
before the court to testify.
REMEDIAL LAW
ROLE OF THE JUDGE

During the pre-trial, the judge shall be the one
to ask questions on issues raised therein and all
questions must be directed to him to avoid
hostilities between the parties [AM 03-1-09-SC].
STIPULATION OF FACTS
This is no longer prohibited in criminal cases

[People v. Hernandez (1996)].
However, in a case of rape with the allegation
that the victim is below 12 years of age which
qualifies said crime and increases its penalty to
death, nothing short of proof beyond
reasonable doubt of every fact necessary to
constitute the elements of the crime must be
established. Circumstances that qualify a crime
and increases its penalty to death cannot be the
subject of stipulation [People v. Sitao (2002)].
MATTERS TO BE CONSIDERED
DURING PRE-TRIAL
Pre-trial is mandatory in all criminal cases. Its
main objective is to achieve an expeditious
resolution of the case.
MARKING FOR IDENTIFICATION OF

EVIDENCE
COVERAGE
The court shall order pre-trial in all criminal

cases cognizable by the Sandiganbayan, RTC
and MTC or MTCC or MCTC or MeTC.
Proffer of exhibits is not allowed. It ought to be

done at the time a party closes the presentation
of evidence.
PERIOD
WHAT THE COURT SHOULD DO

WHEN PROSECUTION AND
OFFENDED PARTY AGREE TO
THE PLEA OFFERED BY THE
ACCUSED
General rule: The court shall order a pre-trial

conference after arraignment and within 30
days from the time the court acquires
jurisdiction over the person of the accused.
Exception: A shorter period may be provided by
special laws or SC circulars.
PLEA BARGAINING
THINGS CONSIDERED
It is the process in criminal procedure whereby

the accused, offended party, and the
prosecution work out a mutually satisfactory
disposition of the case subject to court approval
[See DOJ Circ. No. 35, as amended by Circ. No.
55 for the guidelines on plea bargaining as well
as note on Rule 116].
(1) Plea bargaining;

(2) Stipulation of facts;
(3) Marking for identification of evidence;
(4) Waiver of objections to admissibility of
evidence;
(5) Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial);
(6) Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case [Sec. 1, Rule 118].
It usually involves the defendant pleading guilty

to a lesser offense or to one or some of the
counts of a multi-count indictment in return for
a lighter sentence than that for the graver
charge [People v. Mamarion (2003)].
PAGE 301
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
The conviction of the accused of the lesser

offense precludes the filing and prosecution of
the offense originally charged in the
information, except when the plea of guilty to a
lesser offense is without the consent of the
offended party and the prosecutor [People v. De
Luna (1989); Sec. 7(c), Rule 117; see Sec. 2, Rule
116].
Even if placed at a disadvantageous position, a

party may not be allowed to rescind them
unilaterally; he must assume the consequences
of the disadvantage [Bayas v. Sandiganbayan
(2002)].
EFFECT WHEN THE PROSECUTION

AND THE OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE
ACCUSED
The court may impose proper sanctions or

penalties (reprimand, fine or imprisonment), if
counsel for the accused or the prosecutor:
(1) Does not appear at the pre-trial conference;
and
(2) Does not offer an acceptable excuse [Sec. 3,
Rule 118].
NON-APPEARANCE
PRE-TRIAL
The Court shall:

(1) Issue an order which contains the plea
bargaining arrived at;
(2) Proceed to receive evidence on the civil
aspect of the case; and
(3) Render and promulgate judgment of
conviction, including the civil liability or
damages duly established by the evidence
[AM 03-1-09-SC].
DURING
Ratio: This is to enforce the mandatory

requirement of pre-trial in criminal cases [Sec. 1,
Rule 118].
Note: The accused is not included because his
constitutional right to remain silent may be
violated. The accused is not required to attend
(unless ordered by the court) and is merely
required to sign the written agreement arrived
at in the pre-trial conference, if he agrees to the
contents of such. The complainant is also not
required to appear during pre-trial. It is the
prosecutor who is required to appear at the pretrial.
PRE-TRIAL AGREEMENT
FORM
(1) Must be in writing;

(2) Signed by the accused;
(3) Signed by his counsel,
If this is not followed, the admissions cannot be
used against the accused (i.e., inadmissible in
evidence). The constitutional right to present
evidence is waived expressly.
PRE-TRIAL ORDER
ISSUANCE
The pre-trial order is:

(1) Issued by the court;
(2) Within 10 days after the pre-trial [AM 03-109-SC].
General rule: Court approval is required.

Exception: Agreements not covering matters
referred to in Sec. 1, Rule 118, need not be so
approved [AM 03-1-09-SC].
Judgment of acquittal based on pre-trial

despite disputed documents and issues of fact
amounts to grave error and renders the
judgment void [People vs Santiago (1989)].
EFFECT
The stipulations become binding on the parties

who made them. They become judicial
admissions of the fact or facts stipulated.
PAGE 302
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
(3) Informing the parties that no evidence shall

be allowed to be presented and offered
during the trial other than those identified
and marked during the pre-trial except when
allowed by the court for good cause shown.
In mediatable cases, the judge shall refer the
parties and their counsel to the PMC unit for
purposes of mediation if available.
CONTENT
(1) Actions taken;
(2) Facts stipulated;
(3) Evidence marked;
(4) Admissions made;
(5) The number of witnesses to be presented;
and
(6) The schedule of trial [Sec. 4, Rule 118].
Note: Nos. 4 to 6 are added by AM 03-1-09-SC
to the requirements under Sec. 4, Rule 118.
Trial
EFFECT
INSTANCES WHEN PRESENCE

OF ACCUSED IS REQUIRED BY
LAW
(1) Binds the parties. The procedure is

substantially the same in civil cases, except that
any modification of the pre-trial order in civil
cases must be made before the trial. No such
limitation is provided for in criminal cases;
(2) Limits the trial to those matters not disposed
of;
(3) Controls the course of the action during trial,
except if modified by the court to prevent
manifest injustice;
General rule: The presence of the accused

during the trial may be waived.
Exception: The presence of the accused during
the trial is required by law for purposes of
identification.
Exception to the exception: The presence of the
accused is no longer required when he
unqualifiedly admits in open court after
arraignment that he is the person named as
defendant in the case on trial [Lavides v. CA
(2000)].
REFERRAL OF SOME CASES

FOR COURT ANNEXED
MEDIATION AND JUDICIAL
DISPUTE RESOLUTION
Under AM No. 03-1-09 (Proposed Rule on
Guidelines to be Observed by Trial Court Judges
and Clerks of Court in the Conduct or Pre-Trial
and use of Deposition-Discovery Measures), after
the arraignment, the court shall forthwith set
the pre-trial conference within 30 days from the
date of arraignment, and issue an order:
(1) Requiring the private offended party to
appear thereat for purposes of pleabargaining except for violations of the
Comprehensive Dangerous Drugs Act of 2002,
and for other matters requiring his presence;
(2) Referring the case to the Branch COC, if
warranted, for a preliminary conference to be
set at least three days prior to the pre-trial to
mark the documents or exhibits to be
presented by the parties and copies thereof
to be attached to the records after
comparison and to consider other matters as
may aid in its prompt disposition; and
Note: The presence of the accused is also

required in the following cases:
(1) At arraignment; [Sec. 1(b), Rule 116]
(2) At the promulgation of judgment, unless the
conviction is for a light offense [Sec. 6, Rule
120].
REQUISITES BEFORE TRIAL

CAN BE SUSPENDED ON
ACCOUNT OF ABSENCE OF
WITNESS
(1) The witness must be either absent or
unavailable;
(2) The absent or unavailable witness must be
essential [Riano (2011)].
Absent - his whereabouts are unknown or
cannot be determined by due diligence.
PAGE 303
UP LAW BOC
CRIMINAL PROCEDURE
Unavailable - his whereabouts are known but

presence for trial cannot be obtained by due
diligence.
Essential - indispensable, necessary, or
important in the highest degree [Blacks Law
Dictionary].
The period of delay resulting from the absence
or unavailability of an essential witness shall be
excluded in computing the time within which
trial must commence [Sec. 3, Rule 119].
REMEDIAL LAW
(3) His failure to appear is unjustified.

Ratio: This is to speed up disposition of cases.
REMEDY WHEN ACCUSED IS

NOT BROUGHT TO TRIAL
WITHIN
THE
PRESCRIBED
PERIOD
EFFECT OF DELAY
RESPONSIBILITY OF THE COUNSEL
However, the court may, without prejudice to

any appropriate criminal and administrative
charges to be instituted by the proper party
against the erring counsel if and when
warranted, punish the counsel for the accused,
the public prosecution or public attorney who;
(1) Knowingly allows the case to be set for trial
without disclosing the fact that a necessary
witness would be unavailable for trial; or
(2) Otherwise willfully fails to proceed to trial
without justification consistent with the
provisions of the Speedy Trial Act.
CONDITIONAL EXAMINATION
On motion of the accused, the information may

be dismissed on the ground of denial of his right
to speedy trial [Sec. 9, Rule 119].
Factors to consider are:
(1) Duration of the delay;
(2) Reason therefor;
(3) Assertion of the right or failure to assert it;
and
(4) Prejudice caused by such delay [Mari and
People v. Hon. Gonzales (2011)].
Must be raised prior to trial; otherwise, the right
to dismiss is considered waived under Sec. 9,
Rule 119.
BURDEN OF PROOF
When it satisfactorily appears that a witness for

the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to leave
the Philippines with no definite date of
returning, he may forthwith be conditionally
examined before the court where the case is
pending.
(1) The accused has the burden of proving the

ground of denial of right to speedy trial for
the motion.
(2) The prosecution has the burden of going
forward with the evidence to establish the
exclusion of time under Sec. 3, Rule 119.
This is subject to the rules on double jeopardy.
Hence, if with prejudice, the case cannot be
revived anymore.
Such examination, in the presence of the

accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same
manner as an examination at the trial.
REQUISITES FOR DISCHARGE

OF ACCUSED TO BECOME A
STATE WITNESS
Failure or refusal of the accused to attend the

examination after notice shall be considered a
waiver. The statement taken may be admitted in
behalf of or against the accused [Sec. 15, Rule
119].
DISCHARGE OF A CO-ACCUSED
It is the duty of the prosecutor to include all the

accused in the complaint/information.
He may ask the court to discharge one of them
after complying with the conditions prescribed
by law [Sec. 17, Rule 119]. This applies only when
the information has already been filed in court.
TRIAL IN ABSENTIA
Requisites:
(1) Accused has been arraigned;
(2) He was duly notified of trial;
PAGE 304
UP LAW BOC
CRIMINAL PROCEDURE
Thus, even the state witness is include as

accused prior to discharge.
REMEDIAL LAW
Any error in asking for and in granting the

discharge cannot deprive the discharge of the
acquittal and the constitutional guaranty
against double jeopardy [People v. Verceles
(2002)].
REQUISITES
Two or more persons are jointly charged with

the commission of any offense.
(1) Upon motion of the prosecution before
resting its case
(2) Petition for discharge is filed before the
defense has offered its evidence. [People v.
Anion (1988)]
(3) Hearing in support of the discharge where
the prosecution is to present evidence and
the sworn statement of each proposed state
witness.
(4) The court is satisfied of the following:
(a) Absolute necessity for the testimony of
the accused whose discharge is
requested; This means he alone has the
knowledge of the crime, and not when his
testimony would simply corroborate or
strengthen the evidence in the hands of
the prosecution. [Flores v. Sandiganbayan
(1983)];
(b) There is no other direct evidence available
for the proper prosecution of the offense,
except the testimony of the said accused;
(c) The testimony can be substantially
corroborated in its material points;
(d) The accused does not appear to be the
most guilty;
(e) The accused has not, at any time, been
convicted of any offense involving moral
turpitude [Sec. 17, Rule 119].
Note: The evidence adduced in support of the
discharge shall automatically form part of the
trial.
Conviction of the accused against whom

discharged state witness testified is not
required.
Subsequent amendment of the information
does not affect discharge [People v. Taruc
(1962)].
Note: If the discharge is not granted, the
affidavit of the accused cannot be used by the
prosecution.
DEMURRER TO EVIDENCE
DEFINITION
A demurrer to evidence is defined as an

objection or exception by one of the parties in
an action at law, to the effect that the evidence
which his adversary produced is insufficient in
point of law (whether true or not) to make out
his case or sustain the issue [Pasag v. Parocha
(2007), citing Blacks Law Dictionary].
General rule: An order granting the accuseds
demurrer to evidence amounts to an acquittal.
Exception: When there is a finding that there
was grave abuse of discretion on the part of the
trial court in dismissing a criminal case by
granting the accuseds demurrer to evidence.
[Hon. Mupas v. People (2011)].
EFFECTS OF DISCHARGE OF
ACCUSED AS STATE WITNESS
The order granting the demurrer is not

appealable but may be reviewed via certiorari
[Rule 65] [People v. Sandiganbayan, Marcos
(2012)].
General rule: The order of discharge shall:

(1) Amount to an acquittal of the discharged
accused;
(2) Bar future prosecutions for the same offense
[Sec. 18, Rule 119].
Ratio: This is to prevent the filing of demurrer

based on frivolous and flimsy grounds.
Exception: If the accused fails/refuses to testify

against his co-accused in accordance with his
sworn statement constituting the basis for his
discharge, these effects do not set in.
PAGE 305
UP LAW BOC
CRIMINAL PROCEDURE
HOW INITIATED
RIGHT OF THE ACCUSED TO

PRESENT
EVIDENCE
AFTER
DEMURRER IS DENIED
By the court motu proprio, after giving the

prosecution the opportunity to be heard;
Upon demurrer to evidence filed by the accused:
(1) With leave of court;
(2) Without leave of court [Sec. 23, Rule 119].
MOTION FOR
DEMURRER
LEAVE
TO
REMEDIAL LAW
Filed with leave of

court
May
evidence
defense
FILE
(1) It must specifically state its grounds.

(2) It must be filed within a non-extendible
period of 5 days after the prosecution rests
(i.e. after the court shall have ruled on the
prosecutions formal offer). Prosecution may
then oppose within a non-extendible period
of 5 days from receipt.
(3) If leave of court is granted, the demurrer
must be filed within a non-extendible period
of 10 days from notice. Prosecution may
oppose within a similar period [Sec. 23, Rule
119].
EFFECT GRANTING DEMURRER
The court dismisses the action on the ground of

insufficiency of evidence [Sec. 23, Rule 119]. This
amounts to acquittal of the accused.
Sufficient evidence for frustrating a demurrer is
evidence that proves:
(1) Commission; and
(2) Precise degree of participation [Gutib v. CA
(1999)].
EFFECT OF DENIAL OF MOTION FOR

LEAVE TO FILE DEMURRER
(1) Accused should choose to insist on filing

demurrer even without leave or to present
evidence for his defense;
(2) Order denying the motion for leave or order
denying the demurrer itself, is not reviewable
by appeal or by certiorari before judgment
[Sec. 23, Rule 119];
(3) It is interlocutory, but it may be assigned as
error and reviewed in the appeal that may be
taken from the decision on the merits [Cruz v.
People (1999)].
PAGE 306
Filed without leave of

court
adduce
in
his
Waives the right to

present
evidence
[Sec. 23, Rule 119]
Purpose
is
to
determine whether
or not the demurrer
was filed merely to
stall the proceedings
Submits the case for

judgment on the
basis of the evidence
for the prosecution
Implied leave of
court is no longer
sufficient
and
prevents
accused
from
presenting
evidence
(e.g.
accused files motion
with reservation to
present evidence in
case
motion
is
denied)
If there are 2 or more

accused and only
one
presents a
demurrer
without
leave of court:
1. The court may
defer resolution until
decision is rendered
on the other accused
2. If it can be
shown from the
decision that the
resolution on the
demurrer
was
rendered not only on
the basis of the
prosecutions
evidence but also on
the
evidence
adduced by his coaccused, then the
demurrer is deemed
resolved
UP LAW BOC
CRIMINAL PROCEDURE
Judgment
REMEDIAL LAW
(2) The participation of the accused in the

offense, whether as principal, accomplice or
accessory after the fact;
(3) The penalty imposed upon the accused;
(4) The penalty should not be imposed in the
alternative. There should be no doubt as to
the offense committed and the penalty for it;
(5) The civil liability or damages caused by his
wrongful act/omission to be recovered from
the accused by the offended party, if there is
any, unless the enforcement of the civil
liability by a separate civil action has been
reserved/waived [Sec. 2, Rule 120].
REQUISITES OF A JUDGMENT
A judgment is the adjudication by the court that

the accused is guilty or not guilty of the offense
charged and the imposition on him of the
proper penalty and civil liability, if any.
FORM
(1) Written in official language. If given verbally,

it is incomplete [People v. Catolico (1972)];
(2) Personally and directly prepared by the
judge;
(3) Signed by the judge. The judge who presided
over the entire trial would be in a better
position to ascertain the truth or falsity of the
testimonies. But the judge who only took
over can render a valid decision by relying on
the transcript. It does not violate due process
[People v. Badon (1999)];
(4) Contains clearly and distinctly a statement
of facts proved and the law upon which
judgment is based [Sec. 1, Rule 120].
PROOF BEYOND REASONABLE DOUBT

It is that degree of proof which produces
conviction in an unprejudiced mind [People v.
Bacalzo (1991)].
JUDGMENT FOR TWO OR MORE OFFENSES
Where the accused fails to object to two or more
offenses
charged
in
a
single
information/complaint before trial, the court
may:
(1) Convict him of as many offenses as are
charged and proved, except when one of the
offenses has been a necessary means for
committing the other offense and where
both have been the result of a single act; and
(2) Impose on him the penalty for each offense,
setting out separately the findings of fact
and law in each offense [Sec. 3, Rule 120],
subject to the three-fold rule on the service
of penalty.
There is sufficient compliance if the decision

summarizes the evidence of both parties,
synthesizes the findings and concisely narrates
how the offense was committed.
Failure on the part of the TC to make a finding
of fact is a revocable error.
JUDGE WHO RENDERS DECISION
The fact alone that the judge who heard the

evidence was not the one who rendered the
judgment but merely relied on the record of the
case does not render his judgment erroneous or
irregular, especially when the evidence on
record is sufficient to support its conclusion
[People v. Alfredo (2010)].
JUDGMENT IN CASE OF VARIANCE

BETWEEN ALLEGATION AND PROOF
General rule: The defendant can be convicted
only of the crime with which he is charged.
Ratio: He has the right to be informed of the
nature of the offense with which he is charged
before he is put on trial [People v. Guevarra
(1989)].
CONTENTS OF JUDGEMENT
However, minor variance between the

information and the evidence:
(1) Does not alter the nature of the offense;
(2) Does not determine or qualify the crime or
penalty;
(3) Cannot be ground for acquittal.
IN CASE OF CONVICTION
The judgment of conviction shall state:
(1) The legal qualification of the offense

constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances
which
attended
its
commission;
PAGE 307
UP LAW BOC
CRIMINAL PROCEDURE
Exception: He can be convicted of an offense

proved provided it is included in the charge, or
of an offense charged which is included in that
which is proved [Sec. 4, Rule 120].
(1) The accused can be convicted of an offense
only when it is both charged and proven.
(2) The mere fact that the evidence presented
would indicate that a lesser offense outside
the courts jurisdiction was committed does
not deprive the court of its jurisdiction, which
had vested in it under the allegations in the
information.
REMEDIAL LAW
STATE LIABILITY FOR UNJUST CONVICTION

The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
victims of unjust imprisonment/detention and
victims of violent crimes [RA 7309].
The following may file claims for compensation
before the Board:
(1) Any person who was unjustly accused,
convicted and imprisoned but subsequently
released by virtue of a judgment of acquittal;
(2) Any person who was unjustly detained and
released without being charged;
(3) Any victim of arbitrary or illegal detention by
the authorities as defined in the RPC under a
final judgment of the court; and
(4) Any person who is a victim of violent crimes,
include rape and shall likewise refer to
offenses committed with malice which
resulted in death or serious physical and/or
psychological injuries, permanent incapacity
or disability, insanity, abortion, serious
trauma, or committed with torture, cruelly or
barbarity [Sec. 3, 7309].
Exception to the exception: Where there are

facts that supervened after the filing of the
information which change the nature of the
offense.
WHEN AN OFFENSE INCLUDES OR IS
INCLUDED IN ANOTHER
The offense charged necessarily includes the
offense proved when some of the essential
elements/ingredients of the former, as alleged
in the complaint/information, constitute the
latter.
For victims of unjust imprisonment or detention,

the compensation shall be based on the
number of months of imprisonment or
detention and every fraction thereof shall be
considered one month; Provided, however,
That in no case shall such compensation
exceed P1,000 per month.
In all other cases, the maximum amount for
which the Board may approve a claim shall
not exceed P10,000 or the amount necessary
to reimburse the claimant the expenses
incurred for hospitalization, medical
treatment, loss of wage, loss of support or
other expenses directly related to injury,
whichever is lower. This is without prejudice
to the right of the claimant to seek other
remedies under existing laws [Sec. 4, RA
7309].
An offense charged is necessarily included in

the offense proved when the essential
ingredients of the former constitute or form part
of those constituting the latter [Sec. 5, Rule 120].
The effect is that the accused may be convicted
of:
(1) The offense proved which is included in the
offense charged; or
(2) The offense charged which is included in the
offense proved [Sec. 4, Rule 120].
The right to be informed of the charges has not
been violated because where an accused is
charged with a specific crime, he is duly
informed also of lesser crimes/offenses
included therein [People v. Villamar (1998)].
Where a complex crime is charged and the
evidence fails to support the charge as to one of
the component offenses, the accused can be
convicted of the one which is proven.
IN CASE OF ACQUITTAL
Acquittal
Dismissal
Terminates the case

Decision on the
merits based on a
finding that the
accused is not guilty
PAGE 308
Not on the merits

but no finding that
accused is not guilty
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Acquittal means a finding of not guilty based on

the merits, either:
(1) Because the evidence does not show that his
guilt is beyond reasonable doubt; or
(2) Upon motion of the accused, after the
prosecution rested its case, on the ground
that the evidence fails to show beyond doubt
that accused is guilty.
General rule: The court has authority to express

disapproval of certain acts even if judgment is
for acquittal.
Reasonable doubt is doubt engendered by an

investigation of the whole proof and an inability,
after such investigation, to let the mind rest
upon the certainty of guilt.
PROMULGATION
OF
JUDGEMENT; INSTANCES OF
PROMULGATION IN ABSENTIA
The judgment shall state whether:

(1) The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
(2) It merely failed to prove his guilt beyond
reasonable doubt.
PROMULGATION
Exception: The court is not permitted to censure

the accused in a judgment for acquittal no
matter how light, a censure is still a
punishment.
Promulgation is the official proclamation or

announcement of a judgment or order.
Requisites:
(1) There must be a judge or judges legally
appointed or elected and actually acting
either de jure or de facto, and
(2) The said judgment must be duly signed and
promulgated during the incumbency of the
judge who signed it [Miguel v Municipal Trial
Court (1986)].
In either case, the judgment shall determine if

the act or omission from which the civil liability
might arise did not exist [Sec. 2, Rule 120].
Acquittal based on failure to prove guilt beyond
reasonable doubt does not extinguish the civil
liability arising from his acts, since the civil
liability arose not from a crime but from the
damage caused by such acts, which can be
proven by a lower quantum of evidence. Thus, it
does not bar a separate civil action based on
quasi-delict [Lontoc v. MD Transit (1988)].
The judgment or sentence does not become a

judgment or sentence in law until it is:
(1) Read and announced to the defendant; or
(2) Has become a part of the record of the court
[US v. CFI of Manila (1913)].
The court may hold the accused civilly liable

even when it acquits him. Acquittal extinguishes
civil liability only when the judgment includes a
declaration that the facts from which the civil
liability might arise did not exist. Thus:
(1) The court may nonetheless hold the accused
civilly liable in favor of the offended party, or
it may deny the award of civil damages
expressly or impliedly by being silent on the
matter.
(2) The losing party may appeal the ruling on
the civil liability, as in any other ordinary
appeal, in his name and not in the name of
the People.
Where there is no promulgation of judgment, no

right to appeal accrues. Merely reading the
dispositive portion of the decision is not
sufficient. Judgment must state the facts and
the law on which it is based.
While SC has expressed approval of the practice
of some judges withholding the dispositive
portion from their opinions until the very last
moment of promulgation in order to prevent
leakage, such refers to the preparation of the
decision and not to promulgation.
There is no more reason to keep it a secret at
the stage of promulgation.
The judge acquitting an accused cannot punish

him at the same time.
PAGE 309
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PROMULGATION WHEN ACCUSED IS

CONFINED OR DETAINED IN ANOTHER CITY
Promulgation will be done in the RTC which has
jurisdiction over the place of confinement. In
this case, the court promulgating the judgment
shall have authority to accept notice of appeal
and to approve the bail bond pending appeal
[Sec. 6, Rule 120].
NOTICE FOR PROMULGATION

The Clerk of Court gives notice to the accused
personally or through the bondsman or warden
and counsel.
If the accused jumps bail or escapes from prison
and was tried in absentia, notice will be served
in last known address [Sec. 6, Rule 120].
FAILURE OF THE ACCUSED TO APPEAR AT

THE SCHEDULED DATE OF PROMULGATION
Promulgation is made by recording the
judgment in the criminal docket and serving a
copy at the accuseds last known address or
through counsel [Sec. 6, Rule 120].
SIN PERJUICIO JUDGMENT
It is a judgment without a statement of the facts

in support of its conclusion to be later
supplemented by the final judgment [Dizon v.
Lopez (1997)].
PROMULGATION IN CERTAIN
CIRCUMSTANCES
PROMULGATION WHEN A JUDGE IS NO

LONGER A JUDGE
If at the time of the promulgation, the judge
penning the decision has ceased being a judge
of the court, the decision would not be an act of
the court. [People v. Dimalanta)
Promulgation by a succeeding judge produces
no legal effect since it cannot restore validity to
a document already void.
PROMULGATION WHERE THE JUDGE IS

ABSENT
The judgment may be promulgated by the clerk
of court when the judge is absent or outside the
province or city [Sec. 6, Rule 120].
WHERE PRESENCE OF ACCUSED IS
REQUIRED; EXCEPTIONS
General rule: Presence of the accused is
mandatory in the promulgation of judgment.
WHEN DOES JUDGMENT

BECOME FINAL
(1) After the lapse of the period for perfecting an
appeal;
(2) When the sentence has been partially/totally
satisfied or served;
(3) The accused has expressly waived in writing
his right to appeal;
(4) When the accused applies for probation, and
thereby waives right to appeal.
Exception: Convictions for light offenses [Sec. 6,

Rule 120].
If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the Rules against the judgment and the court
shall order his arrest.
Judgment also becomes final when judgment is

an acquittal [People v. Sandiganbayan (2010)].
However, within 15 days from promulgation of

judgment, he may surrender and file a motion
for leave of court to avail of these remedies. He
shall state the reasons for his absence.
Note: Before the judgment becomes final, the

TC has plenary power to make, either on motion
or motu proprio, such amendment or alterations
as it may deem best, within the frame of law, to
promote the ends of justice [Sec. 7, Rule 120].
If he proves his absence was for a justifiable

cause, shall be allowed to avail of the remedies
within 15 days from notice [Sec. 6, Rule 120;
People v. De Grano (2009)].
After finality, the TC is divested of authority to

amend/alter the judgment, except to correct
clerical errors.
PAGE 310
UP LAW BOC
CRIMINAL PROCEDURE
New Trial or
Consideration
REMEDIAL LAW
REQUISITES BEFORE A NEW

TRIAL MAY BE GRANTED ON
GROUND OF NEWLY
DISCOVERED SPECIES
GROUNDS FOR NEW TRIAL
Requisites: The evidence:

(1) Was discovered after the trial;
(2) Could not have been discovered and
produced at the trial even with the exercise
of reasonable diligence [US v. Pico (1982)];
(3) Burden of proving this is on the accused. [US
v. Torrente (1922)];
(4) Is material, not merely cumulative/
corroborative/impeaching; and
(5) Is of such weight that it would probably
change the judgment if admitted [Jose v. CA
(1997)].
ERRORS OF LAW OR
IRREGULARITIES
The court shall grant a new trial when errors of

law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial.
General rule: Errors of the defense counsel in
the conduct of the trial is neither an error of law
nor an irregularity.
Exception: They become an error of law or
irregularity when acquittal would, in all
probability, have followed the introduction of
certain testimony which was not submitted at
the trial under improper or injudicious advice of
incompetent counsel of the accused.
It must be of weighty influence and will affect

the result of the trial [People v. Alfaro (2003)].
Irregularities must be with such seriousness as

to affect prejudicially the substantial rights of
the accused.
In People v. Almendras (2003), the court ruled

that a motion for a new trial may be granted on
a ground not specifically provided in the rules,
provided that it is sought in the interest of
justice. In that case, the relief of a new trial was
granted to a client who has suffered by reason
of his/her counsels gross mistake and
negligence.
INTEREST OF JUSTICE AS GAUGE

FOR INTRODUCTION OF NEW
EVIDENCE
NEW AND MATERIAL EVIDENCE
The court shall grant a new trial when new and

material evidence has been discovered which
the accused could not with reasonable diligence
have discovered and produced at the trial and
which if introduced and admitted would
probably change the judgment [Estino v. People
(2007)].
WHEN THERE IS VARIANCE IS TWO

REPORTS
In People v. del Mundo (1996), the court allowed

the presentation in a new trial of a police report,
not new, and which could have been discovered
with due diligence, because the evidence
contained in such was at such variance with the
health officers report at trial, that its contents
raised doubts to the guilt of the accused.
The determinative test is the presence of due or

reasonable diligence to locate the thing to be
used as evidence in the trial [Briones v. People
(2009)].
GROUNDS FOR
RECONSIDERATION
EFFECTS OF GRANTING NEW

TRIAL OF RECONSIDERATION
The court shall grant reconsideration on the

ground of errors of law or fact in the judgment,
which requires no further proceedings [Sec. 3,
Rule 121].
IN ALL CASES
(1) The original judgment set aside or vacated;

(2) A new judgment is rendered accordingly;
PAGE 311
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
OTHER EFFECTS
Other specific effects (see table) also result
when granted upon different grounds [Sec. 6,
Rule 121].
Ground
Effect
Action of the court
Errors of law or irregularities

committed during the trial
All proceedings and evidence

affected shall be set aside and
taken anew.
The court will allow introduction

of additional evidence in the
If error or irregularity goes into

the jurisdiction, the entire
proceeding is void and must be
set aside.
Newly-discovered evidence
IN CASE OF
DISCRETION
GRAVE
Evidence already adduced shall

stand and the newly-discovered
and such other evidence shall be
taken and considered together
with the evidence already in the
record.
ABUSE
OF
The remedy of the prosecution in case of grave

abuse of discretion in the grant of the MNT/MR is
certiorari or prohibition. Otherwise, it may no
longer have opportunity to question the order if
accused is acquitted after a new trial is
conducted, because of the rule on double
jeopardy [Luciano v. Estrella (1970)].
The court will allow introduction

of other such evidence in the
APPLICATION OF THE NEYPES

DOCTRINE IN CRIMINAL CASES
The Neypes doctrine allows a fresh period of 15
days within which to file the notice of appeal in
the RTC, counted from receipt of the order
dismissing a MNT or MR. Neypes v. CA (2005)
declared that:
Henceforth, this fresh period rule shall also
apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies
to the Court of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court.
PAGE 312
UP LAW BOC
CRIMINAL PROCEDURE
Appeal
REMEDIAL LAW
HOW APPEAL IS TAKEN

The right to appeal is not a natural right nor a
part of due process but merely a statutory
privilege and may be exercised only in the
manner and in accordance with the provisions
of the law [Estarija v. People (2009)].
EFFECT OF AN APPEAL
An appeal in a criminal proceeding throws the

whole case open for review and it becomes the
duty of the appellate court to correct an error as
may be found in the appealed judgment, WON
it is made the subject of assignment of errors
[People v. Calayca (1999)].
WHO MAY APPEAL
General rule: Any party may appeal from a

judgment or final order [Sec. 1, Rule 122].
Exceptions:
(1) A party may not appeal if the accused will be
placed in double jeopardy by such action
[Sec. 1, Rule 122];
(2) If the judgment is for conviction and the
accused fails to appear without justifiable
cause, he would lose the remedy to appeal
[Sec. 6, Rule 120].
WHERE TO APPEAL
For cases decided by
Appeal to
MTC/MeTC/MCTC
RTC
RTC or MTC/MeTC/
MCTC (if it is government
duty-related, i.e., filed
under EO 1, 2, 4 and 14-A)
Sandiganbayan
RTC (if it involves

questions of fact and of
law)
CA
RTC
(1) If it involves questions
of law only
(2)
If
it
involves
constitutionality
or
validity
of
any
treaty/law/ordinance/
EO/ regulation or the
jurisdiction of the
inferior court
(3) In criminal cases
involving offenses for
which the penalty
imposed is death or
life imprisonment
(4) Other offenses, which,
although
not
so
punished, arose out of
the same occurrence
or which may have
been committed by the
accused on the same
occasion,
as
that
giving rise to the more
serious offense
SC
CA or Sandiganbayan
SC
PROCEDURE IN LOWER COURTS

When appeal to be taken. Within 15 days
from promulgation of the judgment or
from notice of the final order appealed
from.
PAGE 313
The period to appeal shall be suspended

from the time a MNT or MR is filed until
notice of the order overruling the motion
has been served upon the accused or his
counsel.
Transmission of record to RTC. Within 5

days from perfection of the appeal, the
COC shall transmit the original record to
the appropriate RTC.
Notification of parties. Upon receipt of

the complete record, TSN and evidence
of the case, the RTC COC shall notify the
parties of such fact.
Submission of memoranda/briefs. Within

15 days from receipt of said notice, the
parties may submit memoranda/briefs,
or may be required by the RTC to do so.
Decision. After submission of such

memoranda/briefs
or
upon
the
expiration of the period to file the same,
the RTC shall decide the case on the
basis of the entire record of the case and
of such memoranda/briefs as may have
been filed.
UP LAW BOC
CRIMINAL PROCEDURE
General rule: The procedure to be observed in

the MeTC/MTC/MCTC shall be the same as that
in the RTC.
REMEDIAL LAW
It shall be filed within 30 days from receipt by

the appellant (his counsel) of the CA clerk of
courts notice that the evidence is already
attached to the record [Sec. 3, Rule 124].
Exceptions:
(1) Where a particular provision applies only to
either of said courts;
(2) Criminal cases governed by the Revised Rules
on Summary Procedure [Sec. 1, Rule 123].
BRIEF FOR THE APPELLEE

Appellee shall file seven copies of his brief with
the clerk of court, accompanied by proof of
service of two copies on the appellant.
OFFENSES
FALLING
UNDER
THE
JURISDICTION OF THE MTC/MCTC
Notwithstanding the uniform procedure rule, if
the offense falls under the jurisdiction of the
MTC/MCTC, complaint/information may be
filed directly with said courts or with the City
Prosecutors Office [Salcedo v. Nobles-Bans
(1985)].
It shall be filed within 30 days from receipt of

the appellants brief [Sec. 4, Rule 124].
REPLY TO APPELLEES BRIEF
Filing a reply is optional. Thus, the appellant
may file a reply brief covering matters raised in
the appellees brief but not in the brief of the
appellant.
It must be filed within 20 days from receipt of
the appellees brief [Sec. 4, Rule 124].
OFFENSES
FALLING
UNDER
THE
JURISDICTION OF THE METC
In Metro Manila and other chartered cities,
criminal cases shall be commenced only by
information; thus, the complaint may be filed
only with the Office of the City Prosecutor
EXTENSION OF TIME FOR FILING BRIEFS

General rule: Extension of time for the filing of
briefs is not allowed.
Exception: Extension may be granted for good
and sufficient cause.
If the case is directly filed with the court, the

case should not be dismissed. The court should
just refer it to the City Prosecutor for the filing of
the corresponding information [Salcedo v.
Nobles-Bans (1985)].
It is sought through a motion for extension,

which must be filed before the expiration of the
time sought to be extended [Sec. 5, Rule 124].
PROCEDURE IN THE COURT OF

APPEALS
The court may grant as many extensions as may

be asked [Gregorio v. CA (1976)].
PARTIES AND TITLE

In all criminal cases appealed to the CA, the
party appealing shall be called the appellant
and the adverse party the appellee.
FORM OF BRIEFS
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
The title of the case shall remain as it was in the

court of origin (i.e., People v. John Doe) [Sec. 1,
Rule 124].
Mimeographed copies are not allowed [Sec. 6,

Rule 124].
BRIEF FOR THE APPELLANT

The appellant shall file seven copies of his brief
with the clerk of court, accompanied by proof of
service of two copies on the appellee.
CONTENT OF BRIEFS
The briefs in criminal cases shall have the same
contents as provided in Secs. 13 to 14, Rule 44
[Sec. 7, Rule 124].
PAGE 314
UP LAW BOC
CRIMINAL PROCEDURE
DISMISSAL OF APPEAL FOR

ABANDONMENT OR FAILURE TO
PROSECUTE (GROUNDS)
REMEDIAL LAW
(2) If there was absolutely no evidence against

the accused as found by the appellate court,
he should be acquitted in order to prevent an
injustice by technicalities [People v.
Buenaventura (1994)];
(3) In case of automatic review [People v.
Cornelio (1971)].
Appellant fails to file his brief within the

prescribed time
The CA may, upon motion of the appellee or
motu proprio and with notice to the appellant in
either case, dismiss the appeal if the appellant
fails to file his brief with the time prescribed,
except where the appellant is represented by a
counsel de oficio.
If failure to file brief on time is the ground,
appellant must be given notice to give him
opportunity to reason out why his appeal should
not be dismissed.
However, dismissal is proper despite lack of
notice:
(1) If appellant has filed a MFR or motion to set
aside the order dismissing the appeal, in
which he stated the reason why he failed to
file his brief on time and the appellate court
denied the motion after considering reason
[Baradi v. People (1948)];
(2) If appeal was dismissed without notice but
appellant took no steps to have the appeal
reinstated. Such action amounts to
abandonment [Salvador v. Reyes (1949)].
PROMPT DISPOSITION OF APPEAL

Appeals of accused who are under detention are
given precedence in their disposition over other
appeals.
The accused need not be present in court during
the hearing of the appeal [Sec. 9, Rule 124].
REVERSAL/MODIFICATION OF JUDGMENT
ON APPEAL
General rule: No judgment shall be reversed or
modified.
Exception: When the CA, after an examination of
the record and of the parties evidence, is of the
opinion that error was committed and such
error injuriously affected the appellants
substantial rights [Sec. 10, Rule 124].
When it involves credibility of witnesses,
appellate courts will not generally disturb the
TCs findings.
Appellant escapes, jumps bail, or flees

The CA may also, upon motion of the appellee
or motu proprio, dismiss the appeal if the
appellant escapes from prison/confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal [Sec. 8, Rule 124].
Ratio: The TC is in a better position to decide the

question, having seen and heard the witnesses
themselves. [People v. Cabiling (1976)]
SCOPE OF CAS JUDGMENT
The CA may:
(1) Reverse/affirm/modify the judgment;
(2) Increase/reduce the penalty imposed by the
TC;
(3) Remand the case to the RTC for new trial or
retrial;
(4) Dismiss the case [Sec. 11, Rule 124].
Likewise, when accused flees after the case has

been submitted for decision, he is deemed to
have waived his right to appeal [People v. Ang
Gioc (1941)].
However, the appeal will not be dismissed
despite escape:
(1) In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured two hours
after, the SC said circumstances were not
sufficient to justify dismissal of the appeal
[People v. Valencia (1949)];
PAGE 315
UP LAW BOC
CRIMINAL PROCEDURE
When the accused appeals from the sentence of

the TC, he waives the constitutional safeguard
against double jeopardy and throws the whole
case open to the review of the appellate court,
which is then called upon to render such
judgment as law and justice dictate, WON
favorable to the accused and WON made the
subject of assignment of errors [Ko Bu Lin v. CA
(1982)].
REMEDIAL LAW
CERTIFICATION OR APPEAL OF CASES TO

THE SC
(1) If the CA finds that death penalty should be
imposed, it shall render judgment but refrain
from making an entry of judgment. It shall
then certify the case and elevate its entire
record to the SC for review. The accused does
not have to do anything.
(2) If the judgment also imposes a lesser
penalty for offenses committed on the same
occasion or which arose from the same
occurrence that gave rise to the more severe
offense for which death is imposed, and the
accused appeals, the appeal shall be
automatically included in the case certified
for review in the SC
(3) If the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty:
(a) It shall render and enter judgment
imposing such penalty.
(b) Appeal here is not automatic. The
accused has to file a notice of appeal with
the CA [Sec. 113, Rule 124].
CAS POWER TO RECEIVE EVIDENCE

The CA has power to try cases and conduct
hearings, receive evidence and perform any and
all acts necessary to resolve factual issues in
cases:
(1) Falling within its original jurisdiction;
(2) Involving claims for damages arising from
provisional remedies;
(3) Where the court grants a new trial based
only on the ground of newly-discovered
evidence.
CAs trials and hearings must be continuous
and completed within three months, unless
extended by the Chief Justice [Sec. 12, Rule 124].
JUDGMENT TRANSMITTED AND FILED IN

THE TC
When the CAs entry of judgment is issued, a
certified true copy of the judgment shall be
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken [Sec. 17, Rule 124].
This copy of the entry serves as the formal
notice to the court from which the appeal was
taken of the disposition of the case in the
appellate court, so that the judgment may be
executed and/or placed or noted in the proper
file.
QUORUM IN THE CA
(1) Three CA Justices constitute a quorum for the
sessions of a division;
(2) The unanimous vote of the three Justices of a
division is necessary for the pronouncement
of a judgment or final resolution;
(3) Decision is reached through a consultation
before the writing of the opinion by a
member of the division;
(4) If there is lack of unanimity, the Presiding
Justice shall direct the CA raffle committee
to designate two additional Justices to sit
temporarily with them. They shall then form
a special division of five members;
(5) The concurrence of a majority of that special
division is necessary for the pronouncement
of a judgment or final resolution;
(6) Designation of the additional Justices shall
be made strictly by raffle and rotation among
all other CA Justices [Sec. 11, BP 129].
MNT DURING THE PENDENCY OF APPEAL

(1) Appellant may file MNT on the ground of newly
discovered evidence material to his defense any
time:
(a) After the appeal from the lower court has
been perfected; but
(b) Before the CA judgment convicting him
becomes final;
(2) The motion shall conform to Sec. 4, Rule 121
(Sec. 14, Rule 124);
(3) If the CA grants a MNT, it may either:
(a) Conduct the hearing and receive evidence;
(b) Refer the trial to the court of origin [Sec. 15,
Rule 124].
PAGE 316
UP LAW BOC
CRIMINAL PROCEDURE
RECONSIDERATION OF CA JUDGMENT
MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party. The mittimus shall
be stayed during the MFRs pendency.
MODES BY WHICH A CASE MAY REACH THE

SC
Automatic review
Automatic review is not a matter of right on the
part of the accused, but a matter of law.
General rule: No party shall be allowed a second

MFR of a judgment or final order [Sec. 16, Rule
124; Sec. 11, BP 129].
It is available when:
(1) The RTC judgment upon the accused
imposes death penalty [Sec. 10, Rule 122];
(2) The RTC decision is appealed to CA and the
latter is of the opinion that the penalty
imposed should be death or life
imprisonment. CA judgment is imposed but
no entry of judgment is made; instead, the
case is certified and the entire record is
elevated to the SC for review [Sec. 13, Rule
124].
Exception: Where the first MFR resulted in a

reversal or substantial modification of the
original decision or final resolution.
In this case, the party adversely affected by the
reversal/modification may himself file a MFR of
the latest judgment of the court, because with
respect to him, said motion is a first pleading of
that nature.
Ordinary appeal
(1) The penalty imposed by the RTC is life
imprisonment, decision is appealable directly
to the SC by filing a notice of appeal with the
RTC [Sec. 3, Rule 122];
(2) An accused was charged with two or more
offenses committed on the same occasion or
arising out of the same occurrence, and in
one of those 2 cases, he was sentenced to life
imprisonment or death penalty, the appeal
with respect to the others, though punished
with a lesser penalty, is to the SC [Sec. 3, Rule
122];
(3) The penalty of reclusion perpetua or death is
imposed on some of the defendants and a
lesser penalty on the other co-defendants,
on account of their varying degree of
participation in the commission of the
offense or due to the presence of modifying
circumstances, in which case the decision on
the non-life convicts is directly appealable to
the SC [People v. Carino (2002)].
APPLICABLE CIVIL PROCEDURE RULES

Sec. 18, Rule 124. Provisions of Rules 42, 44-46
and 48-56 relating to procedure in the CA and
the SC in original and appealed civil cases, shall
be applied to criminal cases insofar as they are
applicable and not inconsistent with the
provision of this Rule
PROCEDURE
COURT
IN
THE
REMEDIAL LAW
SUPREME
UNIFORM PROCEDURE
General rule: The procedure in the SC in original
and in appealed cases shall be the same as in
the CA [Sec. 1, Rule 125].
Exception: The procedure changes when the
Constitution or law so provides.
WHAT THE SC MAY DO ON REVIEW
In a criminal case, an appeal to the SC throws
open the whole case for review and it becomes
its duty to correct such errors as may be found
in the judgment appealed from, whether or
not they were assigned as errors [People v.
Olfindo (1924)].
It may examine the judgment as to the
qualification of the crime and the degree of
the penalty imposed [Macali v. Revilla (1926)].
It may also assess and award civil indemnity
[Quemel v. CA (1946)].
In these cases, the SC reviews not only errors of

law but also the findings of fact by the TC.
PAGE 317
UP LAW BOC
CRIMINAL PROCEDURE
Petition for review on certiorari

(1) The constitutionality or validity of any treaty,
executive agreement, law, ordinance or
executive order or regulation is in question;
(2) When validity of law is questioned by an
accused convicted under it by the TC, the SC
cannot review the evidence or pass upon any
other question of law which may appear on
the record, but will only confine itself to the
question of the in/validity of that law
[Trinidad v. Sweeney (1904)];
(3) When the jurisdiction of any inferior court is
in issue;
(4) When only an error or question of law is
involved.
REMEDIAL LAW
The SC said that in cases similarly situated, and

as long as the steps formally required for the
perfection of an appeal were taken in due time,
appeal may be given due course, without
prejudice to requiring the appellant to file the
necessary petition for review on certiorari which
is also a form of appeal.
REVIEW OF CA DECISIONS
Sec. 2, Rule 125. The procedure for the review by
the SC of CA decisions on criminal shall be the
same as in civil cases
General rule: The appellate jurisdiction of the
SC in cases brought to it from the CA is limited
to reviewing and revising the errors of law
incurred by the latter. The CAs findings of fact
are final. If an appeal in the SC involves
questions of facts, the SC has no jurisdiction
and should dismiss appeal [Guico v. Mayuga
(1963)].
On decisions of the CA and the Sandiganbayan,

as a rule, review here is limited to errors of law.
General rule: Certiorari is used to correct only
errors of jurisdiction and not errors of judgment
of an inferior court. For errors of judgment,
ordinary appeal is available.
Exceptions:
(1) When the conclusion is a finding founded
entirely
on
speculations/surmises/conjectures;
(2) When the inference made is manifestly
mistaken/absurd/impossible;
(3) When there is GAD;
(4) When the judgment is based on a
misapprehension of facts;
(5) When the findings of facts are conflicting;
(6) When the CA, in making its findings, went
beyond the issues of the case and the same
are contrary to the admissions of both
appellant and appellee [Napolis v. CA (1972)].
Exception: In the following cases, certiorari is

granted despite existence of the remedy of
appeal:
(1) Where public welfare and advancement of
public policy so dictate;
(2) Where the broader interests of justice so
require;
(3) Where the orders complained of were found
to be completely null and void;
(4) Where appeal was not considered as the
appropriate remedy.
FAILURE TO SPECIFY APPELLATE COURT
Failure of appellant to specify in his notice of
appeal the court to which the appeal is being
made is not fatal [RA 296].
DECISION IF OPINION IS EQUALLY DIVIDED

When the SC en banc is equally divided in
opinion or the necessary majority cannot be had
on whether or not to acquit the appellant, the
case shall again be deliberated upon.
ERRONEOUS MODE OF APPEAL

In the case of People v. Resuello (1969), the
contention of the adverse party that the
ordinary appeal filed by appellant shall be
dismissed because the proper remedy is petition
for review on certiorari (only questions of law
were involved) was rejected.
If no decision is reached after re-deliberation,

the lower courts judgment of conviction shall
be reversed and the accused is acquitted.
If case is decided by a division of the SC whose
members are equally divided, the case shall be
heard and decided by the SC en banc [Sec. 3,
Rule 125].
PAGE 318
UP LAW BOC
CRIMINAL PROCEDURE
COMPOSITION OF THE SC
(1) SC is composed of one Chief Justice and 14
Associate Justices.
(2) SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
(3) No doctrine or principle of law laid down by
the SC in a decision rendered en banc or in
division may be modified/reversed except by
the court sitting en banc [Art. VIII, Sec. 4,
Constitution].
The prosecution cannot

judgment of acquittal
REMEDIAL LAW
appeal
from
Ratio: A verdict of that nature is immediately

final and to try on the merits, even in an
appellate court, places the accused in double
jeopardy [Central Bank v. CA (1989)].
Dismissal of case upon filing of demurrer by the
accused was held to be final even though based
on erroneous interpretation of the law. Hence,
an appeal therefrom by the prosecution would
constitute double jeopardy [US v. Kilayko (1916)].
EFFECT OF APPEAL BY ANY OF

SEVERAL ACCUSED
General rule: An appeal taken by one or more of
several accused shall not affect those who did
not appeal.
(1) As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
(2) As to the co-accused who did not appeal, the
judgment of the TC insofar as it relates to
him becomes final and the appellate court
has no power to interfere with it [Salvatierra
v. CA (1996)].
Where the TC has jurisdiction but mistakenly

dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable [People v. Duran (1960)].
An appeal by the People will not lie if the
purpose is to correct the penalty imposed by the
trial court or to include in a judgment a penalty
erroneously omitted [People v. Paet (1956)].
The preclusion against appeal by the State from
judgments or final orders having the effect of
acquittal, applies even though accused did not
raise question of jeopardy [People v. Ferrer
(1956)].
Exception: Insofar as the judgment of the

appellate court is favorable and applicable to
those who did not appeal or who withdrew his
appeal [People v. Gandia (2008)].
The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from [Sec. 11, Rule
122].
Search and Seizure

NATURE OF SEARCH WARRANT
GROUNDS FOR DISMISSAL OF

APPEAL
DEFINITION
It is an order in writing; issued in the name of

the People of the Philippines; signed by a judge;
and directed to a peace officer, commanding
him to search for personal property described in
the warrant and bring it before the court [Sec. 1,
Rule 126].
WHEN APPEAL BY THE PEOPLE WILL

NOT LIE
The People/State cannot appeal when it will

put the accused in double jeopardy. The
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in a
new and independent cause but extends also to
appeal in the same case by the prosecution
after jeopardy had attached [Republic v. CA
(1982)].
If it is without the judges signature, it is fatally

defective.
PAGE 319
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
However, if the private person is acting upon

orders of government officials, the principle of
agency applies, because in fact such private
person is acting in the interest of government,
and is therefore subject to the prohibition
against unreasonable searches and seizures.
NATURE
A search warrant is in the nature of a criminal
process akin to a writ of discovery, employed by
the state to procure relevant evidence of a crime
[Malaloan v. CA (1994)].
It is not available to individuals in the course of
civil proceedings.
General rule: Search of property is unreasonable

unless it has been authorized by a valid search
warrant.
It is interlocutory in character it leaves

something more to be done, which is the
determination of the guilt of the accused.
Exceptions:
searches.
CONSTITUTIONAL SAFEGUARD
There
are
valid
warrantless
ARREST
AND
SEARCH
WARRANTS DISTINGUISHED
No search warrant or warrant of arrest shall

issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce, and
particularly describing the place to be searched,
and the things/persons to be seized [Art. III, Sec.
2, Constitution].
Search warrant
Warrant of arrest
Nature
Order in writing in
the name of the RP
signed by the judge
and directed to the
peace officer to
search
personal
property described
therein and to bring
it to court [Sec. 1,
Rule 126]
Under the exclusionary rule, any evidence

obtained in violation of this is inadmissible for
any purpose in any proceeding [Art. III, Sec. 3,
2nd par. Constitution].
Under the doctrine of attenuation, despite the
illegality in obtaining evidence, such evidence
may be admissible if the connection between
the evidence and the illegal method is
sufficiently remote or attenuated so as to
dissipitate the taint [Wong Sun v. US (1963)].
Order directed to the

peace officer to
execute the warrant
by taking the person
stated therein into
custody that he may
be bound to answer
for the commission
of the offense
Determination of probable cause
The constitutional guarantee is not a blanket

prohibition against all searches and seizures. It
operates only against unreasonable searches
and seizures.
The judge must

personally examine
the complainant and
witnesses in the
form of searching
questions
and
answers [Sec. 5, Rule
126]
The judge does not

have to personally
examine
the
complainant and his
witnesses. Instead,
he may opt to
personally evaluate
the
report
and
supporting
documents
submitted by the
prosecutor [AAA v.
Carbonell (2007)]
The
examination
must be under oath
or affirmation of the
complainant and his
witnesses.
Examination must
be under oath.
What constitutes a reasonable or unreasonable

search or seizure in any particular case is purely
a judicial question [Rodriguez v. Villamiel (1937)].
The constitutional protection is directed against
the acts of the government and its agents, not
private persons [People v. Marti (1991); People v.
Bongcarawan (2002)].
PAGE 320
UP LAW BOC
CRIMINAL PROCEDURE
Search warrant
(4) Violations of the Comprehensive Dangerous

Drugs Act of 2000;
(5) Violations of the Intellectual Property Code;
(6) Violations of the Anti-Money Laundering Act
of 2001;
(7) Violations of the Tariff and Customs Code;
and
(8) Other relevant laws that may hereafter be
enacted by Congress and included herein by
the Supreme Court.
Warrant of arrest
Form
It must particularly
describe the place to
be searched and the
things to be seized.
It must particularly
describe the person
to be arrested.
When executed
Generally served in
the day time, unless
there be a direction
in the warrant that it
may be served at any
time of the day or
night [Sec. 9, Rule
126]
May be made at any

time of the day or
night [Sec. 2, Rule
113]
SUBSTANCE OF APPLICATION
A search warrant shall not issue except:

(1) Upon probable cause in connection with one
specific offense;
(2) To be determined personally by the judge;
(3) After examination under oath or affirmation
of the complainant and the witness he may
produce;
(4) Particularly describing the place to be
searched and the things to be seized which
may be anywhere in the Philippines [Sec. 4,
Rule 126].
Period of validity
Valid for 10 days
[Sec. 9, Rule 126]
REMEDIAL LAW
Does not expire (no

terminal life)
APPLICATION FOR SEARCH

WARRANT; WHERE FILED
ISSUANCE AND FORM OF SEARCH

WARRANT
It may be filed in any court within whose

territorial jurisdiction the crime was committed.
Sec. 6, Rule 126. If the judge is satisfied of the

existence of facts upon which the application is
based or that there is probable cause to believe
that they exist, he shall issue the warrant, which
must be substantially in the form prescribed by
these Rules
For compelling reasons, which must be stated

in the application, it may also be filed:
(1) If the place of the commission of the crime is
known, any court within the judicial region
where the crime was committed;
(2) Any court within the judicial region where
the warrant shall be enforced.
Thus, the search warrant must be in writing and

contain:
(1) Name of person against whom it is directed;
(2) Offense for which it was issued;
(3) The place to be searched and
(4) The description of the specific things to be
seized;
(5) A directive to law enforcement officers to
search and seize;
(6) And for them to bring in court the things
seized;
(7) Signature of the judge issuing it.
However, if the criminal action has already been

filed, the application shall only be made in the
court where the criminal action is pending [Sec.
2, Rule 126].
Under AM 03-8-02-SC, Executive Judges and,
whenever they are on official leave of absence or
are not physically present in the station, the
Vice-Executive Judges of Manila and Quezon
City RTCs shall have authority to act on
applications for search warrants involving:
(1) Heinous crimes;
(2) Illegal gambling;
(3) Illegal possession of firearms and
ammunitions
PAGE 321
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
VALIDITY OF THE SEARCH WARRANT
SEARCH IN PRESENCE OF TWO WITNESSES
Sec. 10, Rule 126. The search warrant is valid

for 10 days from its date. Thereafter, it shall
be void
Sec. 8, Rule 126. No search of a house, room, or

any other premises shall be made except in the
presence of the lawful occupant thereof or any
member of his family or in the absence of the
latter, two witnesses of sufficient age and
discretion residing in the same locality
The lifetime of the search warrant also ends

when a return has already been made [Mustang
Lumber v. CA (1996)].
TIME OF MAKING SEARCH

The search shall be made at day time, unless the
affidavit asserts that the property is on the
person or in the place ordered to be searched, in
which case a direction may be inserted that it be
served at any time of the day or night [Sec. 9,
Rule 126].
SERVICE OF THE SEARCH WARRANT

RIGHT TO BREAK DOOR OR WINDOW TO
EFFECT SEARCH
Sec. 7, Rule 126. The officer, if refused
admittance to the place of directed search after
giving notice of his purpose and authority, may
break open any outer or inner door or window of
a house or any part of a house or anything
therein to execute the warrant to liberate
himself or any person lawfully aiding him when
unlawfully detained therein
A search warrant violates Sec. 9, Rule 126 if the

time for making the search is left blank, thus
enabling the officers to conduct the search in
the evening of the appointed search, causing
untold conveniences to the person searched.
Where a search is to be made during the night
time, the authority for executing the same at
that time should appear in the directive on the
face of the search warrant [Asian Surety v.
Herrera (1973)].
KNOCK AND ANNOUNCE PRINCIPLE

Generally, officers executing a search must do
the following acts:
(1) Announce their presence;
(2) Identify themselves to the accused and to
the persons who rightfully have possession of
the premises to be searched;
(3) Show to them the search warrant; and
(4) Explain the warrant in a language or dialect
known and understood by them.
POST SERVICE
RECEIPT OF PROPERTY SEIZED
Receipt is given differently depending on the
presence of the lawful occupant. Thus:
(1) If the lawful occupant is present, the officer
seizing the property under the search
warrant must give a detailed receipt for the
same to the lawful occupant of the premises
in whose presence the search and seizure
were made.
(2) If the lawful occupant is not present, the
officer seizing the property under the search
warrant must, in the presence of at least two
witnesses of sufficient age and discretion
residing in the same locality, leave a receipt
in the place in which he found the seized
property [Sec. 11, Rule 126].
WHEN
UNANNOUNCED
INTRUSION
PERMISSIBLE
(1) Person in the premises refuses to open it
upon demand;
(2) Person in the premises already knew of the
identity and authority of the officers;
(3) When the officers have an honest belief that
there is an imminent danger to life and limb;
(4) When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officers to believe that an escape or the
destruction of evidence is imminent.
DELIVERY AND INVENTORY OF PROPERTY
The officer must forthwith deliver the property

seized to the judge who issued the warrant,
together with a true inventory thereof duly
verified under oath.
PAGE 322
UP LAW BOC
CRIMINAL PROCEDURE
Ten days after issuance of the search warrant,

the issuing judge shall ascertain if the return
has been made, and if none, shall summon the
person to whom the warrant was issued and
require him to explain why no return was made.
PROBABLE
CAUSE
JUSTIFYING
WARRANTLESS
ARREST
AND
WARRANTLESS SEARCH
This implies probability of guilt and requires

more than bare suspicion but less than evidence
which would justify conviction. It is not
determined by a fixed formula but is resolved
according to the facts of each case.
If the return has been made, the judge shall

ascertain whether Sec. 11, Rule 126, on giving or
receipts, has been complied with and shall
require that the property seized be delivered to
him. The judge shall see to it that delivery has
been complied with.
PERSONAL EXAMINATION BY
JUDGE OF THE APPLICANT AND
WITNESSES
The return on the search warrant shall be filed

and kept by the custodian of the log book on
search warrants who shall enter therein the
date of the return, the result, and other actions
of the judge [Sec. 12, Rule 126].
Aside from the requirements mandated by Sec.

4, Rule 126, the Rules require the judge to
comply with a specific procedure in the conduct
of the examination of the complainant and the
witnesses he may produce [Sec. 5, Rule 126]:
(1) The examination must be personally
conducted by the judge;
(2) The examination must be in the form of
searching questions and answers;
(3) The complainant and the witnesses shall be
examined on those facts personally known to
them;
(4) The statements must be in writing and under
oath; and
(5) The sworn statements of the complainant
and the witnesses, together with the
affidavits submitted, shall be attached to the
record.
Goods seized remain under the courts custody

and control until the institution of the
appropriate criminal action with the proper
court [Tenorio v. CA (2003)].
PROBABLE CAUSE
WARRANTS
ISSUED
PROBABLE CAUSE
REMEDIAL LAW
UPON
Probable cause means such facts and

circumstances which would lead a reasonably
discreet and prudent man to believe that an
offense has been committed, and that objects
sought in connection with the offense are in the
place sought to be searched [Santos v. Pryce
Gases Inc. (2007)].
SEARCHING
ANSWERS
QUESTIONS
AND
Searching questions are such questions which

have the tendency to show the commission of a
crime and the perpetrator thereof [Luna v. Plaza
(1968)].
This probable cause must be shown to be within

the personal knowledge of the complainant or
the witnesses he may produce and not based on
mere hearsay.
In search cases, the application must be

supported by substantial evidence:
(1) That the items sought are in fact seizable by
virtue of being connected with criminal
activity; and
(2) That the items will be found in the place to
be searched [People v. Tuan (2010)].
The probable cause must refer only to one

specific offense [Roan v. Gonzales (1986)].
Note: Probable cause to arrest does not
necessarily involve a probable cause to search
and vice-versa.
A search warrant issued by a judge who did not

ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR
(2000)].
PAGE 323
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
An apparent typographical error will not

necessarily invalidate the search warrant, as
long as the application contains the correct
address [Burgos v. Chief of Staff (1984)].
Although there is no hard-and-fast rule

governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application. [Yao v. People
(2007)]
PARTICULARITY OF THINGS TO BE
SEIZED
The scope of the search warrant is limited to

personal property only. It does not issue for
seizure of immovable properties.
General rule: Things to be seized must be
described particularly. General search warrants
are not allowed. Otherwise, the search and
seizure of the items in the implementation of
such search warrant is illegal and the items
seized are inadmissible in evidence [Art. III, Sec.
2, Constitution].
(1) SWs authorizing the seizure of books of
accounts and records showing all the
business transactions of certain persons,
regardless of whether the transactions were
legal or illegal, are general warrants
prohibited by law [Stonehill v. Diokno (1967)].
(2) Likewise, a description of things to be seized
as subversive documents, propaganda
materials, FAs, printing paraphernalia and
all other subversive materials hardly
provided a definite guideline to the executing
officers [Dizon v. Castro (1985)].
(3) Where the language used is too allembracing as to include all the
paraphernalia of petitioner in the operation
of its business, the SW is constitutionally
objectionable [Columbia Pictures v. Flores
(1993)].
A warrant not based on personal knowledge is

void.
EXAMINATION UNDER OATH
The judge must examine under oath or

affirmation the complainant and the witness he
may produce. Oath includes any form of
attestation by which a party signifies that he is
bound in conscience to perform an act faithfully
and truthfully.
The oath required must refer to the truth of
facts within the personal knowledge of the
petitioner or his witnesses [Alvarez v. CFI (1937)].
Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of the
complaint or his witnesses, and attach the same
to the record [Prudente v. Judge Dayrit (1989)].
PARTICULARITY OF PLACE TO
BE SEARCHED AND THINGS TO
BE SEIZED
Warrant issued must particularly describe the
place to be searched and the things to be
seized.
Exceptions:
(1) Where, by the nature of the goods to be
seized, their description must be rather
general, it is not required that a technical
description be given, for this would mean
that no search warrant could issue [People v.
Rubio (1932)].
(2) The general description of the documents
listed in the search warrant does not render
the it void if it is severable, and those items
not particularly described may be cut off
without destroying the whole [Uy v. BIR
(2001)].
PARTICULARITY OF PLACE TO BE
SEARCHED
Description of place to be searched is sufficient

if the officer with the search warrant can, with
reasonable efforts, ascertain and identify the
place intended [People v. Veloso (1925)].
PAGE 324
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
decided on its own facts and circumstances

[Nolasco v. Pao (1985)].
PERSONAL PROPERTY TO BE
SEIZED
Where a search is first undertaken, and an arrest

was effected based on evidence produced by
such search, both search and arrest are illegal
[Lui v. Matillano (2004)].
WHAT MAY BE SEIZED
(1) Personal property subject of the offense;

(2) Personal property stolen/embezzled and
other proceeds/fruits of the offense;
(3) Personal property used or intended to be
used as the means of committing an offense
[Sec. 3, Rule 126].
CONSENTED SEARCH
Jurisprudence requires that in case of consented

searches or waiver of the constitutional
guarantee against obtrusive searches, it must
first appear that:
(1) The right exists;
(2) The person involved had knowledge, either
actual or constructive, of the existence of
such right; and
(3) The said person had an actual intention to
relinquish the right [People v. Nuevas (2007)].
The rule does not require that the property to be

seized should be owned by the person against
whom the search warrant is directed. It is
sufficient that the person against whom the
warrant is directed has control of possession of
the property sought to be seized [Burgos v. Chief
of Staff (1984)].
EXCEPTIONS
TO
SEARCH
WARRANT REQUIREMENT
Consent to a search is not to be lightly inferred,

but must be shown by clear and convincing
evidence. It is the State which has the burden of
proving, by clear and positive testimony, that
the necessary consent was obtained and that it
was freely and voluntarily given [Valdez v. People
(2007)].
SEARCH INCIDENTAL TO LAWFUL

ARREST
In a search incidental to an arrest, even without a

warrant, the person arrested may be searched
for:
(1) Dangerous weapons;
(2) Anything which may have been used in the
commission of an offense; or
(3) Anything which may constitute proof in the
commission of the offense [Sec. 13, Rule 126].
A peaceful submission to a search or seizure is

not a consent or an invitation thereto, but is
merely a demonstration of regard for the
supremacy of the law [People v. Nuevas (2007)].
Consented search is reasonable only if kept
within the bounds of the actual consent. A
persons consent may limit the extent/scope of
a warrantless search in the same way that the
specifications of a warrant limit the search
pursuant thereto.
The arrest must precede the search; generally,

the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an
arrest can precede the arrest as if the police
have probable cause to make the arrest at the
outset of the search [Riano (2011)].
SEARCH OF MOVING VEHICLE
Ratio: Peace officers may lawfully conduct

searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can
be quickly moved out of the locality or
jurisdiction in which the warrant may be sought
[People v. Tuazon (2007)].
The rule assumes that the arrest is legal. If the

arrest is illegal, then the search is illegal and as
a result, the things seized are inadmissible as
evidence [People v. Aruta (1998)].
The search is confined to his person, but as an
incident of an arrest, the place or premises
where the arrest was made can also be
searched without a search warrant. The extent
and reasonableness of the search must be
PAGE 325
UP LAW BOC
CRIMINAL PROCEDURE
However, these searches would be limited to

visual inspection and the vehicles or their
occupants cannot be subjected to physical or
body searches, except where there is probable
cause to believe that the occupant is a law
offender or the contents of the vehicles are
instruments or proceeds of some criminal
offense.
(2) Evidence was inadvertently discovered by the

police who have a right to be where they are;
(3) Evidence must be immediately apparently
illegal (i.e., drug paraphernalia);
(4) Plain view justified mere seizure of evidence
without further search [People v. Valdez
(1999); People v. Salanguit (2001)].
Limitations:
(1) It may not be used to launch unbridled
searches and indiscriminate seizures.
(2) It does not extend to a general exploratory
search made solely to find evidence of
defendants guilt [People v. Musa (1993)].
The search and seizure without warrant of

vessel and aircrafts for violation of customs laws
has been a traditional exception to the
requirement of search warrant [Roldan v. Arca
(1975)].
Nonetheless, in all cases falling under this
category, there must be a showing of a probable
cause of a violation of the law [Caroll v. US
(1924)].
CHECKPOINTS;
AIRPORTS
BODYCHECKS
REMEDIAL LAW
The doctrine is usually applied where a police

officer is not searching for evidence against the
accused, but nonetheless inadvertently comes
across an incriminating object. Even if an object
is in plain view, before it can be seized without a
search warrant, its incriminating nature must
first be apparent.
IN
Searches conducted in checkpoints are valid as

long as they are warranted by the exigencies of
public order and conducted in a way least
intrusive to motorists [People v. Vinecario
(2004)].
Where police officers are on the premises

pursuant to a valid consent to a search, an item
falling into their plain view may properly be
seized even if the item is not connected with
their purpose in entering.
Routine inspections are not regarded as

violative of an individuals right against
unreasonable search:
(1) Where the officer merely draws aside the
curtain of a vacant vehicle which is parked on
the public fair grounds;
(2) Officer simply looks into a vehicle;
(3) Officer flashes a light therein without
opening cars doors;
(4) Occupants not subjected to a physical
search;
(5) Inspection is limited to usual search or
inspection; or
(6) Routine check is conducted in a fixed area
[People v. CA (2002)].
STOP AND FRISK SITUATION
Stop and frisk is a limited protective search of

outer clothing for weapon [Malacat v. CA (1997)].
Where a police officer observes unusual conduct,
which leads him reasonably to conclude in the
light of his experience that criminal activity may
be afoot, and that a person with whom he is
dealing may be armed and presently dangerous,
he is entitled to conduct a stop and frisk search.
Where in the course of investigating this
behavior he identifies himself as a policeman and
makes reasonable inquiry, and where nothing in
the initial stage of the encounter serves to
dispel his reasonable fear for his own or others
safety, he is entitled for the protection of himself
and others in the area to conduct a carefully
limited search of outer clothing of such persons
in an attempt to discover weapons which might
be used to assault him [Terry v. Ohio (1968)].
PLAIN VIEW SITUATION
Requisites:
(1) A prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
PAGE 326
UP LAW BOC
CRIMINAL PROCEDURE
Under this theory, probable cause is not

required to conduct a stop and frisk but mere
suspicion or hunch will not validate a stop and
frisk. The test is whether or not there is a
reasonable belief based on genuine reason and
in the light of the officers experience and the
surrounding circumstances, that a crime has
either taken place or is about to take place and
the person to be stopped is armed and
dangerous.
REMEDIAL LAW
BUY-BUST OPERATION
This is a form of entrapment legally employed
by peace officers as an effective way of
apprehending drug dealers in committing an
offense. There is no need for a search warrant
(or warrant of arrest) because the accused is
caught in flagrante delicto.
PRIVATE SEARCHES
In one case, the evidence was obtained by a
private person acting in a private capacity, while
performing company standard operating
procedures and without state participation and
intervention. It was held that the constitutional
rights cannot be invoked when there is no
government interference [People v. Marti (1999)].
ENFORCEMENT OF CUSTOMS LAW
For the enforcement of customs duties and

tariff laws, the Collector of Customs is
authorized to effect searches and seizure
[General Travel Services v. David (1966)].
REMEDIES FROM UNLAWFUL

SEARCH AND SEIZURE
The Tariff Code authorizes customs officers to:

(1) Enter, pass through or search any land,
enclosure, warehouse;
(2) Inspect/search/examine any vessel or
aircraft
and
any
trunk/package/box/envelope or any person
on board, or stop and examine any
vehicle/beast/person
suspected
of
holding/conveying any dutiable/prohibited
article introduced into the Philippines
contrary to law.
WHO MAY AVAIL
Only the party whose rights have been impaired

thereby; the objection to an unlawful search and
seizure is purely personal and cannot be availed
of by third parties [Stonehill v. Diokno (1967);
Santos v. Pryce Gases, Inc. (2007)].
REMEDIES
General rule: The Tariff and Customs Code does

not require a warrant for such searches.
EMPLOY ANY MEANS TO PREVENT THE

SEARCH
Without a search warrant, the officer cannot
insist on entering a citizens premises. If he does
so, he becomes an ordinary intruder.
Exception: In the search of a dwelling house, a

search warrant is required.
OTHER EXCEPTIONS
The person to be searched may resist the search

and employ any means necessary to prevent it,
without incurring any criminal liability [People v.
Chan Fook (1921)].
EXIGENT AND EMERGENCY

CIRCUMSTANCES
In one case, there was a prevailing general
chaos and disorder because of an ongoing coup,
and the raid of the office/building was
precipitated by an intelligence report that said
office was being used as HQ by the RAM. Also,
the surveillance team before the raid was fired
upon by the people inside. The raiding team had
no opportunity to apply for warrant as the court
then was closed [People v. de Gracia (1994)].
FILE CRIMINAL ACTION AGAINST OFFICER

A public officer/employee who procures a
search warrant without just cause is criminally
liable under Article 129, RPC, on search warrants
maliciously obtained and abuse in the service of
those legally obtained.
FILE A MOTION TO QUASH THE ILLEGAL
WARRANT
This remedy is employed if search is not yet
conducted.
PAGE 327
UP LAW BOC
CRIMINAL PROCEDURE
Who may file

(1) Person injured;
(2) Person searched;
(3) Owner of the property.
REMEDIAL LAW
Where the motion will be filed follows the same

rules as in a motion to quash. An accused may
file a motion to suppress evidence if he is not
among the persons who can file a motion to
quash.
Where to file
General rule: The motion must be filed before
the sala of the judge who issued it. Only the
court that issued the SW may order revocation
of search warrant or release of things seized
[Pagkalinawan v. Gomez (1967)].
General rule: Goods seized by virtue of an illegal

warrant must be returned [Castro v. Pabalan
(1976)].
Exception: If possession of the things seized is
prohibited by law, they should not be returned.
Where the accused obtained goods from
another through payment of bouncing checks
and thereafter sold said goods to a buyer in
good faith, but said goods were taken from the
purchaser with the use of a search warrant
although the criminal case for estafa against the
accused was still pending, the goods should be
returned to the buyer. The buyer is entitled to
possession of goods until restitution is ordered
by the court in the criminal case (Yu v. Honrado
(1980)).
Exception: Where the search is issued by one

court and the criminal action based on the
results of the search is afterwards filed in
another court, the motion may be filed in either
court [People v. CA (1999)].
Grounds
The following may be raised in the MTQ:
(1) Absence of probable cause at the time of the
issuance of the search warrant;
(2) Non-compliance with substantive and
procedural requisites, such as:
(a) No personal examination by the judge;
(b) More than one specific offense;
(c) No particular description [Bache & Co. v.
Ruiz (1971)].
MOTION TO SUPRESS EVIDENCE

This refers to a motion to suppress as evidence
the objects illegally taken pursuant to the
exclusionary rule, which states that any
evidence obtained through unreasonable
searches and seizures shall be inadmissible for
any purpose in any proceeding.
These may also be raised in the criminal action

as matters of defense [DOH v. Sy Chi Siong
(1989)].
CIVIL AND CRIMINAL LIABILITY
Failure to file motion to quash

Where no MTQ the search warrant was filed in
or resolved by the issuing court, the interested
party may move in the court where the criminal
case is pending for the suppression of the
personal property seized if the same is offered
therein as evidence [Regalado (2010)].
The following offenses may result from unreasonable

search and seizure:
(1) Violation of domicile [Article 128, RPC];

(2) SW maliciously obtained [Article 129, RPC];
(3) Searching domicile without witnesses [Article
130, RPC];
(4) Unjust interlocutory order [Article 206, RPC].
The public officer or employee may be held
liable for:
(1) Entering without authority; against the will;
refuses to leave;
(2) A search warrant procured without just
cause or if with just cause, exceeds his
authority or uses unnecessary severity of
force;
(3) Conducting the search without the required
witnesses.
The MTQ and Motion to Suppress Evidence are

alternative, not cumulative remedies.
FILE A MOTION TO RETURN THINGS SEIZED
This is the remedy used if the search was
already conducted and goods were seized as a
consequence thereof.
PAGE 328
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
The judge may be held liable for:

(1) Knowingly rendering an unjust interlocutory
order;
(2) Inexcusable negligence or ignorance.
Provisional Remedies
It may also result in civil liability for:

(1) Violation of rights and liberties [Article 32 (9),
Civil Code];
(2) Malicious prosecution and acts referred to
Article 32 [Article 2218, Civil Code].
Sec. 1, Rule 127. The provisional remedies in civil

actions, insofar as they are applicable, may be
availed of in connection with the civil action
deemed instituted with the criminal action
NATURE
Where the civil action has actually been

instituted, or proceeded independently of the
criminal action, these provisional remedies
cannot be availed of in the criminal action but
may be applied for in the separate civil action.
[Regalado (2010)]
If the civil action is suspended on account of
filing of the criminal action, the court with which
the civil case is filed is not thereby deprived of
its authority to issue auxiliary writs that do not
go into the merits of the case (Ramcar, Inc v. de
Leon (1947)).
Malice or bad faith is not required.

Not only official actions, but all persons who are
responsible for the violation are liable for
damages [MHP Garments v. CA (1994)].
WAIVER OF IMMUNITY
AGAINST UNREASONABLE
SEARCH AND SEIZURE
The
constitutional
immunity
against
unreasonable searches and seizure is a personal
right that may be waived expressly/impliedly
only by the person whose right is being invaded
or one who is expressly authorized to do so in
his behalf [Pasion v. Locsin (1938)].
Provisional remedies are not available when:

(1) Offended party has waived the civil claim;
(2) Offended party has reserved the civil claim;
(3) Offended party has already instituted a
separate civil action;
(4) Criminal action carries with it no civil liability.
Requisites:
(1) It must appear that the right exists;
(2) That the person involved had knowledge,
(actual or constructive) of the existence of
such right;
(3) That the person had an actual intention to
relinquish the right.
KINDS OF PROVISIONAL
REMEDIES
IN GENERAL
Reference to provisional remedies in Sec. 1, Rule

127 is made in general terms, hence preliminary
injunction, preliminary attachment, receivership,
replevin or support pendent lite may be availed
of [Riano, Criminal Procedure (2011)].
However, only preliminary attachment
provided for under the same rule.
is
Sec. 11(b), Rule 119. The accused may present

evidence to prove his defense and damages, if
any, arising from the issuance of a provisional
remedy in the case
PAGE 329
UP LAW BOC
CRIMINAL PROCEDURE
PRELIMINARY ATTACHMENT
WHEN PROPER
When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for
the satisfaction of any judgment that may be
recovered from the accused in the following
cases:
(1) When the accused is about to abscond from
the Philippines
(2) When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public/corporate
officer, attorney, factor, broker, agent or
clerk, in the course of his employment as
such, or by any other person in a fiduciary
capacity, or for a willful violation of duty
(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 [Sec. 2, Rule 127].
ISSUANCE AND IMPLEMENTATION
The writ may be issued ex parte before
acquisition of jurisdiction over the accused.
However, it may be enforced only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties (2001)].
No notice to the adverse party, or hearing on the
application is required before a writ of
preliminary
PAGE 330
REMEDIAL LAW
UP LAW BOC
EVIDENCE
PAGE 331
REMEDIAL LAW
UP LAW BOC
EVIDENCE
General Principles
REMEDIAL LAW
EVIDENCE IN CIVIL CASES

VERSUS EVIDENCE IN
CRIMINAL CASES
CONCEPT OF EVIDENCE
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [Sec. 1, Rule 128]
SCOPE OF THE RULES OF

EVIDENCE [SEC. 2, RULE 128]
General Rule: Principle of uniformity

The rules of evidence shall be the same in all
courts and in all trials and hearings.
Exceptions: If otherwise provided by:
(1) Law [e.g. 1987 Constitution, statutes];
(2) Rules of Court.
Applicability
The rules of evidence are specifically
applicable only in judicial proceedings. [Sec. 1,
Rule 128]
In quasi-judicial proceedings, the same apply
by analogy or suppletorily AND whenever
practicable and convenient [Sec. 4, Rule 1],
except in cases where the governing law in
the particular proceeding specifically adopts
the rules of evidence in the Rules of Court.
[Regalado]
Administrative investigations shall be
conducted without necessarily adhering
strictly to the technical rules of procedure and
evidence applicable to judicial proceedings
[Dela Cruz v. Malunao (A.M. No. P-11-3019,
March 20, 2012)]
Note: There is a different rule for Rules on
Electronic Evidence since it covers quasi-judicial
and administrative bodies [Sec. 2, Rule 1, Rules
on Electronic Evidence]
In Civil Cases
In Criminal Cases
Preponderance
of Proof
beyond
evidence [Sec. 1, Rule reasonable doubt [Sec.
133]
2, Rule 133]
Offer of compromise
NOT an admission of
any liability [Sec. 27,
Rule 130]
EXCEPT for quasioffenses

or
those
allowed by law to be
compromised, Offer of
compromise by the
accused
may
be
received in evidence as
an implied admission
of guilt.
EXCEPTIONS:
(1) Sec 204, RA 8424 Tax
Reform Act of 1997
which provides that
payment
of
any
internal revenue tax
and
all
criminal
violations may be
compromised, except
those already filed in
Court
and
those
involving fraud.
(2) Rape cases, through
marriage [Art. 344,
RPC]
A plea of guilty later
withdrawn
or
an
unaccepted offer of a
plea of guilty to a
lesser offense, is not
admissible in evidence
against the accused
who made the plea or
offer [Sec. 27, Rule 130]
Presumption
of Presumption
of
innocence does NOT innocence
a
apply
constitutional
guarantee
on
the
accused [sec. 14, Art. III]
PAGE 332
UP LAW BOC
EVIDENCE
An offer to pay or the payment of medical,

hospital or other expenses occasioned by an
injury is NOT admissible as proof of criminal
or civil liability for the injury. [Sec. 27, Rule 130]
Evidence
Result or effect of Mode and manner of

evidence [Regalado]
proving
competent
facts
in
judicial
proceedings [Bustos v.
Lucero, G.R. No. L2068, October 20,
1948]
FACTUM PROBANS VERSUS

FACTUM PROBANDUM
Factum Probans
Facts
or
evidencing
proposition
Factum Probandum
material The proposition to be

the established
The evidentiary fact The

ultimate
tending to prove the sought
to
fact in issue
established
OTHER CLASSIFICATIONS
CUMULATIVE AND CORROBORATIVE
EVIDENCE
Cumulative Evidence
PROOF VERSUS EVIDENCE

Proof
REMEDIAL LAW
fact
be
3 CLASSES OF EVIDENCE
ACCORDING TO FORM
(1) Object- those addressed to the senses of the
court. [Sec. 1, Rule 130]
(2) Documentary- consists of writings or any
material containing letters, words, numbers,
figures, symbols or other modes of written
expressions offered as proof of their contents
[Sec. 2, Rule 130]
(3) Testimonial- evidence elicited from the
mouth of a witness [Riano , citing Blacks
Law Dictionary]
Corroborative Evidence
Evidence of the same Additional evidence of

kind and to the same a different character to
state of facts
the same point
PRIMA FACIE
EVIDENCE
AND
CONCLUSIVE
Prima Facie
Conclusive
Standing
alone,
unexplained
or
uncontradicted,
is
sufficient to maintain
the
proposition
affirmed
Class of evidence
which the law does not
allow
to
be
contradicted
PRIMARY
EVIDENCE
AND
Primary
Best Evidence
That which the law
regards as affording
the greatest certainty
of the fact in question
SECONDARY
Secondary
Substitutionary
Evidence
Inferior to primary;
permitted only when
the best evidence is
not available
ADMISSIBILITY OF EVIDENCE
REQUISITES FOR ADMISSIBILITY OF
EVIDENCE
Evidence is admissible when it is:

(1) Relevant to the issue; and
(2) Competent i.e.not excluded by law or the
ROC. [Sec. 3, Rule 128]
When determined: Admissibility is determined
at the time the evidence is offered to the court
[Sec. 35, Rule 132]
PAGE 333
UP LAW BOC
EVIDENCE
Every objection to the admissibility of

evidence shall be made at the time such
evidence is offered, or as soon thereafter as
the objection to its admissibility have become
apparent, otherwise the objection shall be
considered waived. [Abrenica v. Gonda, 94
Phil. 739]
In case of:
Testimonial evidence- objection to the
qualification of the witness must be made
at the time he is called to the stand and if
the witness is qualified, objections should
be raised when the objectionable question
is asked or after the answer was given if the
objectionable feature became apparent by
reason of such answer.
Object or real evidence- objection must be
made either at the time it is presented in an
ocular inspection or demonstration or when
it is formally offered.
Documentary evidence objection must be
made at the time it is formally offered.[Sec.
35 to 37, Rule 132]
RELEVANCE OF EVIDENCE
COLLATERAL MATTERS
AND
RELEVANCY
Evidence is relevant when it has such a
relation to the fact in issue as to induce belief
in its existence or non-existence. [Sec. 4, Rule
128]
Determinable by the rules of logic and human
experience.
COLLATERAL MATTERS
Matters other than the fact in issue which are
offered as a basis for inference as to the
existence or non-existence of the facts in issue
[Regalado]
General Rule: Evidence on collateral matters
is NOT allowed. [Sec. 4, Rule 128]
Exception: When it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue. [Sec. 4, Rule
128]
PAGE 334
REMEDIAL LAW
NOTE: What is prohibited by the Rules is not

evidence of all collateral matters, but
evidence of irrelevant collateral facts.
[Regalado]
Circumstantial evidence is the evidence of
collateral facts or circumstances from which
an inference may be drawn as to the
probability or improbability of the fact in
dispute. They are evidence of relevant
collateral facts. [Regalado]
COMPETENCE
Evidence is competent when it is not be
excluded by (i) law or (ii) the ROC [Sec. 3, Rule
128]
Determined by the prevailing exclusionary
rules of evidence [Regalado]
Exclusionary rules of evidence by law are
either constitutional or statutory.
Constitutional
exclusionary
rules
Unreasonable searches and seizures [Sec. 2,
Art. III]; privacy of communication and
correspondence [Sec. 3, Art. III];right to
counsel, prohibition on torture, force,
violence, threat, intimidation or other means
which vitiate the free will; prohibition on
secret
detention
places,
solitary,
incommunicado. [Sec. 12, Art. III]; right
against self-incrimination [Sec. 17, Art. III]
Statutory exclusionary rules - Lack of
documentary stamp tax to documents
required to have one makes such document
inadmissible as evidence in court until the
requisite stamp/s shall have been affixed
thereto and cancelled [Sec. 201, NIRC]; Any
communication obtained by a person, not
being authorized by all the parties to any
private communication, by tapping any
wire/cable
or
using
any
other
device/arrangement
to
secretly
overhear/intercept/record such information
by using any device, shall not be admissible
in evidence in any judicial/quasijudicial/legislative/ administrative hearing
or investigation. [Secs. 1 and 4, R.A. 4200
(Wire-Tapping Act)]
Under the ROC, Rule 130 is the applicable
rule in determining the admissibility of
evidence.
UP LAW BOC
EVIDENCE
REMEDIAL LAW
DIRECT V. CIRCUMSTANTIAL
Direct Evidence
Circumstantial
DOCTRINES OF ADMISSIBILITY
MULTIPLE ADMISSIBILITY
Where the evidence is relevant and competent
for two or more purposes, such evidence shall
be admitted for any or all the purposes for
which it is offered, provided it satisfies all the
requisites of law for its admissibility therefor.
[Regalado]
CONDITIONAL ADMISSIBILITY
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received, on condition that the other facts will
be proved thereafter; otherwise, the evidence
already given shall be stricken out.
This was applied in the case of People v. Yatco
[G.R. No. L-9181, November 28, 1955] subject
to the qualification that there should be no
bad faith on the part of the proponent. The
qualification appears to avoid unfair surprises.
[Regalado]
CURATIVE ADMISSIBILITY
Where the court has admitted incompetent
evidence adduced by the adverse party, a
party has a right to introduce the same kind of
evidence in his/her behalf. [Regalado]
What determines the rule of curative
admissibility:
(1) Whether the incompetent evidence was
seasonably objected to - Lack of objection to
incompetent evidence constitutes waiver on
the part of the party against whom it was
introduced but the opposing party is not
deprived of his right to similar rebutting
evidence; and
(2) Whether the admission of such evidence will
cause a plain and unfair prejudice to the party
against whom it was admitted [Regalado]
Proves the fact in Proof of a fact/s from

dispute without the aid which, taken either
of any inference or singly or collectively,
presumption
the existence of a
particular
fact
in
dispute may be inferred
as a necessary or
probable consequence
POSITIVE
EVIDENCE
V.
NEGATIVE
EVIDENCE
Positive Evidence
Negative Evidence
Witness affirms that a Witness states he/she
fact did or did not did not see or know of
occur
the occurrence of a fact
COMPETENCE V. CREDIBILITY
Competence
Credibility
Eligibility of evidence to Worthiness of belief;
be received as such
believability
BURDEN OF PROOF
BURDEN OF EVIDENCE
AND
Burden of proof - duty of a party to present

evidence on the facts in issue necessary to
establish his/her claim or defense by the
amount of evidence required by law [Sec. 1, Rule
131]
In civil cases, the quantum of evidence required
to sustain the proponent of an issue is
preponderance of evidence. The burden of proof
is on the party who would be defeated if no
evidence were given in either side, the plaintiff
with respect to his complaint, the defendant
with respect to his counterclaim, and the crossclaimant, with respect to his cross-claim.
In criminal cases:
For the issuance of warrant of arrest evidence of probable cause that there exist a
reasonable ground that the accused has
committed an offense [Algas v. Garrido, A.M.
No. 289-MJ, November 15, 1974]
PAGE 335
UP LAW BOC
EVIDENCE
To warrant the filing of an information - prima

facie evidence
To sustain a conviction - evidence of guilt
beyond reasonable doubt.
THE BURDEN OF PROOF RESTS ON

THE PROSECUTION.
A party will have the burden of evidence only
(i.e., will have to be a proponent) if there is
any factum probandum (whether evidentiary
or otherwise) that the adverse party has
already established (whether by law, rule, or
by virtue of evidence that he has presented)
that he (the potential proponent) has to
overcome. That factum probandum may, but
does not have to be, nor is limited to a "prima
facie presumption." Likewise, a party will not
have any burden of evidence at all if the
adverse party has not established any factum
probandum in the first place. [Prof. Victoria A.
Avena]
In both civil and criminal cases, the burden of
evidence lies with the party who asserts an
affirmative allegation. [Regalado]
BURDEN OF PROOF V. BURDEN OF

EVIDENCE
Burden of Proof
Burden of Evidence
Does
not
shift Shifts from party to
throughout the trial
party depending upon
the exigencies of the
case in the course of the
trial
Generally determined by Generally determined by
the pleadings filed by the developments at the
the party
trial, or by the provisions
of substantive law or
procedural rules which
may relieve the party
from
presenting
evidence on the fact
alleged (presumptions,
judicial
notice
and
admissions)
REMEDIAL LAW
EQUIPOISE RULE OR
EQUIPONDERANCE DOCTRINE
The doctrine refers to the situation where the
evidence of the parties are evenly balanced or

there is doubt on which side the evidence
preponderates. In this case, the decision
should be against the party with the burden of
proof. [Rivera v. CA, G.R. No. 115625, January
23, 1998; Marubeni v. Lirag,G.R. No. 130998,
August 10, 2001]
In criminal cases, the equipoise rule provides
that where the evidence is evenly balanced,
the constitutional presumption of innocence
tilts the scales in favor of the accused.
[Malana v. People, G.R. No. 173612, August 27,
2008]
PRESUMPTIONS
Conclusive
Disputable
Inferences which the

law
makes
so
peremptory that it will
not allow them to be
overturned
by
any
contrary proof however
strong [Datalift Movers
v. Belgravia Realty, G.R.
No. 144268, August 30,
2006]
Satisfactory
if
uncontradicted,
but
may be contradicted
and overcome by other
evidence.[Sec. 3, Rule
131]
CONCLUSIVE PRESUMPTIONS
UNDER THE RULES [SEC. 2, RULE
131]:
(1) A party is not permitted falsify a thing if:

By his own declaration, act or omission;
He intentionally and deliberately led
another to believe a particular thing is true;
To act upon such belief; and
The litigation arises out of such declaration
act or omission.
(2) A tenant is not permitted to deny the title of
his landlord at the time of the
commencement of the relation of landlord
and tenant between them.
These conclusive presumptions are based
upon the doctrine of estoppel in pais under
the Civil Code. [Regalado]
PAGE 336
UP LAW BOC
EVIDENCE
DISPUTABLE PRESUMPTIONS
UNDER THE RULES [SEC. 3, RULE
131]
(1) Person is innocent of a crime or wrong;

(2) Unlawful act is done with an unlawful
intent;
(3) Person intends the ordinary consequences
of his voluntary act;
(4) Person takes ordinary care of his concerns;
(5) Evidence willfully suppressed would be
adverse if produced;
(6) Money paid by one to another was due to
the latter;
(7) Thing delivered by one to another
belonged to the latter;
(8) Obligation delivered up to the debtor has
been paid;
(9) Prior rents or installments had been paid
when a receipt for the later ones is
produced;
(10) A person found in possession of a thing
taken in the doing of a recent wrongful act
is the taker and doer of the whole act;
otherwise, that things which a person
possesses or exercises acts of ownership
over are owned by him;
(11) Person in possession of an order on himself
for the payment of the money or the
delivery of anything has paid the money or
delivered the thing accordingly;
(12) Person acting in public office was regularly
appointed or elected to it;
(13) Official duty has been regularly performed;
(14) A court or judge acting as such, whether in
the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
(15) All the matters within an issue raised in a
case were laid before the court and passed
upon by it; all matters within an issue
raised in a dispute submitted for
arbitration were laid before arbitrators and
passed upon by them;
(16) Private transactions have been fair and
regular;
(17) Ordinary course of business has been
followed;
(18) There was a sufficient consideration for a
contract;
(19) Negotiable instrument was given or
indorsed for a sufficient consideration;
(20) An indorsement of negotiable instrument
PAGE 337
(21)
(22)
(23)
(24)
(25)
(26)
(27)
REMEDIAL LAW
was made before the instrument was

overdue and at the place where the
instrument is dated;
A writing is truly dated;
Letter duly directed and mailed was
received in the regular course of the mail;
Presumptions concerning absence:
(a) Ordinary but continued absence of:
(i) 7 years, it being unknown WON the
absentee still lives, he is
considered dead for all purposes,
except for those of succession
(ii) 10 yearsthe absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75
years, an absence of 5 years shall
be sufficient to open his succession
(iii) 4 consecutive yearsthe spouse
present
may
contract
a
subsequent marriage if s/he has a
well-founded belief that the
absent spouse is already dead; but
where there is danger of death, an
absence of only 2 years shall be
sufficient for remarriage
(b) Qualified absence
(i) A person on board a vessel lost
during a sea voyage, or an aircraft
which is missing, who has not been
heard of for 4 years since the loss
of the vessel or aircraft
(ii) A member of the armed forces who
has taken part in armed hostilities,
and has been missing for 4 years
(iii) A person who has been in danger
of
death
under
other
circumstances
and
whose
existence has not been known for 4
years
Acquiescence resulted from a belief that
the thing acquiesced in was conformable
to the law/fact;
Things have happened according to the
ordinary course of nature and ordinary
nature habits of life;
Persons acting as co-partners have
entered into a contract of co-partnership;
A man and woman deporting themselves
as husband and wife have entered into a
lawful contract of marriage;
UP LAW BOC
EVIDENCE
(28) Property acquired by a man and a woman

who are capacitated to marry each other
and who live exclusively with each other as
husband and wife without the benefit of
marriage or under a void marriage, has
been obtained by their joint efforts, work or
industry;
(29) In cases of cohabitation by a man and a
woman who are not capacitated to marry
each other and who have acquired
property through their actual joint
contribution of money, property or
industry, such contributions and their
corresponding shares including joint
deposits of money and evidences of credit
are equal;
(30) Presumptions governing children of
women who contracted another marriage
within 300 days after termination of her
former marriage (in the absence of proof to
the contrary):
When Child was Born
Presumption
Before 180 days after

the solemnization of
the
subsequent
marriage
Considered to have
been conceived during
the former marriage,
provided it be born
within 300 days after
the termination of the
former marriage
After
180
days
following
the
celebration of the
subsequent marriage
Considered to have
been conceived during
the
subsequent
marriage, even though
it be born within the
300 days after the
termination of the
former marriage.
(31) A thing once proved to exist continues as

long as is usual with things of the nature;
(32) The law has been obeyed;
(33) A printed/published book, purporting to be
printed/published by public authority, was
so printed/published;
(34) A printed/published book, purporting to
contain reports of cases adjudged in
tribunals of the country where the book is
published, contains correct reports of such
cases;
PAGE 338
REMEDIAL LAW
(35) A trustee or other person whose duty it was

to convey real property to a particular
person has actually conveyed it to him
when such presumption is necessary to
perfect the title of such person or his
successor in interest;
(36) Presumptions regarding survivorship:
(Applicable for all purposes except
succession)
(a) When 2 persons perish in the same
calamity,
(b) and it is not shown who died first,
(c) and
there
are
no
particular
circumstances from which it can be
inferred,
(d) the survivorship is determined from the
probabilities resulting from the strength
and the age of the sexes:
Situation
Person presumed to
have survived
Both < 15 y/o
The older
Both > 60 y/o
The younger
One < 15 y/o,

the other > 60 y/o
The one <15
Both > 15 and < 60 y/o,

The male
of different sexes
Both > 15 and <60 y/o,
The older
of the same sex
One < 15 or > 60 y/o, The one between those
and the other between ages
those ages
(37) As between 2 or more persons called to
succeed each other: If there is a doubt as to
which of them died first, whoever alleges
the death of one prior to the other, shall
prove the same. In the absence of proof,
they shall be considered to have died at
the same time.
UP LAW BOC
EVIDENCE
NO PRESUMPTION OF LEGITIMACY
OR ILLEGITIMACY
There is no presumption of legitimacy or

illegitimacy of a child born after three hundred
days following the dissolution of marriage or the
separation of spouses. Whoever alleges the
legitimacy or illegitimacy of such child must
prove his allegation. [Sec. 4, Rule 131]
LIBERAL CONSTRUCTION OF
THE RULES OF EVIDENCE
Like all other provisions under the ROC, rules
of evidence must be liberally construed. [Sec.
6, Rule 1]
Rules on Electronic Evidence shall likewise be
construed liberally. [Sec. 2, Rule 2, Rules on
Electronic Evidence]
QUANTUM
OF
EVIDENCE
(WEIGHT AND SUFFICIENCY OF
EVIDENCE)
PROOF
DOUBT
BEYOND
REASONABLE
Applicable quantum of evidence in criminal

cases. The accused is entitled to an acquittal if
his guilt is not shown beyond reasonable
doubt. [sec. 2, Rule 133]
It does not mean such a degree of proof
excluding possibility of error and producing
absolute certainty. Only moral certainty is
required that degree of proof which
produces conviction in an unprejudiced mind.
[Sec. 2, Rule 133]
The burden is on the prosecution to prove
guilt beyond reasonable doubt, NOT on the
accused to prove his/her innocence. [Boac v
People, G.R. No. 180597, November 7, 2008]
The prosecution must not rely on the
weakness of the evidence of the defense.
[Ubales v People, G.R. No. 175692, October 29,
2008; People v. Hu, G.R. No. 182232, October
6, 2008]
PAGE 339
REMEDIAL LAW
PREPONDERANCE OF EVIDENCE
Applicable quantum of evidence in civil cases
[Sec. 1, Rule 133]
Means that the evidence adduced by one side
is, as a whole, superior to or has greater
weight than that of the other. [Habagat Grill v.
DMC-Urban Property Developer, Inc., G.R. No.
155110, March 31, 2005; Bank of the Philippine
Islands v. Reyes, G.R. No. 157177, February 11,
2008]
In determining preponderance of evidence,
the court may consider:
(1) All the facts and circumstances of the case;
(2) The witnesses manner of testifying, their
intelligence, their means and opportunity
of knowing the facts to which they testify,
the nature of the facts to which they testify,
the probability or improbability of their
testimony, their interest or want of interest,
and also their personal credibility so far as
the same may legitimately appear upon
the trial;
(3) Number
of
witnesses
(although
preponderance is not necessarily with the
number of witnesses). [Sec. 1, Rule 133]
SUBSTANTIAL EVIDENCE
Degree of evidence required in cases filed
before administrative or quasi-judicial bodies.
[Sec. 5, Rule 133]
Substantial evidence is that amount of
relevant evidence which a reasonable mind
might accept as adequate to justify a
conclusion [Sec. 5, Rule 133]
CLEAR AND CONVINCING EVIDENCE
The standard of proof required in granting or

denying bail in extradition cases is clear and
convincing evidence that the potential extradee
is not a flight risk and will abide with all the
orders and process of the extradition court.
[Government of Hongkong Special Administrative
Region v.Olalia, Jr., G.R. No. 153675, April 19,
2007]
Intermediate in character lower than proof
beyond reasonable doubt, but higher than
preponderance of evidence
UP LAW BOC
Judicial
Notice
Judicial Admissions
EVIDENCE
And
WHAT NEED NOT BE PROVED

(1) Facts of Judicial Notice
(2) Judicial Admissions
(3) Conclusive Presumptions
REMEDIAL LAW
DISCRETIONARY
(1) Matters of public knowledge;
(2) Matters
capable
of
unquestionable
demonstration; and
(3) Matters ought to be known to judges
because of their judicial functions. [Sec. 2,
Rule 129]
REQUISITES:
JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts

that judges may properly take and act on
without proof because these facts are already
known to them. Put differently, it is the
assumption by a court of a fact without need of
further traditional evidentiary support. The
principle is based on convenience and
expediency in securing and introducing
evidence on matters which are not ordinarily
capable of dispute and are not bona
fide disputed. [Republic v. Sandiganbayan, G.R.
No. 166859, April 12, 2011]
MATTERS OF JUDICIAL NOTICE

MANDATORY
(1) Existence and territorial extent of states;
(2) Their political history, forms of government,
and symbols of nationality;
(3) Law of nations;
(4) Admiralty and maritime courts of the world
and their seals;
(5) Political constitution and history of the
Philippines;
(6) Official acts of the legislative, executive and
judicial departments of the Philippines;
(7) Laws of nature;
(8) Measure of time; and
(9) Geographical divisions. [Sec. 1, Rule 129]
Note: It would be error for the court not to take
judicial notice of an amendment to the Rules of
Court [Riano citing Siena Realty v. Gal-lang (428
SCRA 422)]
PAGE 340
For the court to take judicial notice, three

material requisites should be present:
(1) The matter must be one of common and
general knowledge;
(2) It must be well and authoritatively settled
and not doubtful or uncertain;
(3) It must be known to be within the limits of
the jurisdiction of the court. [State
Prosecutors v, Muro, A.M. No. RTJ-92-876,
September 19, 1994]
Judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not
the judicial knowledge of the court, and he is
not authorized to make his individual
knowledge of a fact, not generally or
professionally known, the basis of his action.
Judicial cognizance is taken only of those
matters which are "commonly" known. [State
Prosecutors v, Muro (supra)]
WHEN HEARING NECESSARY

DURING THE TRIAL
The court, on its own initiative, or on request of

a party, may announce its intention to take
judicial notice of any matter and allow the
parties to be heard thereon.
AFTER THE TRIAL
Before judgment or on appeal

Note: The proper court, on its own initiative or on
request of a party, may take judicial notice of

any matter and allow the parties to be heard
thereon if such matter is decisive of a material
issue in the case. [Sec. 3, Rule 129]
UP LAW BOC
EVIDENCE
WITH RESPECT TO COURTS OWN

ACTS AND RECORDS
A court MAY take judicial notice of its own acts

and records in the same case, of facts
established in prior proceedings in the same
case, of the authenticity of its own records of
another case between the same parties, of the
files of related cases in the same court, and of
public records on file in the same court.
[Republic v Court of Appeals,G.R. No. 119288,
August 18, 1997]
WITH RESPECT TO RECORDS OF

OTHER CASES
General Rule: Courts are not authorized to take
judicial notice of the contents or records of other
cases even if both cases may have been tried or
are pending before the same judge. [Prieto v.
Arroyo (G.R. No. L-17885 June 30, 1965)]
Exceptions: In the absence of objection, and as a
matter of convenience to all parties, a court may
properly treat all or any part of the original
record of a case filed in its archives as read into
the record of a case pending before it, when:
(1) With the knowledge of the opposing party,
reference is made to it for that purpose, by
name and number or in some other manner
by which it is sufficiently designated; or
(2) The original record of the former case or any
part of it, is actually withdrawn from the
archives by the court's direction, at the
request or with the consent of the parties,
and admitted as a part of the record of the
case then pending. [Tabuena v. CA, G.R. No.
85423, May 6, 1991]
WITH RESPECT TO ORDINANCES

Municipal trial courts are required to take
judicial notice of the ordinances of the
municipality or city wherein they sit.
Regional Trial Courts must take judicial notice
of such ordinances only:
(1) When required to do so by statute e.g. in
Manila as required by the city charter [City
of Manila v. Garcia, et al., L-26053, February
21, 1967]; and
PAGE 341
REMEDIAL LAW
(2) In a case on appeal before them and

wherein the inferior court took judicial
notice of an ordinance involved in said
case. [U.S. v. Blanco, 37 Phil. 126; U.S. v.
Hernandez, 31 Phil. 342]
Note: The principal guide in determining what
facts may be assumed to be judicially known is
that of notoriety. It is either (1) generally known
within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready
determination by resorting to sources whose
accuracy cannot reasonably be questionable.
[Riano]
JUDICIAL ADMISSIONS
To be a judicial admission, the same:
(1) Must be made by a party to the case;
(2) Must be made in the course of the
proceedings in the same case; and
Note: As regards judicial admissions made
in the trial of another case, the same would
be considered an extrajudicial admission
for the purpose of the other proceeding
where such admission is offered.[Riano]
(3) May be verbal or written. [Sec. 4, Rule 129]
Judicial admissions may be
Made in:
Pleadings filed by the parties (including
admissions made in pleadings which are
withdrawn/superseded by an amended
pleading [Regalado])
Stipulations of facts by the parties in a pretrial conference [People v. Hernandez, G.R.
No. 108028, July 30, 1996]
The course of the trial either by verbal or
written manifestations/stipulations
Other stages of judicial proceedings
Obtained through:
Depositions
Written interrogatories
Request for admissions [Regalado; See also
Civil Procedure Rules]
UP LAW BOC
EVIDENCE
There are averments made in pleadings which

are not deemed admissions even if the
adverse party fails to make a specific denial of
the same like immaterial allegations (Sec. 11,
Rule 8), conclusions, non-ultimate facts in the
pleading (Sec. 1, Rule 8) as well as the
amount of liquidated damages (Sec. 11, Rule
8). [Riano]
Although an admission made during the pretrial is deemed to have been made in the
course of the judicial proceeding and is
necessarily a judicial admission, an admission
made by the accused in the pre-trial of a
criminal case is not necessarily admissible
against him. To be admissible, it must comply
with the conditions set forth under Sec. 2,
Rule 118:
(1) Reduced in writing, and
(2) Signed by the accused and counsel.
[Riano]
EFFECT OF JUDICIAL ADMISSIONS
(1) It does NOT require proof. [Sec. 4, Rule 129]

(2) General rule: Judicial admissions CANNOT
be contradicted. [Sec. 4, Rule 129]
An original complaint, after being amended,
loses its character as a judicial admission,
which would have required no proof. It
becomes merely an extra-judicial admission
requiring a formal offer to be admissible.
[Torres v CA, G.R. No. L-37420, July 31, 1984].
A party who judicially admits a fact cannot
later challenge that fact as judicial admissions
are a waiver of proof; production of evidence is
dispensed with. [Alfelor v Halasan,G.R. No.
165987 March 31, 2006]
HOW JUDICIAL ADMISSIONS MAY BE

CONTRADICTED
As an exception to the general rule, judicial

admissions may be contradicted only by
showing that:
(1) It was made through palpable mistake; or
(2) No such admission was made. [Sec. 4, Rule
129]
PAGE 342
REMEDIAL LAW
This may be invoked when the statement of a

party is taken out of context or that his
statement was made not in the sense it is
made to appear by the other party. [Phil.
Health Care Providers v. Estrada, G.R. No.
171052, January 28, 2008 citing Atillo, III v. CA,
1997]
JUDICIAL NOTICE OF FOREIGN

LAWS, LAW OF NATIONS AND
MUNICIPAL ORDINANCE
FOREIGN LAWS
General Rule: Courts cannot take judicial notice
of foreign laws. They must be alleged and
proved as any other fact. [Yao-Kee v. SyGonzales, G.R. No. L-55960, November 24, 1988]
Written foreign law may be proved by:
(1) An official publication; or
(2) A duly attested and authenticated copy.
ATTESTED COPY
(1) Attestation must be made by the officer

having legal custody of the record or by his
deputy. [Sec. 24, Rule 132]
(2) It must state, in substance, that the copy is a
correct copy of the original, or a specific part
thereof [Sec. 25, Rule 132]
(3) It must be under the official seal of the
attesting officer, if there be any, or if he be a
clerk of court having a seal, under the seal of
such court. [Sec. 25, Rule 132]
(4) It must be accompanied by a certificate that
attesting officer has custody [Sec. 24, Rule
132]
The certificate may be made by a secretary
of the embassy or legation, consul general,
consul, vice consul, or consular agent or by
any officer in the foreign service of the
Philippines stationed in the foreign country
in which the record is kept, and
authenticated by the seal of his office
UP LAW BOC
EVIDENCE
Unwritten foreign law may be proved through

Sec. 46, Rule 130
Published treatise, periodical or pamphlet on a
subject of history, law, science or art is
admissible as tending to prove the truth of a
matter stated therein if:
(1) the court takes judicial notice, or
(2) a witness expert in the subject testifies, that
the writer of the statement in the treatise,
periodical or pamphlet is recognized in his
profession or calling as expert in the subject.
Doctrine of Processual Presumption: In the
absence of proof, the foreign law will be
presumed to be the same as the laws of the
jurisdiction hearing the case. [Northwest Orient
Airlines v Court of Appeals (G.R. No. 112573
February 9, 1995)]
THE COURT MAY TAKE JUDICIAL

NOTICE OF THE FOREIGN LAW
(1) Where the foreign law is within the actual

knowledge of the court such as when the law
is well and generally known such as when
they are well and generally known or they
had been ruled upon in other cases before it
and none of the parties claim otherwise
[PCIB v Escolin (G.R. L-27860 and L-27896
March 29,1974)]
(2) When the foreign law is part of a published
treatise, periodical or pamphlet and the
writer is recognized in his/her profession or
calling as expert in the subject [sec. 46, Rule
130]
LAW OF NATIONS
The Philippines adopts the generally accepted
principles of international law as part of the
law of the land. [Sec. 2, Art. II, 1987
Constitution]
Being part of the law of the land, they are
therefore in the nature of local laws, and
hence, subject to mandatory judicial notice
under sec. 1 of Rule 129.
MUNICIPAL ORDINANCES
Municipal trial courts are required to take
judicial notice of the ordinances of the
municipality or city wherein they sit. [US v.
Blanco (37 Phil 126 November 9, 1917)]
PAGE 343
REMEDIAL LAW
However, in the case of the RTC, they must

take such judicial notice only
(1) when required to do so by statute (City of
Manila v. Garcia (1967));
All courts sitting in the City of Manila
shall take judicial notice of the
ordinances by the Municipal Board. [Sec.
50, RA 409 Revised Charter of the City
of Manila]
(2) in a case of appeal before them wherein
the inferior court took judicial notice of an
ordinance involved in said case [US v.
Blanco (supra)] [Regalado]
Object (Real) Evidence

NATURE OF OBJECT EVIDENCE
Those addressed to the senses of the court
[sec. 1, Rule 130]
The right against self-incrimination CANNOT
be invoked against object evidence. [People v.
Malimit, G.R. No. 109775 November 14, 1996]
REQUISITES FOR
ADMISSIBILITY
BASIC REQUISITES FOR
ADMISSIBILITY (RIANO)
(1) Evidence must be relevant;

(2) Evidence must be authenticated;
(3) Authentication must be made by a
competent witness; and
(4) Object must be formally offered [Sec. 34,
Rule 132]
REQUISITES FOR THE ADMISSIBILITY

OF TAPE RECORDING:
(1) A showing that the recording was capable of

taking testimony
(2) A showing that the operator of the recording
device is competent
(3) Establishment of the authenticity and
correctness of recording
(4) A showing that no changes, deletions, or
additions have been made on the recordings
(5) A showing of the manner of preservation of
the recording
(6) Identification of speakers
UP LAW BOC
EVIDENCE
(7) A showing that the testimony elicited was

voluntarily made without any kind of
inducement. [Torralba v. People (G.R. No.
153699, August 22, 2005)]
RELEVANT
REMEDIAL LAW
Objects Made Unique

Objects with no unique characteristic but are
made readily identifiable, e.g., a typical kitchen
knife with identifying marks placed on it by the
witness
General Rule: When an object is relevant to the

fact in issue, it may be exhibited to, examined or
viewed by the court. [Sec. 1, Rule 130]
Non-Unique Objects
Objects with no identifying marks and cannot be
marked, e.g., narcotic substances
Exceptions: Court may refuse exhibition of

object evidence and rely on testimonial evidence
alone if
(1) Exhibition is contrary to public policy, morals
or decency;
(2) It would result in delays, inconvenience,
unnecessary expenses, out of proportion to
the evidentiary value of such object; [People
v. Tavera (47 Phil. 645 March 17, 1925)]
(3) Evidence would be confusing or misleading.
(4) The testimonial or documentary evidence
already presented clearly portrays the object
in question as to render a view thereof
unnecessary
DEMONSTRATIVE EVIDENCE
COMPETENT
EVIDENCE BE AUTHENTICATED
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
AUTHENTICATION
BE
MADE
BY
COMPETENT WITNESS
To authenticate the object, the witness must
have the capacity to identify the object as the
very thing involved in the litigation.
A witness can testify to those facts which
he/she knows of his/her personal knowledge;
that is, which are derived from his/her own
perception. [Sec. 36, Rule 130]
CATEGORIES OF OBJECT
EVIDENCE
THE THING ITSELF
Unique Objects
Objects that have readily identifiable marks,
e.g., a caliber 45 pistol by virtue of its serial
number
PAGE 344
Not the actual thing, rather it represents or

demonstrates the real thing, E.g.,
photographs, motion pictures and recordings
[Riano]
Audio, photographic and video evidence of
events, acts or transactions shall be
admissible provided it shall be:
(1) shown, presented or displayed to the court,
and
(2) identified, explained or authenticated
(a) by the person who made the recording,
or
(b) by some other person competent to
testify on the accuracy thereof [Sec. 1,
Rule 11, Rules on Electronic Evidence]
EPHEMERAL ELECTRONIC
COMMUNICATIONS
Refers to telephone conversations, text

messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. [Sec. 1(k), Rule 2, Rules on
HOW PROVEN
(1) by the testimony of a person who was a party

to the same;
(2) by the testimony of a person who has
personal knowledge thereof; or
(3) in the absence or unavailability of such
witnesses, by other competent evidence [Sec.
2, Rule 11, Rules on Electronic Evidence]
When recorded, the communication ceases to
be ephemeral and shall be proven in the same
manner as proving audio, photographic and
video evidence [Sec. 2, Rule 11, Rules on
Electronic Evidence].
UP LAW BOC
EVIDENCE
VIEW OF AN OBJECT OR SCENE

When an object is relevant to the fact in issue,
it may be viewed by the court. [Sec. 1, Rule 130]
Court has an inherent power to order view
when there is a need to do so. [Riano citing
Sec. 1, Rule 130]
Inspection may be made inside or outside the
courtroom. An inspection outside should be
made in the presence of the parties or at least
with the previous notice to them. [Riano citing
Moran]
CHAIN OF CUSTODY IN
RELATION TO SECTION 21 OF
THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF
2002
MEANING OF CHAIN OF CUSTODY
A method of authenticating evidence which

requires that the admission of an exhibit be
preceded by evidence sufficient to support a
finding that the matter in question is what the
proponent claims it to be. It would include
testimony about every link in the chain, from the
moment the item was picked up to the time it is
offered into evidence [Lopez v People (G.R. No.
172953 April 30, 2008)]
IN RELATION TO DRUG CASES
The apprehending team having initial custody

and control of the drugs shall:
(1) physically inventory, and
(2) photograph the same,
(3) in the presence of
(a) accused or the person/s from whom the
drugs
were
seized,
or
his/her
representative or counsel
(b) representative from the media and the
Department of Justice
(c) any elected public official
(4) who shall be required to sign the copies of
the inventory and be given a copy thereof.
[Sec. 21, Art. II, R.A. 9165 or the
Comprehensive Dangerous Drugs Act of
2002]
PAGE 345
REMEDIAL LAW
Non-compliance with sec. 21 of R.A. 9165,

particularly the making of the inventory and
their photographing of the drugs confiscated
will not render the drugs inadmissible in
evidence. The issue if there is non-compliance
with the law is not admissibility, but of weight
evidentiary merit or probative value. [People
v Del Monte (G.R. No. 179940 April 23, 2008)]
Purpose of Establishing Chain of Custody: To
guaranty the integrity of the physical evidence
and to prevent the introduction of evidence
which is not authentic. [Riano]
Note: A unique characteristic of narcotic
substances is that they are not readily
identifiable. Hence, in authenticating the same,
a more stringent standard than that applied to
readily identifiable objects is necessary. This
exacting standard entails a chain of custody of
the item with sufficient completeness to render
it improbable for the original item to be
exchanged with another, contaminated or
tampered with [Lopez v. People (G.R. No. 172953
April 30, 2008)]
RULE ON DNA EVIDENCE (A.M.

NO. 06-11-5-SC)
DNA EVIDENCE
The totality of the DNA profiles, results and

other genetic information directly generated
from DNA testing of biological samples. [Sec.
3(c)]
APPLICATION FOR DNA TESTING

ORDER
WITH PRIOR COURT ORDER
(1) The appropriate court may, at any time,
either (i) motu proprio or (ii) on application of
any person who has a legal interest in the
matter in litigation, order a DNA testing.
(2) Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant
to the case;
UP LAW BOC
EVIDENCE
(b) The biological sample: (i) was not

previously subjected to the type of DNA
testing now requested; or (ii) was
previously subjected to DNA testing, but
the results may require confirmation for
good reasons;
(c) The DNA testing uses a scientifically valid
technique;
(d) The DNA testing has the scientific
potential to produce new information that
is relevant to the proper resolution of the
case; and
(e) The existence of other factors, if any,
which the court may consider as
potentially affecting the accuracy of
integrity of the DNA testing. [Sec. 4]
WITHOUT PRIOR COURT ORDER
(1) This Rule shall not preclude a DNA testing,
without need of a prior court order, at the
behest of any party. [Sec. 4]
(2) Post-conviction DNA testing [Sec. 6]
POST-CONVICTION DNA TESTING
HOW OBTAINED
(1) Without need of prior court order
(2) Available to the prosecution or any person
convicted by final and executory judgment
REQUISITES
(1) A biological sample exists
(2) Such sample is relevant to the case
(3) The testing would probably result in the
reversal or modification of the judgment of
conviction. [Sec. 6]
REMEDY IF RESULTS FAVORABLE TO

THE CONVICT
Convict or the prosecution may file a petition for

a writ of habeas corpus in the court of origin, CA
or SC or any member of said courts. [Sec. 10]
General Rule: If the court, after due hearing,
finds the petition meritorious, it shall reverse or
modify the judgment of conviction and order the
release of the convict. [Sec. 10]
Exception: If continued detention is justified for
a lawful cause. [Sec. 10]
PAGE 346
REMEDIAL LAW
FACTORS IN ASSESSING
PROBATIVE
VALUE
OF
EVIDENCE
THE
DNA
(1) Chain of custody

(a) How the biological samples were
collected
(b) How they were handled
(c) Possibility of contamination
(2) DNA testing methodology
(a) Procedure followed in analyzing the
samples
(b) Advantages and disadvantages of the
procedure
(c) Compliance with scientifically valid
standards in conducting the tests
(3) Forensic DNA laboratory
(a) Accreditation
by
any reputable
standards-setting institution
(b) Qualification of the analyst who
conducted the tests
(c) If not accredited, relevant experience of
the laboratory in forensic work and its
credibility
(4) Reliability of the testing result [Sec. 7]
VALLEJO STANDARD
In assessing the probative value of DNA

evidence, courts should consider the following:
(1) How the samples were collected
(2) How they were handled
(3) The possibility of contamination of the
samples
(4) The procedure followed in analyzing the
samples, whether the proper standards and
procedures were followed
(5) Qualification of the analyst who conducted
the tests [People v. Vallejo (May 9, 2002)]
FACTORS THAT DETERMINE THE

RELIABILITY OF THE DNA TESTING
METHODOLOGY
(1) Falsifiability of the principles or methods

used, that is, whether the theory or technique
can be and has been tested
(2) Subject to peer review and publication of the
principles or methods
(3) General acceptance of the principles or
methods by the scientific community
(4) Existence and maintenance of standards and
controls to ensure the correctness of data
generated
UP LAW BOC
EVIDENCE
(5) Existence of an appropriate reference

population database
(6) General degree of confidence attributed to
mathematical
calculations
used
in
comparing DNA profiles; and
(7) Significance and limitation of statistical
calculations used in comparing DNA profiles
[Sec. 5]
Documentary Evidence
MEANING OF DOCUMENTARY
EVIDENCE
Consist of writings or any material containing
letters, words, numbers, figures, symbols or
other modes of written expressions offered as
proof of their contents [Rule 130, sec. 2]
To be deemed documentary evidence, such
writings or materials must be offered as proof
of their contents. If offered for some other
purpose, they constitute OBJECT EVIDENCE.
REMEDIAL LAW
Affidavits and depositions are considered as

not being the best evidence, hence not
admissible if the affiants or deponents are
available as witnesses. [Regalado citing 4
Martin, op cit., p. 82]
ORIGINAL DOCUMENT
(1) A document, the contents of which is the

subject of inquiry
(2) All such copies executed at or about the
same time, and with identical contents
Note: Carbon copies are deemed duplicate
originals. [People v Tan (105 Phil. 1242 July 31,
1959)]
(3) All such entries made and repeated in the
regular course of business, at/near the time
of the transaction [Rule 130, Sec. 4]
SECONDARY EVIDENCE [IN ORDER]
(1) Copy
(2) Recital of contents in some authentic
document
(3) Testimony of witnesses [Rule 130, Sec. 5]
REQUISITES FOR INTRODUCTION OF

SECONDARY EVIDENCE
(EXCEPTIONS TO BER) [RULE 130,
REQUISITES FOR
ADMISSIBILITY
(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence [Riano]
SEC. 3]
BEST EVIDENCE RULE

MEANING OF THE RULE
When the subject of inquiry is the contents of a

document, no evidence shall be admissible
other than the original document itself. [Rule
130, Sec. 3]
WHEN APPLICABLE (GENERAL RULE)

Only when the subject of inquiry is the contents
of a document [Rule 130, Sec. 3]
The best evidence rule does not apply when
the issue is only as to whether or not such
document was actually executed or in the
circumstances relevant to its execution.
[People v Tandoy (G.R. No. 80505 December 4,
1990)]
PAGE 347
(1) When the original has been lost or destroyed,

or cannot be produced in court, without bad
faith on the offerors part
Proponent must prove due execution, loss,
destruction or unavailability of the original
[Section 5, Rule 130] and reasonable
diligence and good faith in the search
for/attempt to produce the original [Tan v.
CA (G.R. No. L-56866 June 27, 1985)]
ALL duplicates or counterparts must be
accounted for before using copies [De Vera
v. Aguilar (G.R. No. 83377 February 9, 1993)]
Due execution of the document should be
proved through the testimony of either:
(1) the person or persons who executed it;
(2) the person before whom its execution
was acknowledged; or
UP LAW BOC
EVIDENCE
(3) any person who was present and saw it

executed and delivered, or who, after its
execution and delivery, saw it and
recognized the signatures, or by a
person to whom the parties to the
instruments had previously confessed
the execution thereof. [Director of Lands
v. CA (G.R. No. L-29575 April 30, 1971)]
(2) When the original is in the custody or under
the control of the party against whom it is
offered, and the latter fails to produce it after
reasonable notice
(3) When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time, and the fact sought to be established
from them is only the general result of the
whole
(4) When the original is a public record in the
custody of a public officer or is recorded in a
public office
(5) When the original is outside the jurisdiction
of the court, secondary evidence is
admissible [PNB v. Olila (98 Phil 1002,
unreported, March 23, 1956)]
RULES ON ELECTRONIC
EVIDENCE [A.M. NO. 01-7-01-
REMEDIAL LAW
ELECTRONIC DOCUMENT
(1) Information or the representation of
information, data, figures, symbols or other
modes of written expression,
(2) Described or however represented, by which
a right is established or an obligation
extinguished, or by which a fact may be
proved and affirmed,
(3) Which is received, recorded, transmitted,
stored, processed, retrieved or produced
electronically.
(4) It includes digitally signed documents and
any print-out or output, readable by sight or
other means, which accurately reflects the
electronic data message or electronic
document.
For purposes of these Rules, the term
electronic document may be used
interchangeably
with
electronic
data
message. [Sec. 1(h), REE]
ELECTRONIC DATA MESSAGE
Information generated, sent, received or stored

by electronic, optical or similar means. [Sec. 1(g),
REE]
FACTORS IN ASSESSING
EVIDENTIARY WEIGHT OF
ELECTRONIC EVIDENCE [RULE 7,
SC]
SEC. 1]
APPLICABILITY
These Rules shall apply to all civil actions and

proceedings, as well as quasi-judicial and
administrative cases. [REE, Rule 1, Sec. 2]
APPLICATION IN CRIMINAL ACTIONS
While the case of Ang v. CA (G.R. No. 182835

April 20, 2010)held that the Rules on Electronic
Evidence applies only to civil actions, quasijudicial proceedings and administrative
proceeding, not to criminal action, People vs.
Enojas [G.R. No. 204894, March 10, 2014], the
SC upheld the RTCs admission of text
messages as evidence in a murder case as
conforming with the Courts earlier Resolution
[A.M. NO. 01-7-01] applying the Rules on
Electronic Evidence to criminal actions.
PAGE 348
In assessing the evidentiary weight of an

electronic document, the following factors may
be considered:
(1) The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
(a) input and output procedures,
(b) controls, tests and checks for accuracy
and reliability of the electronic data
message or document,
(c) in the light of all the circumstances as
well as any relevant agreement;
(2) The reliability of the manner in which its
originator was identified;
(3) The integrity of the information and
communication system in which it is
recorded or stored, including but not limited
to the hardware and computer programs or
software used as well as programming
errors;
UP LAW BOC
EVIDENCE
(a) Whether
the
information
and
communication system or other similar
device was operated in a manner that did
not affect the integrity of the electronic
document, and there are no other
reasonable grounds to doubt the integrity
of the information and communication
system;
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that
of the party using it; or
(c) Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a person
who is not a party to the proceedings and
who did not act under the control of the
party using it [Rule 7, Sec. 2]
(4) The familiarity of the witness or the person
who made the entry with the communication
and information system;
(5) The nature and quality of the information
which went into the communication and
information system upon which the
electronic data message or electronic
document was based; or
(6) Other factors which the court may consider
as affecting the accuracy or integrity of the
electronic document or electronic data
message.
Text messages have been classified as
ephemeral electronic communication under
Section 1(k), Rule 2 of the Rules on Electronic
Evidence, and shall be proven by the
testimony of a person who was a party to the
same or has personal knowledge thereof.
[Vidallon-Magtolis v. Salud (A.M. No. CA-0520-P September 9, 2005)]
METHOD OF PROOF
(1) Affidavit of Evidence [Rule 9, sec. 1]

(a) Must state facts (i) of direct personal
knowledge, or (ii) based on authentic
records
(b) Must
affirmatively
show
the
competence of the affiant to testify on
the matters contained in the affidavit
(2) Cross-Examination of Deponent [Rule 9, sec.
2]
PAGE 349
REMEDIAL LAW
(a) Affiant shall affirm the contents of the

affidavit in open court.
(b) Affiant may be cross-examined as a
matter of right by the adverse party.
AUTHENTICATION OF ELECTRONIC
DOCUMENTS AND ELECTRONIC
SIGNATURES (R5, SS1-3; R11, SS1-2,
REE)
OF ELECTRONIC DOCUMENTS
Burden of Proving Authenticity: The person
seeking to introduce the electronic document
in any legal proceeding has the burden of
proving its authenticity. [Rule 5, sec. 1]
Before any private electronic document can
be offered as authentic is received in evidence,
its authenticity must be proved by any of the
following manner:
(1) By evidence that it had been digitally
signed by the person purported to have
signed the same;
(2) By evidence that other appropriate security
procedures or devices as may be
authorized by the Supreme Court or by law
for authentication of electronic documents
were applied to the document; or
(3) By other evidence showing its integrity and
reliability to the satisfaction of the judge.
[Rule 5, sec. 2]
OF ELECTRONIC SIGNATURES [RULE 6,
SEC. 2]
(1) By evidence that a method or process was

utilized to establish a digital signature and
verify the same;
(2) By any other means provided by law; or
(3) By any other means satisfactory to the judge
ELECTRONIC DOCUMENTS AND THE BEST
EVIDENCE RULE
The following are originals/equivalent of
originals (Rule 4, Secs. 1and 2)
(1) A printout or output readable by sight or
other means, shown to reflect data
accurately
(2) Copies executed at or about the same time
with identical contents
(3) Counterpart produced by the same
impression as the original
UP LAW BOC
EVIDENCE
(4) Copies or duplicates produced from the

same matrix, or by mechanical or electronic
re-recording, or by chemical reproduction, or
by other equivalent techniques which
reproduces the original
ELECTRONIC DOCUMENTS AND THE

HEARSAY RULE
BUSINESS RECORDS AS EXCEPTION TO THE
HEARSAY RULE
What Constitute Business Records: Records of
any business, institution, association, profession,
occupation, and calling of every kind, whether or
not conducted for profit, or for legitimate
purposes [Rule 2, sec. 1b]
REQUISITES TO AN EXCEPTION TO THE
RULE ON HEARSAY EVIDENCE
A memorandum, report, record, or data
compilation of acts, events, conditions, opinions
or diagnosis:
(1) Made by electronic, optical or other similar
means
(2) Made at or near the time of or from
transmission or supply of information
(3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a
business activity,
(5) Such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means
(6) Abovementioned facts shown by the
testimony of the custodian or other qualified
witnesses [Rule 8, Sec. 1]
THE PRESUMPTION PROVIDED ABOVE MAY
BE OVERCOME BY EVIDENCE OF
(1) Untrustworthiness of the source of
information
(2) Untrustworthiness of the method of the
preparation, transmission or storage thereof
(3) Untrustworthiness of the circumstances of
the preparation, transmission or storage
thereof [Rule 8, Sec. 2]
PAGE 350
REMEDIAL LAW
AUDIO, PHOTOGRAPHIC, VIDEO AND

EPHEMERAL EVIDENCE
Audio, video and similar evidence, to be
admissible shall be
(1) shown, presented or displayed to the court
and
(2) identified, explained or authenticated by the
person who made the recording or by some
other person competent to testify on the
accuracy thereof [Rule 11, Sec.1]
Ephemeral electronic communications shall
be proven by the testimony of a person who
was a party to the same or has personal
knowledge thereof. In the absence or
unavailability of such witnesses, other
competent evidence may be admitted. [Rule
11, Sec. 2]
If ephemeral electronic communication and
recording of telephone conversation under
Rule 11, Sec 2 of the REE are recorded or
embodied in an electronic document, then the
provisions of Rule 5 (Authentication of
Electronic Documents) shall apply.
PAROL EVIDENCE RULE

MEANING OF PAROL EVIDENCE
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or contradict
a complete and enforceable agreement
embodied in a document. [Regalado]
APPLICATION OF THE PAROL

EVIDENCE RULE (GENERAL RULE)
When the terms of an agreement (including
wills) have been reduced to writing, it is

considered as containing all the terms agreed
upon and there can be, between the parties
and their successors in interest, no evidence of
such terms other than the contents of the
written agreement. [Rule 130, Sec. 9]
It does not apply when third parties are
involved or those not privy to the written
instrument in question and does not base a
claim or assent a right originating in the
instrument. [Lechugas v. CA (G.R. No. L-39972
& L-40300 August 6, 1986)]
UP LAW BOC
EVIDENCE
WHEN PAROL EVIDENCE CAN BE

INTRODUCED
(a) When a party presents parol evidence to
modify, explain or add to the terms of a

written agreement AND
(b) Ground/s for presenting parol evidence is
put in issue in the pleading
GROUNDS FOR PRESENTING PAROL

EVIDENCE:
(1) An intrinsic ambiguity, mistake or imperfection

in the written agreement
Intrinsic ambiguity writing admits of two
constructions both of which are in harmony
with the language used
Note: If ambiguity is intermediate (both
latent and patent), parol evidence is
admissible [Regalado citing 20 Am. Jur 1011]
Mistake refers to mistake of fact which is
mutual to the parties [BPI v. Fidelity and
Surety, Co(G.R. No. L-26743 October 19, 1927)]
Imperfectionincludes inaccurate statement in
the agreement or incompleteness in the
writing or the presence of inconsistent
provisions [Regalado]
(2) Failure of the written agreement to express the
true intent and agreement of the parties
thereto
Purpose: To enable court to ascertain the
true intention of the parties [Tolentino v.
Gonzales SyChiam (G.R. No. 26085 August
12, 1927]
(3) Validity of the written agreement
Parol Evidence may be admitted to show:
True consideration of a contract
Want/Illegality of consideration
Incapacity of parties
Fictitious/simulated contract
Fraud in inducement [Regalado]
(4) Existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
Re Collateral Agreements:
General Rule: Parol Evidence Rules applies
Exceptions:
(1) Collateral agreement is not inconsistent
with the terms of the written contract
(2) Collateral agreement has not been
integrated in and is independent of the
written contract
(3) Collateral agreement is subsequent to
and novatory of the written contract
PAGE 351
REMEDIAL LAW
(4) Collateral agreement constitutes a

condition precedent which determines
whether the written contract may become
operative or effective (does not apply to
conditions subsequent not stated in the
agreement) [Regalado]
DISTINCTIONS BETWEEN THE BEST

EVIDENCE RULE AND PAROL
EVIDENCE RULE [REGALADO]
Best Evidence Rule
Parol Evidence Rule
Contemplates
the Presupposes that the
situation wherein the original document is
original writing is not available in court
available and/or there
is a dispute as to
whether said writing is
the original
Prohibits
the Prohibits the varying of
introduction
of the terms of a written
substitutionary
agreement
evidence in lieu of the
original
document
regardless of WON it
varies the contents of
the original
Applies to all kinds of Applies
only
to
documents
documents contractual
in nature (Exception:
wills)
Can be invoked by any
party to an action
regardless of WON
such party participated
in the writing involved
Can be invoked only

when the controversy is
between the parties to
the written agreement,
their privies or any
party directly affected
thereby
AUTHENTICATION AND PROOF

OF DOCUMENTS
MEANING OF AUTHENTICATION
The preliminary step in showing the
admissibility of evidence
Proving that the objects and documents
presented in evidence are not counterfeit
UP LAW BOC
EVIDENCE
PUBLIC AND PRIVATE DOCUMENTS

Private Documents
Public Documents
When
offered
as
authentic,
due
execution
and
authenticity must be
proved
Admissible
without
further proof of its due
execution
and
authenticity
WHEN A PRIVATE WRITING

REQUIRES AUTHENTICATION;
PROOF OF A PRIVATE WRITING
PRIVATE DOCUMENTS
When offered as authentic
General Rule: Authentication necessary
How to Prove Due Execution and Authenticity
(1) By anyone who saw the document executed
or written; OR
(2) By evidence of the genuineness of the
signature or handwriting of the maker [Rule
132, sec. 20]
Additional Modes of Authentication under
American Jurisprudence [Regalado]
(1) Doctrine of Self-Authentication Where the
facts in writing could only have been known
by the writer
(2) Rule of Authentication by adverse part
Where the reply of the adverse party refers to
and affirms the transmittal to him and his
receipt of the letter in question, a copy of
which the proponent is offering as evidence
When evidence of authenticity of a private
writing is not required
Ancient Documents authentication NOT
necessary provided that private document be:
(a) More than 30 years old;
(b) Produced from a custody in which it would
naturally be found if genuine; and
(c) Unblemished by any alterations or
circumstances of suspicion. [Rule 132, sec. 21]
Other instances when authentication is not
required:
(1) Writing is a public document/record [Rule
132, Sec. 19]
PAGE 352
REMEDIAL LAW
(2) Notarial
document
acknowledged,
proved/certified [Rule 132, Sec. 30]
(3) When authenticity and due execution has
been admitted as in the case of actionable
documents under Rule 8, Sec. 8
(4) That which it is claimed to be: Authentication
not necessary [Rule 132, sec. 20]
How to prove genuineness of handwriting
(1) By any witness who believes it to be the
handwriting of such person because:
(a) he has seen the person write;
(b) he has seen writing purporting to be his
upon which the witness has acted or been
charged, and has thus acquired
knowledge of the handwriting of such
person [Rule 132, sec. 22]
(2) A comparison by the witness or the court of
the questioned handwriting, and admitted
genuine specimens thereof or proved to be
genuine to the satisfaction of the judge [Rule
132, sec. 22]
(3) Expert evidence [Rule 130, sec. 49]
PUBLIC DOCUMENTS
Kinds of public documents
(1) Written official acts or records of the official
acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of
the Philippines or of a foreign country
(2) Public records, kept in the Philippines, of
private documents required by law to be
entered therein
(3) Notarial documents (except last wills and
testaments) [Rule 132, Sec. 19]
Proof of public documents
Records of Official Acts [Rule 132, sec. 24]
(1) By an official publication thereof; or
(2) By an attested copy of the document
Note: Documents without documentary stamp
affixed thereto, unless specifically exempted by
law, may not be admitted or used in evidence in
any court until the requisite stamp shall have
been affixed. [Sec. 201, NIRC] Also, there is a
presumption that the requisite stamps have
been affixed in the original copy when only the
carbon copies of the same is available. [Mahilum
v CA (G.R. No. L-17666 June 30, 1966)]
UP LAW BOC
EVIDENCE
Attestation of a copy of a document or record
[Rule 132, Sec. 25]
(1) Must be made by the officer having the legal

custody of the record, or by his deputy
(2) Must state that the copy is a correct copy of
the original or a specific part thereof, as the
case may be
(3) Must be under the official seal of the
attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the
seal of such court
If the record is not kept in the Philippines,
attested copy must be accompanied with a
certificate, which
(1) May be made by a secretary of the
embassy/legation, consul-general, consul,
vice-consul, consular agent or any officer in
the foreign service of the Philippines
stationed in the foreign country in which the
record is kept;
(2) Must state that such officer has the custody;
and
(3) Must be authenticated by the seal of his
office. [Rule 132, Sec. 24]
Public Records of Private Documents [Rule
132, sec. 27]
(1) By the original record; or
(2) By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
[Rule 132, sec. 27]
Note: Please refer to Attestation of Copy
under Sec. 25, Rule 132.
Proof of lack of record [Rule 132, sec. 28]
(1) Written statement
(a) Signed by an officer having the custody of
an official record or by his deputy
(b) Must state that after diligent search, no
record or entry of a specified tenor is
found to exist in the records of his office
(2) Certificate
(a) Accompanying the written statement
(b) Must state that that such officer has the
custody
PAGE 353
REMEDIAL LAW
What to Establish to Impeach Judicial Record

[Rule 132, sec. 29]
(1) Want of jurisdiction in the court or judicial
officer;
(2) Collusion between the parties; OR
(3) Fraud in the party offering the record, with
respect to the proceedings
Proof of notarial documents
Notarial Documents (except last wills and
testaments):
every
instrument
duly
acknowledged or proved and certified as
provided by law which may be presented in
evidence without further proof, the certificate of
acknowledgment being prima facie evidence of
the execution of the instrument or document
involved.[Rule 132, sec. 30]
Such notarized documents are evidence, even
against 3rd persons, of the facts which gave
rise to their execution and of the date of
execution. [Rule 132, sec. 23]
How to explain alterations in a document
[Rule 132, sec. 31]
(1) Document is being presented as genuine;

(2) Document has been altered and appears to
have been altered;
(3) Alteration was made after execution of the
document; and
(4) Alteration is in a part material to the
question in dispute
What to Show about the Alteration
(1) Was made by another, without his
concurrence;
(2) Was made with the consent of the parties
affected by it;
(3) Was otherwise properly or innocently made;
or
(4) Did not change the meaning or language of
the instrument.
Whose Burden of Proof
Party producing the document must account for
the alteration. Failure to do so would result in
the inadmissibility of evidence.
Documentary evidence in an unofficial
language [Rule 132, Sec. 33]
NOT admissible unless accompanied by a
translation into English or Filipino.
Parties or their attorneys are directed to have
the translation prepared before trial.
UP LAW BOC
EVIDENCE
Testimonial Evidence
REMEDIAL LAW
IN CASE PERSON IS CONVICTED OF A

CRIME
QUALIFICATIONS OF A
WITNESS
WITNESS DEFINED
A witness is one who, being present, personally

sees or perceives a thing, a beholder, spectator
or eyewitness. One who testifies to what he has
seen or heard, or otherwise observed. [Herrera
citing Blacks Law Dictionary]
QUALIFICATIONS OF A WITNESS
[RULE 130, SEC. 20]
All persons who can perceive, and, in

perceiving, can make their known perception
to others, may be witnesses.
Religious/political belief, interest in the
outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be
ground for disqualification.
QUALIFICATIONS OF A WITNESS
ACCORDING TO HERRERA
(1) To observe, the testimonial quality of

perception; [Rule 130, sec. 20]
(2) To remember, the testimonial quality of
memory;
(3) To relate, the testimonial quality of narration;
[Rule 130, sec. 20]
(4) To recognize a duty to tell the truth, the
testimonial quality of sincerity; [Rule 132, sec.
1]
(5) He must not possess any of the
disqualifications imposed by the law or rules.
[Rule 132, sec. 1]
WHEN DETERMINED
Qualification of a witness is determined at the
time the said witness are produced for
examination or at the taking of their
depositions.
With respect to children of tender years,
competence at the time of the occurrence is
also taken into account.
PAGE 354
General Rule: Not disqualified

Exception: Otherwise provided by law, e.g.
under Art. 821 of the Civil Code, a person
convicted of any of the following crimes cannot
be a witness to a will:
(1) Falsification of documents,
(2) Perjury; or
(3) False testimony
COMPETENCY VERSUS
CREDIBILITY
COMPETENCY
OF
[HERRERA, PG. 282]
WITNESS
One is qualified to take the witness stand if:

(1) He is capable of perceiving at the time of the
occurrence of the fact; and
(2) He came make his perception known
Competency
Credibility
A matter of law and of Has nothing to do with

rules
the law or rules
Refers to the basic
qualifications of a
witness as his capacity
to perceive and his
capacity
to
communicate
his
perception to others
Refers to the weight

and trustworthiness or
reliability
of
the
testimony
REMEDY
FOR
ERRORS
OR
QUESTIONS ON COMPETENCE OF
WITNESS IS BY APPEAL
Appeal, not certiorari, is the proper remedy for

the correction of any error as to the competency
of a witness committed by an inferior court in
the course of the trial. [Icutanim v. Hernandez,
June 8, 1948; G.R. No. L-1709]
CREDIBILITY NOT REVIEWABLE BY

THE SUPREME COURT
Credibility of a witness is a question of fact,

which is not reviewable by the Supreme Court
[Addenbrook v. People, June 29, 1967; G.R. No. L22995]
UP LAW BOC
EVIDENCE
TWO KINDS OF INCOMPETENCY TO

TESTIFY: [HERRERA, PG. 278]
(1) Absolute forbidden to testify on any matter.

(2) Partial forbidden to testify only on certain
matters specified under Rule 130, secs. 22
and 23 due to interest or relationship, or to
privileges of the parties.
COMPETENCY PRESUMED
A person who takes the witness stand is

presumed to possess the qualifications of a
witness. His competence may be questioned by
the other party by interposing an objection.
[Herrera, pg. 280]
INCOMPETENCE
FROM PRIVILEGE
DISTINGUISHED
Incompetency disqualifies a witness. Privilege

excuses him from testifying. [Herrera, pg. 281]
DISQUALIFICATIONS OF
WITNESSES
EFFECT IF WITNESS HAS INTEREST
IN THE SUBJECT MATTER
[REGALADO]
A person is not disqualified (except if covered

by the Dead Mans statute)
Interest only affects credibility, not
competency.
EFFECT OF RELATIONSHIP
Mere relationship does not impair credibility. To

warrant rejection, it must be clearly shown:
(1) Testimony was inherently improbable or
defective
(2) Improper/evil motives had moved the
witness to incriminate falsely
BY REASON OF MENTAL CAPACITY

OR IMMATURITY
BY REASON OF MENTAL INCAPACITY
[RULE 130, SEC. 21(A)]
Requisites:
(1) Person must be incapable of intelligently
making known his perception to others
(2) His incapability must exist at the time of his
production for examination [Riano]
PAGE 355
REMEDIAL LAW
BY REASON OF IMMATURITY [RULE
130, SEC. 21(B)]
Requisites:
(1) Mental maturity of the witness (child) must
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception
truthfully. [Riano]
WHEN INCAPACITY IS DETERMINED
Incapacity must occur at the time the witness

perceives the event.
PRESUMPTION
[HERRERA, PG. 285]
OF
SANITY
General rule: the law presumes that every

person is of sound mind, in the absence of proof
to the contrary. [Civil Code, Art. 800]
Exception: if the witness is a lawful inmate of an
asylum for the insane. [Herrera citing Torres v.
Lopez (1926)]
A mental retardate is not therefore, per se,
disqualified from being a witness. As long as
his senses can perceive facts and if he can
convey his perceptions in court, he can be a
witness. [People v. Espaola, (G.R. No. 119308.
April 18, 1997) citing People v. Salomon (G.R.
No. 96848 January 21, 1994)]
UNSOUND MIND
Includes
any
mental
aberration
(organic/functional), induced by drugs/
hypnosis
Not disqualified as long as the witness can
convey ideas by words/signs
DEAF-MUTES
Deaf-mutes are competent witnesses where
they have sufficient knowledge to understand
and appreciate the sanctity of an oath and
comprehend the facts as to which they wish to
speak, and are capable of communicating
their Ideas with respect thereto. [People v.
Hayag (G.R. No. L-38635 November 17, 1980)]
They may give evidence by signs, or through
an interpreter or in writing, and such
testimony, through an interpreter, is not
hearsay. But sign language must be capable
of verification. [People v. Hayag (G.R. No. L38635 November 17, 1980)]
UP LAW BOC
EVIDENCE
CHILD WITNESS
The competency of a child witness is
determined by his capacity for observation,
recollection and communication. [People v.
Mendoza (G.R. No. 113791. February 22, 1996)]
BY REASON OF MARRIAGE (ALSO

KNOWN AS MARITAL
DISQUALIFICATION RULE OR
SPOUSAL IMMUNITY)
REQUISITES [RULE 130, SEC. 22]
(1) Marriage is valid and existing as of the time
of the offer of testimony.
(2) That the spouse for or against whom the
testimony is offered is a party to the case;
(3) That the case is not one against the other.
[Herrera, pg. 302]
EXCEPTIONS [RULE 130, SEC. 22]:
Spouse may testify for or against the other even
without the consent of the latter
(1) In a civil case by one against the other; or
(2) In a criminal case for a crime committed by
one against the other or the latter's direct
descendants/ascendants.
RATIONALE [ALVAREZ V. RAMIREZ (G.R.
NO. 143439, OCTOBER 14, 2005)]

(1) There
is identity of interests between

husband and wife;
(2) If one were to testify for or against the other,
there is a consequent danger of perjury;
(3) Policy of the law is to guard the security and
confidence of private life, and to prevent
domestic disunion and unhappiness; and
(4) Where there is want of domestic tranquillity,
there is danger of punishing one spouse
through the hostile testimony of the other.
WAIVER OF MARITAL DISQUALIFICATION
If a spouse imputed the conviction to the other.
SPOUSES AS CO-ACCUSED
The other cannot be called as an adverse party
witness under this Rule.
PAGE 356
REMEDIAL LAW
SCOPE OF RULE
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute
prohibition against the spouses testifying to any
facts affecting the other however these facts
may have been acquired. [Herrera, pg. 306]
Duration
The privilege lasts only during the marriage and
terminates upon divorce or annulment or death.
[Herrera, pg. 307]
BY REASON OF DEATH OR INSANITY

OF ADVERSE PARTY (ALSO KNOWN
AS DEAD MANS STATUTE OR
SURVIVORSHIP RULE)
REQUISITES [RULE 130, SEC. 23]
(1) Defendant is the executor or administrator or
a representative of the deceased or of the
person of unsound mind;
(2) Suit is upon a claim by the plaintiff against
the estate of said deceased or person of
unsound mind;
(3) Witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is
prosecuted; and
(4) Subject of the testimony is as to any matter
of fact occurring before the death of such
deceased person or before such person
became of unsound mind.
APPLICABILITY
This rule is applied only to civil cases.
It is still applicable even if the property has
already been judicially adjudicated to the
heirs regardless whether the deceased died
before or after the suit.
RATIONALE
To close lips of the plaintiff when death has
closed the lips of the defendant in order to
discourage perjury and protect the estate from
fictitious claims.
UP LAW BOC
EVIDENCE
FACTS FAVORABLE TO THE DECEASED ARE

NOT PROHIBITED
The rule does not operate to exclude testimony
favorable to the deceased because the rule
seeks to protect his interests. [Herrera citing Go
Chi Gun v. Co Cho (L-13342 November 28, 1962)
which cited Jones on Evidence, pg. 313]
WHEN THE DEAD MANS STATUTE IS NOT
APPLICABLE
(1) The survivor may testify against the estate
of the deceased where the latter was guilty
of fraud which fraud was established by
evidence other than the testimony of the
survivor. [Ong Chua v. Carr (G.R. No. L-29512
January 17, 1929)]
(2) He may also testify where he was the one
sued by the decedents estate since the
action then is not against the estate.
[Tongco v. Vianzon (G.R. No. 27498
September 20, 1927)]
(3) He may likewise testify where the estate had
filed a counterclaim against him or where
the estate cross-examined him as to
matters occurring during the lifetime of the
deceased. [Goi v. CA (G.R. No. L-27434
(4) No application to a mere witness
(5) No application to nominal parties, officers
and stockholders against corporations
(6) Cannot be used in a negative testimony
(7) If the testimony is offered to prove a claim
less than what is written
(8) If the defendant did not object
(9) When there is an existence of fraud
(10) When the party cross-examines the witness
BY REASON OF PRIVILEGED
COMMUNICATIONS
PRIVILEGE (DEFINED)
A privilege is a rule of law that, to protect a
particular relationship or interest, either permits
a witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone usually one of the parties, to
prevent the witness from revealing certain
information. [Herrera, pg. 315]
PAGE 357
REMEDIAL LAW
HUSBAND AND WIFE (MARITAL PRIVILEGE)
[SEC. 24(A), RULE 130]
Rationale: Confidential nature of the privilege;

to preserve marital and domestic relations.
Requisites:
(1) There must be a valid marriage between the
husband and wife;
(2) There is a communication received in
confidence by one from the other; and
(3) The
confidential communication was
received during the marriage.
(4) The spouse against whom such is being
offered has not given his consent to such
testimony.
A widow of a victim allegedly murdered may
testify as to her husbands dying declaration
as to how he died the since the same was not
intended to be confidential. [US v. Antipolo (37
Phil. 726, March 6, 1918)]
Scope: Any Communication
Includes utterances, either oral or written, or
acts. [Herrera, pg. 318]
When not applicable
(1) When the communication was not intended
to be kept in confidence
(2) When the communication was made prior to
the marriage
(3) When
the
communication
was
overheard/comes into the hands of a third
party whether legally or not
(4) Waiver of the privilege
(5) In a civil case by one against the other
(6) In a criminal case for a crime committed by
one against the other or the latter's direct
descendants/ascendants.
Waiver [Herrera, pg. 322]
(1) Failure of the spouse to object; or
(2) Calling spouse as witness on cross
examination
(3) Any conduct constructed as implied consent.
UP LAW BOC
EVIDENCE
IN CONTRAST TO MARITAL
DISQUALIFICATION
Marital Disqualification Marital Privilege [Sec.
[Sec. 22]
24 (a)]
One spouse should be Neither of the spouses
a party to the case;
needs to be a party;
Applies only if the Does not cease even
marriage is existing at after the marriage is
the time the testimony dissolved; and
is offered; and
Constitutes a total
prohibition on any
testimony
for
or
against the spouse of
the witness.
Prohibition is limited to
testimony
on
confidential
communications
between spouses.
ATTORNEY AND CLIENT [SEC. 24(B), RULE
130]
Requisites:
(1) There must be a communication made by
the client to the attorney or an advice given
by the attorney to his client;
(2) The communication must have been given in
confidence; and
(3) The communication or advice must have
been given either in the course of the
professional employment or with a view to
professional employment.
(4) The client has not given his consent to the
attorneys testimony thereon.
Attorneys secretary, stenographer, or clerk
are also covered by the rule and cannot be
examined concerning any fact the knowledge
of which has been acquired in such capacity
without the consent of the client AND their
employer.
SUBJECT-MATTER
OF
[HERRERA PG. 329-337]
THE
PRIVILEGE
(1) Communications
(2) Observations by the lawyer (regardless of
medium of transmission which may include

oral or written words and actions)
(3) Tangible evidence delivered to a lawyer
(4) Documents entrusted to a lawyer
PAGE 358
REMEDIAL LAW
When not applicable

(1) When the communication made was not for
the purpose of creating relationship (even if
afterwards he become counsel)
(2) When the communication was intended to
be made public
(3) When the communication was intended to
be communicated to others. When the
communication was intended for an unlawful
purpose
(4) When the communication was received from
third persons not acting in behalf/as agents
of clients
(5) When the communication was made in the
presence of third parties stranger to the
attorney-client relationship
(6) When the communication has something to
do with a clients contemplated criminal act
[People v. Sandiganbayan (G.R. Nos. 11543941 July 16, 1997)]
(7) When there is a controversy between the
client and attorney [Herrera, pg. 335]
Identity Of Client
General Rule: The attorney-client privilege may
not be invoked to refuse to divulge the identity
of the client.
Exceptions [Regala v. Sandiganbayan (G.R. No.
105938 and G.R. No. 108113 September 20,
1996)]:
(1) When a strong probability exists that
revealing the name would implicate that
person in the very same activity for which he
sought the lawyers advice;
(2) When disclosure would open the client to
liability;
(3) When the name would furnish the only link
that would form the chain of testimony
necessary to convict.
Duration Of The Privilege
In the absence of a statute, the privilege is
permanent. It may even be claimed by a clients
executor or administrator after the clients
death. [Herrera, pp. 39-40]
UP LAW BOC
EVIDENCE
PHYSICIAN AND PATIENT [SEC. 24(C), RULE
130]
Requisites [Krohn v. CA (G.R. No. 108854 June

14,1994) citing Lim v. CA (G.R. No. 91114
(1) Physician is authorized to practice medicine,
surgery or obstetrics;
(2) Information was acquired or the advice or
treatment was given by him in his
professional capacity for the purpose of
treating and curing the patient;
(3) The information was necessary to enable him
to act in that capacity;
(4) Information, advice or treatment, if revealed,
would blacken the reputation of the patient;
and
(5) Privilege is invoked in a civil case, whether or
not the patient is a party thereto.
REMEDIAL LAW
Implied waiver [Herrera, pg. 355]

(1) By failing to object
(2) When the patient testifies
(3) A testator procures an attending doctor to
subscribe his will as an attesting witness
(4) Disclosure of the privileged information
either made or acquiesced by the privilege
holder before trial
(5) Where the patient examines the physician as
to matters disclosed in a consultation
(6) Also check Rule 28 on Mental or Physical
Examination (Rules on Civil Procedure)
Professional capacity (defined)
When the doctor attends to a patient for
curative treatment, or for palliative or preventive
treatment. [Herrera, pg. 343]
Physician-patient relationship need not be

entered into voluntarily.
Extent of rule
The privilege extends to communications which
have been addressed to physicians assistants or
agents. [Herrera, pg. 345]
Where applicable
(1) All forms of communication, advice or
treatment
(2) Information acquired by the physician from
his personal observations and examination of
the patient
Physician allowed to testify as an expert

A doctor is allowed to be an expert witness
when he does not disclose anything obtained in
the course of his examination, interview and
treatment of a patient. [Lim v. CA, supra]
When not applicable

(1) Communication was not given in confidence
(2) Communication was irrelevant to the
professional employment
(3) Communication was made for an unlawful
purpose
(4) Communication was intended for the
commission/concealment of a crime
(5) Communication was intended to be made
public/divulged in court
(6) When there was a waiver
(7) When the doctor was presented as an expert
witness and only hypothetical problems were
presented to him. [Lim v. CA (supra)]
Waiver
Express waiver may only be done by the
patient.
PAGE 359
Autopsical information
If the information was not acquired by the
physician in confidence, he may be allowed to
testify thereto. But if the physician performing
the autopsy was also the deceaseds physician,
he cannot be permitted either directly or
indirectly to disclose facts that came to his
knowledge while treating the living patient.
[Herrera citing US Case Travelers Insurance Co. v.
Bergeron)]
Duration of privilege
The privilege continues until the death of the
patient. It may be waived by the personal
representative of the decedent. [Herrera, pg.
356]
UP LAW BOC
EVIDENCE
PRIEST AND PENITENT [SEC. 24(D), RULE
130]
Requisites:
(1) Confession was made to, or advice given by
him pursuant to a religious duty enjoined in
the course of discipline of the sect or
denomination of the priest.
(2) Confession or advice was confidential and
penitential in character.
The priest or minister must be duly ordained
in the sect in which he belongs.
REMEDIAL LAW
Exception: Court/House/Committee in Congress

finds that such revelation is demanded by
security of the State
INFORMATION IN CONCILIATION
PROCEEDINGS
All information and statements made at
conciliation proceedings shall be treated as
privileged communications [Article 233, Labor
Code]
PUBLIC OFFICERS [SEC. 24(E), RULE 130]

Requisites:
(1) Communication was made to the public
officer in official confidence; and
(2) Public interest would suffer by the disclosure
of such communication.
DATA PRIVACY ACT

Personal information controllers may invoke the
principle of privileged communication over
privileged information that they lawfully control
or process. Subject to existing laws and
regulations, any evidence gathered on
privileged information is inadmissible. [Sec. 15,
RA 10173]
Elements of presidential communications

privilege
(1) Must relate to a quintessential and nondelegable presidential power;
(2) Must be authored or solicited and received
by a close advisor of the President or the
President himself; and
(3) Privilege may be overcome by a showing of
adequate need such that the information
sought likely contains important evidence
and by the unavailability of the information
elsewhere. [Neri v. Senate (G.R. No. 180643
September 4, 2008)]
FOOD AND DRUG ADMINISTRATION ACT

Prohibits the use of a person to his own
advantage, or revealing, other than to the
Secretary of Health or officers or employees of
the Department of Health or to the courts when
relevant in any judicial proceeding under this
Act, any information acquired under authority
Board of Food Inspection and Board of Food
and Drug, or concerning any method or process
which as a trade secret is entitled to protection.
[Secs. 9, 11 (f) and 12, RA 3720]
Purpose of privilege: protection of public

interest
The privilege is not intended for the protection
of public officers but for the protection of the
public interest. When no public interest would
be prejudiced, this privilege cannot be invoked.
[Banco Filipino v. Monetary Board (G.R. No.
70054 July 8, 1986)]
OTHER PRIVILEGED
COMMUNICATION NOT IN THE ROC
NEWSMANS
PRIVILEGE
AMENDED BY RA 1477]
[RA
53,
AS
General Rule: Publisher, editor or duly

accredited reporter cannot be compelled to
reveal the source of any news report or
information related in confidence
PAGE 360
TRIPS AGREEMENT
Undisclosed information or trade secrets are
considered privileged communication.
It is protected information if it complies with 3
requisites: 1) A secret in a sense that it is not
generally known among or readily accessible
to persons within the circles that normally
deal with the kind of info in question, 2) Has
commercial value because it is a secret; 3) Has
been subject to reasonable steps, under the
circumstances by the person lawfully in
control of the information, to keep it a secret.
[Art. 39]
Note: Electronic Document as Privileged
Communication
The confidential character of a privileged
communication is not solely on the ground that
it is in the form of an electronic document.
[Rules on Electronic Evidence Rule 3, sec. 3]
UP LAW BOC
EVIDENCE
REMEDIAL LAW
PARENTAL AND FILIAL PRIVILEGE RULE
ONE-DAY EXAMINATION OF WITNESS RULE
General Rule: A person cannot be compelled to

testify against his parents (parental privilege),
other direct ascendants, children or other direct
descendants (filial privilege).
A witness has to be fully examined in one (1) day

only. It shall be strictly adhered to subject to the
courts' discretion during trial on whether or not
to extend the direct and/or cross-examination
for justifiable reasons.
[SEC. 25, RULE 130]
Exception [Art. 215, Family Code]:

Descendant may be compelled to give his
testimony in a criminal case when
(1) [against parent or grandparent] The
testimony is indispensable in a crime
committed against said descendant; or
(2) [against parent] In a crime committed by
one parent against the other.
Applicability
The rule is applied to both civil and criminal
cases. [Herrera, pg. 364]
EXAMINATION OF A WITNESS
RIGHTS AND OBLIGATIONS OF A
WITNESS [SEC. 3, RULE 132]
OBLIGATION OF A WITNESS
To answer questions, although his answer may
tend to establish a claim against him.
RIGHTS OF A WITNESS
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or
insulting demeanor
(2) Not to be detained longer than the interests
of justice require
(3) Not to be examined except only as to
matters pertinent to the issue
(4) Not to give an answer which will tend to
subject him to a penalty for an offense unless
otherwise provided by law, e.g., Sec. 8, RA
1379 and other immunity statutes which
grant the witness immunity from criminal
prosecution for offenses admitted
(5) Not to give an answer which will tend to
degrade his reputation, unless it to be the
very fact at issue or to a fact from which the
fact in issue would be presumed. But a
witness must answer to the fact of his
previous final conviction for an offense.
PAGE 361
[AM 03-1-09-SC] [2009 BAR]
ORDER OF EXAMINATION OF AN
INDIVIDUAL WITNESS
DIRECT EXAMINATION [RULE 132, SEC. 5]

Examination-in-chief of a witness by the party
presenting him, on the facts relevant to the
issue.
The purpose is to elicit facts about the clients
cause of action or defense.
CROSS EXAMINATION [RULE 132, SEC. 6]
Examination of the witness by the adverse
party after said witness has given testimony
on direct examination.
The purpose is to test the witnesss accuracy
and truthfulness, and freedom from interest
or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
Matters covered
Any matters stated in the direct examination, or
connected therewith
Right to Cross-Examination
Cross-examination is the most reliable and
effective way known of testing the credibility
and accuracy of testimony. This is an essential
element of due process. [Herrera, pg. 175 citing
Alford v. US (1931)]
The right to cross-examine under the
constitution is superior to technical rules on
evidence. [Herrera, pg. 176 citing People v.
Valero (1982)]
Partial cross-examination is sufficient where
the witness was cross-examined on material
points, and full cross-examination was not
due to prosecutors fault but that of the
defense who repeatedly moved for
postponement, direct examination cannot be
thrown off the case. [Herrera, pg. 178 citing
People v. Caparas, 102 SCRA 782]
UP LAW BOC
EVIDENCE
Effect of denial of right to cross-examine

Most courts require that the testimony given
on direct examination be stricken off
provided the unavailability of the witness is
through no fault of the party seeking to crossexamine. [Herrera, pg. 175]
Cross-examination must be completed or
finished. When cross-examination is not and
cannot be done or completed due to causes
attributable to the party offering the witness,
the uncompleted testimony is thereby
rendered incompetent. [Herrera, pg. 176 citing
Ortigas, Jr. v. Lufthansa German Airlines (1975)]
REMEDIAL LAW
LEADING
AND
MISLEADING
QUESTIONS [SEC. 10, RULE 132]
QUESTIONS NOT ALLOWED
(1) Misleading Questions These are questions
that assume as true a fact not yet testified to
by the witness, or contrary to that which he
has previously stated. These are never
allowed.
(2) Leading Questions These are questions
that suggest to the witness the answer,
which the examining party desires.
RE-DIRECT EXAMINATION [RULE 132, SEC.
Leading questions
General Rule: Leading questions are not
allowed.
Examination of a witness by the counsel who

conducted the direct examination after the
cross examination.
The purpose is for the witness to explain or
supplement his answers given during the
cross-examination.
Test of leading questionsby putting the words

or though in the witness mind to be echoed
back, the examiner is in effect the one testifying,
not the witness. [Herrera, pg. 200 citing Escato v
Pineda, CA 53 OG 7742]
7]
Matters covered
Those stated in the cross-examination, and
matters not dealt with, if allowed by the Court
RE-CROSS EXAMINATION [RULE 132, SEC.
8]
Examination conducted by adverse party upon

conclusion of the re-direct examination.
Matters covered
Those stated in his re-direct examination, and
also on such other matters as may be allowed
by the court in its discretion.
RECALLING THE WITNESS [RULE 132, SEC.
9]
After both sides have concluded the

examination of a witness, either party with leave
of court may recall a witness.
Why conducted
(1) Particularly identified material points were
not covered in cross-examination
(2) Particularly described vital documents were
not presented to the witness
(3) Cross-examination was conducted in so inept
a manner as to result in a virtual absence
thereof [People v. Rivera (G.R. No. 98376
August 16, 1991)]
PAGE 362
Exceptions to leading questions:

(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
(4) On an unwilling or hostile witness;
(a) Adverse interest;
(b) Unjustified reluctance to testify;
(c) His having misled the party into calling
him to the witness stand.
(5) On a witness who is an adverse party or an
officer/director or managing agent of a
public/private corporation or of a
partnership/association which is an adverse
party.
Misleading questions
Questions containing facts not in evidence.
[Herrera, pg. 207]
Methods of Impeachment of Adverse Partys
Witness [Sec. 11, Rule 132]
(1) By contradictory evidence;
(2) By evidence that his general reputation for
truth, honesty or integrity is bad;
(3) By evidence that he has made at other times
statements inconsistent with his present
testimony.
UP LAW BOC
EVIDENCE
How the witness is impeached by evidence of

inconsistent
statements
(laying
the
predicate)
(1) The alleged statements must be related to
the witness including the circumstances of
the times and places and the persons
present. If the statements are in writing they
must be shown to him.
(2) Witness may be asked whether he made
such statements and also to explain them if
he admits making those statements.
Purpose: To allow the witness to admit or deny
the prior statement and afford him an
opportunity to explain the same.
Evidence of the good character of a witness
Evidence of the witness good character is not
admissible until such character has been
impeached. [Sec. 14, Rule 132]
Because a witness is presumed to be truthful
and of good character, the party presenting
him does not have to prove he is good
because he is presumed to be good.
JUDICIAL AFFIDAVIT RULE [AM 12-8-
8-SC]
SCOPE
Applies to all actions and proceedings, and
incidents requiring the reception of evidence
before the courts, quasi-judicial bodies, whose
rules of procedure are subject to disapproval of
the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of
this Rule, and investigating officers and bodies
authorized by the SC to receive evidence,
including the IBP [Sec. 1]
SUBMISSION OF JUDICIAL AFFIDAVITS AND
EXHIBITS IN LIEU OF DIRECT TESTIMONIES
(a) The parties shall file with the court and serve
on the adverse party, personally or by
licensed courier service, not later than five
days before pre-trial or preliminary
conference or the scheduled hearing with
respect to motions and incidents, the
following:
(1) The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies; and
PAGE 363
REMEDIAL LAW
(2) The
parties' documentary or object

evidence, if any, shall be marked and
attached to the judicial affidavits
(b) Should a party or a witness desire to keep
the original document or object evidence in
his possession, he may, after the same has
been identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit
that the copy or reproduction attached to
such affidavit is a faithful copy or
reproduction of that original. In addition, the
party or witness shall bring the original
document or object evidence for comparison
during the preliminary conference with the
attached copy, reproduction, or pictures,
failing which the latter shall not be admitted
This is without prejudice to the introduction of
secondary evidence in place of the original
when allowed by existing rules. [Sec. 2]
CONTENTS [SECTION 3]
A judicial affidavit shall be prepared in the
language known to the witness and, if not in
English or Filipino accompanied by a translation
in English or Filipino, and shall contain the
following:
(a) The name, age, residence or business
address, and occupation of the witness;
(b) The name and address of the lawyer who
conducts or supervises the examination of
the witness and the place where the
examination is being held;
(c) A statement that the witness is answering
the questions asked of him, fully conscious
that he does so under oath, and that he may
face criminal liability for false testimony or
perjury;
(d) Questions asked of the witness and his
corresponding
answers,
consecutively
numbered, that:
(1) Show the circumstances under which the
witness acquired the facts upon which he
testifies;
(2) Elicit from him those facts which are
relevant to the issues that the case
presents; and
(3) Identify the attached documentary and
object evidence and establish their
authenticity;
(e) The signature of the witness over his printed
name; and
UP LAW BOC
EVIDENCE
(f) A jurat with the signature of the notary

public who administers the oath or an officer
who is authorized by law to administer the
same.
The judicial affidavit shall also contain a
sworn attestation executed by the lawyer who
conducted or supervised the examination of
the witness, to the effect that:
(1) He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness
gave; and
(2) Neither he nor any other person then
present or assisting him coached the
witness regarding the latter's answers.
[Section 4]
A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment. [Section 4]
OFFER
When made: Upon the termination of the
testimony of his last witness
How made: Party shall immediately make an
oral offer of evidence of his documentary or
object exhibits, piece by piece, in their
chronological order, stating the purpose or
purposes for which he offers the particular
exhibit.
OBJECTION
When made: After each piece of exhibit is
offered,
How made: Party shall state the legal ground
for his objection, if any, to its admission.
The court shall immediately make its ruling
respecting that exhibit.
It is sufficient that the exhibits are simply cited
by their markings during the offers, the
objections, and the rulings, dispensing with
the description of each exhibit.
REMEDIAL LAW
EFFECT OF NON-COMPLIANCE [SECTION
10]
Party who fails to submit is deemed to have

waived the submission of the same. The court,
however, may allow, only once, late
submission, provided the delay is for a valid
reason and the defaulting party pays a fine.
Court shall not consider affidavit of witness
who fails to appear at the scheduled hearing.
Counsel who failed to appear shall be
deemed to have waived his clients right to
cross-examine the witnesses there present.
Judicial affidavits that do not conform with
the requirements cannot be admitted as
evidence.
ISSUANCE OF SUBPOENA [SECTION 5]
If the government employee or official, or the
requested witness, who is neither the witness of
the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make
the relevant books, documents, or other things
under his control available for copying,
authentication, and eventual production in
court, the requesting party may avail himself of
the issuance of a subpoena ad testificandum or
ducestecum under Rule 21 of the Rules of Court.
The rules governing the issuance of a subpoena
to the witness in this case shall be the same as
when taking his deposition except that the
taking of a judicial affidavit shall be understood
to be ex parte.
ADMISSIONS AND
CONFESSIONS
RES INTER ALIOSACTA RULE (2
BRANCHES)
(1) First branch: Admission by a third party [Rule
130, sec. 28]
(2) Second branch: Similar acts as evidence
[Rule 130, sec. 34]
First branch With Respect to Admissions by a

Third-Party
General Rule: Admission by a third party is
inadmissible
PAGE 364
UP LAW BOC
EVIDENCE
Exceptions: (see detailed explanations below)

(1) Partners or Agents Admission [Rule 130, sec.
29]
(2) Admission by conspirator [Rule 130, sec. 30]
(3) Admission by privies [Rule 130, sec. 31
ADMISSION BY A PARTY [RULE 130,
SEC. 26]
The act, declaration or omission of a party, as

to a relevant fact may be given in evidence
against him.
Any statement of fact made by a party against
his interest or unfavorable to the conclusion
for which he contends or is inconsistent with
the facts alleged by him.
A statement by the accused, direct or implied,
of facts pertinent to the issue, and tending in
connection with proof of other facts, to prove
his guilt. [People v. Lorenzo (G.R. No. 110107
January 26, 1995)]
This rule talks about extra-judicial admission.
ADMISSION MUST
(1) Involve matters of fact, not of law
(2) Be categorical and definite
(3) Knowingly and voluntarily made
REMEDIAL LAW
RATIONALE
No man would make any declaration against
himself unless it is true. [Republic v. Bautista
(G.R. No. 169801 September 11, 2007)]
AS DISTINGUISHED
ADMISSIONS
Judicial
FROM
JUDICIAL
Extrajudicial
Made in connection Any other admission

with
a
judicial (Rule 130, secs. 26 and
proceeding in which it 32)
is offered (Rule 129,
sec. 4)
May be conclusive Rebuttable
(Rule 192, sec. 2)
May be written, oral express or implied
EXCEPTION TO RES INTER ALIOS

ACTA BRANCH 1PARTNERS OR
AGENTS ADMISSION [SEC. 29, RULE
130]
REQUISITES FOR ADMISSIBILITY:
[HERRERA, PG. 398]
(1) The act or declaration of a partner or agent
REQUISITES FOR ADMISSIBILITY

(1) Made by a party;
(2) Outside of court;
(3) Relates to a relevant fact; and
(4) Is against admitters interest. [sec. 26, Rule
130]
EFFECT
It may be given in evidence against the
admitter. [sec. 26, Rule 130]
Flight from justice is an admission by conduct
and circumstantial evidence of consciousness
of guilt. [US v. Sarikala (G.R. No. L-12988
January 24, 1918)]
ADMISSION MUST BE MADE IN CONTEXT
It is a rule that a statement is not competent as
an admission where it does not, under
reasonable construction, appear to admit or
acknowledge the fact which is sought to be
proved by it. [CMS Logging, Inc. v. CA (G.R. No.
L-41420 July 10, 1992)]
PAGE 365
of the party;
(2) Within the scope of his authority and

(3) During the existence of the partnership or
agency;
(4) After the partnership or agency is shown by
evidence other than such act or declaration
(5) May be given in evidence against such party.
This rule also applies to the act or declaration

of a joint owner, joint debtor, or other persons
jointly interested with the party. [sec. 29, Rule
130]
JOINT INTERESTS [HERRERA, PG. 401]
It is essential first that the joint interest be
made to appear by evidence other than the
admission itself. Second, it must be shown
that the admission relates to the subjectmatter of joint interest.
The word joint must be construed according
to its meaning in the common law system,
that is, in solidum for the whole [Jaucian v.
Querol (G.R. No. L-11307 October 5, 1918)].
UP LAW BOC
EVIDENCE
A mere community of interests between

several persons is not sufficient to make the
admissions of one admissible against all.
[Herrera, pg. 402]
Just like in partnership and agency, the
interest must be a subsisting one unless for
the admission to be admissible. [Herrera, pg.
402]
EXCEPTION TO RES INTER ALIOS

ACTA BRANCH 1COCONSPIRATORS ADMISSION [SEC.
30, RULE 130]

(1) Act or declaration must relate to the
conspiracy;
(2) It must have been made during the existence
of the conspiracy; and
(3) Conspiracy must be shown by evidence other
than such act/declaration.
Existence of the conspiracy may be inferred
from acts of the accused. [People v. Belen (G.R.
No. L-13895 September 30, 1963)]
Rule 130, sec. 30 applies only to extra-judicial
statements, not to testimony given on the
stand. [People v. Serrano (G.R. No. L-7973 April
27, 1959)]
AS REGARDS EXTRAJUDICIAL ADMISSIONS
AFTER TERMINATION OF CONSPIRACY,
BEFORE TRIAL
General Rule: Not admissible
Exceptions:
(1) made in the presence of the co-conspirator
who expressly/impliedly agreed (tacit
admission)
(2) facts in admission are confirmed in the
independent extrajudicial confessions made
by the co-conspirators after apprehension
(3) as a circumstance to determine credibility of
witness
(4) circumstantial evidence to show the
probability of the latters participation
[Regalado]
PAGE 366
REMEDIAL LAW
Doctrine of interlocking confessions: [People v.

Molleda (G.R. No. L-34248 November 21, 1978)]
Extrajudicial statements of co-accused may be
taken as circumstantial evidence against the
person implicated to show the probability of the
latters actual participation, provided that the
statements are made by several accused are:
(1) made without collusion
(2) identical with each other in their essential
details;
(3) corroborated by other evidence on record
APPLICABLE
TO
EXTRAJUDICIAL
STATEMENTS
The evidence adduced in court by the
conspirators as witnesses are not declarations
of conspirators, but direct testimony to the acts
to which they testify. This is applicable only
when it is sought to introduce extrajudicial
declarations and statements of the coconspirators. [Herrera, pg. 410, citing People v.
Vizcarra (G.R. No. L-38859 July 30, 1982)]
ADMISSION BY PRIVIES [SEC. 31,
RULE 130]
REQUISITES
(1) There must be an act, declaration or an
omission by a predecessor-in-interest;
(2) Act, declaration or omission must have
occurred while he was holding (not after) the
title to the property; and
(3) Act, declaration or omission must be in
relation to the property.
PRIVIES DEFINED
Persons who are partakers or have an interest
in any action or thing, or any relation to
another [Riano citing Blacks Law Dictionary]
It denotes the idea of succession, not only be
right of heirship and testamentary legacy, but
also that of succession by singular title,
derived from acts inter vivos, and for special
purposes. (example: assignee of a credit and
one subrogated to it are privies.) [Alpuerto v.
Perez Pastor and Roa (G.R. No. L-12794
October 14, 1918)]
UP LAW BOC
EVIDENCE
FORMER OWNER OF REAL ESTATE

It is necessary that the admission of the former
owner of a property has been made while he
holds title to the property in order that such
admission may be binding upon the present
owner. [Herrera, pg. 421 citing Gevero v. IAC (G.R.
No. 77029 August 30, 1990)]
ADMISSION BY SILENCE
When silence is deemed an admission: [People
v. Paragsa (G.R. No. L-44060 July 20, 1978)]
(1) Person heard or understood the statement;
(2) That he was at a liberty to make a denial;
(3) That the statement was about a matter
affecting his rights or in which he was
interested and which naturally calls for a
response;
(4) That the facts were within his knowledge;
and
(5) That the fact admitted from his silence is
material to the issue
WHEN NOT APPLICABLE
(1) Statements adverse to the party were made
in the course of an official investigation,
neither asked to reply nor comment [Sec.
2(b), R.A. 7438]
(2) Party had justifiable reason to remain silent,
ex. Acting on advice of counsel [Regalado]
CONFESSIONS
REMEDIAL LAW
(5) No violation of Secs. 12 and 17, Art. III of the

Constitution [Regalado]
If the accused admits having committed the
act in question but alleges a justification
therefore, the same is merely an admission.
[Ladiana v. People (G.R. No. 144293.
December 4, 2002)]
Any confession, including a re-enactment,
without admonition of the right to silence and
to counsel, and without counsel chosen by the
accused is inadmissible in evidence. [People v.
Yip Wai Ming (G.R. No. 120959. November 14,
1996)]
EFFECT OF EXTRAJUDICIAL CONFESSION
OF GUILT
General Rule: An extra-judicial confession made
by an accused is not a sufficient ground for
conviction. [Sec. 3, Rule 133]
Exception: When corroborated by evidence of
the actual commission of a particular crime
(corpus delicti). [Sec. 3, Rule 133]
Corpus Delicti- substance of the crime; the fact
that a crime has actually been committed
[People v. De Leon (G.R. No. 180762. March 4,
2009)]
AS DISTINGUISHED FROM ADMISSIONS OF
A PARTY
Admission of a Party
A declaration of an accused acknowledging

his guilt of the offense charged, or of any
offense necessarily included therein [Sec. 33,
Rule 130]
An acknowledgment in express words or
terms, by a party, in a criminal case, of the
crime charged or some essential parts of it.
[People v. Lorenzo (G.R. No. 110107 January 26,
1995)]
REQUISITES
(1) Express and categorical acknowledgement
of guilt
(2) Facts admitted constitutes a criminal offense
(3) Given voluntarily
(4) Intelligently made, realizing the importance
or legal significance of the act
PAGE 367
Confession
Merely a statement of Acknowledgment

fact
guilt or liability
of
Maybe express or tacit Must be express

Maybe made by 3rd
parties, and in certain
cases,
admissible
against a party
Can be made only by

the party himself, and
admissible against his
co-accused in some
instances
Acts, declarations or Declarations

omissions
May
be
proceeding
in
any Criminal case
UP LAW BOC
EVIDENCE
SIMILAR ACTS AS EVIDENCE
REMEDIAL LAW
MEANING OF HEARSAY
SIMILAR ACTS PREVIOUSLY DONE

General Rule: Evidence that one did or did not
do a certain thing at one time is not admissible
to prove that he did or did not do the same or
similar thing at another time. (2nd Branch of res
inter alios acta rule) [sec. 34, Rule 130]
Exceptions: Said evidence may be received to
prove:
(1) specific intent or knowledge;
(2) identity;
(3) plan, system, or scheme;
(4) habit;
(5) custom, usage and the like. [sec. 34, Rule 130]
REASON FOR GENERAL RULE
The rule is founded upon reason, justice and
judicial convenience. The lone fact that a person
committed the same or similar act at some prior
time affords, as a general rule, no logical
guaranty that he committed the act in question.
A mans mind and even his modes of life may
change; and objectively, the conditions which he
may find himself at a given time make likewise
change and induce him to act a different way.
[Herrera, pg. 539 citing Justice Moran]
HEARSAY RULE
GENERAL RULE ON HEARSAY
A witness can testify only as to those facts
which he knows of his personal knowledge, or
those derived from his own perception. [Rule
130, sec. 36]
The hearsay rule is not limited to oral
testimony or statements; it applies to written,
as well as oral statements. [Consunji v. CA
(G.R. No. 137873. April 20, 2001)]
If a party does not object to hearsay evidence,
the same is admissible, as a party can waive
his right to cross-examine [People v. Ola (G.R.
No. L-47147 July 3, 1987)]
Repeated failure to cross-examine is an
implied waiver [Savory Luncheonette v. Lakas
ng Manggagawang Pilipino (G.R. No. L-38964
January 31, 1975)]
PAGE 368
It is an out-of-court statement which is

offered by the witness in court to prove the
truth of the matters asserted by the
statement.
It is any evidence, whether oral or
documentary, if its probative value is not
based on personal knowledge of witness but
on knowledge of some other person not on
witness stand [Regalado 11th ed.]
DOCTRINE OF INDEPENDENTLY
RELEVANT STATEMENTS
Statements or writings attributed to a person
not on the witness stand, which are being
offered not to prove the truth of the facts
stated therein, but only to prove that such
were actually made.
These are not covered by the hearsay rule
[People v. Cusi (G.R. No. L-20986. August 14,
1965)]
These are statements which are relevant
independently of whether they are true or not.
[Estrada v. Desierto (G.R. Nos. 146710-15. April
3, 2001)]
TWO CLASSES OF INDEPENDENTLY

RELEVANT STATEMENTS:
(1) those statements which are the very facts in

issue, and
(2) those statements which are circumstantial
evidence of the facts in issue. [Estrada v.
Desierto (supra)]
The second class includes the following:
(1) Statement of a person showing his state of
mind, that is, his mental condition,
knowledge, belief, intention, ill will and
other emotions;
(2) Statements of a person which show his
physical condition, as illness and the like;
(3) Statements of a person from which an
inference may be made as to the state of
mind of another, that is, the knowledge,
belief, motive, good or bad faith, etc. of the
latter; d. Statements which may identify
the date, place and person in question; and
e. Statements showing the lack of
credibility of a witness. [Estrada v. Desierto
(supra)]
UP LAW BOC
REASON FOR EXCLUSION

HEARSAY EVIDENCE
EVIDENCE
OF
The underlying rule against hearsay are serious

concerns about the worth (trustworthiness,
reliability) of hearsay evidence. Because such
evidence:
(1) was not given under oath or solemn
affirmation; and
(2) was not subject to cross-examination by
opposing counsel to test the perception,
memory, veracity and articulateness of outof-court declarant or actor upon whose
reliability on which the worth of the out-ofcourt testimony depends. [Herrera, pg. 565]
EXCEPTIONS TO THE HEARSAY RULE
(1) Dying declaration

(2) Declaration against interest
(3) Act or declaration about pedigree
(4) Family reputation or tradition regarding
pedigree
(5) Common reputation
(6) Part of the res gestae
(7) Entries in the course of business
(8) Entries in official records
(9) Commercial lists and the like
(10) Learned treaties
(11) Testimony or deposition at a former trial
DYING DECLARATION
Also known as antemortem statement or

statement in articulo mortis [Sec. 37, Rule 130]
(1) Declaration is one made by a dying person;
(2) Declaration was made under the
consciousness of an impending death;
(3) Declaration refers to cause and surrounding
circumstances of such death;
(4) Declaration is offered in any case wherein his
death is the subject of inquiry;
(5) Declarant is competent as a witness had he
survived [Geraldo v People (G.R. No. 173608.
November 20, 2008)]; and
(6) Declarant should have died. [People v.
Macandog (G.R. No. 129534 and 1411691, June
6, 2001)]
PAGE 369
REMEDIAL LAW
RATIONALE FOR ADMISSIBILITY

As a general rule, when a person is at the
point of death, every motive to falsehood is
silenced. [People v Bacunawa (G.R. No.
136859. April 16, 2001)]
The law considers the point of death as a
situation so solemn and awful as creating an
obligation equal to that which is imposed by
an oath administered by the court. [People v.
Cerilla (G.R. No. 177147 November 28, 2007)]
If the declarants statement is made under
consciousness of impending death, a
subsequent belief in recovery before his actual
death does not bar admissibility of his
statement [Riano citing People v. Black (1979),
96 CA3d 846, 158 CR 449]
The foreboding may be gleaned from
surrounding circumstances, such as the
nature of the declarants injury and conduct
that would justify a conclusion that there was
consciousness of impending death. [People v.
Latayada (G.R. No. 146865. February 18,
2004)]
The admissibility of an ante mortem
declaration is not affected by the fact that the
declarant died hours or several days after
making his declaration. It is sufficient that he
believe himself in imminent danger of death
at the time of such declaration. [Herrera, pg.
600 citing People v. Ericta 77 SCRA 199]
OBJECTIONS TO THE DYING DECLARATION
May be premised on any of the requisites for
its admissibility embodied in Sec. 37 of Rule
130. Counsel who wants a dying declaration
excluded must have to deal with the primary
question of whether or not the evidentiary
foundations for the introduction where met.
[Riano]
Dying declarations are admissible in favor of
the defendant as well as against him. [US v.
Antipolo(37 Phil. 726, March 6, 1918)]
UP LAW BOC
EVIDENCE
REMEDIAL LAW
AS DISTINGUISHED FROM ADMISSIONS
DECLARATION AGAINST INTEREST
[ESTRADA V. DESIERTO (APRIL 3, 2001)]

(1) Declarant is dead or unable to testify;
(2) Declaration relates to a fact against the
interest of the declarant;
(3) At the time he made said declaration,
declarant was aware that the same was
contrary to his interest; and
(4) Declarant had no motive to falsify and
believed such declaration to be true [sec. 38,
Rule 130]
Inability to testify means that the person is
dead, mentally incapacitated or physically
incompetent. Mere absence from the
jurisdiction does not make him ipso facto
unavailable. [Fuentes v. CA (G.R. No. 111692.
February 9, 1996)]
Declaration against interest made by the
deceased, or by one unable to testify, is
admissible even against the declarants
successors-in-interest or even against third
persons [Sec. 38, Rule 130]
ACTUAL OR REAL INTEREST
It is essential that at the time of the statement,
the declarants interest affected thereby should
be actual, real or apparent, not merely
contingent, future or, conditional; otherwise the
declaration would not in reality be against
interest. (example: declarations regarding a
declarants inheritance are not admissible
because these are future interests) [Herrera, pg.
625]
ADMISSIBLE AGAINST THIRD PERSONS
If all the requisites for admission of a
declaration against interest are present, the
admission is admissible not only against the
declarant but against third persons. [Herrera,
pg. 626 citing Viacrusis v. CA, 44 SCRA 176]
PAGE 370
Admission by a party
(Rule 130.26)
Declaration against
Interest (Rule 130.38)
Admitter is a party Declarant is neither a

himself, or in privity party nor in privity with
with such party;
a party;
Admissible whether or Admissible only when
not
admitter
is declarant
is
available as a witness unavailable
as
a
witness;
Can be made any time, Must have been made
even during trial;
ante litem motam;
Admissible
only Admissible
even
against the admitter; against 3rd persons;
and
and
Admissible not as an Admissible
as
exception to any rule
exception
to
hearsay rule
an
the
Made against ones Made against ones

claim
or
defense, pecuniary or moral
although not moral or interest
pecuniary interest
Primary evidence
Secondary evidence
ACT OR DECLARATION
PEDIGREE
ABOUT

(1) Declarant is dead or unable to testify;
(2) The pedigree is in issue or is relevant thereto;
[Herrera, pg. 641]
(3) Declarant must be related by birth or
marriage to the person whose pedigree is in
issue;
(4) Declaration was made before the
controversy; and
(5) Relationship between the declarant and the
person whose pedigree is in question must
be shown by evidence other than such
declaration. [Sec. 39, Rule 130]
UP LAW BOC
EVIDENCE
PEDIGREE INCLUDES
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected
with pedigree. [Sec. 39, Rule 130]
PROOF OTHER THAN DECLARATION
General Rule: Proof of relationship must be
shown in evidence other than the declaration.
Exception: The general rule does not apply
where the claim is sought to reach the estate of
the declarant himself, and not merely to
establish a right through his declarations to the
property of some other member of the family.
[Tison v. CA (G.R. No. 121027. July 31, 1997)]
NOT APPLICABLE TO ADOPTION
The rule allowing proof of pedigree is not
applicable to adoption. The absence of proof of
an order of adoption by the court, as provided
by statute, cannot be substituted by parol
evidence that the child has lived with a person,
not his parent, and was treated as child during
the latters lifetime. [Herrera, pg. 468 citing
Lazatin v. Campos (G.R. No. L-43955-56 July 30,
1979)]
PEDIGREE DECLARATION BY CONDUCT
This rule may also consist of proof of acts or
conduct of relatives and the mode of treatment
in the family of one whose parentage is in
question. [Herrera, pg. 649]
FAMILY REPUTATION OR TRADITION

REGARDING PEDIGREE
(1) Witness must be a member, by
consanguinity or affinity, of the same family
as the subject; and
(2) Such reputation or tradition must have
existed in that family ante litem motam. [sec.
40, Rule 130]
PAGE 371
REMEDIAL LAW
OTHER ADMISSIBLE EVIDENCE

(1) Entries in family bibles or other family books;
(2) Charts;
(3) Engravings on rings;
(4) Family portraits and the like [Sec. 40, Rule
130]
This enumeration, by ejusdem generis, is
limited to "family possessions," or those
articles which represent, in effect, a family's
joint statement of its belief as to the pedigree
of a person. [Jison v. CA (G.R. No. 124853.
February 24, 1998)]
A persons statement as to his date of birth
and age, as he learned of these from his
parents or relatives, is an ante litem motam
declaration of a family tradition. [Gravador v.
Mamigo (G.R. No. L-24989 July 21, 1967)]
Distinguished from Declaration about Pedigree
[Herrera, pp. 662-663]
Sec. 39 Declaration
Sec. 40 Family
about Pedigree
Reputation or Tradition
There must be
declarant
and
witness
a The witness testifying

a to the family reputation
and tradition must be a
The witness need not member of the family
be a relative of the member of the person
person whose pedigree whose pedigree is in
is in question, it must controversy.
be the declarant.
Independent evidence
is needed to establish
relationship between
declarant and person
whose pedigree is in
issue
The witness may testify

on the relationship
between
such
relationship
himself.
The author of the
reputation need not be
established
by
independent evidence.
COMMON REPUTATION
(1) Reputation pertains to:
(a) facts of public or general interest more
than 30 years old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem
motam. [sec. 41, Rule 130]
UP LAW BOC
EVIDENCE
OTHER ADMISSIBLE EVIDENCE

(1) Monuments
(2) Inscriptions in public places [sec. 41, Rule 130]
REMEDIAL LAW
(c) Statement refer to occurrence in question
Pedigree may be established by reputation in

the family, but not in the community. [Rule
130, Secs. 40-41]
Common reputation is hearsay like any other
exception to the hearsay rule, but is
admissible because of trustworthiness. [Riano
citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL
535, 542]
Reputation has been held admissible as
evidence of age, birth, race, or race-ancestry,
and on the question of whether a child was
born alive. [In re: Florencio Mallare (A.M. No.
533 September 12, 1974)]
Unlike that of matters of pedigree, general
reputation of marriage may proceed from
persons who are not members of the family
the reason for the distinction is the public
interest that is taken in the question of the
existence of marital relations. [n re: Florencio
Mallare (supra)]
PART OF THE RES GESTAE

RES GESTAE (MEANING)
This expression signifies merely transactions
or things done and is used in common law as
meaning the circumstances which are
automatic and undersigned incidents of the
particular act in issue, and which are admissible
in evidence when illustrative and explanatory of
the act. [Herrera, pg. 683]
ADMISSIBLE STATEMENTS
(1) Spontaneous statements - Statements made
by a person while a startling occurrence is
taking place or immediately prior or
subsequent thereto, with respect to the
circumstances thereof:
(a) Principal act be a startling occurrence
(b) Statement made before declarant had
opportunity to contrive [Talidano v.
Falcom Maritime (2008)]
PAGE 372
and attending circumstances (Sec. 42,

Rule 130) or that the statements must
concern the occurrence in question and its
immediate attending circumstances
[Talidano v. Falcom Maritime (2008)]
(2) Verbal acts - Statements, which accompany
an equivocal act material to the issue and
give it a legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the equivocal
act
(d) Statement gives legal significance to
equivocal act [Talidano v. Falcom Maritime
(2008)]
(e) Must be made at the time, not after, the
equivocal act was being performed
A dying declaration can be made only by the
victim after the attack while a statement as
part of the res gestae may be that of the killer
himself after or during the killing. [People v.
Reyes]
A statement not admissible as dying
declaration because it was not made under
consciousness of impending death, may still
be admissible as part of res gestae if made
immediately after the incident. [People v.
Reyes]
ENTRIES IN
BUSINESS
THE
COURSE
OF

(1) Entries were made at, or near the time of the
transactions referred to;
(2) Such entries were made in the ordinary or
regular course of business or duty;
(3) Entrant was in a position to know the facts
stated in the entries;
(4) Entrant did so in his professional capacity, or
in the performance of duty and in the regular
course of business; and
(5) Entrant is now dead or unable to testify.
[Northwest Airlines v. Chiong (2008)]
UP LAW BOC
EVIDENCE
If the entrant is available as a witness, the

entries will not be admitted, but they may
nevertheless be availed of by said entrant as a
memorandum to refresh his memory while
testifying on the transactions reflected
therein. [CangYui v. Gardner (1916)]
Business records are exempt from the
hearsay rule. [Rule 8, sec. 1, Rules on
Entries in the payroll, being entries in the
course of business, enjoy the presumption of
regularity [Sapio v. Undaloc Construction
(2008)]
REASON FOR RULE
The duty of the employees to communicate
facts is of itself a badge of trustworthiness of
the entries [Security Bank and Trust Company
v. Gan (2006)]
These entries are accorded unusual reliability
because their regularity and continuity are
calculated to discipline record keepers in the
habit of precision. [LBP v. Monets Export and
Manufacturing Corp. (2010)]
ENTRIES IN OFFICIAL RECORDS

(1) Entries were made by a public officer in the
performance of his duties or by a person in
the performance of a duty specially enjoined
by law [sec. 44, Rule 130];
(2) Entrant must have personal knowledge of
the facts stated by him or such facts acquired
by him from reports made by persons under
a legal duty to submit the same [Barcelon,
Roxas Securities v. CIR (2006)]; and
(3) Entries were duly entered in a regular
manner in the official records.
Entries in official records, just like entries in
the course of business, are merely prima facie
evidence of the facts therein stated. [secs. 4344, Rule 130]
Entries in a police blotter are not conclusive
proof of the truth of such entries. [People v.
Cabuang (G.R. No. 103292 January 27, 1993)]
Baptismal certificates or parochial records of
baptism are not official records. [Fortus v.
Novero (G.R. No. L-22378 June 29, 1968)]
PAGE 373
REMEDIAL LAW
COMMERCIAL LISTS AND THE LIKE

(1) Statements of matters of interest to persons
engaged in an occupation; [Herrera, pg. 758]
(2) Such statements are contained in a list;
(3) Compilation is published for use by persons
engaged in that occupation; and
(4) It is generally used and relied upon by them.
NEED OF PRELIMINARY PROOF OF
TRUSTWORTHINESS
There should be requirements of preliminary
proof of trustworthiness before such lists are
rendered admissible. Some proof must be
shown how or in what manner it was made up,
where the information it contained was
obtained, or whether the quotation of prices
made were derived from actual sales or
otherwise. [Herrera, pg. 760]
LEARNED TREATISES
(1) Published treatise, periodical or pamphlet is
on a subject of history, law, science, or art;
and
(2) Court takes either:
(a) judicial notice of it, or
(b) witness expert in the subject testifies that
the writer of the statement in the treatise,
periodical or pamphlet is recognized in his
profession or calling as expert in the
subject
TESTIMONY OR DEPOSITION AT A
FORMER TRIAL
REQUISITES FOR ADMISSIBILITY [SEC. 47,
RULE 130; MANLICLIC V. CALAUNAN (G.R.

NO. 150157 JANUARY 25, 2007)]
(1) Witness is dead or unable to testify;

(2) His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
(3) Former case involved the same subject as
that in the present case although on
different causes of action;
UP LAW BOC
EVIDENCE
(4) Issue testified to by the witness in the former

trial is the same issue involved in the present
case; and
(5) Adverse party had the opportunity to crossexamine the witness in the former case.
INABILITY TO TESTIFY (MEANING AND
STANDARD)
The inability of the witness to testify must
proceed from a grave cause, almost amounting
to death, as when the witness is old and has lost
the power of speech. Mere refusal shall not
suffice. [Tan v. CA (G.R. No. L-22793 May 16,
1967)]
OPINION RULE
General Rule: The opinion of witness is not
admissible [Sec. 48, Rule 130.]
Exceptions [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness [Rule 130, sec. 49]
(2) Ordinary witness [Rule 130, sec. 50]
OPINION OF EXPERT WITNESS [SEC. 49,
RULE 130]
The opinion of a witness on a matter requiring

special knowledge, skill, experience or training
which he shown to possess, may be received in
evidence.
Expert witness is one who has made the subject
upon which he gives his opinion a matter of
particular study, practice or observation and he
must have particular and special knowledge on
the subject. [People v. Dekingco, (G.R. No. 87685
Expert evidence is the testimony of one
possession in regard to a particular subject or
department of human activity not usually
acquired by other persons. [Herrera, pg. 787]
QUESTION IN ADMITTING EXPERT
TESTIMONY
Whether the opinion called for will aid the fact
finder in resolving an issue, or whether the jury
or the judge is as well qualified as the witness to
draw its own or his own deductions from the
hypothetical facts. [Herrera, pg. 787]
PAGE 374
REMEDIAL LAW
COURT DISCRETION TO EXCLUDE OR

INCLUDE EXPERT EVIDENCE
If men of common understanding are capable of
comprehending the primary facts and drawing
correct conclusions from them, expert testimony
may be excluded by the Court. [Herrera pg. 787]
COMPETENCY
OF
WITNESS
IS
A
PRELIMINARY
QUESTION
BEFORE
TESTIMONY IS ADMITTED
It must be shown that the witness is really an
expert; determination of competency is a
preliminary question. [Herrera, pg. 790]
MODE OF EXAMINATION OF EXPERT
WITNESS
He may base his opinion either on a first-hand
knowledge of the facts or on the basis of
hypothetical questions where the facts are
presented to him hypothetically, and on the
assumption that they are true, formulates his
opinion on this hypothesis. [Herrera, pg. 793]
TEST OF HYPOTHETICAL QUESTIONS
Fairness is the ultimate test of hypothetical
questions. The Court shall reject a question
which unfairly selects parts of the facts proved
or omits material facts. If it omits facts, it may
be opposed on the ground that it is misleading.
[Herrera, pg. 798]
ADMISSIBILITY OF HYPOTHETICAL
QUESTION
Admissibility of hypothetical questions depends
on whether it furnishes the tribunal with the
means of knowing upon what premises of fact
the conclusion is based. [Herrera citing Magiore
v. Sheed (195 A. 392, 173 Md 33)]
OPINION OF ORDINARY WITNESS [SEC. 50,
RULE 130]
(1) If proper basis is given, and

(2) Regarding:
(a) Identity of a person about whom he has
adequate knowledge;
(b) Handwriting with which he has sufficient
familiarity;
(c) Mental sanity of a person with whom he is
sufficiently acquainted; and
(d) Impressions of the
(i) emotion,
(ii) behavior,
(iii) condition, or
(iv) appearance of a person.
UP LAW BOC
EVIDENCE
IDENTITY OF A PERSON ABOUT WHOM HE

HAS ADEQUATE KNOWLEDGE
Statements of a witness as to identity are not
to be rejected because he is unable to
describe features of the person in question.
[Herrera, pg. 824]
Identification by voice is recognized by the
courts, especially in a case where it was
impossible to see the accused but the witness
has known the accused since their childhood.
[Herrera, pp. 824-825 citing US v. Manabat
(G.R. No. 3093, 7 Phil. 209)]
HANDWRITING WITH WHICH HE HAS
SUFFICIENT FAMILIARITY
The ordinary witness must be acquainted with
the characteristics of the handwriting of a
person. He may only draw on the knowledge
which he already has and which enables him
to recognize the handwriting.
Only experts are allowed to give conclusions
from the comparison of samples of
handwriting of a person whose handwriting
he is not familiar with. [Herrera, pg. 825]
MENTAL SANITY OF A PERSON WITH
WHOM HE IS SUFFICIENTLY ACQUAINTED
These are allowed where the witness can
adequately describe the actions, looks or
symptoms of a persons sanity or insanity which
is impossible for the court to determine.
[Herrera, pg. 825]
IMPRESSIONS OF THE EMOTION,
BEHAVIOR, CONDITION OR APPEARANCE
OF A PERSON
The rule recognizes instances when a witness
may be permitted to state his inferences that
are drawn from minute facts and details which
the witness cannot fully and properly describe in
court. Such expressions are expressed to the
countenance, the eye and the general manner
and bearing of the individual; appearance which
are plainly enough recognized by a person of
good judgment, but which he cannot otherwise
communicate by an expression of results in the
shape of an opinion. [Herrera citing US case
Hardy v. Merill]
PAGE 375
REMEDIAL LAW
CHARACTER EVIDENCE
General Rule [Sec. 51, Rule 130]: Character
evidence is not admissible.
Exceptions
(1) Criminal cases [Sec. 51(a), Rule 130]
(2) Civil case [Sec. 51 (b), Rule 130]
(3) In the case provided for in Rule 132, Sec. 14.
CHARACTER EVIDENCE (DEFINITION)
The aggregate of the moral qualities which
belong to and distinguish an individual person;
the general result of ones distinguishing
attributes. [Herrera citing Blacks Law Dictionary,
pg. 834]
CHARACTER
DISTINGUISHED
FROM
REPUTATION
Character is what a man is and depends on
attributes he possesses. It signifies reality.
Reputation is what he is supposed to be in
what people say he is, it depends on attributes
which others believe one to possess. It
signifies what is accepted to be reality at
present. [Herrera citing Blacks Law Dictionary,
pg. 834]
CRIMINAL CASES
(1) Accused May prove his good moral
character, which is pertinent to the moral
trait involved in the offense charged.
(2) Prosecution May not prove the bad moral
character of the accused, except in rebuttal.
(3) Offended Party His/her good or bad moral
character may be proved if it tends to
establish in any reasonable degree the
probability or improbability of the offense
charged.
GOOD MORAL CHARACTER OF ACCUSED
The purpose of presenting evidence of good
moral character is to prove the improbability of
his doing the act charged. The accused may
prove his good moral character only if it is
pertinent to the moral trait involved in the
offense charged. [Herrera, pg. 835]
UP LAW BOC
EVIDENCE
BAD MORAL CHARACTER OF ACCUSED IN

REBUTTAL
Unless and until the accused gives evidence of
his good moral character the prosecution may
not introduce evidence of his bad character.
[Herrera citing People v. Rabanes (G.R. No.
93709 May 8, 1992)]
GOOD OR BAD MORAL CHARACTER OF
OFFENDED PARTY
This is usually offered in rape cases and where
the accused invokes the defense of selfdefense.
In rape cases, the character of a woman may
be relevant and admissible on the question of
the presence or absence of her consent. While
in homicide and assault cases, it may be used
as evidence of the victims character for
turbulence and violence warranting the
response of the accused. [Herrera pg. 837 and
839]
CIVIL CASES
Moral character is admissible only when
pertinent to the issue of character involved in
the case. [Sec. 51(b), Rule 130]
Evidence of the witness good character is not
admissible until such character has been
impeached. [Sec. 14, Rule 130]
RULE ON EXAMINATION OF A
CHILD WITNESS [A.M. NO. 004-
07-SC]
A statement made by a child describing any act

or attempted act of child abuse, not otherwise
admissible under the hearsay rule, maybe
admitted in evidence in any criminal or noncriminal proceeding subject to the following
rules:
(a) Before such hearsay statement may be
admitted, its proponent shall make known to
the adverse party the intention to offer such
statement and its particulars to provide him
a fair opportunity to object. If the child is
available, the court shall, upon motion of the
adverse party, require the child to be present
at the presentation of the hearsay statement
for cross-examination by the adverse part.
When the child is unavailable, the fact of
PAGE 376
REMEDIAL LAW
such circumstance must be proved by the

proponent.
(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof which
provide sufficient indicia of reliability. It shall
consider the following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant
child;
(3) Whether more than one person heard the
statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the
relationship between the declarant child
and witness;
(6) Cross-examination could not show the
lack of knowledge of the declaration child;
(7) The possibility of faulty recollection of the
declarant of child is remote; and
(8) The circumstances surrounding the
statement are such that there is no reason
to suppose the declarant child
misrepresented the involvement of the
accused.
(c) The child witness shall be considered
unavailable under the following situations:
(1) Is deceased, suffers from physical
infirmity, lack of memory, mental illness,
or will be exposed to severe psychological
injury; or
(2) Is absent from the hearing and the
proponent of his statement has been
unable to procure his attendance by
process or other reasonable means.
When the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
APPLICABILITY OF THE RULE

Shall apply in all criminal proceedings and
non-criminal proceedings involving child
witnesses. [Sec. 1]
The ROC provisions on deposition, conditional
examination of witnesses and evidence shall
be applied suppletorily. [Sec. 32]
UP LAW BOC
MEANING
[SEC. 4 (A)]
EVIDENCE
OF
CHILD
WITNESS
(1) Any person who at the time of giving

testimony is less than 18 years;
(2) In child abuse cases a child includes one over
18 years,
(a) But is found by the court as:
(i) Unable to fully take care of himself, or
(ii) Protect himself from abuse, neglect,
cruelty, exploitation, or discrimination
(b) Because of a physical or mental disability
or condition.
COMPETENCY OF CHILD WITNESS

PRESUMPTION OF COMPETENCE
Every child is presumed qualified to be a
witness. To rebut the presumption of
competence enjoyed by a child, the burden of
proof lies on the party challenging his
competence. [Sec. 6(b)]
REQUISITES OF COMPETENCY OF A CHILD
AS WITNESS [PEOPLE V. MENDOZA (G.R.
NO. 113791. FEBRUARY 22, 1996)]

(1) Capacity of observation;
(2) Capacity of recollection; and
(3) Capacity of communication.
When the court finds that substantial doubt

exists regarding the ability of the child to
perceive/remember/
communicate,
distinguish truth from falsehood, or
appreciate the duty to tell the truth in court, a
competency exam shall be conducted.
The age of the child by itself is not a sufficient
basis for a competency examination. [Sec.
6(a)]
The court has the duty of continuously
assessing the competence of the child
throughout his testimony. [Sec. 6(f)]
EXAMINATION OF A CHILD WITNESS
(1) In open court [Sec. 11]
(2) Alternative Modes
(a) Live-Link TV Testimony, in Criminal Cases
where Child is a Victim or a Witness [Sec.
25]
PAGE 377
REMEDIAL LAW
(i) If there is a substantial likelihood that

the child would suffer trauma from
testifying in the presence of the
accused, his counsel or the prosecutor.
(ii) Trauma must be of a kind which would
impair
the
completeness
or
truthfulness of the childs testimony.
(b) Videotaped Deposition of a Child Witness
[Sec. 27]
(i) If the court finds that the child will not
be able to testify in open court at trial,
it shall issue an order that the
deposition of the child be taken and
preserved by videotape.
(ii) The rights of the accused during trial,
especially the right to counsel and to
confront and cross-examine the child,
shall not be violated during the
deposition.
LIVE-LINK TV TESTIMONY OF A CHILD
WITNESS [SEC. 25]
Live-link television testimony, in criminal
cases where the child is a victim or a witness
The court may order that the testimony of the
child be taken by live-link television if there is
a substantial likelihood that the child would
suffer trauma from testifying in the presence
of the accused, his counsel or the prosecutor.
The trauma must be of a kind which would
impair the completeness/truthfulness of the
childs testimony.
If it is necessary for the child to identify the
accused at trial, the court may allow the child
to enter the courtroom for the limited purpose
of identifying the accused, or the court may
allow the child to identify the accused by
observing the image of the latter on a
television monitor.
VIDEOTAPED DEPOSITION OF A CHILD
WITNESS [SEC. 27]
If the court finds that the child will not be able
to testify in open court at trial, it shall issue an
order that the deposition of the child be taken
and preserved by videotape.
The rights of the accused during trial,
especially the right to counsel and to confront
and cross-examine the child, shall not be
violated during the deposition.
UP LAW BOC
EVIDENCE
ADMISSIBILITY OF VIDEOTAPED AND

AUDIOTAPED IN-DEPTH INVESTIGATIVE OR
DISCLOSURE INTERVIEWS IN CHILD ABUSE
CASES [SEC. 29]
Requisites for admissibility:
(a) The child witness is unable to testify in court
on grounds and under conditions established
under section 28 (c) which are:
(1) Is deceased, suffers from physical
infirmity, lack of memory, mental illness,
or will be exposed to severe psychological
injury; or
(2) Is absent from the hearing and the
proponent of his statement has been
unable to procure his attendance by
process or other reasonable means.
(b) The interview of the child was conducted by
duly trained members of a multidisciplinary
team or representatives of law enforcement
or child protective services in situations
where child abuse is suspected so as to
determine whether child abuse occurred.
(c) The party offering the videotape or audiotape
must prove that:
(1) the videotape or audiotape discloses the
identity of all individuals present and at
all times includes their images and voices;
(2) the statement was not made in response
to questioning calculated to lead the child
to make a particular statement or is
clearly shown to be the statement of the
child and not the product of improper
suggestion;
(3) the videotape and audiotape machine or
device was capable of recording
testimony;
(4) the person operating the device was
competent to operate it;
(5) the videotape or audiotape is authentic
and correct; and
(6) it has been duly preserved.
PAGE 378
REMEDIAL LAW
The individual conducting the interview of the

child shall be available at trial for examination
by any party. Before the videotape or
audiotape is offered in evidence, all parties
shall be afforded an opportunity to view or
listen to it and shall be furnished a copy of a
written transcript of the proceedings.
The fact that an investigative interview is not
videotaped or audiotaped as required by this
section shall not by itself constitute a basis to
exclude
from
evidence
out-of-court
statements or testimony of the child. It may,
however, be considered in determining the
reliability of the statements of the child
describing abuse.
HEARSAY EXCEPTION IN CHILD ABUSE
CASES [SEC. 28]
Proponent of hearsay statement shall make
known to the adverse party the intention to
offer such statement and its particulars.
If the child is available, court shall require the
child to be present at the presentation of the
hearsay statement for cross-examination by
the adverse party.
If unavailable, the fact of unavailability must
be proved by the proponent and his hearsay
testimony must be corroborated by other
admissible evidence.
SEXUAL ABUSE SHIELD RULE
General Rule [Sec. 30(a)]: The following are
inadmissible in any criminal proceeding
involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception [Sec. 30(b)]: Evidence of specific
instances of sexual behavior by the alleged
victim to prove that a person other than the
accused was the source of semen, injury or other
physical evidence.
PROTECTIVE ORDERS
Video/audio tapes that are part of the court
record may be viewed only by parties, their
counsel, their expert witness and the guardian
ad litem. [Sec. 31(b)]
UP LAW BOC
EVIDENCE
The court may issue additional orders to

protect the childs privacy. [Sec. 31(c)]
Publication (or causing it) in any format any
identifying information of a child who is or is
alleged to be a victim/accused of a crime or a
witness thereof, or an immediate family of the
child, shall be liable for contempt of court.
[Sec. 31(d)]
A child has a right at any court proceeding not
to testify regarding personal identifying
information that could endanger his physical
safety or his family. [Sec. 31(e)]
REMEDIAL LAW
However, where the absence of an offer of a

testimonial evidence was not objected to as
when the witness was cross-examined by the
adverse party despite failure to make an offer
of the testimony, the court must consider the
testimony.
The provisions of the ROC on the inclusion on
appeal of documentary evidence or exhibits in
the records, cannot be stretched as to include
such pleadings or documents not offered at
the hearing of the case [Candido v. CA, G.R.
No. 107493. February 1, 1996)]
WHEN FORMAL
REQUIRED
Offer and Objection

OFFER OF EVIDENCE
Rule: Court shall consider no evidence which
has not been formally offered. [Rule 132, Sec. 34]
Purpose: The purpose for which the evidence is
offered must be specified.
AS DISTINGUISHED FROM
IDENTIFICATION OF DOCUMENTARY
EVIDENCE [INTERPACIFIC TRANSIT V.
AVILES (G.R. NO. 86062 JUNE 6, 1990)]
Identification
of
Formal Offer of Exhibit
Documentary Evidence
Done in the course of Done only when the
the
trial
and party rests his/her
accompanied by the case
marking
of
the
evidence
WHY FORMAL OFFER IS NEEDED

There is a need for a formal offer of evidence
because without such offer, the court cannot
determine whether the evidence is admissible
or not. [Riano]
No evidentiary value can be given to pieces of
evidence not formally offered. [Dizon v. CTA
(G.R. No. 140944 April 30, 2008)]
PAGE 379
OFFER
IS
NOT
(1) In a summary proceeding because it is a

proceeding where there is no full-blown trial;
(2) Documents judicially admitted or taken
judicial notice of;
(3) Documents, affidavits, and depositions used
in rendering a summary judgment;
(4) Documents or affidavits used in deciding
quasi-judicial or administrative cases
[Bantolino v. Coca Cola Bottlers (G.R. No.
153660. June 10, 2003)]
(5) Lost objects previously marked, identified,
described in the record, and testified to by
witness who had been subjects of crossexamination in respect to said objects
[Tabuena v. CA, (G.R. No. 85423 May 6, 1991)
citing People v. Napat-a, (G.R. No. 84951
November 14, 1989)] [Riano]
WAIVER OF RIGHT TO MAKE A

FORMAL OFFER
It is deemed waived by a party if it fails to

submit within a considerable period of time its
formal offer. [Heirs of Pasag v. Parocha (G.R. No.
155483 April 27, 2007)] In this case, the court did
not allow the petitioners to present their formal
offer 10 years after resting its case. In an earlier
case of Constantino v. CA (G.R. No. 116018,
November 13, 1996), the Court did not allow a
formal offer even only after three months
because such would, condone an inexcusable
laxity if not non-compliance with a court order
which, in effect, would encourage needless
delays and derail the speedy administration of
justice.
UP LAW BOC
EVIDENCE
WHEN TO MAKE AN OFFER
[SEC. 35, RULE 132]

Kind of
evidence
Testimonial
When to offer
At the time the witness is called
to testify
Documentary After the presentation of a partys

and Object testimonial evidence
Offer shall be done orally unless allowed by
the court to be done in writing.
Absence of an offer is a defect which is waived
when a party fails to object when the ground
became reasonably apparent, as when the
witness is called to testify without any prior
offer. [Catuira v. CA (G.R. No. 105813
The defect caused by the absence of formal
offer of exhibits can be cured by the
identification of the exhibits by testimony duly
recorded and the incorporation of the said
exhibits in the records of the case. [People v.
Mate (G.R. No. L-34754 March 27, 1981)]
The defendant cannot offer his evidence
before the plaintiff has rested. [Herrera citing
Engersail v. Malabon Sugar Co., 53 Phil. 7450]
OBJECTION [SEC. 36, RULE 132]

CONCEPT
What to object to
Testimonial evidence
When to object
Immediately after offer
is made
Question propounded As soon as the grounds

in the course of oral become
reasonably
examination
apparent
REMEDIAL LAW
EXCLUDING INADMISSIBLE
EVIDENCE
(1) One has to object to the evidence;

(2) The objection must be timely made; and
(3) The grounds for the objection must be
specified. [Herrera, pg. 321]
PURPOSES OF OBJECTION [RIANO]
(1) Made to keep out inadmissible evidence that

would cause harm to clients cause (rules of
evidence are not self-operating)
(2) To protect the record (for future appeal)
(3) To protect witness from being embarrassed
or harassed
(4) To expose adversarys unfair tactics
(5) To give trial court an opportunity to correct
its own errors and at the same time warn the
court that a ruling adverse to the objector
may supply a reason to invoke a higher
courts appellate jurisdiction; and
(6) To avoid a waiver of inadmissibility
Objections must be specific enough to
adequately inform the court the rule of
evidence or of substantive law that authorizes
the exclusion of evidence [Riano]
General Objections do not clearly indicate to
the judge the ground upon which the
objections are predicated. In cases where the
incompetency of the evidence is so palpable
that a mere general objection is deemed
sufficient and where the portion of the
evidence objected to is clearly pointed out,
and its illegality is apparent on its face, then
the objection must be allowed. [Riano]
FORMAL V. SUBSTANTIVE
OBJECTIONS [RIANO]
Within 3 days after

notice of the offer,
unless a different
period is allowed by the
court
Formal one directed against the alleged

defect in the formulation of the question
The grounds for objection must be specified in

any case.
WAIVER OF OBJECTION
When the party should have objected but did
not. The failure to point out a defect, irregularity
or wrong in the admission or exclusion of
evidence. [Riano]
Offer done in writing
PAGE 380
Substantive objections made and directed

against the very nature of the evidence
UP LAW BOC
EVIDENCE
EFFECT OF WAIVER
A waiver of objection should not be construed
as an admission that the evidence is credible.
The scope of the waiver is only either on the
relevance or competence of the evidence.
[Riano]
REPETITION OF AN OBJECTION
[SEC. 37, RULE 132]
A court may, motu proprio, treat the objection

as a continuing one. [Keller v. Ellerman &
Bucknall Steamship (G.R. No. L-12308
August 28, 1918)]
An objection must be seasonably made at the
time it is formally offered. Objection prior to
the formal offer is premature and could not be
considered by the Court as basis for a
continuing one. [Interpacific Transit v. Aviles
(supra)]
RULING ON THE OBJECTION
[SEC. 38, RULE 132]
The ruling should be given immediately after

the objection is made, unless the court desires
to take a reasonable time to inform itself on
the question presented.
The reason for sustaining or overruling an
objection need not be stated. However, if the
objection is based on two or more grounds, a
ruling sustaining the objection on one or some
of them must specify the ground/s relied
upon.
Reservation of a ruling by the court on an
objection to the admissibility of evidence,
without subsequently excluding the same,
amounts to a denial of an objection. [People v.
Tavera (G.R. No. L-23172 March 17, 1925)]
POR LO QUEPUEDOVALER
PRINCIPLE
The Supreme Court encourages the admission
or borderline evidence for whatever it is worth or
por lo quepuedovaler. [Prats & Co. v. Phoenix
Insurance (52 Phil. 807 February 25, 1930)]
REMEDIAL LAW
NO EXPRESS RULING NEEDED

The trial court need not make an express
ruling admitting the exhibits if there is no
objection interposed to their admission.
[Herrera, pg. 336 citing Boix v. Rivera, CA Rep.
2d 104]
The ruling of the court is required only when
there is an objection to a question or to the
admission of an exhibit. [Herrera, pg. 336]
STRIKING OUT AN ANSWER
[SEC. 39, RULE 132]

MOTION TO STRIKE
(1) Court may sustain an objection and order the

answer given to be stricken off the record if:
(a) witness answers the question before the
adverse party had the opportunity to
object, and
(b) such objection is found to be meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
(a) incompetent,
(b) irrelevant or
(c) otherwise improper.
OTHER CASES WHEN MOTION TO

STRIKE IS PROPER
(1) When the answer of the witness is
unresponsive;
(2) When the witness becomes unavailable for
cross-examination through no fault of the
cross-examining party;
(3) When the testimony is allowed conditionally
and the condition for its admissibility was not
fulfilled; [Riano]
(4) Where evidence has been properly received,
and its effect has been destroyed by other
evidence, or its admissibility has afterward
become apparent; [Herrera, pg. 340]
A motion to strike out goes to admissibility
and not to weight; evidence should not be
stricken out because of its little probative
value. [Herrera, pg. 340]
MOTION TO STRIKE OUT SHOULD

SPECIFY OBJECTION
A motion to strike out should specify the

objection as well as the portion of the evidence
which is objected to. [Herrera, pg. 340]
PAGE 381
UP LAW BOC
EVIDENCE
HARMLESS ERROR RULE [PEOPLE V.
TENDER OF EXCLUDED
EVIDENCE [SEC. 40, RULE 132]
Documents marked as exhibits during the

hearing but which were not formally offered in
evidence cannot be considered as evidence nor
shall they have evidentiary value. [Vda. De Flores
v. Workmens Compensation Commission (G.R.
No. L-43316 July 21, 1977)]
HOW TO TENDER EVIDENCE

Kind of evidence
How to tender the evidence
Documentary
Offeror may have the same

attached or made part of
the record
Testimonial
Offeror may state for the

record the name and other
personal circumstances of
the witness and the
substance of the proposed
testimony
Rationale
(a) to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the
evidence or testimony; and
(b) even if he is not convinced to reverse his
earlier ruling, the tender is made to create
and preserve a record for appeal [Riano]
TWO METHODS OF MAKING THE

TENDER: [RIANO]
(a) Where the counsel tells the court what the

proposed testimony would be;
(b) By using the question and answer form
ERRONEOUS
TENDER
WAY
OF
REMEDIAL LAW
MAKING
To make a mere general offer of proof

without producing the witness or stating the
evidence where by the fact in issue is to be
proved. [Riano]
The SC had advised trial courts to allow the
rejected [documentary] evidence to be
attached to the record to enable the appellate
court to examine the same and determine
whether the exclusion of the same was proper
or not. [Herrera citing Banez v. CA, (G.R. No. L30351 September 11, 1974)]
PAGE 382
TEEHANKEE (G.R. NOS. 111206-08

OCTOBER 6, 1995)]
In dealing with evidence improperly admitted in

trial, we examine its damaging quality and its
impact to the substantive rights of the litigants.
If the impact is slight and insignificant, we
disregard the error as it will not overcome the
weight of the properly admitted evidence
against the prejudiced party.
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
PAGE 383
REMEDIAL LAW
UP LAW BOC
Scope and Applicability of

the Rule
These Rules shall govern the procedure in
(1) civil,
(2) criminal and
(3) special civil actions
Involving enforcement or violations of
environmental and other related laws, rules and
regulations such as but not limited to the
following:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
Act No. 3572, Prohibition Against Cutting

of Tindalo, Akli, and Molave Trees;
P.D. No. 705, Revised Forestry Code;
P.D. No. 856, Sanitation Code;
P.D. No. 979, Marine Pollution Decree;
P.D. No. 1067, Water Code;
P.D. No. 1151, Philippine Environmental
Policy of 1977;
P.D. No. 1433, Plant Quarantine Law of
1978;
P.D.
No.
1586, Establishing
an
Environmental Impact Statement System
Including
Other
Environmental
Management Related Measures and for
Other Purposes;
R.A. No. 3571, Prohibition Against the
Cutting, Destroying or Injuring of Planted
or Growing Trees, Flowering Plants and
Shrubs or Plants of Scenic Value along
Public Roads, in Plazas, Parks, School
Premises or in any Other Public Ground;
R.A. No. 4850, Laguna Lake Development
Authority Act;
R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
R.A. No. 7076, Peoples Small-Scale
Mining Act;
R.A. No. 7586, National Integrated
Protected Areas System Act including all
laws, decrees, orders, proclamations and
issuances establishing protected areas;
R.A. No. 7611, Strategic Environmental
Plan for Palawan Act;
R.A. No. 7942, Philippine Mining Act;
R.A. No. 8371, Indigenous Peoples Rights
Act;
R.A. No. 8550, Philippine Fisheries Code;
PAGE 384
REMEDIAL LAW
(18) R.A. No. 8749, Clean Air Act;

(19) R.A. No. 9003, Ecological Solid Waste
Management Act;
(20) R.A. No. 9072, National Caves and Cave
Resource Management Act;
(21) R.A. No. 9147, Wildlife Conservation and
Protection Act;
(22) R.A. No. 9175, Chainsaw Act;
(23) R.A. No. 9275, Clean Water Act;
(24) R.A. No. 9483, Oil Spill Compensation Act
of 2007; and
(25) Provisions in C.A. No. 141, The Public Land
Act; R.A. No. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A. No.
7160, Local Government Code of 1991; R.A.
No. 7161, Tax Laws Incorporated in the
Revised Forestry Code and Other
Environmental Laws (Amending the NIRC);
R.A. No. 7308, Seed Industry Development
Act of 1992; R.A. No. 7900, High-Value
Crops Development
(26) Rules of Procedure for Environmental
Cases Act; R.A. No. 8048, Coconut
Preservation Act; R.A. No. 8435,
Agriculture and Fisheries Modernization
Act of 1997; R.A. No. 9522, The Philippine
Archipelagic Baselines Law; R.A. No. 9593,
Renewable Energy Act of 2008; R.A. No.
9637, Philippine Biofuels Act; and other
existing laws that relate to the
conservation, development, preservation,
protection and utilization of the
environment and natural resources. [Rule 1,
Sec. 3]
UP LAW BOC
Civil Procedure
REMEDIAL LAW
PROCEDURE
WHO MAY FILE

Any real party in interest, including the
government and juridical entities authorized by
law, may file a civil action involving the
enforcement or violation of any environmental
law. [Rule 2, Sec.4]
Citizen Suit Any Filipino citizen in
representation of others, including minors or
generations yet unborn, may file an action to
enforce
rights
or
obligations
under
environmental laws. Upon the filing of a citizen
suit, the court shall issue an order which shall
contain a brief description of the cause of action
and the reliefs prayed for, requiring all
interested parties to manifest their interest to
intervene in the case within fifteen (15) days
from notice thereof. The plaintiff may publish
the order once in a newspaper of a general
circulation in the Philippines or furnish all
affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 [Clean
Air Act] and R.A. No. 9003 [Ecological Solid
Waste Management Act] shall be governed by
their respective provisions. [Rule 2, Sec. 5]
Filing of verified Complaint accompanied by

1) documents, affidavits, and/or objects to
prove cause of action and
2) certification against forum shopping
Referral/Assignment by raffle to branch of
court
Issuance of Temporary Environmental
Protection Order (TEPO), when proper,
effective for 72 hours from receipt and, during
the same period, conduct of a summary
hearing for the extension of the effectivity of
the TEPO
Service of Summons
Filing of verified Answer within 15 days from
receipt of summons
Issuance of Notice of Pre-trial within 2 days
from filing of Answer
Submission of Pre-Trial briefs 3 days before
pre-trial
Referral to Mediation, Mediation and
Mediation Report
PROHIBITION AGAINST
TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION
Preliminary Conference
Except the Supreme Court, no court can issue

a TRO or writ of preliminary injunction against
lawful actions of government agencies that
enforce environmental laws or prevent
violations thereof. [Rule 2, Sec. 1])
Where the issuance of a TEPO is premised on
the violation of an environmental law or a
threatened
damage
or
injury
to
theenvironment by any person, even the
government and its agencies,the prohibition
against the issuance of a TRO or preliminary
injunctionis premised on the presumption of
regularity on the government andits agencies
in enforcing environmental laws and
protecting theenvironment. [Annotation to the
Rules of Procedure for Environmental Cases,
Supreme Court Sub-Committee]
PAGE 385
Pre-trial Conference/s
Pre-trial Order
Continuous Trial
Judgment and Execution
UP LAW BOC
TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO)
REMEDIAL LAW
PRE-TRIAL CONFERENCE;
CONSENT DECREE
GROUND FOR ISSUANCE
If it appears from the complaint that

(1) the matter is of extreme urgency and
(2) the applicant will suffer grave injustice and
irreparable injury [Rule 2, Sec. 8]
PERIOD OF EFFECTIVITY
Seventy-two (72) hours from date of the receipt

of the TEPO by the party or person
enjoined[Rule 2, Sec. 8]
DUTY OF COURT
The court where the case is assigned, shall
periodically monitor the existence of acts that
are the subject matter of the TEPO even if
issued by the executive judge, and may lift the
same at any time as circumstances may
warrant. [Rule 2, Sec. 8]
The judge shall report any action taken on a
TEPO, EPO, TRO or a preliminary injunction,
including its modification and dissolution, to
the Supreme Court, through the Office of the
Court Administrator, within ten (10) days from
the action taken. [Rule 2, Sec. 11]
GROUND TO DISSOLVE TEPO
A TEPO may be dissolved if it appears after

hearing that its issuance or continuance would
cause irreparable damage to the party or person
enjoined while the applicant may be fully
compensated for such damages as he may
suffer and subject to the posting of a sufficient
bond by the party or person enjoined. [Rule 2,
Sec. 9]
DECLARATION OF DEFAULT MOTU

PROPRIO
Should the defendant fail to answer the
complaint within the period provided, the court
shall declare defendant in default and upon
motion of the plaintiff, shall receive evidence ex
parte and render judgment based thereon and
the reliefs prayed for. [Rule 2, Sec. 15]
PAGE 386
The judge shall put the parties and their

counsels under oath, and they shall remain
under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade
the parties to arrive at a settlement of the
dispute. The judge may issue a consent
decree approving the agreement between the
parties in accordance with law, morals, public
order and public policy to protect the right of
the people to a balanced and healthful
ecology.
Evidence not presented during the pre-trial,
except newly-discovered evidence, shall be
deemed waived. [Rule 3, Sec.5]
Consent decree - refers to a judicially-approved
settlement between concerned parties based on
public interest and public policy to protect and
preserve the environment. [Rule 1, Sec. 4[b]]
PROHIBITED PLEADINGS AND

MOTIONS
The following pleadings or motions shall not be
allowed:
(1) Motion to dismiss the complaint;
(3) Motion for extension of time to file pleadings,
except to file answer, the extension not to
exceed fifteen (15) days;
(5) Reply and rejoinder; and
(6) Third party complaint. [Rule 2, Sec. 2]
PERIOD TO TRY AND DECIDE

The court shall have a period of one (1) year
from the filing of the complaint to try and
decide the case. Before the expiration of the
one-year period, the court may petition the
Supreme Court for the extension of the period
for justifiable cause.
The court shall prioritize the adjudication of
environmental cases. [Rule 4, Sec. 5]
UP LAW BOC
JUDGMENT AND EXECUTION;

RELIEFS IN A CITIZEN SUIT
RELIEFS IN A CITIZEN SUIT
If warranted, the court may grant to the plaintiff
proper reliefs which shall include
(1) the protection, preservation or rehabilitation
of the environment AND
(2) the payment of attorneys fees, costs of suit
and other litigation expenses
The court may also require the violator
(1) to submit a program of rehabilitation or
restoration of the environment, the costs of
which shall be borne by the violator OR
(2) to contribute to a special trust fund for that
purpose subject to the control of the court
[Rule 5, Sec. 1]
NO DAMAGES CAN BE AWARDED IN

A CITIZEN SUIT
This measure is in line with the policy that a

citizen suit is filed in the public interest, and in
effect, it is the environment which is vindicated
in the action. The only recourse of a party or
person who wishes to recover damages for
injury suffered is to file a separate action under
Sec. 4, Rule 2. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]
JUDGMENT NOT STAYED BY APPEAL
Any judgment directing the performance of acts

for the protection, preservation or rehabilitation
of the environment shall be executory pending
appeal unless restrained by the appellate court.
[Rule 5, Sec. 2]
PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS
In the judgment, the court may

(1) convert the TEPO to a permanent EPO OR
(2) issue a writ of continuing mandamus
directing the performance of acts which shall
be effective until the judgment is fully
satisfied [Rule 5, Sec. 3]
PAGE 387
REMEDIAL LAW
Continuing mandamus - is a writ issued by a

court in an environmental case directing any
agency or instrumentality of the government or
officer thereof to perform an act or series of acts
decreed by final judgment which shall remain
effective until judgment is fully satisfied [Rule 1,
Sec. 4[c]]
The court may, by itself or through the
appropriate government agency, monitor the
execution of the judgment and require the
party concerned to submit written reports on
a quarterly basis or sooner as may be
necessary, detailing the progress of the
execution and satisfaction of the judgment.
The other party may, at its option, submit its
comments or observations on the execution of
the judgment. [Rule 5, Sec.3]
STRATEGIC LAWSUIT AGAINST

PUBLIC PARTICIPATION
(SLAPP)
SLAPP refers to a legal action filed to harass,
vex, exert undue pressure or stifle any legal
recourse that any person, institution or the
government has taken or may take in the
enforcement
of
environmental
laws,
protection of the environment or assertion of
environmental rights. [Rule 6, Sec. 1]
The SLAPP provisions apply not only to suits
that have been filed in the form of a
countersuit, but also to suits that are about to
be filed with the intention of discouraging the
aggrieved person from bringing a valid
environmental complaint before the court.
Illustrations:
(1) X files a complaint in an environmental
case against A (violator of environmental
laws) and the A retaliates by filing a
complaint for damages against X;
(2) X is a witness in a pending environmental
case against A and A retaliates by filing a
complaint for damages or libel against X;
or
(3) X is an environmental advocate who rallies
for the protection of environmental rights
and a complaint for damages is filed
against him by A.(Annotation to the Rules
of Procedure for Environmental Cases,
Supreme Court Sub-Committee)
UP LAW BOC
SLAPP AS A DEFENSE
If the suit is a SLAPP, such may be raised as
an affirmative defense in the Answer along
with other defenses.
If SLAPP is interposed as a defense, it is
mandatory for adverse party to file an
Opposition [Rule 6, Sec. 2]
The hearing on the defense of a SLAPP shall
be summary in nature and shall be resolved
within 30 days after the summary hearing
[Rule 6, Secs. 3 & 4]
QUANTUM OF EVIDENCE
Party asserting that claim is a SLAPP must
prove such with substantial evidence.
If the court finds aSLAPP defense valid, the
plaintiff is required to prove the following:
(1) that the case is not a SLAPP; and
(2) the merits of the case
(3) with preponderance of evidence. [Rule 6,
Sec.3]
RESOLUTION OF THE DEFENSE OF A

SLAPP
If action is dismissed, dismissal is with
prejudice
If defense is rejected, action will proceed and
evidence adduced during the summary
hearing shall be treated as evidence of the
parties on the merits of the case [Rule 6, Sec.
4]
Special Civil Actions

WRIT OF KALIKASAN
Who May File
(1) natural or juridical person,
(2) entity authorized by law,
(3) peoples organization, non-governmental
organization, or any public interest group
accredited by or registered with any
government agency, on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violatedinvolving
environmental damage of such magnitude
as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
PAGE 388
REMEDIAL LAW
Acts Covered by the Writ

Unlawful act or omission of a public official or
employee, or private individual or entity,
involving environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces. [Rule 7, Sec.1]
Where to File
The petition shall be filed with the Supreme
Court or with any of the stations of the Court of
Appeals. [Rule 7, Sec.3]
Procedure
Filing of verified Petition with Certificate
Against Forum Shopping
Issuance of Writ of Kalikasan within 3 days
from filing of petition
Service of the Writ
Filing of a verified Return within a nonextendible period of ten (10) days after service
of the writ
Hearing (Court may call for preliminary
conference)
Judgment
PROHIBITED PLEADINGS AND

MOTIONS
The following pleadings and motions are
prohibited:
(1) Motion to dismiss;
(2) Motion for extension of time to file return;
(3) Motion for postponement;
(5) Counterclaim or cross-claim;
(6) Third-party complaint;
(7) Reply; and
(8) Motion to declare respondent in default.
[Rule 7, Sec. 9]
UP LAW BOC
DISCOVERY MEASURES
The following discovery measures are available
to ALL parties to the writ:
(1) Ocular Inspection
(2) Production or inspection of documents and
things [Rule 7, Sec.12]
The motion must show that a production
order is necessary to establish the magnitude
of the violation or the threat as to prejudice
the life, health or property of inhabitants in
two or more cities or provinces.
OCULAR INSPECTION
Purpose is to order any person in possession or
control of a designated land or other property to
permit entry for the purpose of inspecting
orphotographing the property or any relevant
object or operation thereon.
PRODUCTION OR INSPECTION OF
DOCUMENTS AND THINGS
Purpose is to order any person in possession,

custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or
objects in digitized or electronic form, which
constitute or contain evidence relevant to the
petition or the return, to produce and permit
their inspection, copying or photographing by or
on behalf of the movant.
APPEAL
Within fifteen (15) days from the date of notice

of the adverse judgment or denial of motion for
reconsideration, any party may appeal to the
Supreme Court under Rule 45 of the Rules of
Court. The appeal may raise questions of fact.
[Rule 7, Sec. 16]
REMEDIAL LAW
WRIT OF CONTINUING
MANDAMUS
WHEN AVAILABLE
(1) An agency or instrumentality of the

government or officer thereof either:
(a) unlawfully neglects the performance of an
act which the law specifically enjoins as a
duty resulting from an office, trust or
station
in
connection with
the
enforcement or violation of an
environmental law rule or regulation or a
right therein OR
(b) unlawfully excludes another from the use
or enjoyment of such right
(2) there is no other plain, speedy and adequate
remedy in the ordinary course of law [Rule 8,
Sec.1]
WHERE TO FILE
(1) Regional Trial Court exercising jurisdiction

over the territory where the actionable
neglect or omission occurred
(2) Court of Appeals
(3) Supreme Court [Rule 8, Sec. 2]
PROCEDURE
File a verified Petition with prayer that
respondent be ordered to do an act or series
of acts until the judgment is fully satisfied,
and to pay damages + Certification Against
Forum Shopping
Issuance of Writ of Continuing Mandamus
and Order to Comment
Filing of Comment within 10 days after
receipt of Order
Summary Hearing
Judgment
Return of the Writ
PAGE 389
UP LAW BOC
REMEDIAL LAW
DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING

MANDAMUS
Kalikasan
Continuing Mandamus
Subject Matter
Available against an unlawful

act or omission of a public
official or employee, or private
individual or entity, involving
environmental damage of
such magnitude as to
prejudice the life, health or
property of inhabitants in two
or more cities or provinces.
Directed
against (a) the unlawful neglect in the
performance of an
act specifically enjoined by law in
connection
with
the
enforcement/violation of an envtl rule
or (b) the unlawfully exclusion of
another from the use or enjoyment of
such right and in both instances, there
is no other plain, speedy and adequate
remedy in the ordinary course of law.
Who May File
1) natural and juridical

persons, 2) entities authorized
by law, 3) POs, NGOs, PIG, on
behalf of
persons whose right to a
balanced
and
healthful
ecology
is violated or threatened to be
violated
Person personally aggrieved by the

unlawful act or omission
Respondent
May be public or private

individual or entity
Government or its officers
Docket Fees
Exempted
Exempted
Venue
SC or CA
(1) RTC exercising territorial jurisdiction,

(2) CA,
(3) SC
Ocular
Inspection
and
Production or Inspection
Order
None
None
Allowed
Discovery Measures
Damages
PAGE 390
UP LAW BOC
Criminal Procedure
WHO MAY FILE
(1) Offended party;
(2) Peace officer;
(3) Public officer charged with the enforcement
of an environmental law [Rule 9, Sec. 1]
INSTITUTION OF
AND CIVIL ACTION
CRIMINAL
When a criminal action is instituted, the civil

action for the recovery of civil liability arising
from the offense charged, shall be deemed
instituted with the criminal action UNLESS
the complainant waives the civil action,
reserves the right to institute it separately or
institutes the civil action prior to the criminal
action.
Unless the civil action has been instituted
prior to the criminal action, the reservation of
the right to institute separately the civil action
shall be made during arraignment.
In case civil liability is imposed or damages
are awarded, the filing and other legal fees
shall be imposed on said award in accordance
with Rule 141 of the Rules of Court, and the
fees shall constitute a first lien on the
judgment award. The damages awarded in
cases where there is no private offended party,
less the filing fees, shall accrue to the funds of
the agency charged with the implementation
of the environmental law violated. The award
shall be used for the restoration and
rehabilitation of the environment adversely
affected.[Rule 10, Sec. 1]
ARREST WITHOUT WARRANT,

WHEN VALID
(1) When, in his presence, the person to be

arrested has committed, is actually
committing or is attempting to commit an
offense; or
(2) When an offense has just been committed,
and he has probable cause to believe based
on personal knowledge of facts or
circumstances that the person to be arrested
has committed it.
PAGE 391
REMEDIAL LAW
Individuals deputized by the proper

government agency who are enforcing
environmental laws shall enjoy the
presumption of regularity under Section 3(m),
Rule 131 of the Rules of Court when effecting
arrests for violations of environmental laws.
[Rule 11, Sec.1]
STRATEGIC LAWSUIT AGAINST

PUBLIC PARTICIPATION
(SLAPP)
The manner by which to allege that a criminal
action is a SLAPP is through a motion to dismiss
rather than a motion to quash. A motion to
dismiss allows the action to be challenged as a
SLAPP, while a motion to quash is directed at
the Information. Moreover, granting a motion to
dismiss bars the refiling of a SLAPP in
accordance with the law of the case. In contrast,
the grant of a motion to quash does not bar the
filing of a subsequent Information. [Annotation
to the Rules of Procedure for Environmental
Cases, Supreme Court Sub-Committee]
PROCEDURE IN THE CUSTODY

AND DISPOSITION OF SEIZED
ITEMS
The applicable rules and regulations of the
concerned government agency shall be
followed.
In the absence of such rules and regulations,
the following procedure shall be observed:
(1) Inventory. The apprehending officer having
initial custody and control of the seized
items,
equipment,
paraphernalia,
conveyances and instruments shall
physically inventory and whenever
practicable, photograph the same in the
presence of the person from whom such
items were seized.
UP LAW BOC
(2) Return. The apprehending officer shall

submit to the issuing court the return of
the search warrant within five (5) days from
date of seizure or in case of warrantless
arrest, submit within five (5) days from
date of seizure, the inventory report,
compliance
report,
photographs,
representative
samples
and
other
pertinent documents to the public
prosecutor for appropriate action.
(3) Sale Upon Motion. Upon motion by any
interested party, the court may direct the
auction sale of seized items, equipment,
paraphernalia, tools or instruments of the
crime. The court shall, after hearing, fix the
minimum bid price based on the
recommendation of the concerned
government agency. The sheriff shall
conduct the auction. The auction sale shall
be with notice to the accused, the person
from whom the items were seized, or the
owner thereof and the concerned
government agency. The notice of auction
shall be posted in three conspicuous
places in the city or municipality where the
items, equipment, paraphernalia, tools or
instruments of the crime were seized.
(4) Disposition of Proceeds. The proceeds shall
be held in trust and deposited with the
government
depository
bank
for
disposition according to the judgment.
[Rule 12, Sec. 2]
BAIL
WRITTEN UNDERTAKING BY
ACCUSED
REMEDIAL LAW
(3) To waive the right of the accused to be

present at the trial, and upon failure of the
accused to appear without justification and
despite due notice, the trial may proceed in
absentia. [Rule 13, Sec. 2]
If the court grants bail, the court may issue a
hold-departure order in appropriate cases.
[Rule 13, Sec.1]
ARRAIGNMENT AND PLEA

WHEN
The court shall set the arraignment of the

accused within fifteen (15) days from the time it
acquires jurisdiction over the accused, with
notice to the public prosecutor and offended
party or concerned government agency that it
will entertain plea-bargaining on the date of the
arraignment. [Rule 15, Sec. 1]
PLEA-BARGAINING
On the scheduled date of arraignment, the
court
shall
consider
plea-bargaining
arrangements.
Where the prosecution and offended party or
concerned government agency agree to the
plea offered by the accused, the court shall:
(1) Issue an order which contains the pleabargaining arrived at;
(2) Proceed to receive evidence on the civil
aspect of the case, if any; and
(3) Render and promulgate judgment of
conviction, including the civil liability for
damages. [Rule 15, Sec. 2]
PRE-TRIAL
(1) To appear before the court that issued the

warrant of arrest for arraignment purposes
on the date scheduled, and if the accused
fails to appear without justification on the
date of arraignment, accused waives the
reading of the information and authorizes
the court to enter a plea of not guilty on
behalf of the accused and to set the case for
trial;
(2) To appear whenever required by the court
where the case is pending; and
PAGE 392
After the arraignment, the court shall set the

pre-trial conference within thirty (30) days. It
may refer the case to the branch clerk of
court, if warranted, for a preliminary
conference to be set at least three (3) days
prior to the pre-trial. [Rule 16, Sec. 1]
Parties are required to be under oath in pretrial inorder to obviate the use of false or
misleading statements at this stage.
[Annotation to the Rules of Procedure for
Environmental Cases, Supreme Court SubCommittee]
UP LAW BOC
SUBSIDIARY LIABILITIES
In case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under judgment, enforce such subsidiary
liability against a person or corporation
subsidiary liable under Article 102 and Article 103
of the Revised Penal Code. [Rule 18, Sec. 1]
Evidence
PRECAUTIONARY PRINCIPLE
When human activities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or
diminish that threat. [Rule 1, Sec. 4[b]]
When there is a lack of full scientific certainty
in establishing a causal link between human
activity and environmental effect, the court
shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt. [Rule 20, Sec.1]
STANDARDS FOR APPLICATION OF

THE PRECAUTIONARY PRINCIPLE
(1) Threats to human life or health;

(2) Inequity to present or future generations;
(3) Prejudice to the environment without legal
consideration of the environmental rights of
those affected. [Rule 20, Sec. 2]
DOCUMENTARY EVIDENCE
PHOTOGRAPHIC, VIDEO AND
SIMILAR EVIDENCE MUST BE
AUTHENTICATED
Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife byproducts or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by
(1) the person who took the same
(2) some other person present when said
evidence was taken, or
(3) any other person competent to testify on
the accuracy thereof. [Rule 21, Sec.1]
PAGE 393
REMEDIAL LAW
ENTRIES IN OFFICIAL RECORDS AS

PRIMA FACIE EVIDENCE
Entries in official records made in the

performance of his duty by a public officer of the
Philippines, or by a person in performance of a
duty specially enjoined by law, are prima facie
evidence of the facts therein stated. [Rule 21,
Sec. 2]

BOC 2014 - Remedial Law Reviewer

Uploaded by

Document Information

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

BOC 2014 - Remedial Law Reviewer

Uploaded by

Copyright:

Available Formats

TABLE OF CONTENTS

JUDGMENT ON THE PLEADINGS ........... 89

CONCEPT OF REMEDIAL LAW .................. 1

Post-Judgment Remedies ............ 93

Execution, Satisfaction and Effect of

Commencement of Action to Trial 14

Provisional Remedies ..................135

Judgments and Final Orders ....... 87

NATURE OF PROVISIONAL REMEDIES .135

JUDGMENTS IN GENERAL ...................... 87

PRELIMINARY INJUNCTION ................. 139

Summary Settlement of Estates 194

Special Civil Actions .................... 152

Production and Probate of Will .. 198

Allowance or Disallowance of Will

CONTENTS OF PETITION FOR

Special Civil Actions .................... 185

Letters Testamentary and of

WHEN AND TO WHOM LETTERS OF

Claims against the Estate ......... 206

ESTATE BURDENED WITH LIEN OF

Settlement of Estate of Deceased

INTER-COUNTRY ADOPTION ............... 227

Writ of Habeas Corpus ............... 228

VITAL PURPOSES ................................. 228

Actions by and against Executors

Distribution and Partition ........... 212

Trustees ........................................ 213

Escheat ......................................... 215

Guardianship ............................... 216

Adoption ..................................... 222

Writ of Habeas Data .................... 240

SCOPE OF WRIT ................................... 240

General Matters .......................... 260

JURISDICTION OVER SUBJECT MATTER

Change of Name and Cancellation

Prosecution of Offenses ..............263

GROUNDS FOR CHANGE OF NAME

CRIMINAL ACTIONS; HOW INSTITUTED

Absentees ................................... 248

Cancellation or Correction of Entries

Prosecution of Civil Action ......... 269

RULE ON IMPLIED INSTITUTION OF CIVIL

Appeals in Special Proceeding .. 250

Annex A ........................................ 251

Preliminary Investigation.............. 271

RESOLUTION OF THE INVESTIGATING

RIGHT TO BE PRESENT AND DEFEND IN

Arrest ............................................ 276

Arraignment and Plea ................ 290

Motion to Quash ......................... 294

Pre-Trial ....................................... 300

APPLICATION OF JUDICIAL AFFIDAVIT

Rights of the Accused ................. 286

NON-APPEARANCE DURING PRE-TRIAL

NATURE OF SEARCH WARRANT ...........319

Provisional Remedies ..................329

Judgment ..................................... 307

New Trial or Consideration ........... 311

Appeal ........................................... 313

Search and Seizure ...................... 319

QUALIFICATIONS OF A WITNESS ......... 354

Offer and Objection .................... 379

Judicial Notice and