2016 PRE-WEEK BAR REVIEW MATERIALS 1

In Remedial Law

Exclusive for
UNIVERSITY of BATANGAS

APPLICATIONS OF THE RULES OF PROCEDURE

AND INTERPRETATIONS 2

Prepared by: Judge ELEUTERIO LARISMA BATHAN

ON

1997 REVISED RULES ON CIVIL PROCEDURE

2000 REVISED RULES ON CRIMINAL PROCEDURE
RULES OF EVIDENCE
SPECIAL PROCEEDINGS

1. An ejectment case was decided by the trial court granting the

plaintiffs relief sought. If defendant will file a motion for reconsideration,
will the filing of MR toll the running of the period to appeal?
Ans: No. It the filing a motion for reconsideration will not stop the
running of the reglementary period within which to file an appeal, because
filing a Motion for Reconsideration against a final order or judgment is
prohibited in cases governed by the Rules on Summary Procedure.

1
NOT FOR SALE.
2
Citations omitted.
 2. The trial court dismissed a civil complaint without prejudice.
What is the remedy available to the aggrieved party?
Ans. Certiorari under Rule 65. It is clearly provided under the Rules of
Court that am order dismissing an action without prejudice is correctible by
Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.

3. What about an order denying a petition for relief from judgment,

what is the remedy available to the aggrieved party?
Ans. Certiorari under Rule 65. It is clearly provided under the Rules of
Court that am order dismissing an action without prejudice is correctible by
Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.

4. What about an order denying a motion to set aside a judgment

by consent, confession or compromise agreement on the ground of fraud,
mistake or duress, or any other grounds vitiating consent?
Ans. Certiorari under Rule 65. It is clearly provided under the Rules of
Court that am order dismissing an action without prejudice is correctible by
Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.

5. What is the aggrieved partys remedy available to an order of

execution?
Ans. Certiorari under Rule 65. It is clearly provided under the Rules of
Court that am order dismissing an action without prejudice is correctible by
Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.

6. What is the aggrieved partys remedy available against an order

disallowing or dismissing an appeal?
 Ans. Certiorari under Rule 65. It is clearly provided under the Rules of
Court that am order dismissing an action without prejudice is correctible by
Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.

It is available when a notice of appeal is denied due course.

7. What is the aggrieved partys remedy available against an

interlocutory order?
Ans. Certiorari under Rule 65. It is clearly provided under the Rules
of Court that am order dismissing an action without prejudice is correctible
by Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.

8. When an appeal may be taken?

Ans. It may be taken from a judgment or final order that completely
disposes of the case, or of a particular manner therein when declared by
the Rules to be applicable.

In may be taken by filing a notice of appeal to be filed with the trial

court that rendered the judgment or final order within fifteen (15) days
from notice of such judgment or final order.

9. Plaintiffs complaint for ejectment was dismissed by the trial

court, and the appellate court affirmed the trial courts dismissal. What, if
any, is the plaintiffs next available remedy, and where to file?
Ans. The next remedy is to file petition for review under Rule 42 of
the Rules of Court which is fileable with the Court of Appeals.

10. Plaintiffs complaint for unlawful was challenged by the

defendant via motion to dismiss on ground that the complaint failed to
satisfy the jurisdictional requirements set-forth in Section 1 of Rule 70 of
the Rules of Court, particularly the jurisdictional allegation of 1 year from
the time the service of the notice to vacate. Is Certiorari under Rule 65
available against the order denying the motion to dismiss?
Ans. Yes. If it is crystal clear from the complaint that the
jurisdictional requirements set-forth in Section 1 of Rule 70 of the Rules of
Court are not complied with, and clearly appears that the trial court has no
jurisdiction over the case, Certiorari under Rule 65 can be availed of even
though the order of denial is an interlocutory order. The reason is that the
trial court gravely abused its discretion amounting to lack or excess of
jurisdiction when it ordered the denial of the motion to dismiss despite
clear showing that it has no jurisdiction over the case.

11. Is filing a motion for reconsideration against interlocutory order

in cases governed by the Rules on Summary Procedure prohibited?
Ans. No. What is prohibited is the filing of an MR against a final or
interlocutory order. It is not prohibited, because the purpose of allowing
the filing of the MR is for the trial court to take a second look for the
purpose of rectifying the error.

12. Why is it so that filing a motion for reconsideration against

interlocutory order in cases governed by the Rules on Summary Procedure
is allowed, which same MR will be a preparatory to a Certiorari petition in
the event the MR is denied, and filing a Certiorari petition is one of the
prohibited pleading?
Ans. If it clearly appears that the trial court gravely abused its
discretion amounting to lack or excess of jurisdiction when it ordered the
denial of the motion, Certiorari is available, because grave abuse of
discretion amounting to lack or excess of jurisdiction is correctible only by
Certiorari under Rule 65, and the purpose of allowing the filing of the MR is
for the trial court to take a second look for the purpose of rectifying the
error.

13. What rule shall govern the action for annulment of judgment if
it is filed with the CA in the exercise of its exclusive original jurisdiction ?
 Ans. Rule 47.

14. Is real property's assessed value determinative of trial court's

jurisdiction in an action to recover possession?
Ans. It depends.

Actions to recover possession of real property are real actions. Accion

publiciana and accion interdictal are both possessory actions. These are
both real actions.

Yes, if it is accion publiciana, real property's assessed value is

determinative of trial court's jurisdiction, because it is so provided in BP 129
as amended by RA 7691 that it is the assessed value of the property subject
of the action that determines trial court's exclusive original jurisdiction.

If the A.V. of the property is P20k and below and the property is in
the province, then the MTC has exclusive original jurisdiction. If the A.V. of
the property is above P20k and the property is in the province, then the RTC
has exclusive original jurisdiction. If the A.V. of the property is P50k and
below and the property is in the NCR, then the MeTC has exclusive original
jurisdiction, and if the A.V. of the property is above P50k and the property is
in the NCR, then the RTC has exclusive original jurisdiction.

Basis:

Sec. 33 BP 129 as amended by RA 7691: "Sec. 19. (2) In all civil

actions which involve the title to, or possession of, real property, or any
interest therein, where the assessed value of the property involved exceeds
Twenty thousand pesos (P20,000,00) or, for civil actions in Metro Manila,
where such value exceeds Fifty thousand pesos (P50,000.00) except actions
for forcible entry into and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts.

"Sec. 33. (3) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any interest therein where
the assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila,
where such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs.

No, if it is an accion interdictal (ejectment/unlawful detainer and

forcible entry cases), because BP 129 as amended by RA 7691 specifically
provided that it is the MTC which as exclusive original jurisdiction over all
forcible entry and unlawful detainer cases. The action is interdictal if the
action is filed within one (1) year period computed from service of notice or
demand to vacate.

Basis:

Sec. 33 BP 129 as amended by RA 7691: (2) Exclusive original

jurisdiction over cases of forcible entry and unlawful detainer: Provided,
That when, in such cases, the defendant raises the questions of ownership
in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.

Ejectment, unlawful detainer and forcible entry are special civil action
cases (Rule 70, Rules of Court), but also considered as real actions. The only
difference is that these cases are governed by the Rules on Summary
Procedure, a proceeding summary in nature; an expeditious means of
preventing an alleged illegal possessor of property from unjustly continuing
his possession for a long time, thereby insuring the maintenance of peace
and order in the community, as, otherwise, the party illegally deprived of
possession might feel the despair of long waiting and decide, as a measure
of self-protection, to take the law into his hands and seize the same by force
and violence.

15. In an action to recover possession of real property can the

defendant if fails to file an answer be declared in default?
 Ans. It depends.

Yes, if it is an accion publiciana, because accion publiciana is

governed by ordinary rules of procedure, the 1997 Revised Rules of Civil
Procedure, and so long as there is a motion filed by the plaintiff seeking to
declare the defending party in default. Section 3, Rule 9 of the 1997 Revised
Rules of Civil Procedure provides that if the defending party fails to answer
within the time allowed therefor, the court shall, upon motion of the
claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default. Thereupon, the court shall proceed
to render judgment granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires the claimant to submit
evidence. Such reception of evidence may be delegated to the clerk of
court.

In addition, a declaration or order of default is issuable as a

punishment for unnecessary delay in joining issues.

No, if it is an action is accion interdictal (unlawful detainer/ejectment

and forcible entry), because accion interdictal is governed by the Rules on
Summary Procedure. There is no such thing as declaration of default in
cases governed by the Rules on Summary Procedure, because filing a
motion to declare defendant in default is one of the enumerated prohibited
pleading under Section 19 of the 1991 Revised Rules on Summary
Procedure.

Basis: Section 19 (h), 1991 RRSP - Motion to declare defendant in

default.

16. In an action to recover possession of real property is verification

a requirement in filing an answer? If yes, why? If in the negative, why is
verification not a requirement?
Ans. It depends.

Yes, if it is an accion interdictal answer must be verified. The 1991

Revised Rules on Summary Procedure requires that all pleadings must be
verified. Compliance is a mandatory requirement. In Vallacar Transit, Inc.
vs. Catubig, G.R. No. 175512, May 30, 2011, included all pleadings filed in
civil cases under the 1991 Revised Rules on Summary Procedure in the
enumeration of pleadings that requires verification.

The purpose of requiring a verification is to secure an

assurance that the allegations of the petition have been made in
good faith; or are true and correct, not merely speculative. This
requirement is simply a condition affecting the form of pleadings, and
noncompliance therewith does not necessarily render it fatally
defective. Indeed, verification is only a formal, not a jurisdictional,
requirement.

Basis: 1997 RRSP Section 3 (B) All pleadings shall be verified. (A) the
only pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and the answers
thereto.

No, if it is an accion publiciana answer must not be verified. It does

not require verification, because it is governed by ordinary rules of
procedure, the 1997 Revised Rules of Civil Procedure, aside from the fact
that answer is not an initiatory pleading, therefore, no need of verification
requirement.

17. Phrobie was sentenced to suffer an indeterminate penalty from

four (4) months of arresto mayor, as minimum, to two (2) years and four
months of prision correccional, as maximum, and to pay the victim the
amount of P2M actual damages.

Within the fifteen (15) day period from promulgation judgment for
attempted homicide, Phrobie filed a notice of appeal solely to reduce the
imposed penalty from an indeterminate penalty from four (4) months of
arresto mayor, as minimum, to two (2) years and four (4) months of
prision correccional, as maximum, to a straight penalty of one (1) year,
and argued in the notice of appeal that since he pleaded guilty to the
crime charged when arraigned, straight penalty of one (1) year is the
proper one and not the indeterminate penalty from four (4) months of
arresto mayor, as minimum, to two (2) years and four (4) months of
prision correccional, as maximum.

You are the judge in the appealed case:

(a). on penalty imposed issue, will you dismiss the appeal if Phrobie
fails to file his appeal memorandum?

(b). on the civil aspect alleging in the notice of appeal that all the
medical receipts representing P2M hospitalization expenses presented
during the trial were all photocopies, not authenticated, and the same
were not formally offered in evidence, thus, no factual basis, will you
dismiss the appeal if Phrobie fails to file his appeal memorandum?

(c). You are the trial judge, and Phrobie immediately applied for
probation upon receipt of notice affirming in toto on appeal your ruling on
Phrobies imposed of indeterminate penalty, will you allow him to avail
the benefit of probation?
Ans. (a) If Phrobie will fail to file his appeal memorandum appealing
the decision as regards penalty imposed against him, I WILL NOT dismiss the
appeal, because submission of memorandum or brief is not a mandatory
requirement. It is optional on the part of the appellant. The Rules provides
that the RTC shall decide the case on the basis of the entire record of the
case.

Basis: Section 9 (c), Rule 122 - Appeal to the RTC-

Within fifteen (15) days from receipt of the said notice, the
parties may submit memoranda or briefs, or may be
required by the Regional Trial Court to do so. After the
submission of such memoranda or brief, or upon the
expiration of the period to file the same, the Regional Trial
Court shall decide the case on the basis of the entire
record of the case and of such memoranda or brief as may
have been filed.
 (b) If Phrobie will fail to file his appeal memorandum appealing the
decision as regards civil aspect of the case, I WILL dismiss the appeal,
because submission of memorandum or brief on appeals in civil cases is not
optional on the part of the appellant. It is mandatory requirement.

Basis Section 7 (b), Rule 40 - Within fifteen (15) days

from such notice, it shall be the duty of the appellant to
submit a memorandum which shall briefly discuss the
errors imputed to the lower court, a copy of which shall be
furnished by him to the adverse party. Within fifteen (15)
days from receipt of the appellant's memorandum, the
appellee may file his memorandum. Failure of the
appellant to file a memorandum shall be a ground for the
dismissal of the appeal).

(c) If Phrobie immediately applied for probation upon receipt of

notice affirming in toto the appealed decision, I WILL deny due course his
application for probation. The purpose of his appeal was not to reduce the
penalty for the purpose of availing the benefit of probation, but just
challenging the trial court's application of indeterminate sentence law
imposing him an already probationable penalty. The case of Francisco vs.
CA (243 SCRA 384) is not applicable in the case at bar.

Note: Francisco filed an appeal for the purpose of

lowering the, and when the penalty imposed upon him is
probationable, the Court allowed him to avail the benefit
of probation)

18. Abogado, a prominent law practitioner and guardian appointed

by the court for minor Musmos filed a small claims case against Abusado.
At the hearing, Abogados presence was objected by the defendant
arguing that Abogados presence and appearance in the proceedings
should not be allowed by the court. Abogado countered his presence and
appearance should not be objected on the ground that he represents
Musmos by virtue of the guardianship decree and is still active and not
terminated. You are the judge, how will you rule on the objection?
 Ans. The objection must or should be overruled. Granting that
Abogado is a prominent law practitioner, but he was appointed by the court
as guardian of Musmos. Abogado's appearance during the small claims
hearing was not for the purpose of lawyering but for the purpose of
representing Musmos in his capacity as court appointed guardian.

HOT ITEM
19. Mary and Joey were childhood friends and became sweethearts
when they reached seventeenths and lived together when they were
eighteenth. Mary gave birth to Peter when she was nineteenth. On their
twenties, Mary and Joey were enticed by an ecclesiastical minister in the
Manila City hall to have their union documented sans marriage ceremony,
but both of them were not required to sign any document. The Marriage
Certificate was duly recorded and intact with the National Statistics Office
(now Philippine Statistics Authority). After securing copy of their Marriage
Certificate, they caused to legitimize Peters status from illegitimate to
legitimated. Thereafter, their union turned sour and became
irreconcilable.

(a). Your legal services is engaged by Mary to have the Certificate of

Marriage be canceled from the Philippine Statistics Authoritys data base,
what petition or action will you file, and why?

(b). What action or petition, if any, will your file to determine

Peters present legal status, and why?
Ans. Since there was no marriage ceremony that took place which is
one of the formal requirement of a valid marriage, I will file a petition for
Cancellation of Certificate of Marriage in the Civil Registry under Rule 108.
The petition cannot be treated as a petition for declaration of nullity of
marriage under the Family Code.

Rule 108 cancellation of the marriage contract is the proper remedy if

no actual marriage contracted (no such marriage was celebrated); if
petitioner does not know the alleged spouse appearing the MC; if
petitioner did not appear before the solemnizing officer; and if petitioner's
signature appearing in the MC is not hers.
 In Republic vs. Olaybar, G.R. No. 189538, February 10, 2014, the
High Court found that aside from the certificate of marriage, no such
evidence was presented to show the existence of marriage; that respondent
showed by overwhelming evidence that no marriage was entered into and
that she was not even aware of such existence; that the testimonial and
documentary evidence clearly established that the only evidence of
marriage which is the marriage certificate was a forgery.

While the SC maintained that Rule 108 cannot be availed of to

determine the validity of marriage, the SC cannot nullify the proceedings
before the trial court where all the parties had been given the opportunity
to contest the allegations of respondent. The procedures were followed,
and all the evidence of the parties had already been admitted and
examined. The respondent indeed sought, not the nullification of marriage
as there was no marriage to speak of, but the correction of the record of
such marriage to reflect the truth as set forth by the evidence.

While it is true that the trial court has no jurisdiction to nullify

marriages in a special proceeding for cancellation or correction of entry
under Rule 108 of the Rules of Court, and the validity of marriage can be
questioned only in a direct action (Braza vs. The City Civil Registrar of
Himamaylan City, Negros Occidental, G.R. No. 181174, December 4, 2009,
607 SCRA 638), but in this case of Olaybar, allowing the correction of the
subject certificate of marriage by canceling the wife portion thereof, the
trial court did not, in any way, declare the marriage void as there was no
marriage to speak of.

For your reference:

Rule 108 of the Rules of Court sets forth the rules on cancellation or
correction of entries in the civil registry, to wit:

SEC. 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. Upon good and

valid grounds, the following entries in the civil register may be canceled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

SEC. 3. Parties. When cancellation or correction of an entry in the

civil register is sought, the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 4. Notice and Publication. Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the same,
and cause reasonable notice thereof to be given to the persons named in
the petition. The court shall also cause the order to be published once a
week for three (3) consecutive weeks in a newspaper of general circulation
in the province.

SEC. 5. Opposition. The civil registrar and any person having or

claiming any interest under the entry whose cancellation or correction is
sought may, within fifteen (15) days from notice of the petition, or from the
last date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. The court in which the proceedings

is brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings.

SEC. 7. Order. After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction prayed for.
In either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.

20. Is Judicial Recognition of Foreign Judgment (or Decree of

Absolute Nullity of Marriage, in particular governed by Rule 108 of the
Rules of Court or ordinary rules of procedure?
Ans. A Judicial Recognition of Foreign Judgment (or Decree of
Absolute Nullity of Marriage) is governed by Rule 108 of the Rules of Court.
Since the recognition of a foreign judgment only requires proof of fact of
the judgment, it may be made in a special proceeding for cancellation or
correction of entries in the civil registry under Rule 108 of the Rules of
Court. Rule 1, Section 3 of the Rules of Court provides that [a] special
proceeding is a remedy by which a party seeks to establish a status, a right,
or a particular fact.

Rule 108 creates a remedy to rectify facts of a persons life which are
recorded by the State pursuant to the Civil Register Law or Act No. 3753.
These are facts of public consequence such as birth, death or marriage,
which the State has an interest in recording.

In Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, 2010, 628 SCRA
266, the High Court said that the recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of Court) is precisely to
establish the status or right of a party or a particular fact (Fujiki vs.
Marinay,G.R. No. 196049, June 26, 2013).

NOTE: In Fujiki vs. Marinay, the judge upon receipt of the petition,
immediately dismissed the case on simple ground that it failed to comply
with A.M. No. 02-11-10-SC, as the petition is an ordinary civil actions for
declaration of nullity and annulment of marriage.

The High Court said: A petition to recognize a foreign judgment

declaring a marriage void does not require relitigation under a Philippine
court of the case as if it were a new petition for declaration of nullity of
marriage. Philippine courts cannot presume to know the foreign laws under
which the foreign judgment was rendered. They cannot substitute their
judgment on the status, condition and legal capacity of the foreign citizen
who is under the jurisdiction of another state. Thus, Philippine courts can
only recognize the foreign judgment as a fact according to the rules of
evidence.

Section 48(b), Rule 39 of the Rules of Court provides that a foreign

judgment or final order against a person creates a presumptive evidence of
a right as between the parties and their successors in interest by a
subsequent title.

Moreover, Section 48 of the Rules of Court states that the judgment

or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact. Thus,
Philippine courts exercise limited review on foreign judgments. Courts are
not allowed to delve into the merits of a foreign judgment. Once a foreign
judgment is admitted and proven in a Philippine court, it can only be
repelled on grounds external to its merits, i.e. , want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake of law or fact.The
rule on limited review embodies the policy of efficiency and the protection
of party expectations, as well as respecting the jurisdiction of other states.

Philippine courts have recognized foreign divorce decrees between a

Filipino and a foreign citizen if they are successfully proven under the rules
of evidence.

Divorce involves the dissolution of a marriage, but the recognition of

a foreign divorce decree does not involve the extended procedure under
A.M. No. 02-11-10-SC or the rules of ordinary trial.

While the Philippines does not have a divorce law, Philippine courts
may, however, recognize a foreign divorce decree under the second
paragraph of Article 26 of the Family Code, to capacitate a Filipino citizen to
remarry when his or her foreign spouse obtained a divorce decree abroad.

HOT ITEM
 21. Johanna filed a petition to declare her missing husband as dead.
Her petition was granted by the trial court. The government being the
sole oppositor, appealed the decision of the trial court to the Court of
Appeals. The trial court gave due course to the notice of appeal. Is the
trial court correct in giving due course to the notice of appeal? If your
answer is yes, why? And if not, why not?

Ans. It depends.

If a missing person is declared as presumptively dead pursuant to

Article 41 of the Family Code of the Philippines, the purpose of the petition
is to remarry, the post judgment remedy of any person or the State is Rule
65, petition for Certiorari, not appeal.

However, if a missing person is declared as presumptively dead or

absent pursuant to Rule 107 (Special Proceedings), the purpose of the
petition is to settle the estate, the post judgment remedy of any person or
the State is appeal under Rule 41, not Rule 65 Certiorari. Appeal is allowed
as provided under Rule 109 of the Rules of Court.

The Family Code is explicit that the courts judgment in summary

proceedings, such as the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code, shall be immediately final and
executory.

Article 41, in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a

previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
 For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.

In Republic vs. Bermudez-Lorino, 489 Phil. 761, the right to appeal is

not granted to parties because of the express mandate of Article 247 of the
Family Code, to wit:

In Summary Judicial Proceedings under the Family Code, there is no

reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of [Article] 247,
Family Code, are immediately final and executory. It was erroneous,
therefore, on the part of the RTC to give due course to the Republics appeal
and order the transmittal of the entire records of the case to the Court of
Appeals.

Certiorari Lies to Challenge the Decisions, Judgments or Final Orders

of Trial Courts in a Summary Proceeding for the Declaration of Presumptive
Death Under the Family Code so long as there is GAD.

Art. 247. The judgment of the court shall be immediately final and
executory.

With the judgment being final, it necessarily follows that it is no

longer subject to an appeal, the dispositions and conclusions therein having
become immutable and unalterable not only as against the parties but even
as against the courts.

The final and executory nature of this summary proceeding prohibits

the resort to appeal.

In Republic vs. Yolanda Cadacio-Granada,G.R. No. 187512, June 13,

2012, after long 9 years, respondent filed petition to declare Cyrus as
presumped dead RTC Branch 85, Lipa City, and was docketed as Sp. Proc.
No. 2002-0530. RTC granted it. The CA ruled that a petition for declaration
of presumptive death under Rule 41 of the Family Code is a summary
proceeding. Thus, judgment thereon is immediately final and executory
upon notice to the parties. Republic filed a notice of appeal. The SC said.
not remey of appeal because certiorari Lies to challenge the decisions,
Judgments or Final Orders of Trial Courts in a Summary Proceeding for the
Declaration of Presumptive Death Under the Family Code so long as there is
GAD.

But, if the petition is anchored on Rule 107 of the Rules of Court,

then the remedy is Appeal.

Clear from Rule 109 that an interested person may appeal in special
proceedings from an order or judgment rendered by the trial court where
such judgment or order relating to the settlement of estate.

22. What is the distinction between Summary Judgment vs.

Judgment on the Pleadings?
Ans. In Summary Judgment, there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law. A genuine issue is an issue of fact which requires the
presentation of evidence. So, when the facts as pleaded appear
uncontested or undisputed, then there is no real or genuine issue or
question as to the facts, and summary judgment is called for. Otherwise
stated, when the facts as pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the place of trial (Evadel
Realty and Development Corporation vs. Soriano, G.R. No. 144291, April
20, 2001 cited in Cotabato Timberland Co., Inc. vs. C. Alcantara and Sons,
Inc., G.R. No. 145469, May 28, 2004).

Judgment on the pleadings is proper when an answer fails to tender

an issue, or otherwise admits the material allegations of the adverse partys
pleading (Municipality of Tiwi vs. Betito, G.R. No. 171873, July 9, 2010
citing Rules of Court, Rule 34, Section 1).
 In a proper case for judgment on the pleadings, there is no ostensible
issue at all because of the failure of the defending partys answer to raise an
issue. The answer would fail to tender an issue, of course, if it does not
deny the material allegations in the complaint or admits said material
allegations of the adverse partys pleadings by confessing the truthfulness
thereof and/or omitting to deal with them at all (Tan vs. De la Vega, G.R.
No. 168809, March 10, 2006 cited in Reillo vs. San Jose, G.R. No. 166393,
June 18, 2009).

When what is left are not genuinely issues requiring trial but
questions concerning the proper interpretation of the provisions of some
written contract attached to the pleadings, judgment on the pleadings is
proper (Philippine National Bank vs. Utility Assurance & Surety Co., Inc.,
G.R. No. 32915, September 1, 1989 cited in (Pacific Rehouse Corporation
vs. EIB Securities, Inc., G.R. No. 184036, October 13, 2010).

A motion for judgment on the pleadings admits the truth of all the
material and relevant allegations of the opposing party and the judgment
must rest on those allegations taken together with such other allegations as
are admitted in the pleadings. It is proper when an answer fails to tender
an issue, or otherwise admits the material allegations of the adverse partys
pleading.

HOT ITEM
23. What are remedy to defendant if he is ordered declared in
default ?
Ans. (1) a motion to set aside the order of default under Section
3(b), Rule 9 of the Rules of Court, if the default was discovered before
judgment could be rendered, or course, with motion to admit attached
answer;

(2) a motion for new trial under Section 1(a) of Rule 37, if the default
was discovered after judgment but while appeal is still available, with
motion to admit attached answer;
 (3) a petition for relief under Rule 38, if judgment has become final
and executory, with motion to admit attached answer; and

(4) an appeal from the judgment under Section 1, Rule 41, even if no
petition to set aside the order of default has been resorted to (Lina vs. CA,
135 SCRA 637 cited in Indiana Aerospace University vs. CHED, G.R. No.
139371, April 4, 2001).

24. Of course, there will be no more trial if the case is already

decided by the trial court, what is the purpose if the remedy resorted to
by the defendant who is declared in default is appeal?
Ans. He can only challenge the decision that the same failed to
satisfy the preponderance quantum of evidence to justify plaintifs relief
prayed for.

25. Justo charged Dimaculangan issuing a bounced check with the

prosecutors office when the latters issued check to the former as
payment for pre-existing obligation bounced/dishonored for reason of
Account Closed. Finding probable causes for violation of BP 22 Estafa,
Fiscalie filed against Dimaculangan in one court two (2) Informations for
violation of BP 22 Estafa. Immediately thereafter, Justo filed with the trial
court two (2) separate applications for issuance of a writ preliminary
attachment.

(a). In separate orders, the court denied the applications on ground

that provisional remedy of preliminary attachment is pre-mature.
Accordingly, the applications: (1) can only be entertained upon surrender
and/or apprehension of the accused; (2) is grantable only in ordinary civil
actions but not in criminal actions. Is the trial court correct in denying the
application?

(b). Supposing Justos complaint affidavit merely and simply

charging Dimaculangan of violating BP 22, did the prosecutor grave abuse
his discretion when he also charged Dimaculangan of Estafa?
 Ans. a). The trial court is not correct.

The provisional remedy of preliminary attachment is available to both

criminal and civil cases. The Rule says that the provisional remedies in civil
actions, in so far as they are applicable, may be availed of in connection
with the civil action deemed instituted with the criminal action (Section 1,
Rule 127, 2000 Revised Rules on Criminal Procedure).

When the civil action is properly instituted in the criminal action as

provided in Rule 111, 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 when is about to abscond from the
Philippines;

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 officer, officer of a corporation, attorney, factor,
broker, agent or clerk, in the course of his employment as such, or by any
person in a fiduciary capacity, or for a willful violation of duty; when the
accused has concealed, removed, or disposed of his property, or is about to
do so, and; when the accused resides outside the Philippines (Section 2,
Rule 127, 2000 Revised Rules on Criminal Procedure).

Remedy of preliminary attachment is available to estafa but not in BP

22, because one of the elements of estafa is deceit, and preliminary
attachment is available if there is an intention on the part of the debtor to
defraud the creditor. However, this is not applicable to violation of BP 22
since deceit is not one of the elements of violation of BP 22.

(b). The prosecutor did not gravely abuse his discretion when he also
filed a estafa case against Dimaculangan.

The conduct of preliminary investigation and the subsequent

determination of the existence of probable cause lie solely within the
discretion of the public prosecutor. The determination of probable cause to
charge a person of a crime is the sole function of the prosecutor. If upon
evaluation of the evidence, the prosecutor finds sufficient basis to find
probable cause, he or she shall then cause the filing of the Information with
the court (Mendoza vs. People, April 21, 2014).

26. Small claims court rendered its judgment in the morning of July
11, 2016 against the Deffie, and after lunch the break a motion for
issuance of a writ of execution was filed by Plaintie. On the same day, the
sheriff implemented the writ and took the motorcycle that was parked
inside Deffies garage. The sale on auction is set on August 29, 2016 at
8:30 in the morning at the Pasig City Hall of Justices lobby. Unknown to
the sheriff, the tricycle belonged to Deffies son, Joey.

(a). If any, what is the remedy available to Deffie, and when to avail
the same?

(b). What is the remedy, if any, available to Joey, and where and
when to avail the same?
Ans. (a). Since the judgment in small claims cases is immediately
executory, and appeal is not available. Deffie's remedy is Certiorari under
Rule 65, provided that there is clear grave abuse of discretion to be imputed
against the judge that rendered the decision. He may avail this remedy
within 60-day period from receipt of notice of judgment.

(b). The remedy available to Joey is to file a third party claim. this is
authorized by Section 16 of Rule 39 of the Rules of Court, to be availed of
by executing an affidavit showing his title or right to the property executed.

Basis: Section 16 of Rule 39 of the Rules of Court: If the

property levied on is claimed by any person other than the
judgment obligor or his agent, and such person makes an
affidavit of his title thereto or right to the possession thereof,
stating the grounds of such right or title, and serves the same
upon the officer making the levy and copy thereof, stating the
grounds of such right or tittle, and a serves the same upon the
officer making the levy and a copy thereof upon the judgment
 obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a
bond approved by the court to indemnity the third-party
claimant in a sum not less than the value of the property levied
on. In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution. No claim
for damages for the taking or keeping of the property may be
enforced against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date of the
filing of the bond.

27. During altercation about the Tales from Turnpike House,

Victimie fell down when Buhayee was about to box former. Victimie was
under comatose status for two (2) months at Saint Etienne Medical
Center. Later on, Victimie survived and was able to recover after incurring
P1M hospitalization expenses. Buhayee jumped bail after his arraignment
in an attempted homicide case. La vista de absentia ensued, and when
judgment was promulgated in absentia he was found innocent, but with
civil liability ordering him to pay P1M representing Victimies actual
damages. The promulgation was recorded in the trial courts docket.

Buhayee, within sixty (60) days after he learned of the

promulgation and with six (6) months after the judgment was entered in
the courts docket files his petition for relief from judgment claiming that
all the medical receipts representing P1M hospitalization expenses
presented during the trial were all photocopies and the same were not
formally offered in evidence.

You are the judge:

(a) will you entertain the petition for relief from judgment?

(b). if annulment of judgment action is filed before your court

within the four (4) year period from the time the promulgation was
recorded in the trial courts docket, will you entertain the action?
 (c). will your answer be the same if Buhayees argument in the
annulment judgment action focused on lack of jurisdiction, taking into
consideration that the first level courts has no jurisdiction to award
Victimee P1M hospitalization expenses as actual damages considering
that in claims capable of pecuniary estimation, the first level courts
jurisdiction is up to P300,000.00 in the provinces and P400,000.00 in the
national capital regions?
Ans. (a). I will not entertain the petition for relief from judgment.
Petition for relief from judgment is not one among the enumerated post
judgment remedies in the Rules on Criminal Procedure.The post judgment
remedies are the MR under Rule 121; MNT under 121; Appeal under 122;
Probation under PD 968; Certiorari under Rule 65; and Execution of
Judgment on the criminal and civil aspects.

However, in one case, Hilario vs. People, April 14, 2008, the accused
after he was found guilty of homicide, filed a petition for relief from
judgment when his counsel failed to file a notice of appeal within the
reglementary period despite request. The High Court gave due course to
the notice of appeal, because his life, liberty, or property is subjected to
restraint or in danger of loss.

(b). I will not entertain the annulment of judgment. Again, annulment

of judgment is not one among the enumerated post judgment remedies in
the Rules on Criminal Procedure.The post judgment remedies are the MR
under Rule 121; MNT under 121; Appeal under 122; Probation under PD
968; Certiorari under Rule 65; and Execution of Judgment on the criminal
and civil aspects.

The remedy cannot be resorted to when the RTC judgment being

questioned was rendered in a criminal case. The 2000 Revised Rules of
Criminal Procedure itself does not permit such recourse, for it excluded
Rule 47 from the enumeration of the provisions of the 1997 Revised Rules
of Civil Procedure which have suppletory application to criminal cases
(People vs. Bitanga, G.R. No. 159222, June 26, 2007).
 (c). Even if the grounds for the annulment is focused on the civil
aspect of the case because it will not change the nature of the action. Still
the same, the case is a criminal case, and annulment of judgment is not a
remedy available in criminal cases.

25. Will a 100% aliens association be allowed to file citizen suit?

Ans. No. Citizen suit is a suit limited to Filipino citizens and one that is
filed in the public interest hence, no proof of personal injury is required. A
Filipino citizen may be an individual or a corporation so long as the
requirements of Philippine citizenship are complied with.

HOT ITEM
26. What are the requirements for an indigent litigant to be
exempted from paying docket fees and other legal fees?
Ans. Indigent litigants are exempted from payment of docket and
other legal fees, provided that the following requisites must concur:

(1) their gross income and that of their immediate family do not
exceed an amount double the monthly minimum wage of an employee;

(2) who do not own real property with a fair market value as stated in
the current tax declaration of more than Three Hundred Thousand
(P300,000.00) Pesos;

(3) the legal fees shall be a lien on any judgment rendered in the case
favorable to the indigent litigant unless the court otherwise provides;

(4) the litigant shall execute an affidavit that he and his immediate
family do not earn a gross income above-mentioned, and they do not own
any real property with the fair value aforementioned, supported by an
affidavit of a disinterested person attesting to the truth of the litigant's
affidavit. The current tax declaration, if any, shall be attached to the
litigant's affidavit; and
 (5) Any falsity in the affidavit of litigant or disinterested person shall
be sufficient cause to dismiss the complaint or action or to strike out the
pleading of that party, without prejudice to whatever criminal liability may
have been incurred (Spouses Algura vs. City of Naga, G.R. No. 150135,
October 30, 2006).

NOTE: The computation or the determination of the monthly

minimum wage of an employee requirement shall be based on the
prevailing monthly minimum wage of the place where the indigent is
actually residing and not on the place where the applicant indigent is
working.

REASON: The cost of living in some other areas like Metro Manila is
different from the cost of living in the provinces or in the municipalities or
cities.

HOT ITEM
27. When do you consider granting an application as indigent
litigant mandatory, and when discretionary?
Ans. If the applicant for exemption meets the salary and property
requirements under Section 19, Administrative Matter No. 04-2-04-SC
effective August 16, 2004 (amending Rule 141), then the grant of the
application is MANDATORY (Spouses Algura vs. City of Naga, G.R. No.
150135, October 30, 2006).

When the application does not satisfy one or both requirements,

then the application should not be denied outright; instead, the court
should apply the "indigency test" under Section 21 of Rule 3 and use its
sound discretion (DISCRETIONARY) in determining the merits of the prayer
for exemption (Spouses Algura vs. City of Naga, G.R. No. 150135, October
30, 2006).

28. In a certiorari petition filed by RTC Branch Clerk of Court, Atty.

Samonyo, in a graft case under Section 3(e) of RA 3019 filed against him in
the Regional Trial Court, the Court of Appeals affirmed the RTC order
denying his demurrer to evidence by holding that the prosecution able to
establish its prima facie evidence against the accused that: (1) the
accused is a public officer being a Branch Clerk of Court in the RTC; (2) he
committed the prohibited acts during the performance of his official
duties or in relation to his public positions; (3) he caused undue injury to
the private complainants, one is the Government and the other one is the
private complainant; (4) such injury was caused by giving advantage or
preference to the adversaries of the private complainant; and (5) he acted
with manifest partiality, evident bad faith or gross inexusable negligence.
Atty. Samonyo believed that one of the elements of Section 3(e) of RA
3019 is wanting. Is the Court of Appeals correct in affirming the RTC
ruling?
Ans. The Court of Appeals is not correct in affirming the RTC ruling. In
fact, the Court of Appeals has no jurisdiction to decide the appealed case.
The appeal from the decision of the RTC involving graft cases are appealable
to the Sandiganbayan and not to the Court of Appeals.

29. TRUE OR FALSE, and explain why.

(a). Certiorari petition under Rule 65 against judgment of acquittal

can only be initiated by the Office of the Solicitor General. .

(b). Earnest effort towards possible settlement is a condition

precedent to the filing of any civil action between or among family
members.

(c). Is the Order resolving a demurrer to evidence interlocutory or

final order?

Ans. a). TRUE. Private complainant as aggrieved party may directly

file a petition for certiorari under Rule 65 without the assistance of the OSG
if it appears that he or she has the right to bring the action in his/her name
and maintain the criminal prosecution as he has an immense interest in
obtaining justice in the case precisely because he/she is the subject of the
violation (People vs. CA, 751 SCRA 675).

In People vs. Piccio, 732 SCRA 254, the High Court allowed the
aggrieved party to file a petition for certiorari even without the
intervention of the OSG for the purpose of preserving his interest in the civil
aspect of the case..

(b). It depends. If the filing of the action is between or among family

members, and the action is coupled with provisional remedy or application
for temporary restraining order, then there is no need to comply with the
condition precedent on earnest effort towards possible settlement.

(c). An Order resolving a demurrer to evidence has double-

characteristics: first, a final order, and second, as an interlocutory order. It is
a final order if it grants the demurrer to evidence, because completely
disposes of the case. It necessarily follows that the remedy available to the
aggrieved party is appeal. It is an interlocutory order if it denies the
demurrer to evidence, because the trial court has still something to do with
the case, and that is to hear the evidence of the defense. The remedy
available is petition for certiorari under Rule 65 so long as there is a clear
grave abuse of discretion.

30. After the court had issued the warrant of arrest and fixed the
required bond, Frendie, without knowing that there was a criminal case
filed with prosecutors office as he did not receive any notice/subpoena,
he immediately posted the required bail and filed the necessary motion
for re-investigation. Pending resolution of his motion, Frendie when
arraigned pleaded not guilty to the charged, and thereafter entered into
stipulations during pre-trial conference. Is admission to bail bar his right
to challenge the regularity of preliminary investigation? Explain your
answer.
Ans. Yes. Because he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto. The accused
did not vigoruosly and clearly raise his objection prior to his arraignment.
(Leviste vs. Alameda, 626 SCRA 575).
 31. In what instance, if any, the public attorneys officials and
employees considered authorized to serve summons?
Ans. Public Attorneys Officials and Employees are authorized to serve
summons. But their authority is limited only to cases involving their client
(A.M. No. 11-10-03-O dated July 30, 2013 entittled Re: Letter dated April
18, 2011 of Chief Public Attorney Persida-Acosta Requesting Exemption
from the Payment of Sheriffs Expenses authorizes the Public Attorneys
Officials and Employees to serve summons pursuant to Section 3, Rule 14
of the 1997 Revised Rules of Civil Procedure).

32. a). Upon learning of the testators death, Skeyperhz, the

executor of the will, immediately brought and submitted to the court the
testators will. Is production of copy of a will an obligation in the nature of
a public duty that can be enforced by a prerogative writ of mandamus?
Explain.

(b). After Procopios death, his heirs brought his last will to Atty.
Igancia to obtain their respective shares in the estate. Then Atty. Igancia
immediately prepared a deed of partition distributing Procopios estate in
accordance with the terms of her will. Was Atty. Igancias actuation
legally sound?

(c). Is aspect of distribution of testators estate in favor of his heirs

mediatable in the sense that the heirs can disregard the schedule of
distribution stated in the testators will and make their own schedule of
distribution?

Ans.
(a). Production of the wills is in the nature of a public or a private
duty. Sections 2 to 5 of Rule 75 provide adequate remedy for the
production of the will.
 SEC. 2. Custodian of will to deliver.The person who has custody of a
will shall, within twenty (20) days after he knows of the death of the
testator, deliver the will to the court having jurisdiction, or to the executor
named in the will.

SEC. 3. Executor to present will and accept or refuse trust.A person

named as executor in a will shall within twenty (20) days after he knows of
the death of the testator, or within twenty (20) days after he knows that he
is named executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction, unless the will
has reached the court in any other manner, and shall, within such period,
signify to the court in writing his acceptance of the trust or his refusal to
accept it.

SEC. 4. Custodian and executor subject to fine for neglect.A person

who neglects any of the duties required in the two last preceding sections
without excuse satisfactory to the court shall be fined not exceeding two
thousand pesos.

SEC. 5. Person retaining will may be committed.A person having

custody of a will after the death of the testator who neglects without
reasonable cause to deliver the same, when ordered so to do, to the court
having jurisdiction, may be committed to prison and there kept until he
delivers the will.

There being a plain, speedy and adequate remedy in the ordinary

course of law for the production of the will, the remedy of mandamus
cannot be availed of.

(b). No. Probate of a will is dictated by public policy. and besides,

no will shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such allowance
of the will shall be conclusive as to its due execution (Section 1, Rule 75).
The last will and testament of the dead is his last living voice, and therefore,
must be respected.
 (c). Yes. Probate of will has two (2) aspects: the extrinsic validity and
the intrinsic validity. The first one, that is, the process of determining
whether the testator was of sound mind at the time of the execution of the
will; that he knows the character of his bounty and that the execution of
the same was made freely and voluntarily. This cannot be a subject of
stipulation, but the second one, as regards distribution or partition of the
shares can be done extra-judicially through stipulation or agreement. That's
the reason why testate proceedings can be a subject of mediation.

33. After the positive implementation of a search warrant issued by

Judge Pougie of MTCC, Calamba City, Laguna on the house Sofronio
Briones y Morales (Sofronio) located at No. 123 Rizal St., Calapan City,
Oriental Mindoro, for alleged violations of illegal drugs commonly known
as shabu and illegal possession of high powered firearms and later on
respective cases for violations of illegal drugs and illegal possession of
firearms were filed in Mindoro RTC. Despite Sofronios formal request to
give him a copy of the transcript of the stenographic notes (TSN) taken
during the applications proceeding, and despite subpoena to the MTCC
issued by RTC to bring the latter the TSN of the proceedings, the issuing
court (MTCC) failed to do so. Sofronio moved to quash the SW in RTC
where the cases for violations of illegal drugs and illegal possession of
firearms are filed on ground that the issuing judge did not conduct
searching questions and answers before the latter issued the SW.

The RTC granted the motion reasoning that the SW is a general

warrant.

1. Is the RTC correct? Why?

2. Felt aggrieved, Searching Officers moved to reconsider the

RTC quashal order, and the trial court denied the motion on ground that
the motion for reconsideration did not contain the required conformity of
the public prosecutor. Is the order of denial proper?
 Ans. a). The RTC is not correct in granting the motion to quash search
warrant on ground that the Search Warrant is a general warrant, because
the trial judge should limit his judicious attention in resolving motion to
quash SW only to the issue raised by the movant in the motion to quash.
Resolving a MTQ SW is not like resolving an appeal in criminal cases that
opens the entire issue for review (People vs. Arves, 343 SCRA 123).

(b) The RTC is not correct, because any party who wants to challenge
the order granting the quashal of the search warrant may do so without the
conformity of the public prosecutor, because applications for search
warrant is not subject to public prosecutors direction and control
(Worldwide Web Corporation vs. People and PLDT, G.R. No. 161106 and
Planet Internet Corp. vs. PLDT, G.R. No. 161266, January 13, 2014).

HOT
34. In this jurisdiction, probable cause plays a very important role in
the administration of justice. What are the differnt types of probable
cause? Explain their respective characteristics or nature and their usages.
Ans. There are four (4) types of probable cause. These are: (1)
probable cause determinable by police officers whether to effect (or not to
effect) a warrantless arrest (in flagrante delito and hot pursuit); (2) probable
cause determinable by the judge whether to issue (or not to issue) search
warrants; and (3) probable cause determinable by the inquest/investigating
prosecutor whether to file (or not to file) criminal information (executive
character or executive probable cause); and (4) probable cause
determinable by the judge upon filing of the information whether to issue
(or not to issue) warrant of arrest if the accused is at large; or whether to
issue (or not to issue) a commitment order if accused is under detention,
and if want of probable cause, whether to dismiss (or not to dismiss) the
case for want of probable cause and forthwith the release of the accused
from detention (judicial character or judicial probable cause), or to require
the prosecutor to submit additional evidence.

35. In all aspects, enumerate the differences and similarities, if any,

between discharge of an accused to be a state witness under Witness
Protection and Security Benefit Program under RA 6981 and discharge of
an accused to be a state witness under our present Rules on Criminal
Procedure.
Ans. The discharge of an accused under RA 6981 is distinct and
separate from the discharge of an accused under Section 17, Rule 119 of
the Revised Rules on Criminal Procedure. The discharge of an accused to be
a state witness under RA 6981 is only one of the modes for a participant in
the commission of a crime to be a state witness. The discharge of an
accused under Section 17, Rule 119, of the Revised Rules on Criminal
Procedure is another mode of discharge (Yu vs. Presiding Judge, RTC, Br.
18, Tagaytay City, June 30, 2006).

The immunity provided under Republic Act No. 6981 is granted by

the DOJ while the other is granted by the court.

The discharge of an accused under Section 17, Rule 119, of the

Revised Rules on Criminal Procedure contemplates a situation where the
information has been filed and the accused had been arraigned and the
case is undergoing trial. The discharge of an accused under this rule may be
ordered upon motion of the prosecution before resting its case, that is, at
any stage of the proceedings, from the filing of the information to the time
the defense starts to offer any evidence, whereas, under Republic Act No.
6981 the only requirement is compliance with the requirement of Section
14, Rule 110 of the Revised Rules of Criminal Procedure. The requirement
of Section 17, Rule 119, of the Revised Rules on Criminal Procedure in the
discharge of state witness under RA 6981 is NOT required.

NOTE: Republic Act No. 6981 employed by the prosecution in the

discharge of the private respondents reads:

SEC. 3. Admission into the Program.Any person who has witnessed

or has knowledge or information on the commission of a crime and has
testified or is testifying or about to testify before any judicial or quasi-
judicial body, or before any investigating authority, may be admitted into
the Program:
 Provided, That: a) the offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code, or its equivalent
under special laws;

b) his testimony can be substantially corroborated in its material

points;

c) he or any member of his family within the second civil degree of

consanguinity or affinity is subjected to threats to his life or bodily injury or
there is a likelihood that he will be killed, forced, intimidated, harassed or
corrupted to prevent him from testifying, or to testify falsely, or evasively,
because or on account of his testimony; and

d) he is not a law enforcement officer, even if he would be testifying

against other law enforcement officers. In such a case, only the immediate
members of his family may avail themselves of the protection provided for
under this Act.

If the Department, after examination of said applicant and other

relevant facts, is convinced that the requirements of this Act and its
implementing rules and regulations have been complied with, it shall admit
said applicant to the Program, require said witness to execute a sworn
statement detailing his knowledge or information on the commission of the
crime, and thereafter issue the proper certification. For purposes of this
Act, any such person admitted to the Program shall be known as the
Witness.

SEC. 10. State Witness.Any person who has participated in the

commission of a crime and desires to be a witness for the State, can apply
and, if qualified as determined in this Act and by the Department, shall be
admitted into the Program whenever the following circumstances are
present:

a) the offense in which his testimony will be used is a grave felony as

defined under the Revised Penal Code or its equivalent under special laws;

b) there is absolute necessity for his testimony;

 c) there is no other direct evidence available for the proper
prosecution of the offense committed;

d) his testimony can be substantially corroborated on its material

points;

e) he does not appear to be most guilty; and

An accused discharged from an information or criminal complaint by

the court in order that he may be a State Witness pursuant to Sections 9
and 10 of Rule 119 of the Revised Rules of Court may upon his petition be
admitted to the Program if he complies with the other requirements of this
Act. Nothing in this Act shall prevent the discharge of an accused, so that he
can be used as a State Witness under Rule 119 of the Revised Rules of
Court.

On the other hand, Rule 119, Section 17, of the Revised Rules on
Criminal Procedure, upon which petitioner relies reads:

Section 17. Discharge of accused to be state witness.When two or

more persons are jointly charged with the commission of any offense, upon
motion of the prosecution before resting its case, the court may direct one
or more of the accused to be discharged with their consent so that they
may be witnesses for the state when, after requiring the prosecution to
present evidence and the sworn statement of each proposed state witness
at a hearing in support of the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused

whose discharge is requested;

(b) There is no other direct evidence available for the proper

prosecution of the offense committed, except the testimony of said
accused;

(c) The testimony of said accused can be substantially corroborated in

its material points;
 (d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.

Evidence adduced in support of the discharge shall automatically

form part of the trial. If the court denies the motion for discharge of the
accused as state witness, his sworn statement shall be inadmissible in
evidence.

The discharge of an accused under Republic Act No. 6981 as availed

of by the prosecution in favor of the private respondents, is distinct and
separate from the discharge of an accused under Section 17, Rule 119 of
the Revised Rules on Criminal Procedure.

The discharge of an accused to be a state witness under Republic Act

No. 6981 is only one of the modes for a participant in the commission of a
crime to be a state witness. Rule 119, Section 17, of the Revised Rules on
Criminal Procedure, is another mode of discharge. The immunity provided
under Republic Act No. 6981 is granted by the DOJ while the other is
granted by the court.

Rule 119, Section 17, of the Revised Rules on Criminal Procedure,

contemplates a situation where the information has been filed and the
accused had been arraigned and the case is undergoing trial. The discharge
of an accused under this rule may be ordered upon motion of the
prosecution before resting its case, that is, at any stage of the proceedings,
from the filing of the information to the time the defense starts to offer any
evidence.

On the other hand, in the discharge of an accused under Republic Act

No. 6981, only compliance with the requirement of Section 14, Rule 110 of
the Revised Rules of Criminal Procedure is required but not the requirement
of Rule 119, Section 17.
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