Notes - Rem Law (Riano)

2011 Bar Examinations 1
BERT – NOTES in REMEDIAL LAW
Victory goes to those with homicidal instinct to

succeed... the murderous mania to excel...
Dean W. Riano
SYLLABUS FOR 2011 BAR EXAMINATIONS
REMEDIAL LAW
I. General Principles
C. Jurisdiction over the issues
A. Concept of Remedial Law D. Jurisdiction over the res or property in
B. Substantive Law as Distinguished from litigation
Remedial Law
C. Rule-making Power of the Supreme Court E. Jurisdiction of Courts
1. Limitations on the rule-making 1. Supreme Court
power of the Supreme Court 2. Court of Appeals
2. Power of the Supreme Court to 3. Court of Tax Appeals
amend and suspend procedural rules 4. Sandiganbayan
5. Regional Trial Courts
D. Nature of Philippine Courts 6. Family Courts
1. Meaning of a court 7. Metropolitan Trial Courts/Municipal
2. Court as distinguished from a judge Trial Courts
3. Classification of Philippine courts 8. Shariah Courts
4. Courts of original and appellate F. Jurisdiction over small claims, cases
jurisdiction covered by the rules on Summary Procedure
5. Courts of general and special and Barangay Conciliation
jurisdiction G. Totality Rule
6. Constitutional and statutory courts
7. Courts of law and equity III. Civil Procedure
8. Principle of judicial hierarchy
9. Doctrine of non-interference or A. Actions
doctrine of judicial stability 1. Meaning of ordinary civil actions
2. Meaning of special civil actions
II. Jurisdiction 3. Meaning of criminal actions
4. Civil actions versus Special
A. Jurisdiction over the parties proceedings
1. How jurisdiction over the plaintiff is 5. Personal actions and real actions
acquired 6. Local and transitory actions
2. How jurisdiction over the 7. Actions in rem, in personam and
defendant is acquired quasi in rem
B. Jurisdiction over the subject matter B. Cause of Action

1. Meaning of jurisdiction over the 1. Meaning of cause of action
subject matter 2. Right of Action versus Cause of
2. Jurisdiction versus the exercise of action
jurisdiction 3. Failure to state a cause of action
3. Error of jurisdiction as 4. Test of the sufficiency of a cause of
distinguished from error of judgment action
4. How jurisdiction is conferred and 5. Splitting a single cause of action
determined and its effects
5. Doctrine of primary jurisdiction 6. Joinder and misjoinder of causes of
6. Doctrine of adherence of action
jurisdiction
7. Objections to jurisdiction over the C. Parties to Civil Actions
subject matter 1. Real Parties in interest;
8. Effect of estoppel on objections to Indispensable parties;
jurisdiction Representatives as parties;
Necessary parties; Indigent Parties; (2) Fraud, mistake,

Alternative defendants malice, intent,
2. Compulsory and permissive joinder knowledge and other
of parties condition of the mind,
3. Misjoinder and non-joinder of judgments, official
parties documents or acts
4. Class Suit b. Pleading an actionable
5. Suits against entities without document
juridical personality c. Specific denials
6. Effect of death of party litigant (1) Effect of failure to
make specific denials
D. Venue (2) When a specific
1. Venue versus Jurisdiction denial requires an
2. Venue of real actions oath
3. Venue of personal actions 5. Effect of failure to plead
4. Venue of actions against non- 1. Failure to plead defenses
residents and objections
5. When the Rules on Venue Do not 2. Failure to plead a
Apply compulsory counterclaim and
6. Effects of Stipulations on Venue cross-claim
6. Default
E. Pleadings a. When a declaration of
1. Kinds of Pleadings default is proper
a. Complaint b. Effect of an order of default
b. Answer c. Relief from an order of
(1) Negative defenses default
(2) Negative pregnant d. Effect of a partial default
(3) Affirmative e. Extent of relief
Defenses f. Actions where default are
c. Counterclaims not allowed
(1) Compulsory 7. Filing and Service of pleadings
counterclaim I. Payment of docket fees
(2) Permissive II. Filing versus service of
counterclaim pleadings
(3) Effect on the III. Periods of filing of
Counterclaim when pleadings
the complaint is IV. Manner of filing
dismissed V. Modes of service
d. Cross-claims (1) Personal service
e. Third (fourth, etc.) party (2) Service by mail
complaints (3) Substituted
f. Complaint-in-intervention service
g. Reply (4) Service of
2. Pleadings allowed in small claim judgments, final
cases and cases covered by the rules orders or resolutions
on summary procedure (5) Priorities in modes
3. Parts of a pleading of service and filing
a. Caption (6) When service is
b. Signature and address deemed complete
c. Verification and (7) Proof of filing and
certification against forum service
shopping 8. Amendment
(1) Requirements of a a. Amendment as a matter of
corporation executing right
the b. Amendments by leave of
verification/certificati court
on of non-forum c. Formal amendment
shopping d. Amendments to conform to
d. Effect of the signature of or authorize presentation of
counsel in a pleading evidence
4. Allegations in a pleading e. Different from
a. Manner of making supplemental pleadings
allegations f. Effect of amended pleading
(1) Condition
precedent F. Summons
1. Nature and purpose of summons in

relation to actions in personam, in I. Pre-trial
rem and quasi in rem 1. Concept of pre-trial
2. Voluntary appearance 2. Nature and purpose
3. Personal service 3. Notice of pre-trial
4. Substituted service 4. Appearance of parties; effect of
5. Constructive service (by failure to appear
publication) 5. Pre-trial brief; effect of failure to
a. Service upon a defendant appear
where his identity is unknown 6. Distinction between pre-trial in civil
or where his whereabouts are case and pre-trial in criminal case
unknown 7. Alternative Dispute Resolution
b. Service upon residents (ADR)
temporarily outside the
Philippines J. Intervention
6. Extra-territorial service, when 1. Requisites for intervention
allowed 2. Time to intervene
7. Service upon prisoners and minors 3. Remedy for the denial of motion to
8. Proof of service intervene
G. Motions K. Subpoena
1. Motions in general 1. Subpoena duces tecum
a. Definition of a motion 2. Subpoena ad testificandum
b. Motions versus pleadings 3. Service of subpoena
c. Contents and form of 4. Compelling attendance of
motions witnesses; Contempt
d. Notice of hearing and 5. Quashing of subpoena
hearing of motions
e. Omnibus motion rule L. Modes of Discovery
f. Litigated and ex parte 1. Depositions pending action;
motions Depositions before action or pending
g. Pro-forma motions appeal
2. Motions for Bill of Particulars a. Meaning of deposition
a. Purpose and when applied b. Uses; Scope of examination
for c. When may objections to
b. Actions of the court admissibility be made
c. Compliance with the order d. When may taking of
and effect of noncompliance deposition be terminated or
d. Effect on the period to file its scope limited
a responsive pleading 2. Written interrogatories to adverse
3. Motion to Dismiss parties
a. Grounds a. Consequences of refusal to
b. Resolution of Motion answer
c. Remedies of plaintiff when b. Effect of failure to serve
the complaint is dismissed written interrogatories
d. Remedies of the defendant 3. Request for Admission
when the motion is denied a. Implied admission by
e. Effect of dismissal of adverse party
complaint on certain grounds b. Consequences of failure to
f. When grounds pleaded as answer request for admission
affirmative defenses c. Effect of admission
g. Bar by dismissal d. Effect of failure to file and
h. Distinguished from serve request for admission
demurrer to evidence under 4. Production or inspection of
Rule 33 documents or things
5. Physical and mental examination of
H. Dismissal of Actions persons
1. Dismissal upon notice by plaintiff; 6. Consequences of refusal to comply
Two-dismissal rule with modes of discovery
2. Dismissal upon motion by plaintiff;
effect on existing counterclaim M. Trial
3. Dismissal due to the fault of 1. Adjournments and postponements
plaintiff 2. requisites of motion to postpone
4. Dismissal of counterclaim, cross- trial
claim or third-party complaint a. for absence of evidence
b. for illness of party or e. Issues to be raised on

counsel appeal
3. Agreed statement of facts f. Period of appeal
4. Order of trial; reversal of order g. Perfection of appeal
5. Consolidation or Severance of h. Appeal from judgments or
hearing or trial final orders of the MTC
6. Delegation of reception of evidence i. Appeal from judgments or
7. Trial by commissioners final orders of the RTC
a. Reference by consent or j. Appeal from judgments or
ordered on motion final orders of the CA
b. Powers of the k. Appeal from judgments or
commissioner final orders of the CTA
c. Commissioner’s report; l. Review of final judgments
notice to parties and hearing or final orders of the COA
on the report m. Review of final judgments
or final orders of the
N. Demurrer to Evidence COMELEC
1. Ground n. Review of final judgments
2. Effect of denial or final orders of the CSC
3. Effect of grant o. Review of final judgments
4. Waiver of right to present evidence or final orders of the
5. Demurrer to evidence in a civil Ombudsman
case versus demurrer to evidence in p. Review of final judgments
a criminal case or final orders of the NLRC
q. Review of final judgments
O. Judgments and Final Orders or final orders of quasi-
1. Judgment without trial judicial agencies
2. Contents of a judgment
3. Judgment on the pleadings 3. Relief from judgments, orders and
4. Summary judgments other proceedings
a. for the claimant a. Grounds for availing of the
b. for the defendant remedy
c. when the case not fully b. Time to file petition
adjudicated c. Contents of petition
d. affidavits and attachments
5. Judgment on the pleadings versus 4. Annulment of Judgments or final
summary judgments orders and resolutions
6. Rendition of judgments and final a. Grounds for annulment
orders b. Period to file action
7. Entry of judgment and final order c. Effects of judgment of
annulment
P. Post Judgment Remedies
5. Collateral attack of judgments
1. Motion for New Trial or
reconsideration Q. Execution, Satisfaction and Effect of
a. Grounds Judgments
b. When to file 1. Difference between finality of
c. Denial of the motion; effect judgment for purposes of appeal; for
d. Grant of the motion; effect purposes of execution
e. Remedy when motion is 2. When execution shall issue
denied, Fresh 15-day period a. Execution as a matter of
rule right
b. Discretionary execution
2. Appeals in General 3. How a judgment is executed
a. Judgments and final orders a. Execution by motion or by
subject to appeal independent action
b. Matters not appealable b. Issuance and contents of a
c. Remedy against judgments writ of execution
and orders which are not c. Execution of judgments for
appealable money
d. Modes of appeal d. Execution of judgments for
(1) Ordinary appeal specific acts
(2) Petition for review e. Execution of special
(3) Petition for review judgments
on certiorari
f. Effect of levy on third a. Cases when receiver may

persons be appointed
4. Properties exempt from execution b. Requisites
5. Proceedings where property is c. Requirements before
claimed by third persons issuance of an Order
a. in relation to third party d. General powers of a
claim in attachment and replevin receiver
6. Rules on Redemption e. Two (2) kinds of bonds
7. Examination of Judgment Obligor f. Termination of receivership
When Judgment is unsatisfied
8. Examination of Obligor of Judgment 6. Replevin
Obligor a. When may writ be issued
9. Effect of Judgment or Final Orders b. Requisites
10. Enforcement and Effect of Foreign c. Affidavit and bond;
Judgments or Final Orders Redelivery Bond
d. Sheriff’s duty in the
R. Provisional Remedies implementation of the writ;
1. Nature of provisional remedies when property is claimed by
2. Jurisdiction over provisional third party
remedies
S. Special Civil Actions
3. Preliminary Attachment 1. Nature of special civil actions
a. Grounds for issuance of 2. Ordinary civil actions versus
writ of attachment special civil actions
b. Requisites 3. Jurisdiction and venue
c. Issuance and contents of
order of attachment; affidavit 4. Interpleader
and bond a. Requisites for interpleader
d. Rule on prior or b. When to file
contemporaneous service of
summons 5. Declaratory Reliefs and Similar
e. Manner of attaching real Remedies
and personal property; when a. Who may file the action
property attached is claimed b. Requisites of action for
by third person declaratory relief
f. Discharge of attachment c. When court may refuse to
and the counter-bond make judicial declaration
g. Satisfaction of judgment d. Conversion to ordinary
out of property attached action
e. Proceedings considered as
4. Preliminary Injunction similar remedies
a. Definitions and Differences: A. Reformation of an
Preliminary Injunction and instrument
Temporary Restraining Order B. Consolidation of
b. Requisites ownership
c. Kinds of Injunction C. Quieting of title to
d. When writ may be issued real property
e. Grounds for issuance of
preliminary injunction 6. Review of Judgments and Final
f. Grounds for objection to, or Orders or Resolution of the COMELEC
for the dissolution of and COA
injunction or restraining order a. Application of Rule 65
g. Duration of TRO under Rule 64
h. In relation to RA 8975, Ban b. Distinction in the
on issuance of TRO or Writ of application of Rule 65 to
Injunction in cases involving judgments of the COMELEC
government infrastructure and COA and the application
projects of Rule 65 to other tribunals,
i. Rule on prior or persons and officers
contemporaneous service of
summons in relation to 7. Certiorari, Prohibition and
attachment Mandamus
a. Definitions and distinctions
5. Receivership b. Requisites
c. When petition for certiorari, a. Judgment on foreclosure

prohibition and mandamus is for payment or sale
proper b. Sale of mortgaged
d. Injunctive relief property; effect
e. Certiorari distinguished c. Disposition of proceeds of
from Appeal by Certiorari; sale
Prohibition and Mandamus d. Deficiency judgment
distinguished from Injunction; (1) Instances when
when and where to file court cannot render
petition deficiency judgment
f. Exceptions to filing of e. Judicial foreclosure versus
motion for reconsideration extrajudicial foreclosure
before filing petition f. Equity of redemption versus
g. Reliefs petitioner is entitled right of redemption
to
h. Actions/Omissions of 11. Partition
MTC/RTC in election cases a. Who may file complaint;
i. Where to file petition who should be made defendants
j. Effects of filing of an b. Matters to allege in the
unmeritorious petition complaint for partition
c. Two (2) stages in every
8. Quo Warranto action for partition
a. Distinguish from Quo d. Order of partition and
Warranto in the Omnibus partition by agreement
Election Code e. Partition by commissioners;
b. When government Appointment of
commence an action against commissioners,
individuals Commissioner’s report; Court
c. When individual may action upon commissioner’s
commence an action report
d. Judgment in Quo Warranto f. Judgment and its effects
action g. Partition of personal
e. Rights of a person property
adjudged entitled to public h. Prescription of action
office
12. Forcible Entry and Unlawful
9. Expropriation Detainer
a. Matters to allege in a. Definitions and Distinction
complaint for expropriation b. Distinguished from accion
b. Two stages in every action publiciana and accion
for expropriation reinvindicatoria
c. When plaintiff can c. How to determine
immediately enter into jurisdiction in accion
possession of the real publiciana and accion
property, in relation to RA reinvindicatoria
8974 d. Who may institute the
d. New system of immediate action and when; against
payment of initial just whom the action may be
compensation maintained
e. Defenses and objections e. Pleadings allowed
f. Order of Expropriation f. Action on the complaint
g. Ascertainment of just g. When demand is necessary
compensation h. Preliminary injunction and
h. Appointment of preliminary mandatory
Commissioners; injunction
Commissioner’s report; Court i. Resolving defense of
action upon commissioner’s ownership
report j. How to stay the immediate
i. Rights of plaintiff upon execution of judgment
judgment and payment k. Summary procedure,
j. Effect of recording of prohibited pleadings
judgment
13. Contempt
10. Foreclosure of Real Estate a. Kinds of contempt
Mortgage b. Purpose and nature of each
c. Remedy against direct

contempt; penalty F. Claims Against the Estate
d. Remedy against indirect 1. Time within which claims shall be
contempt; penalty filed; exceptions
e. How contempt proceedings 2. Statute of Non-claims
are commenced 3. Claim of Executor or administrator
f. Acts deemed punishable as against the Estate
indirect contempt 4. Payment of Debts
g. When imprisonment shall
be imposed G. Actions by and against Executors and
h. Contempt against quasi- Administrators
judicial bodies 1. Actions that may be brought
against executors and administrators
IV. Special Proceedings 2. Requisites before creditor may
bring an action for recovery of
A. Settlement of Estate of Deceased Persons, property fraudulently conveyed by
Venue and Process the deceased
1. Which court has jurisdiction
2. Venue in judicial settlement of H. Distribution and Partition
estate 1. Liquidation
3. Extent of jurisdiction of Probate 2. Project of Partition
Court 3. Remedy of an heir entitled to
4. Powers and Duties of Probate Court residue but not given his share
4. Instances when probate court may
B. Summary Settlement of Estates issue writ of execution
1. Extrajudicial settlement by
agreement between heirs, hen I. Trustees
allowed 1. Distinguished from
2. Two-year prescriptive period executor/administrator
3. Affidavit of Self-adjudication by 2. Conditions of the Bond
sole heir 3. Requisites for the removal and
4. Summary settlement of estates of resignation of a trustee
small value, when allowed 4. Grounds for removal and
5. Remedies of aggrieved parties resignation of a trustee
after extra-judicial settlement of 5. Extent of authority of trustee
estate
J. Escheat
C. Production and Probate of Will 1. When to file
1. Nature of probate proceeding 2. Requisites for filing of petition
2. Who may petition for probate; 3. Remedy of respondent against
persons entitled to notice petition; period for filing a claim
D. Allowance or Disallowance of Will K. Guardianship

1. Contents of petition for allowance 1. General powers and duties of
of will guardians
2. Grounds for disallowing a will 2. Conditions of the bond of the
3. Reprobate; Requisites before will guardian
proved outside allowed in the 3. Rule on Guardianship over minor
Philippines; effects of probate
L. Adoption
E. Letters Testamentary and of 1. Distinguish domestic adoption from
Administration inter-country adoption
1. When and To whom letters of 2. Domestic Adoption Act
administration granted a. effects of adoption
2. Order of preference b. instances when adoption
3. Opposition to issuance of letters may be rescinded
testamentary; simultaneous filing of c. effects of rescission of
petition for administration adoption
4. Powers and duties of Executors 3. Inter-country Adoption
and Administrators; restrictions on a. when allowed
the powers b. functions of the RTC
5. Appointment of Special c. "best interest of the minor"
Administrator standard
6. Grounds for removal of
administrator M. Writ of Habeas Corpus
1. Contents of the petition 1. Judgments and orders for which

2. Contents of the Return appeal may be taken
3. Distinguish peremptory writ from 2. When to appeal
preliminary citation 3. Modes of appeal
4. When not proper/applicable 4. Rule on Advance Distribution
5. When writ disallowed/discharged
6. Distinguish from writ of Amparo
and Habeas Data V. Criminal Procedure
7. Rules on Custody of Minors and
Writ of Habeas Corpus in Relation to A. General Matters
Custody of Minors (AM No. 03-04-04- 1. Distinguish Jurisdiction over subject
SC) matter from jurisdiction over person
of the accused
N. Writ of Amparo (AM No. 07-9-12-SC) 2. Requisites for exercise of criminal
1. Coverage jurisdiction
2. Distinguish from habeas corpus 3. Jurisdiction of Criminal courts
and habeas data 4. When injunction may be issued to
3. Differences between Amparo and restrain criminal prosecution
search warrant
4. Who may file B. Prosecution of Offenses
5. Contents of return 1. Criminal actions, how instituted
6. Effects of failure to file return 2. Who may file them, crimes that
7. Omnibus waiver rule cannot be prosecuted de officio
8. Procedure for hearing 3. Criminal actions, when enjoined
9. Institution of separate action 4. Control of prosecution
10. Effect of filing of a criminal action 5. Sufficiency of Complaint or
11. Consolidation Information
12. Interim reliefs available to 6. Designation of Offense
petitioner and respondent 7. Cause of the Accusation
13. Quantum of proof in application 8. Duplicity of the Offense; Exception
for issuance of writ of Amparo 9. Amendment or Substitution of
complaint or information
O. Writ of Habeas Data (AM No. 08-1-16-SC) 10. Venue of criminal actions
1. Scope of writ 11. Intervention of offended party
2. Availability of writ
3. Distinguish from Habeas Corpus C. Prosecution of Civil Action
and Amparo 1. Rule on implied institution of civil
4. Who may file action with criminal action
5. Contents of the petition 2. When civil action may proceed
6. Contents of return independently
7. Instances when petition be heard 3. When separate civil action is
in chambers suspended
8. Consolidation 4. Effect of the death of accused or
9. Effect of filing of a criminal action convict on civil action
10. Institution of separate action 5. Prejudicial Question
11. Quantum of proof in application 6. Rule on Filing Fees in civil action
for issuance of writ of Amparo deemed instituted with the criminal
action
P. Change of Name
1. Differences under Rule 103, RA D. Preliminary Investigation
9048 and Rule 108 1. Nature of right
2. Grounds for change of name 2. Purposes of preliminary
investigation
Q. Absentees 3. Who may conduct determination of
1. Purpose of the Rule existence of probable cause
2. Who may file; when to file 4. Resolution of investigation
prosecutor
R. Cancellation or Correction of Entries in the 5. Review
Civil Registry 6. When warrant of arrest may issue
1. Entries subject to cancellation or 7. Cases not requiring a preliminary
correction under Rule 108, in relation to RA investigation
9048 8. Remedies of accused if there was
no preliminary investigation
S. Appeals in Special Proceeding 9. Inquest
E. Arrest 2. What the court should do when

1. Arrest, how made prosecution and offended party agree
2. Arrest without warrant, when to the plea offered by the accused
lawful 3. Pre-trial agreement
3. Method of arrest 4. Non-appearance during pre-trial
a. by officer with warrant 5. Pre-trial order
b. by officer without warrant 6. Referral of some cases for Court
c. by private person Annexed Mediation and Judicial
4. Requisites of a valid warrant of Dispute Resolution
arrest
5. Determination of Probable Cause K. Trial
for issuance of warrant of arrest 1. Instances when presence of
6. Distinguish probable cause of fiscal accused is required by law
from that of a judge 2. Requisite before trial can be
suspended on account of absence of
F. Bail witness
1. Nature 3. Trial in Absentia
2. When a matter of right; exceptions 4. Remedy when accused is not
3. When a matter of discretion brought to trial within the prescribed
4. Hearing of application for bail in period
capital offenses 5. Requisites for discharge of accused
5. Guidelines in fixing amount of bail to become a state witness
6. Bail when not required 6. Effects of Discharge of accused as
7. Increase or Reduction of Bail state witness
8. Forfeiture and Cancellation of bail 7. Demurrer to Evidence
9. Application not a bar to objections
in illegal arrest, lack of or irregular L. Judgment
preliminary investigation 1. Requisites of a judgment
10. Hold Departure Order & Bureau of 2. Contents of Judgment
Immigration Watchlist 3. Promulgation of judgment;
instances of promulgation of
G. Rights of the Accused judgment in absentia
1. Rights of accused at the trial 4. When does judgment become final
2. Rights of persons under Custodial (four instances)
Investigation
M. New Trial or Reconsideration
H. Arraignment and Plea 1. Grounds for New Trial
1. Arraignment and Plea, how made 2. Grounds for Reconsideration
2. When should plea of NOT GUILTY 3. Requisites before a new trial may
be entered be granted on ground of newly
3. When may accused enter a plea of discovered evidence
guilty to a lesser offense 4. Effects of granting a new trial or
4. Accused plead guilty to capital reconsideration
offense, what the court should do 5. Application of Neypes Doctrine in
5. Searching Inquiry Criminal Cases
6. Improvident plea
7. Grounds for suspension of N. Appeal
arraignment 1. Effect of an Appeal
2. Where to appeal
I. Motion to Quash 3. How appeal taken
1. Grounds 4. Effect of appeal by any of several
2. Distinguish from demurrer to accused
evidence 5. Grounds for dismissal of appeal
3. Effects of sustaining the motion to
quash O. Search and Seizure
4. Exception to the rule that 1. Nature of search warrant
sustaining the motion is not a bar to 2. Distinguish from warrant of arrest
another prosecution 3. Application for search warrant,
5. Double Jeopardy where filed
6. Provisional Dismissal 4. Probable Cause
5. Personal examination by judge of
J. Pre-trial the applicant and witnesses
1. Matters to be considered during 6. Particularity of place to be
pre-trial searched and things to be seized
7. Personal property to be seized
8. Exceptions to search warrant a. Effect of judicial admissions

requirement b. How judicial admissions
a. Search incidental to lawful may be contradicted
arrest 4. Judicial Notice of Foreign Laws, Law
b. Consented Search of Nations and Municipal Ordinance
c. Search of moving vehicle
d. Check points; body checks C. Object (Real) Evidence
in airport 1. Nature of Object Evidence
e. Plain view situation 2. Requisites for Admissibility
f. Stop and Frisk situation 3. Categories of Object Evidence
g. Enforcement of Custom 4. Demonstrative Evidence
Laws 5. View of an Object or Scene
9. Remedies from unlawful search 6. Chain of Custody in Relation to
and seizure Section 21 of the Comprehensive
Dangerous Drugs Act of 2002
P. Provisional Remedies 7. Rule on DNA Evidence (A.M. No.
1. Nature 06-11-5-SC)
2. Kinds of provisional remedies a. Meaning of DNA
b. Applicable for DNA testing
VI. Evidence order
c. Post-conviction DNA
A. General Principles testing; remedy
1. Concept of Evidence d. Assessment of probative
2. Scope of the Rules of Evidence value of DNA evidence and
3. Evidence in Civil Cases Versus admissibility
Evidence in Criminal Cases1avvphi1 e. Rules on evaluation of
4. Proof Versus Evidence reliability of the DNA testing
5. Factum Probans Versus Factum Methodology
Probandum
6. Admissibility of Evidence D. Documentary Evidence
a. Requisites for admissibility 1. Meaning of Documentary Evidence
of evidence 2. Requisites for Admissibility
b. Relevance of evidence and 3. Best Evidence Rule
collateral matters a. Meaning of the rule
c. Multiple admissibility b. When applicable
d. Conditional admissibility c. Meaning of original
e. Curative admissibility d. Requisites for introduction
f. Direct and circumstantial of secondary evidence
evidence 4. Rules on Electronic Evidence (A.M.
g. Positive and negative No. 01-7-01-SC)
evidence a. Meaning of electronic
h. Competent and credible evidence; electronic data
evidence massage
7. Burden of Proof and Burden of b. Probative value of
Evidence electronic documents or
8. Presumptions evidentiary weight; method of
a. Conclusive presumptions proof
b. Disputable presumptions c. Authentication of electronic
9. Liberal Construction of the Rules of documents and electronic
Evidence signatures
10. Quantum of Evidence (Weight d. Electronic documents and
And Sufficiency of Evidence) the hearsay rule
a. Proof beyond reasonable e. Audio, photographic, video
doubt and ephemeral evidence
b. Preponderance of evidence 5. Parol Evidence Rule
c. Substantial evidence a. Application of the parol
d. Clear and convincing evidence rule
evidence b. When parole evidence can
be introduced
B. Judicial Notice and Judicial Admissions c. Distinctions between the
1. What Need Not be Proved best evidence rule and parol
2. Matters of Judicial Notice evidence rule
a. Mandatory 6. Authentication and Proof of
b. Discretionary Documents
3. Judicial Admissions a. Meaning of authentication
b. Public and private c. Leading and misleading

documents questions
c. When a private writing d. Methods of impeachment
requires authentication; proof of adverse party’s witness
of a private writing e. How the witness is
d. When evidence of impeached by evidence of
authenticity of a private inconsistent statements
writing is not required (laying the predicate)
(ancient documents) f. Evidence of the good
e. How to prove genuineness character of a witness
of a handwriting 5. Admissions and Confessions
f. Public documents as a. Res inter alios acta rule
evidence; proof of official b. Admission by a party
record c. Admission by a third party
g. Attestation of a copy d. Admission by a co-partner
h. Public record of a public or agent
document e. Admission by a conspirator
i. Proof of lack of record f. Admission by privies
j. How a judicial record is g. Admission by silence
impeached h. Confessions
k. Proof of notarial documents i. Similar acts as evidence
l. How to explain alterations 6. Hearsay Rule
in a document a. Meaning of hearsay
m. Documentary evidence in b. Reason for exclusion of
an unofficial language hearsay evidence
c. Exceptions to the hearsay
E. Testimonial Evidence rule
1. Qualifications of a Witness (1) Dying declaration
2. Competency Versus Credibility of a (2) Declaration
Witness against interest
3. Disqualifications of Witnesses (3) Act or declaration
a. Disqualification by reason about pedigree
of mental capacity or (4) Family reputation
immaturity or tradition regarding
b. Disqualification by reason pedigree
of marriage (5) Common
c. Disqualification by reason reputation
of death or insanity of (6) Part of the res
adverse party gestae
d. Disqualification by reason (7) Entries in the
of privileged communications course of business
(1) Husband and wife (8) Entries in official
(2) Attorney and records
client (9) Commercial lists
(3) Physician and and the like
patient (10) Learned treaties
(3) and penitent (11) Testimony or
(4) Public officers deposition at a former
Parental and filial privilege trial1avvphi1
rule 7. Opinion Rule
4. Examination of a Witness a. Opinion of expert witness
a. Rights and obligations of a b. Opinion of ordinary witness
witness 8. Character Evidence
b. Order in the examination of a. Criminal cases
an individual witness b. Civil cases
(1) Direct 9. Rule on Examination of a Child
examination Witness (A.M. No. 004-07-SC)
(2) Cross examination a. Applicability of the rule
(3) Re-direct b. Meaning of "child witness"
examination c. Competency of a child
(4) Re-cross witness
examination d. Examination of a child
(5) Recalling the witness
witness e. Live-link TV testimony of a
child witness
f. Videotaped deposition of a 1. Prohibition against Temporary

child witness Restraining Order and Preliminary
g. Hearsay exception in child Injunction
abuse cases 2. Pre-trial Conference; Consent
h. Sexual abuse shield rule Decree
i. Protective orders 3. Prohibited Pleadings and Motions
4. Temporary Environmental
F. Offer and Objection Protection Order (TEPO)
1. Offer of Evidence 5. Judgment and Execution; Reliefs in
2. When to Make an Offer a citizen’s suit
3. Objection 6. Permanent Environmental
4. Repetition of an Objection Protection Order; Writ of continuing
5. Ruling mandamus
6. Striking Out of an Answer 7. Strategic Lawsuit against Public
7. Tender of Excluded Evidence Participation
G. Supreme Court Rulings as of December C. Special Proceedings

2010 1. Writ of Kalikasan
2. Prohibited pleadings and motions
VII. Revised Rules on Summary Procedure 3. Discovery measures
A. Cases covered by the Rule 4. Writ of Continuing Mandamus
B. Effect of failure to answer
C. Preliminary conference and appearances of D. Criminal Procedure
parties 1. Who may file
2. Institution of criminal and civil
VIII. Katarungang Pambarangay action
A. Cases covered 3. Arrest without warrant, when valid
B. Subject matter for amicable settlement 4. Procedure in the custody and
C. Venue disposition of seized items
D. When parties may directly go to court 5. Bail
E. Execution 6. Arraignment and Plea
F. Repudiation 7. Pre-trial
8. Subsidiary liabilities
IX. Rule of Procedure for Small Claims Cases
(AM No. 08-8-7-SC) E. Evidence
A. Scope and applicability of the Rule 1. Precautionary principle
B. Commencement of small claims action; 2. Documentary evidence
Response
C. Prohibited pleadings and motions IMPORTANT NOTE: This bar coverage description is
D. Appearances not intended and should not be used by law schools
E. Hearing; duty of the judge as a syllabus or course outline in the covered
F. Finality of judgment subjects. It has been drawn up for the limited purpose
of ensuring that candidates reviewing for the bar
X. Rules of Procedure for Environmental Cases examinations are guided on what basic and minimum
(AM No. 09-6-8-SC) amounts of laws, doctrines, and principles they need
A. Scope and Applicability of the Rule to know and be able to use correctly before they can
be licensed to practice law. More is required for
B. Civil Procedure excellent and distinguished work as members of the
Bar.
CIVIL PROCEDURE
Rules 1 – 71
prescribes the punishment for committing them,

as distinguished from remedial law which
GENERAL PRINCIPLES
provides or regulates the steps by which one
who commits a crime is to be punished.
CONCEPT OF REMEDIAL LAW RULE-MAKING POWER OF THE SUPREME

COURT
Remedial Law is that branch of law which
prescribes the method of enforcing rights or Section 5 (5), Art. VIII of the Constitution
obtaining redress for their invasion. provides that the Supreme Court shall have the
power to:
a. promulgate rules concerning the
protection and enforcement of
SUBSTANTIVE LAW AS DISTINGUISHED constitutional rights, pleading, practice,
FROM REMEDIAL LAW and procedure in all courts;
b. admission to the practice of law;
Substantive law creates, defines and c. the Integrated Bar;
regulates rights and duties regarding life, liberty d. and legal assistance to the
or property which when violated gives rise to a underprivileged
cause of action.
Remedial law prescribes the methods of

enforcing those rights and obligations created
by substantive law by providing a procedural
system for obtaining redress for the invasion of LIMITATIONS OF THE RULE-MAKING POWER
rights and violations of duties and by OF THE SUPREME COURT
prescribing rules as to how suits are filed, tried
and decided by the courts. 1) The rules shall provide a simplified and
inexpensive procedure for the speedy
As applied to criminal law, substantive law is disposition of cases
that which declares what acts are crimes and
2) They shall be uniform for all courts of the a. It is an organ of government belonging
same grade to the judicial department the function of
3) They shall not diminish, increase, or which is the application of the laws to
modify substantive rights. the controversies brought before it as
4) The power to admit attorneys to the Bar well as the public administration of
is not an arbitrary and despotic one but justice.
is the duty of the court to exercise and b. It is a governmental body officially
regulate it by a sound and judicial assembled under authority of law at the
discretion. appropriate time and place for the
administration of justice through which
 Rules of procedure of special courts and the State enforces its sovereign rights
quasi-judicial bodies shall remain and powers.
effective unless disapproved by the c. It is a board or tribunal which decides a
Supreme Court. litigation or contest.
POWER OF THE SUPREME COURT TO COURT DISTINGUISHED FROM JUDGE

AMEND AND SUSPEND PROCEDURAL RULES
a) A court is a tribunal officially assembled
When compelling reasons so warrant or when under authority of law; a judge is simply an
the purpose of justice requires it = discretionary officer of such tribunal;
upon courts. b) A court is an organ of the government with a
personality separate and distinct from the
Reasons that would warrant the suspension: person or judge who sits on it;
1) the existence of special or compelling c) A court is a being in imagination comparable
circumstances; to a corporation, whereas a judge is a
2) merits of the case; physical person;
3) cause not entirely attributable to the d) A court may be considered an office; a judge
fault or negligence of the party is a public officer; and
favored by the suspension of rules e) The circumstances of the court are not
4) a lack of showing that the review affected by the circumstances that would
sought is merely frivolous and affect the judge.
dilatory;
5) the other party will not be unjustly CLASSIFICATION OF PHILIPPINE COURTS
prejudiced thereby.
Regular courts engaged in the administration of
 Where substantial and important issues justice are organized into four (4) levels:
await resolution.
(a) First Level (MTCs, MeTCs, MCTCs) –
 When transcendental matters of life, liberty which try and decide
or state security are involved. (1) Criminal actions involving:
a. violations of city or municipal
 The constitutional power of the Supreme ordinances committed within their
Court to promulgate rules of practice and respective territorial jurisdiction; and
procedure necessarily carries with it the b. offenses punishable with
power to overturn judicial precedents on imprisonment not exceeding six (6)
points of remedial law through the years irrespective of the amount of
amendment of the Rules of Court. fine and regardless of other
imposable accessory or other
penalties, and
NATURE OF PHILIPPINE COURTS
(2) Civil actions including EJECTMENT
Philippine courts are both courts of law and CASES (FEUD) and recovery of personal
equity. Hence, both legal and equitable property with a value of not more than
jurisdiction is dispensed with in the same P300,000 outside MM or does not exceed
tribunal. P400,000 in MM;
WHAT IS A COURT (b) Second Level (RTCs, Family Courts)

 courts of general jurisdiction
 among the civil actions assigned criminal and civil cases committed by
to them by law are those in which public officers or employees including
the subject of litigation is those in GOCCs in relation to their
a. actions incapable of pecuniary office.
estimation
b. actions involving title to or (d) Fourth Level (Supreme Court)
possession of real property
where the assessed value of
the property exceeds
P20,000 outside MM or
exceeds P50,000 in MM.
c. where the demand exclusive COURTS OF ORIGINAL AND APPELLATE
of interest, damages of JURISDICTION
whatever kind, attorney’s
fees, litigation expenses, and A court is one with original jurisdiction when
cost, or the value of the actions or proceedings are originally filed with
personal property or it. A court is one with appellate jurisdiction when
controversy exceeds it has the power of review over the decisions or
P300,000 outside MM or orders of a lower court.
exceeds P400,000 in MM.
MeTCs, MCTCs and MTCs are courts of original
 exercise appellate jurisdiction jurisdiction without appellate jurisdiction. RTC is
likewise a court of original jurisdiction with
 Review cases appealed from
respect to cases originally filed with it; and
courts of the first level.
appellate court with respect to cases decided by
MTCs within its territorial jurisdiction. (Sec. 22,
(c) Third Level (Court of Appeals,
BP 129).
Sandiganbayan)
CA is an appellate court
CA is primarily a court of appellate jurisdiction
a. reviewing cases appealed to it from with competence to review judgments of the
the RTC on questions of fact or mixed
RTCs and specified quasi-judicial agencies (Sec.
questions of fact and law
9[3], BP 129). It is also a court of original
b. decisions of the RTC in the exercise jurisdiction with respect to cases filed before it
of original jurisdiction involving issuance of writs of certiorari,
i. as a matter of right mandamus, quo warranto, habeas corpus, and
ii. as a matter of discretion. prohibition. CA is a court of original and
exclusive jurisdiction over actions for annulment
Occasionally, CA may act as a trial court, of judgments of RTCs (Sec. 9 [1],[2], BP 129).
as in actions praying for the annulment
of final and executory judgments of RTCs The SC is fundamentally a court of appellate
on the ground of extrinsic fraud jurisdiction but it may also be a court of original
subsequently discovered, against which jurisdiction over cases affecting ambassadors,
no other remedies lies. public ministers and consuls, and in cases
involving petitions for certiorari, prohibition and
Sandiganbayan has jurisdiction mandamus (Sec. 5[1], Art. VIII, Constitution).
 over all criminal and civil cases The Supreme Court en banc is not an appellate
involving court to which decisions or resolutions of a
• graft and corrupt practices division of the Supreme Court may be appealed.
act
• such other offenses COURTS OF GENERAL AND SPECIAL
committed by public officers JURISDICTION
and employees including
those in GOCCs in relation to Courts of general jurisdiction are those with
their office. competence to decide on their own jurisdiction
 It also has exclusive appellate and to take cognizance of all cases, civil and
jurisdiction over final judgments, criminal, of a particular nature. Courts of special
resolutions, or orders of RTCs (limited) jurisdiction are those which have only a
whether in the exercise of their own special jurisdiction for a particular purpose or
original or appellate jurisdiction over
are clothed with special powers for the with the task of deciding cases in the first
performance of specified duties beyond which instances. Its jurisdiction to issue extraordinary
they have no authority of any kind. writs should be exercised only where absolutely
necessary or where serious and important
A court may also be considered general if it has reasons exist.
the competence to exercise jurisdiction over
cases not falling within the jurisdiction of any The doctrine of hierarchy of courts may be
court, tribunal, person or body exercising disregarded if warranted by the nature and
judicial or quasi-judicial functions. It is in the importance of the issues raised in the interest of
context that the RTC is considered a court of speedy justice and to avoid future litigations, or
general jurisdiction. in cases of national interest and of serious
implications. Under the principle of liberal
CONSTITUTIONAL AND STATUTORY interpretations, for example, it may take
COURTS cognizance of a petition for certiorari directly
filed before it.
A constitutional court is one created by a direct
Constitutional provision. Example of this court is DOCTRINE OF NON-INTERFERENCE OR
the SC, which owes its creation from the DOCTRINE OF JUDICIAL STABILITY
Constitution itself. Only the SC is a
Constitutional court. Courts of equal and coordinate jurisdiction
cannot interfere with each other’s orders. Thus,
A statutory court is one created by law other the RTC has no power to nullify or enjoin the
than the Constitution. All courts except the SC enforcement of a writ of possession issued by
are statutory courts. SB was not directly created another RTC. The principle also bars a court
by the Constitution but by law pursuant to a from reviewing or interfering with the judgment
constitutional mandate. of a co-equal court over which it has no
appellate jurisdiction or power of review.
COURTS OF LAW
A court of law decides a case according to the This doctrine applies with equal force to
existing laws. administrative bodies. When the law provides
for an appeal from the decision of an
COURTS OF EQUITY administrative body to the SC or CA, it means
A court of equity adjudicates a controversy that such body is co-equal with the RTC and
according to the common precepts of what is logically beyond the control of the latter.
right and just without inquiring into the terms of
the statutes.
PRINCIPLE OF JUDICIAL HIERARCHY JURISDICTION
This is an ordained sequence of recourse to

courts vested with concurrent jurisdiction, Jurisdiction – the power and authority of the
beginning from the lowest, on to the next court to hear, try and decide a case.
highest and ultimately to the highest. This
hierarchy is determinative of the venue of JURISDICTION OVER THE PARTIES
appeals, and is likewise determinative of the
proper forum for petitions for extraordinary a) The manner by which the court acquires
writs. This is an established policy necessary to jurisdiction over the parties depends on
avoid inordinate demands upon the Court’s time whether the party is the plaintiff or the
and attention which are better devoted to those defendant
matters within its exclusive jurisdiction, and to b) Jurisdiction over the plaintiff is acquired by
preclude the further clogging of the Court’s his filing of the complaint or petition. By
docket (Sec. 9[1], BP 129; Sec. 5[1], Art. VIII, doing so, he submits himself to the
Constitution of the Philippines). jurisdiction of the court.
c) Jurisdiction over the person of the defendant
A higher court will not entertain direct resort to is obtained either by a valid service of
it unless the redress cannot be obtained in the summons upon him or by his voluntary
appropriate courts. The SC is a court of last submission to the court’s authority.
resort. It cannot and should not be burdened
d) The mode of acquisition of jurisdiction over authority to hear and determine cases to which
the plaintiff and the defendant applies to the proceeding is question belongs.
both ordinary and special civil actions like
mandamus or unlawful detainer cases. When a complaint is filed in court, the basic
questions that ipso facto are to be immediately
HOW JURISDICTION OVER PLAINTIFF IS resolved by the court on its own:
ACQUIRED a) What is the subject matter of their
 Acquired when the action is commenced complaint filed before the court?
by the filing of the complaint. This b) Does the court have jurisdiction over the
presupposes payment of the docket fees. said subject matter of the complaint
before it? Answering these questions
HOW JURISDICTION OVER DEFENDANT IS inevitably requires looking into the
ACQUIRED applicable laws conferring jurisdiction.
Jurisdiction over the person of the defendant is JURISDICTION VERSUS EXERCISE OF

required only in an action in personam; it is not JURISDICTION
a prerequisite in an action in rem and quasi in
rem. In an action in personam, jurisdiction over Jurisdiction is the power or authority of the
the person is necessary for the court to validly court. The exercise of this power or authority is
try and decide the case, while in a proceeding in the exercise of jurisdiction.
rem or quasi in rem, jurisdiction over the person
of the defendant is not a prerequisite to confer ERROR OF JURISDICTION VS. ERROR OF
jurisdiction on the court, provided the latter has JUDGMENT
jurisdiction over the res.
An ERROR OF JURISDICTION is one where the
By voluntary appearance of the defendant, act complained of was issued by the court
without service of summons or despite a without or in excess of jurisdiction. It occurs
defective service of summons. The defendant’s when the court exercises a jurisdiction not
voluntary appearance in the action shall be conferred upon it by law, or when the court or
equivalent to service of summons. tribunal although with jurisdiction, acts in
excess of its jurisdiction or with grave abuse of
Instances when appearance of defendant is not discretion amounting to lack or jurisdiction.
tantamount to voluntary submission to the
jurisdiction of the court: An ERROR OF JUDGMENT is one which the court
1) when defendant files the necessary may commit in the exercise of its jurisdiction. As
pleading; long as the court acts within its jurisdiction, any
2) when defendant files motion for alleged errors committed in the exercise of its
reconsideration of the judgment by discretion will amount to nothing more than
default; mere errors of judgment. Errors of judgment
3) when defendant files a petition to set include errors of procedure or mistakes in the
aside the judgment of default; court‘s findings.
4) when the parties jointly submit a
compromise agreement for approval of Errors of judgment are correctible by appeal;
the court; errors of jurisdiction are correctible only by the
5) when defendant files an answer to the extraordinary writ of certiorari. Any judgment
contempt charge; rendered without jurisdiction is a total nullity
6) when defendant files a petition for and may be struck down at any time, even on
certiorari without questioning the court’s appeal; the only exception is when the party
jurisdiction over his person. raising the issue is barred by estoppel.
JURISDICTION OVER THE SUBJECT MATTER HOW JURISDICTION IS CONFERRED AND

DETERMINED
It is the power to deal with the general subject
involved in the action, and means not simply Jurisdiction is a matter of substantive law
jurisdiction of the particular case then because it is conferred by law. This jurisdiction
occupying the attention of the court but which is a matter of substantive law should be
jurisdiction of the class of cases to which the construed to refer only to jurisdiction over the
particular case belongs. It is the power or subject matter. Jurisdiction over the parties, the
issues and the res are matters of procedure. amend, modify or alter the judgment. Even after
The test of jurisdiction is whether the court has the judgment has become final, the court
the power to enter into the inquiry and not retains jurisdiction to enforce and execute it.
whether the decision is right or wrong.
OBJECTION TO JURISDICTION OVER THE
It is the duty of the court to consider the SUBJECT MATTER
question of jurisdiction before it looks at other
matters involved in the case. If the court finds When it appears from the pleadings or evidence
that it has jurisdiction, it is the duty of the court on record that the court has no jurisdiction over
to exercise the jurisdiction conferred upon it by the subject matter, the court shall dismiss the
law and to render a decision in a case properly same. (Sec. 1, Rule 9). The court may on its
submitted to it. It cannot decline to exercise its OWN INITIATIVE object to an erroneous
jurisdiction. Failure to do so may be enforced by jurisdiction and may ex mero motu take
way of mandamus proceeding. cognizance of lack of jurisdiction at any point in
the case and has a clearly recognized right to
 Note: Jurisdiction over the subject matter determine its own jurisdiction.
is conferred by substantive law which
may either be a Constitution or statute; Jurisdiction over the subject matter may be
while jurisdiction over the subject matter raised at any stage of the proceedings, even for
is determined by the allegations of the first time on appeal. When the court
the complaint regardless of whether or dismisses the complaint for lack of jurisdiction
not the plaintiff is entitled to the claims over the subject matter, it is common reason
asserted therein. that the court cannot remand the case to
another court with the proper jurisdiction. Its
DOCTRINE OF PRIMARY JURISDICTION only power is to dismiss and not to make any
other order.
Courts will not resolve a controversy involving a
question which is within the jurisdiction of an EFFECT OF ESTOPPEL ON OBJECTION TO
administrative tribunal, especially where the JURISDICTION
question demands the exercise of sound
administrative discretion requiring the special The active participation of a party in a case is
knowledge, experience and services of the tantamount to recognition of that court’s
administrative tribunal to determine technical jurisdiction and will bar a party from impugning
and intricate matters of fact. the court’s jurisdiction. The general rule
remains: a court’s lack of jurisdiction may be
The objective is to guide a court in determining raised at any stage of the proceedings even on
whether it should refrain from exercising its appeal. The Sibonghanoy applies only to
jurisdiction until after an administrative agency exceptional circumstances.
has determined some question or some aspect
of some question arising in the proceeding Doctrine of estoppels by laches (in relation
before the court. to objections to jurisdiction) = the SC barred a
belated objection to jurisdiction that was raised
DOCTRINE OF ADHERENCE OF only after an adverse decision was rendered by
JURISDICTION / CONTINUITY OF the court against the party raising the issue of
JURISDICTION jurisdiction and after seeking affirmative relief
from the court and after participating in all
Once a court has acquired jurisdiction, that stages of the proceedings.
jurisdiction continues until the court has done all
that it can do in the exercise of that jurisdiction. The SC frowns upon the undesirable practice of
This principle also means that once jurisdiction submitting one’s case for decision, and then
has attached, it cannot be ousted by accepting the judgment only if favorable, but
subsequent happenings or events and retains attacking it for lack of jurisdiction if it is not.
that jurisdiction until it finally disposes of the
case. JURISDICTION OVER THE ISSUES
Even the finality of the judgment does not It is the power of the court to try and decide
totally deprive the court of jurisdiction over the issues raised in the pleadings of the parties.
case. What the court loses is the power to
An issue is a disputed point or question to which Petitions for certiorari, prohibition and
parties to an action have narrowed down their mandamus against CA and
several allegations and upon which they are Sandiganbayan
desirous of obtaining a decision. Where there is
no disputed point, there is no issue. CONCURRENT JURISDICTION
a) With the CA and RTC: petitions
Generally, jurisdiction over the issues is for certiorari, prohibition and
conferred and determined by the pleadings of mandamus against the MTC
the parties. The pleadings present the issues to b) With the CA: petitions for
be tried and determine whether or not the certiorari, prohibition and mandamus
issues are of fact or law. against the RTC
a) may also be determined and conferred c) with Sandiganbayan: petitions for
by stipulation of the parties as when in mandamus, prohibition, certiorari,
the pre-trial, the parties enter into habeas corpus, injunction and
stipulations of facts and documents or ancillary writs in aid of its appellate
enter into agreement simplifying the jurisdiction and over petitions of
issues of the case. similar nature, including quo
b) may also be conferred by waiver or warranto arising or that may arise in
failure to object to the presentation of cases filed or which may be filed.
evidence on a matter not raised in the
pleadings. Here the parties try with their APPELLATE JURISDICTION
express or implied consent or issues not a) from the RTC in all criminal cases
raised by the pleadings. The issues tried involving offenses for which the
shall be treated in all respects as if they penalty is reclusion perpetua or life
had been raised in the pleadings. imprisonment, and those involving
other offenses which, although not so
JURISDICTION OVER THE RES OR PROPERTY punished, arose out of the same
IN LITIGATION occurrence or which may have been
committed by the accused on the
Jurisdiction over the res refers to the court’s same occasion;
jurisdiction over the thing or the property which b) Automatic review where death
is the subject of the action. penalty is imposed.
c) By petition for review on
Jurisdiction over the res may be acquired by the Certiorari from the CA,
court Sandiganbayan and from the RTC
1) by placing the property or thing under its where only error or question of law is
custody (custodia legis) (the seizure of involved
the thing under legal process whereby it
is brought into actual custody of law).  Note: In PP vs. Mateo (2004), the SC held
Example: attachment of property. that while the Fundamental Law requires a
2) through statutory authority conferring mandatory review by the SC of cases where
upon it the power to deal with the the penalty imposed is reclusion perpetua,
property or thing within the court’s life imprisonment or death, nowhere
territorial jurisdiction (institution of a however, has it proscribed an intermediate
legal proceeding wherein the power of review. If only to ensure utmost
the court over the thing is recognized circumspection before the penalty of
and made effective). Example: suits reclusion perpetua, life imprisonment or
involving the status of the parties or death is imposed, the Court now deems it
suits involving the property in the wise and compelling to provide in these
Philippines of non-resident defendants. cases a review by the CA before the case is
elevated to the SC. A prior determination by
the CA on, particularly, the factual issues,
JURISDICTION OF THE SUPREME COURT
would minimize the possibility of an error of
judgment. If the CA should affirm the
CRIMINAL CASES penalty of reclusion perpetua, life
imprisonment or death, it could then render
EXCLUSIVE ORIGINAL JURISDICTION judgment imposing the corresponding
penalty as the circumstances so warrant,
refrain from entering judgment and elevate b) When the inference made is manifestly
the entire records of the case to the SC for mistaken, absurd or impossible;
final disposition. c) When there is grave abuse of discretion;
d) When the judgment is based on
CIVIL CASES misapprehension of facts;
e) When the findings of facts are
EXCLUSIVE ORIGINAL JURISDICTION in conflicting;
petitions for certiorari, prohibition and f) When in making its findings the CA went
mandamus against the CA, COMELEC, COA, beyond the issues of the case, or its
CTA, Sandiganbayan findings are contrary to the admissions
of both the appellant and the appellee;
CONCURRENT JURISDICTION g) When the findings are contrary to the
trial court;
1) With Court of Appeals in petitions for h) When the findings are conclusions
certiorari, prohibition and mandamus without citation of specific evidence on
against the RTC, CSC, Central Board of which they are based;
Assessment Appeals, NLRC, Quasi-judicial i) When the facts set forth in the petition
agencies, and writ of kalikasan, all subject to as well as in the petitioner‘s main and
the doctrine of hierarchy of courts. reply briefs are not disputed by the
2) With the CA and RTC in petitions for respondent;
certiorari, prohibition and mandamus j) When the findings of fact are premised
against lower courts and bodies and in on the supposed absence of evidence
petitions for quo warranto, and writs of and contradicted by the evidence on
habeas corpus, all subject to the doctrine of record; and
hierarchy of courts. k) When the Court of Appeals manifestly
overlooked certain relevant facts not
3) With CA, RTC and Sandiganbayan for
disputed by the parties, which, if
petitions for writs of amparo and habeas
properly considered, could justify a
data
different conclusion.
4) Concurrent original jurisdiction with the RTC
in cases affecting ambassadors, public
ministers and consuls. JURISDICTION OF THE COURT OF APPEALS
(69 Justices)
APPELLATE JURISDICTION
1) by way of petition for review on CRIMINAL CASES
certiorari (appeal by certiorari
under Rule 45) against CA, EXCLUSIVE ORIGINAL JURISDICTION
Sandiganbayan, RTC on pure a) Actions for annulment of judgment of the
questions of law and CTA in its RTCs
decisions rendered en banc. b) Crimes of Terrorism under Human
2) in cases involving the Security Act of 2007
constitutionality or validity of a law or
treaty, international or executive CONCURRENT ORIGINAL JURISDICTION
agreement, law, presidential decree,
a) With the SC: petitions for certiorari,
proclamation, order, instruction,
prohibition and mandamus against the RTC
ordinance or regulation, legality of a
tax, impost, assessment, toll or
b) With the SC and RTC: petitions for
certiorari, prohibition and mandamus
penalty, jurisdiction of a lower court;
against the MTC
and
3) all cases in which the jurisdiction of
APPELLATE JURISDICTION
any court is in issue;
4) all cases in which an error or
question of law is involved  Notice of Appeal:
a) From the RTC in the exercise of
Exceptions in which factual issues may be its original jurisdiction, except those
resolved by the Supreme Court: appealable to the Sandiganbayan
a) When the findings are grounded entirely b) From the RTC where penalty
on speculation, surmises or conjectures; imposed is reclusion perpetua or life
imprisonment or where a lesser
penalty is imposed but for offenses the Ombudsman in administrative

committed on the same occasion or disciplinary cases.
which arose out of the same 4) over decisions of MTCs in cadastral or
occurrence that gave rise to the more land registration cases pursuant to its
serious offense for which the penalty delegated jurisdiction; this is because
of death, reclusion perpetua or life decisions of MTCs in these cases are
imprisonment is imposed (Sec. 3, appealable in the same manner as
Rule 122 as amended by AM No. 00- decisions of RTCs.
5-03-SC).
 Note: There is no action to annul the
 Automatic Review (i.e. no notice of decision of the CA.
appeal is necessary) from the RTC in cases
wherein the death penalty is imposed.
JURISDICTION OF THE COURT OF TAX
APPEALS (UNDER RA 9282 AND RULE 5, AM
 Petition for Review from the RTC in 05
cases appealed thereto from the lower 11 07CTA)
courts and not appealable to the
Sandiganbayan.
EXCLUSIVE ORIGINAL OR APPELLATE
CIVIL CASES JURISDICTION TO REVIEW BY APPEAL
EXCLUSIVE ORIGINAL JURISDICTION 1) Decisions of CIR in cases involving disputed

 in actions for the annulment of the assessments, refunds of internal revenue
judgments of the RTC. taxes, fees or other charges, penalties in
relation thereto, or other matters arising
CONCURRENT ORIGINAL JURISDICTION under the NIRC or other laws administered
by BIR;
1) With SC to issue writs of certiorari,
prohibition and mandamus against the 2) Inaction by CIR in cases involving disputed
RTC, CSC, CBAA, other quasi-judicial assessments, refunds of IR taxes, fees or
agencies mentioned in Rule 43, and the other charges, penalties in relation thereto,
NLRC (however, this should be filed first or other matters arising under the NIRC or
with the CA as per St. Martin Funeral other laws administered by BIR, where the
Home case), and writ of kalikasan. NIRC or other applicable law provides a
specific period of action, in which case the
2) With the SC and RTC to issue writs of
inaction shall be deemed an implied denial;
certiorari, prohibition and mandamus
(CPM) against lower courts and bodies 3) Decisions, orders or resolutions of the RTCs
and writs of quo warranto, habeas in local taxes originally decided or resolved
corpus, whether or not in aid of its by them in the exercise of their original or
appellate jurisdiction, and writ of appellate jurisdiction;
continuing mandamus on environmental 4) Decisions of the Commissioner of Customs
cases. a. in cases involving liability for customs
3) With SC, RTC and Sandiganbayan for duties, fees or other charges, seizure,
petitions for writs of amparo and habeas detention or release of property
data where the action involves public affected, fines, forfeitures or other
data or government office penalties in relation thereto, or
b. other matters arising under the
EXCLUSIVE APPELLATE JURISDICTION Customs law or other laws, part of
laws or special laws administered by
1) by way of ordinary appeal from the RTC
BOC;
and the Family Courts.
5) Decisions of the Central Board of
2) by way of petition for review from the
Assessment Appeals in the exercise of its
RTC rendered by the RTC in the exercise
appellate jurisdiction over cases involving
of its appellate jurisdiction.
the assessment and taxation of real property
3) by way of petition for review from the originally decided by the provincial or city
decisions, resolutions, orders or awards board of assessment appeals;
of the CSC, CBAA and other bodies
6) Decision of the secretary of Finance on
mentioned in Rule 43 and of the Office of
customs cases elevated to him automatically
for review from decisions of the
Commissioner of Customs which are adverse originally decided by the MeTCs, MTCs
to the government under Sec. 2315 of the and MCTCs in their respective
Tariff and Customs Code; jurisdiction.
7) Decisions of Secretary of Trade and Industry
in the case of non-agricultural product, JURISDICTION OF THE SANDIGANBAYAN
commodity or article, and the Secretary of
Agriculture in the case of agricultural
product, commodity or article, involving ORIGINAL JURISDICTION in all cases involving
dumping duties and counterveiling duties
under Secs. 301 and 302, respectively, of 1) Violations of RA 3019 (Anti-Graft and
the Tariff and Customs Code, and safeguard Corrupt Practices Act)
measures under RA 8800, where either party 2) Violations of RA 1379 (Anti-Ill-Gotten
may appeal the decision to impose or not to Wealth Act)
impose said duties. 3) Sequestration cases (E.O. Nos. 1,2,14,14-
A)
EXCLUSIVE ORIGINAL JURISDICTION 4) Bribery (Chapter II, Sec. 2, Title VII, Book
II, RPC) where one or more of the principal
1) Over all criminal cases arising from violation accused are occupying the following
of the NIRC and the TCC and other laws, part positions in the government, whether in
of laws, or special laws administered by the permanent, acting or interim capacity at the
BIR or the BOC where the principal amount time of the commission of the offense:
of taxes and fees, exclusive of charges and a) Officials of the executive branch
penalties claimed is less than P1M or where occupying the positions of regional
there is no specified amount claimed (the director and higher, otherwise classified
offenses or penalties shall be tried by the as Grade 27 and higher, of the
regular courts and the jurisdiction of the CTA Compensation and Position Classification
shall be appellate); Act of 1989 (RA 6758)
2) In tax collection cases involving final and b) Members of Congress and officials
executory assessments for taxes, fees, thereof classified as G-27 and up under
charges and penalties where the principal RA 6758
amount of taxes and fees, exclusive of c) Members of the Judiciary without
charges and penalties claimed is less than prejudice to the provisions of the
P1M tried by the proper MTC, MeTC and RTC. Constitution
d) Chairmen and Members of the
EXCLUSIVE APPELLATE JURISDICTION Constitutional Commissions without
prejudice to the provisions of the
1) In criminal offenses Constitution
a) over appeals from the judgment, e) All other national and local officials
resolutions or orders of the RTC in tax classified as Grade 27 and higher under
cases originally decided by them, in their RA 6758
respective territorial jurisdiction, and f) Other offenses or felonies committed by
b) over petitions for review of the the public officials and employees
judgments, resolutions or orders of the mentioned in Sec. 4(a) of RA 7975 as
RTC in the exercise of their appellate amended by RA 8249 in relation to their
jurisdiction over tax cases originally office
decided by the MeTCs, MTCs, and MCTCs g) Civil and criminal cases filed pursuant to
in their respective jurisdiction. and in connection with EO Nos. 1, 2, 14-A
(Sec. 4, RA 8249)
2) In tax collection cases
a) over appeals from the judgments,  Note: Without the office, the crime cannot
resolutions or orders of the RTC in tax be committed.
collection cases originally decided by
them in their respective territorial APPELLATE JURISDICTION - from the RTC in
jurisdiction; and cases under PD 1606, as amended by PD 1861,
b) over petitions for review of the whether or not the cases were decided b them
judgments, resolutions or orders of the in the exercise of their original or appellate
RTC in the exercise of their appellate jurisdictions.
jurisdiction over tax collection cases
CONCURRENT ORIGINAL JURISDICTION

WITH SC, CA AND RTC for petitions for writs of 2) Title to, possession of, or interest
habeas data and amparo in, real property with assessed value
exceeding P20,000 outside Metro Manila, or
 The requisites that the offender the exceeds P50,000 in Metro Manila
offender occupies salary Grade 27 and the
offense must be intimately connected with 3) If the amount involved exceeds
the official function must concur for the SB P300,000 outside MM or exceeds
to have jurisdiction – Justice Magdangal De P400,000 in MM in the following cases:
Leon a) Admiralty and maritime cases
b) Matters of Probate (testate and
JURISDICTION OF THE REGIONAL TRIAL intestate)
COURTS c) Other actions involving personal
property
d) Demand for money
CRIMINAL CASES
4) Cases not falling within the jurisdiction of
EXCLUSIVE ORIGINAL JURISDICTION any court, tribunal, person or body
exercising judicial or quasi-judicial functions
1) Offenses punishable with imprisonment (general jurisdiction of RTC)
which exceeds 6 years imprisonment
2) Offenses not within the exclusive 5) All actions involving the contract of
jurisdiction of any court, tribunal or body, marriage and family relations
except those falling under the exclusive
jurisdiction of the Sandiganbayan JURISDICTION OF FAMILY COURTS (RA
 Note: In cases where the only 8369)
penalty is fine, the amount thereof shall a) Petitions for guardianship,
determine jurisdiction. If the amount custody of children and habeas corpus
exceeds P4,000, the RTC has jurisdiction. involving children
3) Family Court – Criminal Cases b) Petitions for adoption of children
a) One or more of the accused is/are and the revocation thereof
below 18 years old but not less than c) Complaints for annulment of
9 years old; marriage, declaration of nullity of
b) Where one of the victims is a marriage and those relating to status
minor at the time of the commission and property relations of husband and
of the offense; wife or those living together under
c) Cases against minors cognizable different status and agreements, and
under the Dangerous Drugs Act; petitions for dissolution of conjugal
d) Violations of RA 7610, otherwise partnership of gains
known as the “Special Protection of d) Petitions for support and/or
Children Against Child Abuse, acknowledgment
Exploitation and Discrimination Act” e) Summary judicial proceedings
as amended by RA 7658; and brought under the provisions of EO 209
e) Cases of domestic violation (Family Code)
against women and their children. f) Petitions for declaration of status
of children as abandoned, dependent or
APPELLATE JURISDICTION neglected children, petitions for
 All cases decided by the MTC in their voluntary or involuntary commitment of
respective territorial jurisdiction. children, the suspension, termination or
restoration of parental authority and
CIVIL CASES other cases cognizable under PD 603, EO
56 (1986) and other related laws
EXCLUSIVE ORIGINAL JURISDICTION g) Petitions for the constitution of
the family home
1) The action is incapable of pecuniary  In areas where there are no
estimation (such as rescission of contract, Family Courts, the above-
action to revive judgment, declaratory relief enumerated cases shall be
(1st part), support, expropriation) adjudicated by the RTC (RA 8369)
3) with the SC, CA and Sandigabayan in

6) To hear and decide intra-corporate petitions for writs of habeas data and
controversies Sec. 52, Securities and amparo
Regulations Code): 4) With Insurance Commissioner – claims
not exceeding P100,000
a) Cases involving devises or schemes
employed by or any acts, of the board of APPELLATE JURISDICTION over cases decided
directors, business associates, its officers by lower courts in their respective territorial
or partnership, amounting to fraud and jurisdictions except decisions of lower courts in
misrepresentation which may be the exercise of delegated jurisdiction.
detrimental to the interest of the public
and/or of the stockholders, partners, SPECIAL JURISDICTION – SC may designate
members of associations or certain branches of RTC to try exclusively
organizations registered with the SEC criminal cases, juvenile and domestic relations
b) Controversies arising out of intra- cases, agrarian cases, urban land reform cases
corporate or partnership relations, not falling within the jurisdiction of any quasi-
between and among stockholders, judicial body and other special cases in the
members or associates; between any or interest of justice.
all of them and the corporation,
partnership or association of which they
are stockholders, members or JURISDICTION OF METROPOLITAN TRIAL
associates, respectively; and between COURTS/MUNICIPAL TRIAL COURTS
such corporation , partnership or
association and the state insofar as it CRIMINAL CASES
concerns their individual franchise or
right to exist as such entity EXCLUSIVE ORIGINAL JURISDICTION
c) Controversies in the election or
appointments of directors, trustees, 1) Cases covered by Summary proceedings
officers or managers of such a) Violations of city or municipal ordinances
corporations, partnerships or including traffic laws
associations b) Violation of rental law
d) Petitions of corporations, partnerships or c) Violation of traffic laws, rules and
associations to be declared in the state regulations
of suspension of payments in cases d) Violation of BP 22 (Bouncing Check Law)
where the corporation, partnership of effective April 15, 2003
association possesses sufficient property e) All other criminal cases where the
to cover all its debts but foresees the
penalty is imprisonment not exceeding 6
impossibility of meeting them when they
months and/or P100,000 fine irrespective
respectively fall due or in cases where
of other penalties arising therefrom
the corporation, partnership of
association has no sufficient assets to
2) offenses punishable with imprisonment
cover its liabilities, but is under the
not exceeding six (6) years irrespective of
management of a Rehabilitation Receiver
the amount of fine, and regardless of other
or Management Committee.
imposable accessory or other penalties,
including the civil liability arising from such
offenses or predicated thereon, irrespective
CONCURRENT JURISDICTION
of the kind, nature, value or amount thereof;
1) with the Supreme Court in actions provided however, that in offenses involving
affecting ambassadors, other public
damage to property through criminal
ministers and consuls
negligence, they shall have exclusive
2) with the SC and CA in petitions for original jurisdiction thereof (Sec. 2, RA
certiorari, prohibition and mandamus 7691).
against lower courts and bodies in
petitions for quo warranto, habeas 3) Offenses involving DAMAGE TO
corpus, and writ of continuing
PROPERTY through CRIMINAL NEGLIGENCE
mandamus on environmental cases
where the imposable fine is not exceeding
P10,000
 Note: In cases where the only  Irrespective of the amount of

penalty is fine, the amount thereof damages or unpaid rentals sought
shall determine jurisdiction. If the to be recover
amount does not exceed P4,000, the  Where attorney’s fees are
MTC has jurisdiction. awarded, the same shall not
exceed P20,000
4) All offenses (except violations of RA b) Other civil cases, except probate
3019, RA 1379 and Arts. 210 to 212, RPC) proceeding, where the total amount of
committed by public officers and employees the plaintiff’s claim does not exceed
in relation to their office, including those P200,000 in MM, exclusive of interests
employed in GOCCs, and by private and costs.
individuals charged as co-principals,
accomplices or accessories, punishable with SPECIAL JURISDICTION over petition for writ
imprisonment of not more than 6 years OR of habeas corpus OR application for bail in
where none of the accused holds a position criminal cases in the absence of all RTC judges
of salary Grade 27 and higher. in the province or city
DELEGATED JURISDICTION to hear and decide
CIVIL ACTIONS cadastral and land registration cases where
there is no controversy over the land or in case
EXCLUSIVE ORIGINAL JURISDICTION of contested lands, the value does not exceed
1) If the amount involved does not exceed P100, 000 = appealable to the CA
P300,000 outside MM or does not exceed
P400,000 in MM in the following cases: 1st level courts:
a) Actions involving personal property a. Metropolitan Trial Court – Metro Manila;
b) Probate Proceeding (testate and b. Municipal Trial Courts in Cities – situated
intestate) based on gross value of the in cities
estate c. Municipal Circuit Trial Court – composed
c) Admiralty and maritime cases of multi-sala
d) Demand for money d. Municipal Trial Courts – in one
municipality
 Note: Do not include Interest,
Damages of whatever kind,
Attorney’s fees, Litigation Expenses,
and Costs (IDALEC). However, in SHAR’IAH COURTS
cases where the claim or damages is
the main cause of action, or one of EXCLUSIVE JURISDICTION
the causes of action, the amount of 1) All cases involving custody,
such claim shall be considered in guardianship, legitimacy, paternity and
determining the jurisdiction of the filiation arising under the Code of Muslim
court. Personal Laws;
2) All cases involving disposition,
2) Actions involving title to, or possession distribution and settlement of estate of
of, real property, or any interest therein deceased Muslims, probate of wills,
where the assessed value of the property or issuance of letters of administration of
interest therein does not exceed P20,000 appointment administrators or executors
outside MM or does not exceed P50,000 in regardless of the nature or aggregate
MM value of the property;
3) Inclusion and exclusion of voters 3) Petitions for the declaration of
4) Those governed by the Rules on absence and death for the cancellation
Summary Procedure and correction of entries in the Muslim
a) Forcible entry and unlawful Registries;
detainer (FEUD) 4) All actions arising from the
 With jurisdiction to resolve issue customary contracts in which the parties
of ownership to determine ONLY are Muslims, if they have not specified
issue of possession (provisional which law shall govern their relations;
only) and
5) All petitions for mandamus,
prohibition, injunction, certiorari, habeas
corpus and all other auxiliary writs and a) For money owed under the contracts of
processes in aid of its appellate lease, loan, services, sale, or mortgage;
jurisdiction b) For damages arising from fault or
negligence, quasi-contract, or contract;
CONCURRENT JURISDICTION and
1) Petitions of Muslim for the c) The enforcement of a barangay amicable
constitution of the family home, change settlement or an arbitration award
of name and commitment of an insane involving a money claim pursuant to Sec.
person to an asylum 417 of RA 7160 (LGC).
2) All other personal and legal
actions not mentioned in par 1 (d)
wherein the parties involved are Muslims CASES COVERED BY RULES ON SUMMARY
except those for forcible entry and PROCEDURE (SEC. 1 RSP)
unlawful detainer, which shall fall under
the exclusive jurisdiction of the MTC. CIVIL CASES
3) All special civil actions for
interpleader or declaratory relief wherein 1) All cases of forcible entry and unlawful
the parties are Muslims or the property
detainer (FEUD), irrespective of the amount
involved belongs exclusively to Muslims
of damages or unpaid rentals sought to be
recovered. Where attorney‘s fees are
Cases that can be files:
awarded, the same shall not exceed
1) Offenses defined and punished under PD
P20,000;
1083
2) All other cases, except probate proceedings
2) Disputes relating to:
where the total amount of the plaintiff‘s
a. Marriage
claim does not exceed P100,000 (outside
b. Divorce
MM) or P200,000 (in MM), exclusive of
c. Betrothal or breach of contract to
interest and costs.
marry
d. Customary dowry (mahr)
e. Disposition and distribution of
property upon divorce CRIMINAL CASES
f. Maintenance and support and
consolatory gifts (mut’a) 1) Violations of traffic law, rules and
g. Restitution of marital rights regulations;
3) Disputes relative to communal properties 2) Violation of the rental law;
3) All other criminal cases where the
penalty prescribed is imprisonment not
JURISDICTION OVER SMALL CLAIMS exceeding six (6) months, or fine not
exceeding P1,000, or both, irrespective of
1) MTCs, MeTCs and MCTCs shall have other imposable penalties, accessory or
jurisdiction over actions for payment of otherwise, or of the civil liability arising
money where the value of the claim does therefrom, provided, that in offenses
not exceed P100,000 exclusive of interest involving damage to property through
and costs (Sec. 2, AM 08-8-7-SC, Oct. 27, criminal negligence, RSP shall govern where
2009). the imposable fine does not exceed P10,000.
2) Actions covered are
a) purely civil in nature where the claim or  RSP does not apply to a civil case where
relief prayed for by the plaintiff is solely the plaintiff‘s cause of action is pleaded
for payment or reimbursement of sum of in the same complaint with another
money, and cause of action subject to the ordinary
b) the civil aspect of criminal actions, either procedure; nor to a criminal case where
filed before the institution of the criminal the offense charged is necessarily
action, or reserved upon the filing of the related to another criminal case subject
criminal action in court, pursuant to Rule to the ordinary procedure.
111 (Sec. 4, AM 08-8-7-SC).
CASES COVERED BY THE RULES ON
These claims may be: BARANGAY CONCILIATION
The Lupon of each barangay shall have the 10) Labor disputes or controversies
authority to bring together the parties actually arising from employer-employee
residing in the same municipality or city for relationship
amicable settlement of all disputes except: 11) Where the dispute arises from the CARL
1) Where one party is the government or 12) Actions to annul judgment upon a
any subdivision or instrumentality compromise which can be directly filed in
thereof court.
2) Where one party is a public officer or
employee, and the dispute relates to the  It is a condition precedent under Rule 16;
performance of his official functions can be dismissed but without prejudice
3) Offenses punishable by imprisonment
exceeding one (1) year or a fine TOTALITY RULE
exceeding P5,000
4) Offenses where there is no private Where there are several claims or causes of
offended party actions between the same or different parties,
5) Where the dispute involves real embodied in the same complaint, the amount
properties located in different cities or of the demand shall be the totality of the
municipalities unless the parties thereto claims in all the claims of action,
agree to submit their differences to irrespective of whether the causes of action
amicable settlement by an appropriate arose out of the same or different transactions
lupon (Sec. 33[1], BP 129).
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 CIVIL PROCEDURE
differences to amicable settlement by an
appropriate lupon
7) Such other classes of disputes which the
President may determine in the interest ACTIONS
of justice or upon the recommendation of
the Secretary of Justice
8) Any complaint by or against Action (synonymous with suit) is the legal and
corporations, partnerships, or juridical formal demand of one’s right from another
entities. The reason is that only person made and insisted upon in a court of
individuals shall be parties to barangay justice. The kinds of actions are ordinary and
conciliation proceedings either as special, civil and criminal, ex contractu and ex
complainants or respondents delicto, penal and remedial, real, personal, and
9) Disputes where urgent legal action is mixed action, action in personam, in rem, and
necessary to prevent injustice from quasi in rem.
being committed or further continued,
specifically: ORDINARY CIVIL ACTIONS, SPECIAL CIVIL
a) A criminal case where the ACTIONS, CRIMINAL ACTIONS
accused is under police custody
or detention Ordinary civil action is one by which one
b) A petition for habeas corpus by a party sues another, based on a cause of action,
person illegally detained or to enforce or protect a right, or to prevent or
deprived of his liberty or one redress a wrong, whereby the defendant has
acting in his behalf performed an act or omitted to do an act in
violation of the rights of the plaintiff. (Sec. 3a)
c) Actions coupled with provisional
The purpose is primarily compensatory.
remedies, such as preliminary
injunction, attachment, replevin
Special civil action – actions which while
and support pendente lite
governed by the rules for ordinary civil actions,
d) Where the action may be barred are subject to special rules provided for Special
by statute of limitation
Civil Actions
Criminal action is one by which the State court which has jurisdiction over the area
prosecutes a person for an act or omission wherein the real property involved, or a portion
punishable by law (Sec. 3[b], Rule 1). The thereof is situated” (Sec. 1, Rule 4).
purpose is primarily punishment.
Transitory action is one founded on privity of
CIVIL ACTIONS VERSUS SPECIAL contracts between the parties. A personal action
PROCEEDINGS is transitory, its venue depends upon the
residence of the plaintiff or the defendant at the
The purpose of an action is either to protect a option of the plaintiff. A personal action “may be
right or prevent or redress a wrong. The commenced and tried where the plaintiff or any
purpose of special proceeding is to establish a of the principal plaintiffs resides or where the
status, a right or a particular fact. defendant or any of the principal defendants
resides, or in the case of non-resident
PERSONAL ACTIONS AND REAL ACTIONS defendant, where he may be found, at the
election of the plaintiff”. (Sec. 2, Rule 4).
An action is REAL when it affects title to or
possession of real property, or an interest Actions in rem, in personam and quasi in
therein. All other actions are personal actions. rem (this is important in service of summons)
 An action in rem, one instituted and
An action is real when it is founded upon the enforced against the whole world.
privity of real estate, which means that the  An action in personam is one filed against
realty or an interest therein is the subject a definite defendant. It is intended to subject
matter of the action. The issues involved in real the interest of defendant on a property to an
actions are title to, ownership, possession, obligation or lien. Jurisdiction over the
partition, foreclosure of mortgage or person (defendant) is required. It is a
condemnation of real property. proceeding to enforce personal rights and
obligations brought against the person, and
Not every action involving real property is a real is based on the jurisdiction of the person,
action because the realty may only be incidental although it may involve his right to, or the
to the subject matter of the suit. Example is an exercise of ownership of, specific property,
action for damages to real property, because or seek to compel him to control or dispose
although it involves real property, it does not of it in accordance with the mandate of the
involve any of the issues mentioned. court. The purpose is to impose through the
judgment of a court, some responsibility or
Real actions are based on the privity of real liability directly upon the person of the
estates; while personal actions are based on defendant. No other than the defendant is
privity of contracts or for the recovery of sums liable, not the whole world, as in an action
of money. for a sum of money or an action for
damages.
The distinction between real action and  An action quasi in rem, also brought
personal action is important for the purpose of against the whole world, is one brought
determining the venue of the action. A real against persons seeking to subject the
action is “LOCAL”, which means that its venue property of such persons to the discharge of
depends upon the location of the property the claims assailed. An individual is named
involved in the litigation. A personal action is as defendant and the purpose of the
“TRANSITORY”, which means that its venue proceeding is to subject his interests therein
depends upon the residence of the plaintiff or to the obligation or loan burdening the
the defendant at the option of the plaintiff. property. It deals with status, ownership or
liability or a particular property but which
LOCAL AND TRANSITORY ACTIONS are intended to operate on these questions
only as between the particular parties to the
A local action is one founded on privity of proceedings and not to ascertain or cut off
estates only and there is no privity of contracts. the rights or interests of all possible
A real action is a local action; its venue depends claimants. Examples of actions quasi in rem
upon the location of the property involved in are action for partition, action for
litigation. “Actions affecting title to or accounting, attachment, foreclosure of
possession of real property, or interest therein, mortgage.
shall be commenced and tried in the proper
 An action in personam is not necessarily a A cause of action is the act or omission by which
personal action. Nor is a real action a party (defendant) violates the rights of
necessarily an action in rem. An in personam another (plaintiff).
or an in rem action is a classification of
actions according to foundation. For It is the delict or wrong by which the defendant
instance, an action to recover, title to or violates the right or rights of the plaintiff.
possession of real property is a real action,
but it is an action in personam, not brought The elements are:
against the whole world but against the 1) A right in favor of the plaintiff by
person upon whom the claim is made. whatever means and under whatever law
it arises or is created;
SC sums up the basic rules in Biaco vs. 2) An obligation on the part of the named
Philippine Countryside Rural Bank (2007): defendant to respect or not to violate
1) The question of whether the trial court such right; and
has jurisdiction depends on the nature of 3) Act or omission on the part of such
the action – whether the action is in defendant in violation of the right of the
personam, in rem, or quasi in rem. The plaintiff or constituting a breach of the
rules on service of summons under Rule obligation of the defendant to the
14 likewise apply according to the nature plaintiff for which the latter may
of the action. maintain an action for recovery of
2) An action in personam is an action damages or other appropriate relief.
against a person on the basis of his
personal liability. And action in rem is an RIGHT OF ACTION VERSUS CAUSE OF
action against the thing itself instead of ACTION
against the person. An action quasi in
rem is one wherein an individual is a) A cause of action refers to the delict or
named as defendant and the purpose of wrong committed by the defendants,
the proceeding is to subject his interest whereas right of action refers to the right of
therein to the obligation or lien the plaintiff to institute the action;
burdening the property. b) A cause of action is determined by the
3) Jurisdiction over the person of the pleadings; whereas a right of action is
defendant is necessary for the court to determined by the substantive law;
validly try and decide a case against said a) A right of action may be taken away by
defendant where the action is one in the running of the statute of limitations, by
personam but not where the action is in estoppels or other circumstances; which do
rem or quasi in rem. Jurisdiction over the not at all affect the cause of action;
res is acquired either b) There is no right of action where there is
a. by the seizure of the property no cause of action!
under legal process, whereby it is
brought into actual custody of the FAILURE TO STATE CAUSE OF ACTION
law; or
b. as a result of the institution of The mere existence of a cause of action is not
legal proceedings, in which the sufficient for a complaint to prosper. Even if in
power of the court is recognized reality the plaintiff has a cause of action against
and made effective. the defendant, the complaint may be dismissed
if the complaint or the pleading asserting the
 Nonetheless, summons must be served claim “states no cause of action”. This means
upon the defendant not for the purpose that the cause of action must unmistakably be
of vesting the court with jurisdiction but stated or alleged in the complaint or that all the
merely for satisfying the due process elements of the cause of action required by
requirements. substantive law must clearly appear from the
mere reading of the complaint.
CAUSE OF ACTION (Rule 2) To avoid an early dismissal of the complaint, the

simple dictum to be followed is: “If you have a
cause of action, then by all means, state it!”
MEANING OF CAUSE OF ACTION Where there is a defect or an insufficiency in the
statement of the cause of action, a complaint
may be dismissed not because of an absence or available as a bar to, or a ground for dismissal
a lack of cause of action by because the of, the others
complaint states no cause of action. The
dismissal will therefore, be anchored on a The remedy of the defendant is to file a motion
“failure to state a cause of action”. to dismiss. Hence, if the first action is pending
when the second action is filed, the latter may
It doesn‘t mean that the plaintiff has no cause be dismissed based on litis pendencia, there is
of action. It only means that the plaintiff‘s another action pending between the same
allegations are insufficient for the court to know parties for the same cause. If a final judgment
that the rights of the plaintiff were violated by had been rendered in the first action when the
the defendant. Thus, even if indeed the plaintiff second action is filed, the latter may be
suffered injury, if the same is not set forth in the dismissed based on res judicata, that the cause
complaint, the pleading will state no cause of of action is barred by prior judgment. As to
action even if in reality the plaintiff has a cause which action should be dismissed would depend
of action against the defendant. upon judicial discretion and the prevailing
circumstances of the case.
TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION JOINDER AND MISJOINDER OF CAUSES OF
ACTIONS (SECS. 5 AND 6, ULE 2)
The test is whether or not admitting the facts
alleged, the court could render a valid verdict in Joinder of causes of action is the assertion of
accordance with the prayer of the complaint. as many causes of action as a party may have
against another in one pleading alone (Sec. 5,
To be taken into account are only the material Rule 2). It is the process of uniting two or more
allegations in the complaint; extraneous facts demands or rights of action in one action,
and circumstances or other matter aliunde are subject to the following conditions:
not considered but the court may consider in a) The party joining the causes of action
addition to the complaint the appended annexes shall comply with the rules on joinder of
or documents, other pleadings of the plaintiff, or parties (same transaction ad common
admissions in the records. question of law an fact);
b) The joinder shall not include special civil
It is error for the court to take cognizance of actions governed by special rules;
external facts or to hold preliminary hearings to c) Where the cause of action are between
determine its existence. the same parties but pertain to different
venues or jurisdictions, the joinder may
SPLITTING A SINGLE CAUSE OF ACTION be allowed in the RTC provided one of
AND ITS EFFECTS the causes of action falls within the
jurisdiction of said court and the venue
It is the act of instituting two or more suits for lies therein; and
the same cause of action (Sec. 4, Rule 2). It is d) Where the claims in all the causes of
the practice of dividing one cause of action into action are principally for recovery of
different parts and making each part the subject money, the aggregate amount claimed
of a separate complaint. shall be the test of jurisdiction (totality
rule).
In splitting a cause of action, the pleader divides  Note: Restrictions on joinder of
a single cause of action, claim or demand into causes of action are: jurisdiction,
two or more parts, brings a suit for one of such venue, and joinder of parties. The
parts with the intent to reserve the rest for joinder shall not include special
another separate. This practice is NOT civil actions or actions governed
ALLOWED by the Rules because it breeds by special rules.
multiplicity of suits, clogs the court dockets,
leads to vexatious litigation, operates as an When there is a misjoinder of causes of
instrument of harassment, and generates action, the erroneously joined cause of action
unnecessary expenses to the parties. can be severed or separated from the other
cause of action upon motion by a party or upon
The filing of the first may be pleaded in the court‘s own initiative. Misjoinder of causes
abatement of the other or others and a of action is not a ground for the dismissal of the
judgment upon the merits in any one is case.
 The absence of indispensable party renders

all subsequent actions of the court null and
PARTIES IN CIVIL ACTION (Rule 3) void for want of authority to act, not only to
the absent parties but even as to those
present.
REAL PARTY-IN-INTEREST (e.g. plaintiff and
defendant) is the party who stands to be  A person is not an IP if his interest in the
benefited or injured by the judgment in the suit, controversy or subject matter is separable
or the party entitled to the avails of the suit from the interest of the other parties, so that
(Sec. 2, Rule 3). it will not necessarily be directly or
injuriously affected by a decree which does
 The interest must be real, which is a present
complete justice between them. Also, a
substantial interest as distinguished from a
person is not an IP if his presence would
mere expectancy or a future, contingent
merely permit complete relief between him
subordinate or consequential.
and those already parties to the action, or if
 It is an interest that is material and direct, as
he has no interest in the subject matter of
distinguished from a mere incidental interest
the action.
in.
 While ordinarily one who is not a privy to a
 Although normally a joinder of action is
permissive (Sec. 6, Rule 3), the joinder of a
contract may not bring an action to enforce
party becomes compulsory when the one
it, there are recognized exceptions this rule:
involved is an indispensable party. Clearly,
a) Contracts containing stipulations the rule directs a compulsory joinder of IP
pour atrui or stipulations expressly
(Sec. 7, Rule 3).
conferring benefits to a non-party
may sue under the contract provided
NECESSARY PARTY is one who is not
such benefits have been accepted by
indispensable but ought to be joined as a party
the beneficiary prior to its revocation
if complete relief is to be accorded as to those
by the contracting parties (Art. 1311,
already parties, of for a complete determination
Civil Code).
or settlement of the claim subject of the action.
b) Those who are not principally or
 But a necessary party ought to be joined as
subsidiarily obligated in the contract,
a party if complete relief is to be accorded
in which they had no intervention,
as to those already parties (Sec. 8, Rule 3).
may show their detriment that could
result from it. For instance, Art. 1313,  The non-inclusion of a necessary party does
CC, provides that “creditors are not prevent the court from proceeding in the
protected in cases of contracts action, and the judgment rendered therein
intended to defrauded them”. shall be without prejudice to the rights of
Further, Art. 1318, CC, provides that such necessary party (Sec. 9, Rule 3).
contracts entered into in fraud of
creditors may be rescinded when the INDIGENT PARTY is one who is allowed by the
creditors cannot in any manner court to litigate his claim, action or defense
collect the claims due them. Thus, a upon ex parte application and hearing, when
creditor who is not a party to a the court is satisfied that such party has no
contract can sue to rescind the money or property sufficient and available for
contract to redress the fraud food, shelter, basic necessities for himself and
committed upon him. his family (Sec. 21, Rule 3).
 If one is authorized to litigate as an indigent,
INDISPENSABLE PARTY is a real party-in- such authority shall include an exemption
interest without whom no final determination from the payment of docket fee, and of
can be had of an action (Sec. 7, Rule 3). transcripts of stenographic notes, which the
 Without the presence of this party, the court may order to e furnished by him.
judgment of a court cannot attain real  However, the amount of the docket and
judgement. other fees, which the indigent was exempt
 The presence of indispensable parties is a from paying, shall be lien on the judgment
condition for the exercise of juridical power rendered in the case favorable to the
and when an indispensable party is not indigent. A lien on the judgment shall or
before the court, the action should be arise if the court provides otherwise.
dismissed.
REPRESENTATIVES AS PARTIES pertains to
the parties allowed by the court as substitute
parties to an action whereby the original parties Joinder of parties is compulsory if there are
become incapacitated of incompetent (Sec. 18, parties without whom no final determination can
Rule 3). be had of an action (Sec. 7, Rule 3).
 The substitution of a party depends on the
nature of the action. If the action is personal, Joinder of parties is permissive when there
and a party dies pendent lite, such action is a right or relief in favor of or against the
does not survive, and such party cannot be parties joined in respect to or arising out of the
substituted. If the action is real, death of the same transaction or series of transactions, and
defendant survives the action, and the heirs there is a question of law or fact common to the
will substitute the dead. A favorable parties joined in the action (Sec. 6, Rule 3).
judgment obtained by the plaintiff therein
may be enforced against the estate of the MISJOINDER AND NON-JOINDER OF
deceased defendant (Sec. 1, Rule 87). PARTIES
 In case a party becomes incapacitated or
incompetent during the pendency of the A party is
action, the court, upon motion, may allow a. misjoined when he is made a party to
the action to be continued by or against the the action although he should not be
incapacitated or incompetent party with the impleaded
assistance of his legal guardian or guardian b. not joined when he is supposed to be
ad litem (Sec. 18, Rule 20). joined but is not impleaded in the action
 In case of transfer, the action may be
continued by or against the original party, Under the rules, neither misjoinder nor non-
unless the court upon motion directs the joinder of parties is a ground for the dismissal of
person to whom the interest is transferred to an action but failure to obey the order of the
be substituted in the action or joined with court to drop or add a party is a ground for the
the original party (Sec. 19, Rule 3). dismissal of the complaint (Sec. 3, Rule 17).
 An agent may sue or be sued without joining Parties may be dropped or added by order of
his principal except when the contract the court on motion of any party or on its own
involve things belonging to the principal initiative at any stage of the action and on such
(Where the action is allowed to be terms as are just (Sec. 11, Rule 3). Misjoinder of
prosecuted and defended by a parties does not involve questions of jurisdiction
representative or someone acting in a and not a ground for dismissal.
fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be CLASS SUIT
deemed to be the real property in interest,
Sec. 3, Rule 3). A class suit is an action where one or more may
sue for the benefit of all if the requisites for said
ALTERNATIVE DEFENDANTS are those who action are complied with.
may be joined as such in the alternative by the
plaintiff who is uncertain from whom among A class suit does not require commonality of
them he is entitled to a relief, regardless of interest in the questions involved in the suit.
whether or not a right to a relief against one is What is required by the Rules is a common or
inconsistent with that against the other (Sec. general interest in the subject matter of the
13, Rule 3). litigation. The subject matter of the action
 Where the plaintiff cannot definitely identify means the physical, the things real or personal,
who among two or more persons should be the money, lands, chattels, and the like, in
impleaded as a defendant, he may join all of relation to the suit which is prosecuted and not
them as defendants in the alternative. the direct or wrong committed by the
defendant. It is not also a common question of
 Just as the rule allows a suit against law that sustains a class suit but a common
defendants in the alternative, the rule also interest in the subject matter of the
allows alternative causes of action (Sec. 2, controversy.
Rule 8) and alternative defenses (Sec. 5[b],
Rule 6). There is no class suit when interests are
conflicting. Hence, for a class suit to prosper,
COMPULSORY AND PERMISSIVE JOINDER the following requisites must concur:
OF PARTIES
a) The subject matter of the controversy The substitution of the deceased would not be
must be of common or general interest ordered by the court in cases where the death
to many persons; of the party would extinguish the action
b) The persons are so numerous that it is because substitution is proper only when the
impracticable to join all as parties; action survives.
c) The parties actually before the court are
sufficiently numerous and representative Where the deceased has no heirs, the court
as to fully protect the interests of all shall require the appointment of an executor or
concerned; and administrator. This appointment is not required
d) The representatives sue or defend for where the deceased left an heir because the
the benefit of all (Sec.12, Rule 3). heir under the new rule, may be allowed to be
substituted for the deceased. If there is an heir
It shall not be dismissed or compromised but the heir is a minor, the court may appoint a
without the approval of the court. guardian ad litem for said minor heir (Sec. 13,
Rule 3).
SUITS AGAINST ENTITIES WITHOUT
The court may appoint an executor or
JURIDICAL PERSONALITY
administrator when:
A corporation being an entity separate and a) the counsel for the deceased does not
distinct from its members has no interest in the name a legal representative; or
individual property of its members unless b) there is a representative named but he
transferred to the corporation. Absent any failed to appear within the specified
showing of interests, a corporation has no period (Sec. 16, Rule 3).
personality to bring an action for the purpose of
recovering the property, which belongs to the
VENUE (Rule 4)
members in their personal capacities.
An entity without juridical personality may be Venue is the place or the geographical area
sued under a common name by which it is where an action is to be filed and tried. In civil
commonly known when it represents to the cases, it relates only to the place of the suit and
plaintiff under a common name, and the latter not to the jurisdiction of the court.
relies on such representation.
VENUE VERSUS JURISDICTION
Persons associated in an entity without juridical
personality maybe sued under the name by a) Jurisdiction is the authority to hear and
which they are generally or commonly known, determine a case; venue is the place where
but they cannot sue under such name. the case is to be heard or tried;
b) Jurisdiction is a matter of substantive law;
EFFECT OF DEATH OF PARTY LITIGANT venue of procedural law;
c) Jurisdiction establishes a relation between
The death of the client extinguishes the the court and the subject matter; venue, a
attorney-client relationship and divests a relation between plaintiff and defendant, or
counsel of his authority to represent the client. petitioner and respondent;
Accordingly, a dead client has no personality d) Jurisdiction is fixed by law and cannot be
and cannot be represented by an attorney. conferred by the parties; venue may be
Neither does he become the counsel of the heirs conferred by the act or agreement of the
of the deceased unless his services are engaged parties; and
by said heirs.
e) Lack of jurisdiction over the subject matter is
a ground for a motu propio dismissal; venue
Where the claim is not extinguished by the
is not a ground for a motu propio dismissal
death of the litigant, upon the receipt of the
except in cases subject to summary
notice of death, the court shall order the legal
procedure.
representative or representatives of the
deceased to appear and be substituted for the
VENUE OF REAL ACTIONS
deceased within thirty (30) days from notice
(Sec. 16, Rule 3).
Actions affecting title to or possession of real
property, or interest therein, shall be
commenced and tried in the proper court which In interpreting stipulations as to venue, there is
has jurisdiction over the area wherein the real a need to inquire as to whether or not the
property involved or a portion thereof is agreement is restrictive or not. If the stipulation
situated. Forcible entry and detainer actions is RESTRICTIVE, the suit may be filed only in the
shall be commenced and tried in the municipal place agreed upon by the parties. It must be
trial court of the municipality or city wherein the reiterated and made clear that under Rule 4, the
real property involved, or a portion thereof, is general rules on venue of actions shall not apply
situated (Sec. 1, Rule 4). where the parties, before the filing of the action,
have validly agreed in writing on an exclusive
VENUE OF PERSONAL ACTIONS venue. The mere stipulation on the venue of an
action, however, is not enough to preclude
All other actions may be commenced and tried: parties from bringing a case in other venues. If
a) where the plaintiff or any of the principal the intention of the parties were to restrict
plaintiffs resides, or venue, there must be accompanying language
b) where the defendant or any of the clearly and categorically expressing their
principal defendants resides purpose and design that actions between them
 all at the option of the plaintiff be litigated only at the place named by them.
(Sec. 2, Rule 4).
The parties must be able to show that such
VENUE OF ACTIONS AGAINST NON- stipulation is EXCLUSIVE. In the absence of
RESIDENTS qualifying or restrictive words, the stipulation
should be deemed as merely an agreement on
If any of the defendants does not reside and is an additional forum, not as limiting venue to the
not found in the Philippines, and the action specified place.
affects the personal status of the plaintiff, or
any property of said defendant located in the PLEADINGS (Rules 6 - 13)
Philippines, the action may be
1) commenced and tried in the court of the
place where the plaintiff resides, or Pleadings are written statements of the
2) where the property or any portion respective claims and defenses of the parties
thereof is situated or found (Sec. 3, Rule submitted to the court for appropriate judgment
4), or (Sec. 1, Rule 6). Pleadings aim to define the
3) at the place where the defendant may be issues and foundation of proof to be submitted
found during the trial, and to apprise the court of the
 at the option of the plaintiff (Sec. rival claims of the parties.
2).
WHEN THE RULES ON VENUE DO NOT KINDS OF PLEADINGS (RULE 6)

APPLY
A. COMPLAINT
The Rules do not apply
a) in those cases where a specific rule or
Complaint is the pleading alleging the plaintiff’s
law provides otherwise (i.e. action for
cause or causes of action, stating therein the
damages arising from libel); or
names and residences of the plaintiff and
b) where the parties have validly agreed in
defendant (Sec. 3, Rule 6) and should contain a
writing before the filing of the action on
concise statement of the ultimate facts
the exclusive venue thereof (Sec. 4, Rule
constituting the plaintiff’s cause of action.
4).
EFFECTS OF STIPULATIONS ON VENUE B. ANSWER
The parties may stipulate on the venue as long An answer is a pleading in which a defending
as the agreement is party sets forth his defenses (Sec. 3, Rule 6). It
a) in writing may allege legal provisions relied upon for
b) made before the filing of the action, and defense (Sec. 1, Rule 8). It may be an answer to
c) exclusive as to the venue (Sec. 4[b], the complaint, counterclaim or a cross-claim,
Rule 4). third party complaint or complaint-in-
intervention.
 When the matter denied

The defendant may set up two kinds of by a disavowal of knowledge is
defenses: plainly and necessarily within
1. NEGATIVE DEFENSES the defendant’s knowledge,
a) Negative defenses are the such claim shall not be
specific denials of the material fact or considered as a specific denial.
facts alleged in the pleading of the  If the denial does not fall
claimant essential to his cause or causes within the scope of the
of action (Sec. 5[a], Rule 6). abovementioned kinds of a
b) When the answer sets forth specific denial, it shall be
negative defenses, the burden of proof considered a general denial
rests upon the plaintiff, and when the which is considered as an
answer alleges affirmative defenses, the admission of the averment not
burden of proof devolves upon the specifically denied.
defendant.
c) There are three types specific 2. NEGATIVE PREGNANT
denials:  Negative pregnant is an
admission in avoidance which does not
1. Absolute denial - when qualify as a specific denial.
the defend ant specify each  It is a form of negative expression
material allegation of fact the truth which carries with it an affirmation or at
of which he does not admit and least an implication of some kind
whenever practicable sets forth the favorable to the adverse party. It is a
substance of the matters upon denial pregnant with an admission of the
which he relies to support such substantial facts alleged in the pleading.
denial.
 Where a fact is alleged with
qualifying or modifying language and the
2. Partial denial – when the words of the allegation as so qualified or
defendant does not make a total modified are literally denied, the
denial of the material allegations in qualifying circumstances alone are
a specific paragraph, denying only denied while the fact itself is admitted.
a part of the averment. In doing so
he specifies that part of the truth of  It is not a specific denial and is
which he admits and denies only usually an admission.
the remainder.
AFFIRMATIVE DEFENSES
Affirmative defenses are allegations of new
3. Denial by disavowal of
matters which, while hypothetically admitting
knowledge – when the defendant
the material allegations in the pleading of the
alleges having no knowledge or
claimant, would nevertheless prevent or bar
information sufficient to form a
recovery by him.
belief as to the truth of a material
averment made in the complaint.
Affirmative defenses include:
Such denial must be made in good
faith.
a) Fraud h) Former recovery
b) Statute of limitations i) Discharge in
c) Release bankruptcy
d) Payment j) Any other matter
e) Illegality by way of confession and
f) Statute of frauds avoidance (Sec. 5[b], Rule
g) Estoppel 6)
interposed in an answer. It is either compulsory
C. COUNTERCLAIM or permissive.
A counterclaim is any claim which a defending 1. COMPULSORY COUNTERCLAIM

party may have against an opposing party (Sec. A compulsory counterclaim is one which, being
6, Rule 6). It is in itself a claim or cause of action cognizable by the regular courts of justice,
arises out of or is connected with the
transaction or occurrence constituting the a) even if not set up is not barred because
subject matter of the opposing party’s claim and it doesn’t arise out of the same
does not require for its adjudication, the transaction as that of the complaint
presence of third parties of whom the court b) it can be brought as a separate action in
cannot acquire jurisdiction. Such a counterclaim itself
must be within the jurisdiction of the court, both c) docket fee must be paid
as to the amount and the nature thereof, except d) it must be answered by the adverse
that in an original action before the RTC, the party to prevent default
counterclaim may be considered compulsory e) it needs a certificate against forum
regardless of the amount (Sec. 7, Rule 6). shopping.
The failure of the defendant to set up a 3. EFFECT ON THE COUNTERCLAIM WHEN

compulsory counterclaim shall bar its institution, THE COMPLAINT IS DISMISSED
subject to the following exceptions: If a counterclaim has already been pleaded by
a) If the counterclaim matured or was the defendant prior to the service upon him of
acquired after the defendant had served the plaintiff‘s motion to dismiss, and the court
his answer. In such case, it may be grants the said motion to dismiss, the dismissal
pleaded by filing a supplemental answer shall be limited to the complaint (Sec. 2, Rule
or pleading before judgment; and 17).
b) When a pleader fails to set up a
counterclaim through oversight, The dismissal upon motion of plaintiff shall be
inadvertence, excusable negligence, or without prejudice to the right of the defendant
when justice requires, he may, by leave to prosecute the counterclaim.
of court, set up the counterclaim by
amendment of the pleadings before The defendant if he so desires may prosecute
judgment. his counterclaim either in a separate action or in
the same action. Should he choose to have his
Points to consider: counterclaim resolved in the same action, he
a) A compulsory counterclaim if not set up must notify the court of his preference within 15
is barred days from notice of the plaintiff‘s motion to
b) It requires no payment of the docket fee dismiss. Should he opt to prosecute his
c) Need not be answered counterclaim in a separate action, the court
d) Does not need a certificate against should render the corresponding order granting
forum shopping and reserving his right to prosecute his claim in
a separate complaint.
2. PERMISSIVE COUNTERCLAIM
Permissive counterclaim is a counterclaim which The dismissal of the complaint under Sec. 3
does not arise out of nor is it necessarily (due to fault of plaintiff) is without prejudice to
connected with the subject matter of the the right of the defendant to prosecute his
opposing party’s claim. It is not barred even if counterclaim in the same action or in a separate
not set up in the action. action. This dismissal shall have the effect of
adjudication upon the merits, unless otherwise
declared by the court. The dismissal of the main
action does not carry with it the dismissal of the
counterclaim (Sec. 6, Rule 16).
The requirements of a permissive
counterclaim are: D. CROSS-CLAIMS
1) It does not require for its adjudication
the presence of third parties of whom A cross-claim is any claim by one party against
the court cannot acquire jurisdiction; a co-party arising out of the transaction or
2) It must be within the jurisdiction of the occurrence that is the subject matter either of
court wherein the case is pending and is the original action or of a counterclaim therein.
cognizable by the regular courts of Such cross-claim may include a claim that the
justice; and party against whom it is asserted is or may be
3) It does not arise out of the same liable to the cross-claimant for all of part of a
transaction or series of transactions claim asserted in the action against the cross-
subject of the complaint. claimant (Sec. 8, Rule 6).
Points to consider:
E. THIRD (FOURTH-ETC.) PARTY The only pleadings allowed under small claim
COMPLAINTS cases are:
a) Statement of claim
It is a claim that a defending party may, with b) Response
leave of court, file against a person not a party c) Counterclaim in the response
to the action, called the third (fourth, etc.)–party
defendant, for contribution, indemnity,
PARTS OF A PLEADING (RULE 7)
subrogation or any other relief, in respect of his
opponent‘s claim.
The parts of a pleading under Rule 7 are: the
F. COMPLAINT-IN-INTERVENTION caption (Sec. 1), the text or the body (Sec. 2),
the signature and address (Sec. 3), the
Complaint-in-intervention is a pleading whereby verification (Sec. 4), and the certification
a third party asserts a claim against either or all against forum shopping (Sec. 5).
of the original parties. If the pleading seeks to
unite with the defending party in resisting a CAPTION
claim against the latter, he shall file an answer-
in-intervention. The caption must set forth the name of the
court, the title of the action, and the docket
If at any time before judgment, a person not a number if assigned.
party to the action believes that he has a legal
interest in the matter in litigation in a case in The title of the action indicates the names of the
which he is not a party, he may, with leave of parties. They shall all be named in the original
court, file a complaint-in-intervention in the complaint or petition; but in subsequent
action if he asserts a claim against one or all of pleadings, it shall be sufficient if the name of
the parties. the first party on each side be stated with an
appropriate indication when there are other
G. REPLY parties. Their respective participation in the
case shall be indicated.
Reply is a pleading, the office or function of
which is to deny, or allege facts in denial or SIGNATURE AND ADDRESS
avoidance of new matters alleged by way of
defense in the answer and thereby join or make Every pleading must be signed by the party or
issue as to such matters. Even if a party does counsel representing him, stating in either case
not file such reply, all the new matters alleged his address which should not be a post office
in the answer are deemed controverted (Sec. box.
10, Rule 6).
The signature of counsel constitutes a
But you need to file a reply if there is an certificate by him that he has read the pleading;
actionable document denying the due execution that to the best of his knowledge, information,
of such document under oath and belief there is good ground to support it;
and that it is not interposed for delay.
PLEADINGS ALLOWED IN SMALL CLAIM
CASES AND CASES COVERED BY THE RULES An unsigned pleading produces no legal effect.
ON SUMMARY PROCEDURE However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear
The only pleadings allowed under the Rules on that the same was due to mere inadvertence
Summary Procedure are and not intended for delay. Counsel who
a) Complaint deliberately files an unsigned pleading, or signs
b) COMPULSORY COUNTERCLAIM a pleading in violation of the Rule, or alleges
pleaded in the answer, scandalous or indecent matter therein, or fails
c) cross-claim pleaded in the to promptly report to the court a change of his
answer, address, shall be subject to appropriate
d) answers disciplinary action.
 these pleadings must be
verified. In every pleading, counsel has to indicate his
professional tax receipt (PTR) and IBP receipt,
the purpose of which is to see to it that he pays 1) That the party has NOT COMMENCED or
his tax and membership due regularly. filed any claim involving the same issues
in any court, tribunal, or quasi-judicial
VERIFICATION agency and, to the best of his
knowledge, no such other action or claim
A verification of a pleading is an affirmation is pending;
under oath by the party making the pleading 2) That if there is such other pending action
that he is prepared to establish the truthfulness or claim, a complete statement of the
of the facts which he has pleaded based on his present STATUS thereof; and
own personal knowledge. 3) That if he should therefore learn that the
same or similar action or claim has been
The general rule under, Sec. 4. Rule 7 is that, filed or is pending, he shall REPORT THAT
pleading need not be under oath. This means FACT within five (5) days therefrom to
that a pleading need not be verified. A pleading the court wherein his aforesaid complaint
will be verified only when a verification is or initiatory pleading has been filed.
required by a law or by a rule.
Failure to comply with the foregoing
A pleading is verified by an affidavit, which requirements shall not be curable by mere
declares that: amendment of the complaint or other initiatory
a) the affiant has read the pleading, and pleading but shall be cause for the dismissal of
b) the allegations therein are true and the case without prejudice, unless otherwise
correct to his personal knowledge or provided, upon motion and after hearing.
based on authentic records.
The submission of a false certification or non-
The verification requirement is significant, as it compliance with any of the undertakings therein
is intended to secure an assurance that the shall constitute indirect contempt of court,
allegations in a pleading are true and correct without prejudice to the corresponding
and not the product of the imagination or a administrative and criminal actions. If the acts
matter of speculation, and that the pleading is of the party or his counsel clearly constitute
filed in good faith. The absence of proper willful and deliberate forum shopping, the same
verification is cause to treat the pleading as shall be ground for summary dismissal with
unsigned and dismissible. prejudice and shall constitute direct contempt,
as well as a cause for administrative sanctions
It is, however, been held that the absence of a (Sec. 5, Rule 7).
verification or the non-compliance with the
verification requirement does not necessarily Possible Violations (as per Dean Riano):
render the pleading defective. It is only a formal 1) Non-compliance with the
and not a jurisdictional requirement. The undertaking – dismissal without
requirement is a condition affecting only the prejudice
form of the pleading (Sarmeinto vs. Zaratan, 2) False Certification - indirect
2007). The absence of verification may be contempt, administrative and criminal
corrected by requiring an oath. The court may sanction
order the correction of the pleading or act on an
3) Wilful and deliberate forum
unverified pleading if the attending
shopping – ground for summary
circumstances are such that strict compliance
dismissal with prejudice without motion
would not fully serve substantial justice, which
and hearing; it has administrative but
after all, is the basic aim for the rules of
without criminal sanctions
procedure (Robert Development Corp. vs.
Quitain, 315 SCRA 150).  So, if the dismissal is
without prejudice, your
CERTIFICATION AGAINST FORUM- remedy is certiorari; if with
SHOPPING prejudice, the remedy is
appeal (Sec. 1(g), Rule 41)
 Needed in initiatory pleadings  The dismissal is not a
subject of appeal if the order
The certification against forum shopping is a of dismissal is without
sworn statement certifying to the following prejudice.
matters:
 The certification is FORUM SHOPPING

mandatory under Sec. 5, Rule
7, but not jurisdictional. A juridical entity, unlike a natural person, can
only perform physical acts through properly
There is forum shopping when delegated individuals. The certification against
a) as a result of an adverse opinion in one forum shopping where the plaintiff or a principal
forum, a party seeks a favorable opinion, party is a juridical entity like a corporation may
other than by appeal or certiorari in be executed by properly authorized persons.
another forum This person may be the lawyer of a corporation.
b) a party institutes two or more suits in
different courts, either simultaneously or As long as he is duly authorized by the
successively, in order to ask the courts corporation and has personal knowledge of the
to rule on the same or related causes facts required to be disclosed in the certification
and/or to grant the same or substantially against forum shopping, the certification may
the same reliefs on the supposition that be signed by the authorized lawyer.
one or the other court would make a
favorable disposition or increase a EFFECT OF THE SIGNATURE OF COUNSEL IN
party‘s chances of obtaining a favorable A PLEADING
decision or action
c) the elements of litis pendentia are Counsel’s signature signifies that:
present or where a final judgment in one a) He has read the pleading;
case will amount to res judicata in b) That to the best of his knowledge,
another. information and belief there is a
good ground to support it; and
It is an act of malpractice, as the litigants trifle c) That it is not interposed for delay.
with the courts and abuse their processes. It is
improper conduct and degrades the ALLEGATIONS IN A PLEADING
administration of justice. If the act of the party
or its counsel clearly constitutes wilful and Every pleading shall contain in a mathematical
deliberate forum-shopping, the same shall and logical form, a plain, concise and direct
constitute direct contempt, and a cause for statement of the ultimate facts on which the
administrative sanctions, as well as a ground for party relies for his claim and defense, as the
the summary dismissal of the case with case may be, containing the statement of mere
prejudice (Montes vs. CAMay 4, 2006) evidenciary facts (Sec. 1, Rule 8).
It is the plaintiff or principal party who
executes the certification under oath, and MANNER OF MAKING ALLEGATIONS (RULE 8)
not the attorney. It must be signed by the
party himself and cannot be signed by his
counsels. As a general and prevailing rule, a PLEADING CONDITION PRECEDENT
certification signed by counsel is a defective
certification and is a valid cause for dismissal. Conditions precedents are matters which must
This is the general and prevailing rule. A be complied with before a cause of action
certification by counsel and not by the principal arises. When a claim is subject to a condition
party himself is no certification at all. The precedent, the compliance of the same must be
reason for requiring that it must be signed by alleged in the pleading.
the principal party himself is that he has actual
knowledge, or knows better than anyone else, Failure to comply with a condition precedent is
whether he has initiated similar action/s in other an independent ground for a motion to dismiss:
courts, agencies or tribunals. that a condition precedent for filing the claim
has not been complied (Sec. 1[j], Rule 16) (i.e.
This certification is not necessary when what is barangay conciliation, demand, etc)
filed is a mere motion for extension, or in
criminal cases and distinct causes of action. PLEADING A JUDGMENT
REQUIREMENTS OF A CORPORATION In pleading a judgment or decision of a

EXECUTING THE domestic or foreign court, judicial or quasi-
VERIFICATION/CERTIFICATION ON NON- judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision There are three modes of specific denial which
without need of alleging matters showing the are contemplated by the Rules, namely:
jurisdiction to render such decision. a) By specifying each material allegation of
the fact in the complaint, the truth of
PLEADING FRAUD, MISTAKE, MALICE, which the defendant does not admit, and
INTENT, KNOWLEDGE AND OTHER whenever practicable, setting forth the
CONDITION OF THE MIND JUDGMENTS substance of the matter which he will
OFFICIAL DOCUMENTS OR ACTS rely upon to support his denial;
b) By specifying so much of the averment in
When making averments of FRAUD OR MISTAKE, the complaint as is true and material and
THE CIRCUMSTANCES CONSTITUTING SUCH denying only the remainder;
FRAUD OR MISTAKE must be stated with c) By stating that the defendant is without
particularity (Sec. 5, Rule 8). It is not enough knowledge or information sufficient to
therefore, for the complaint to allege that he form a belief as to the truth of a material
was defrauded by the defendant. Under this averment in the complaint, which has
provision, the complaint must state with the effect of denial.
PARTICULARITY the fraudulent acts of the
adverse party. These particulars would The purpose of requiring the defendant to make
necessarily include the time, place and specific a specific denial is to make him disclose the
acts of fraud committed against him. matters alleged in the complaint which he
succinctly intends to disprove at the trial,
MALICE, INTENT, KNOWLEDGE OR OTHER together with the matter which he relied upon
CONDITIONS OF THE MIND of a person may be to support the denial. The parties are compelled
averred GENERALLY (Sec. 5, Rule 8). Unlike in to lay their cards on the table.
fraud or mistake, they need not be stated with
particularity. The rule is borne out of human EFFECT OF FAILURE TO MAKE SPECIFIC
experience. It is difficult to state the particulars DENIALS
constituting these matters. Hence, a general
averment is sufficient. Material allegations, except unliquidated
damages, not specifically denied are deemed
admitted (Sec. 11, Rule 8).
PLEADING AN ACTIONABLE DOCUMENT If the allegations are deemed admitted, there is

no more triable issue between the parties and if
An actionable document is a document relied the admissions appear in the answer of the
upon by either the plaintiff or the defendant. defendant, the plaintiff may file a motion for
judgment on the pleadings under Rule 34.
Whenever an actionable document is the basis
of a pleading, the rule specifically direct the An admission in a pleading cannot be
pleader to: controverted by the party making such
a) set forth in the pleading the substance of admission because the admission is conclusive
the instrument or the document; or as to him. All proofs submitted by him contrary
b) to attach the original or the copy of the thereto or inconsistent therewith should be
document to the pleading as an exhibit ignored whether an objection is interposed by a
and to be part of the pleading; or party or not. Said admission is a judicial
c) to set forth in the pleading said copy of admission, having been made by a party in the
the instrument or document (Sec. 7, course of the proceedings in the same case, and
Rule 8). does not require proof.
This manner of pleading a document applies A party who desires to contradict his own
only to one which is the basis of action or a judicial admission may do so only be either of
defense. Hence, if the document does not have two ways:
the character of an actionable document, as a) by showing that the admission was made
when it is merely evidentiary, it need not be through palpable mistake; or
pleaded strictly. b) that no such admission was made (Sec.
4, Rule 129).
SPECIFIC DENIALS
The following are not deemed admitted by WHEN A DECLARATION OF DEFAULT IS

the failure to make a specific denial: PROPER
a) The amount of unliquidated damages;
b) Conclusions in a pleading which do not If the defending party fails to answer within
have to be denied at all because only the time allowed therefor, the court shall, upon
ultimate facts need be alleged in a motion of the claiming party with notice to
pleading; the defending party, and proof of such
c) Non-material allegations, because only failure, declare the defending party in default
material allegations need be denied. (Sec. 3, Rule 9).
WHEN A SPECIFIC DENIAL REQUIRES AN In order for the court to declare the defendant
OATH in default the following requisites must be
present:
Specific denials which must be under oath to be 1. The court must have validly ACQUIRED
sufficient are: JURISDICTION over the person of the
a) A denial of an actionable document (Sec. defendant either by service of summons
8, Rule 8); or voluntary appearance;
b) A denial of allegations of usury in a 2. The defendant FAILS TO ANSWER within
complaint to recover usurious interest the time allowed therefore;
(Sec. 11, Rule 8). 3. There must be a MOTION to declare the
defendant in default;
4. There must be NOTICE to the defendant
EFFECT OF FAILURE TO PLEAD (RULE 9) by serving upon him a copy of such
motion;
5. There must be PROOF of such failure to
FAILURE TO PLEAD DEFENSES AND answer; and
OBJECTIONS 6. There must be a HEARING to declare the
defendant in default.
Defenses or objections not pleaded either in a
motion to dismiss or in the answer are deemed It is not correct to declare a party in default of
waived. the defending party filed an answer
Exceptions: EFFECT OF AN ORDER OF DEFAULT

a) Lack of jurisdiction over the subject
matter; 1) The party declared in default loses his
b) That there is another action pending standing in court preventing him from taking
between the same parties for the same part in the trial;
cause (litis pendentia); 2) The party in default shall still be entitled to
c) That the action is barred by the statute notices of subsequent proceedings as well
of limitations (prescription); as to receive notice that he was declared in
d) Res judicata. default;
 In all these cases, the court shall 3) The declaration of default is not an
dismiss the claim. admission of the truth or validity of the
plaintiff’s claims.
FAILURE TO PLEAD A COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM RELIEF FROM AN ORDER OF DEFAULT
A compulsory counterclaim or a cross-claim not REMEDY FROM THE NOTICE OF ORDER AND
set up shall be barred (Sec. 2, Rule 9). BEFORE JUDGMENT:
 MOTION TO SET ASIDE ORDER OF
DEFAULT DEFAULT, showing that
a) the failure to answer was due to
Default is a procedural concept that occurs fraud, accident, mistake, or
when the defending party fails to file his answer excusable negligence, and
within the reglementary period. It does not
b) the defendant has a meritorious
occur from the failure of the defendant to
defense—there must be an affidavit
attend either the pre-trial or the trial.
of merit (Sec. 3[b], Rule 9).
REMEDY AFTER JUDGMENT BUT BEFORE

FINALITY: When a pleading asserting a claim states a
 MOTION FOR NEW TRIAL (Rule 37); common cause of action against several
 MOTION FOR RECONSIDERATION; or defending parties, some of whom answer and
the others fail to do so, the court shall try the
 APPEAL from the judgment as being case against all upon the answers thus filed and
contrary to the evidence or the law (Rule
render judgment upon the evidence presented
41).
(Sec. 33[c], Rule 9).
 You can directly file an appeal without Default is only against those defendant who
passing MR and MNT; or you can MR/MNT didn’t file the answer but they can also benefit
and if denied, then you can still file an from the answering defendants
appeal and have a new “fresh 15 day”
period of appeal (Neypes doctrine)
EXTENT OF RELIEF
 This Neypes doctrine on “fresh period of
A judgment rendered against a party in default
appeal” applies to Rule 45 and Sec. 3 (e)
may not exceed the amount or be different from
of Rule 122.
that prayed for nor include unliquidated
damages which are not awarded (Sec. 3[c], Rule
 The purpose of the doctrine is to 9). In fact, there can be no automatic grant of
standardize the period of appeal. relief as the court has to weigh the evidence.
 The appeal shall be taken within The court may render judgment before or after
fifteen (15) days from notice of the the presentation of evidence. So the court may
judgment or final order appealed award unliquidated damages in case where the
from. Where a record on appeal is court default defendant in default after the
required, the appellant shall file a notice presentation of the evidence.
of appeal and a record on appeal within
thirty (30) days from notice of the ACTIONS WHERE DEFAULT ARE NOT
judgment or final order. ALLOWED
 So the period of appeal is 15 days from 1) Annulment of marriage;

notice of judgment or 15 days from 2) Declaration of nullity of marriage;
final order appealed from. 3) Legal separation
4) In special civil actions of certiorari,
 The SC ruled in one case that this “fresh prohibition and mandamus where comment
period of appeal” is applicable in criminal instead of an answer is required to be filed;
cases (Judith Yu vs. Judge Samson, and
Feb. 9, 2011) 5) Summary procedure.
REMEDY AFTER JUDGMENT BECOMES FINAL

AND EXECUTORY: FILING AND SERVICE OF PLEADINGS (RULE
 PETITION FOR RELIEF FROM JUDGMENT 13)
(Rule 38);
 ACTION FOR NULLITY OF JUDGMENT PAYMENT OF DOCKET FEES
(Rule 47).
It is not simply the filing of the complaint or
If the order of default is valid, appropriate initiatory pleading but the
Certiorari is not available. If the payments of the prescribed docket fee that
default order was improvidently issued, vests a trial court with JURISDICTION over the
that is, the defendant was declared in subject matter or nature of the action. In
default, without a motion, or without connection with the payment of docket fees, the
having served with summons before the court requires that all complaints, petitions,
expiration of the reglementary period to answers and similar pleadings must specify the
answer, certiorari is available as a amount of damages being prayed for both in the
remedy. body of the pleading and in prayer therein and
said damages shall be considered in the
EFFECT OF A PARTIAL DEFAULT assessment of the filing fees; otherwise such
pleading shall not be accepted for filing or shall

be expunged from the record. The date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as
Any defect in the original pleading resulting in shown by the post office stamp on the envelope
underpayment of the docket fee cannot be or the registry receipt, shall be considered as
cured by amendment, such as by the reduction the date of their filing, payment, or deposit in
of the claim as, for all legal purposes, there is court. The envelope shall be attached to the
no original complaint over which the court has record of the case (Sec. 3, Rule 13)
acquired jurisdiction.
THE FILING OF RESPONSIVE PLEADINGS
The rule on payment of docket fee has, in some SHALL HAVE THE FOLLOWING PERIODS
instances, been subject to the rule on LIBERAL
INTERPRETATION. Thus, in a case, it was held 1) Answer to the complaint
that while the payment of the required docket  within 15 days after service of
fee is a jurisdictional requirement, even its summons unless a different period is
nonpayment at the time of filing does not fixed by the court.
automatically cause the dismissal of the case,
as long as the fee is paid within the applicable 2) Answer of a defendant foreign
prescriptive or reglementary period. private juridical entity
a. If it has a resident agent
Also, if the amount of docket fees is insufficient
 within 15 days after service of
considering the amount of the claim, the party
summons to such agent.
filing the case will be required to pay the
b. If it has no resident agent but it
deficiency, but jurisdiction is not automatically
has an agent or officer in the Philippines
lost.
 within 15 days after service of
summons to said agent or officer.
Within the period for taking an APPEAL, the
c. If it has no resident agent, agent
appellant shall pay to the clerk of court which
or officer the service of summons shall
rendered the judgment or final order appealed
be made on the proper government
from, the full amount of the appellate court
office which will then forward it by
docket and other lawful fees (Sec. 4, Rule 41).
registered mail within 10 days to the
Hence, the Rule now requires that appellate
corporation’s office
docket and other lawful fees must be paid
within the same period for taking an appeal.  the answer must be filed within 30
Such payment of docket fee within the days from the receipt of the
prescribed period is mandatory for the summons by the home office.
perfection of an appeal.
3) When the service is made by
Without such payment, the appellate court does publication
not acquire jurisdiction over the subject matter  within the time specified in the order
of the action and the decision sought to be granting leave to serve summons by
appealed from becomes final and executor. publication which shall not be less
Hence, nonpayment is a valid ground for the than 60m days after notice.
dismissal of an appeal. However, delay in the
payment of the docket fees confers upon the 4) When the defendant is a non-
court a discretionary, not a mandatory power to resident on whom extraterritorial
dismiss an appeal. service is made
 within 60 days from such service.
FILING VERSUS SERVICE OF PLEADINGS
5) Answer to an amended complaint
FILING is the act of presenting the pleading or  where the amendment is a matter of
other paper to the clerk of court; right, within 15 days from the service
of amended complaint. If the
SERVICE is the act of providing a party with a amendment is NOT a matter of right,
copy of the pleading or paper concerned (Sec. the answer must be filed within 10
2, Rule 13). days from notice of the order
admitting the same.
PERIODS OF FILING OF PLEADINGS
 The same periods shall apply to PERSONAL SERVICE

answers filed on an amended
counterclaim , cross claim and third It is the preferred mode of service. If another
party complaint. mode of service is used other than personal
service, the service must be accompanied by a
6) Answer to counterclaim or cross- written explanation why the service of filing was
claim not done personally. Exempt from this
 within 10 days from service explanation are papers emanating from the
court. A violation of this explanation
7) Answer to third-party complaint requirement may be a cause for the paper to be
 the period to answer shall be the considered as not having been filed (Sec. 11,
same as the periods given in Rule 13).
answering a complaint which shall
either be 15, 30 or 60 days as the Personal service is made by:
case may be. a) delivering a copy of the papers served
personally to the party or his counsel, or
8) Reply b) by leaving the papers in his office with
 within 10 days from the service of the his clerk or a person having charge
pleading responded to. thereof, or
c) If no person is found in the office, or his
9) Answer to supplemental complaint office is not known or he has no office,
 within 10 days from notice of the then by leaving a copy of the papers at
order admitting the supplemental the party’s or counsel‘s residence, if
complaint unless a different period is known, with a person of sufficient age
fixed by the court. and discretion residing therein between
eight in the morning and six in the
MANNER OF FILING evening (Sec. 6, Rule 13).
By PERSONAL SERVICE or by REGISTERED MAIL. SERVICE BY MAIL

The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers The preferred service by mail is by registered
shall be made by presenting the original copies mail. It is deemed complete upon actual receipt
thereof, plainly indicated as such, personally to by the addressee or after 5 days from the date
the clerk of court or by sending them by he received the first notice of the postmaster
registered mail (Registry Service). In the first whichever is earlier. Service by ordinary mail
case, the clerk of court shall endorse on the may be done only if no registry service is
pleading the date and hour of filing. In the available in the locality of either the sender or
second case, the date of the mailing of motions, the addressee (Sec. 7, Rule 13).
pleadings, or any other papers or payments or
deposits, as shown by the post office stamp on It shall be done by depositing the copy in the
the envelope or the registry receipt, shall be post office, in a sealed envelope, plainly
considered as the date of their filing, payment, addressed to the party or his counsel at his
or deposit in court. The envelope shall be office, if known, or otherwise at his residence, if
attached to the record of the case (Sec. 3, Rule known, with postage fully prepaid, and with
13). instructions to the postmaster to return the mail
to the sender after ten (10) days if not
MODES OF SERVICE delivered.
There are two modes of service of pleadings, SUBSTITUTED SERVICE (FILING)

judgments, motions, notices, orders, judgments
and other papers: This mode is availed of only when there is
a) personally, or failure to effect service personally or by mail.
b) by mail. This failure occurs when the office and
residence of the party or counsel is unknown.
However, if personal service and serviced by
mail cannot be made, service shall be done by It is effected by delivering the copy to the clerk
substituted service. of court, with proof of failure of both personal
service and service by mail (Sec. 8, Rule 13).
 Proved by the written or stamped

Substituted service is complete at the time of acknowledgement of its filing by the
delivery of the copy to the clerk of court. clerk of court on a copy of the same;
or
SERVICE OF JUDGMENTS, FINAL ORDERS 2) If filed by REGISTERED MAIL:
OR RESOLUTIONS  Proved by the registry receipt AND
the affidavit of the person who did
Final orders or judgments shall be served either the mailing with a full statement of:
personally or by registered mail. When a party a) The date and place of
summoned by publication has failed to appear depositing the mail in the post
in the action, final orders or judgments against office in a sealed envelope
him shall be served upon him also by assessed to the court;
publication at the expense of the prevailing b) With postage fully paid; and
party (Sec. 9). c) With the instructions to the
postmaster to return the mail
PRIORITIES IN MODES OF SERVICE AND to the sender after 10 days if
FILING undelivered.
 Personal service is the preferred mode of PROOF OF SERVICE

service. 1) Proof of personal service shall consist of:
 the written admission of the party
 The preferred service by mail is by served; or
registered mail.  The official return of the server; or
 The affidavit of the party serving (in case
 The following papers are required to be of refusal to receive), containing full
filed in court and served upon the parties information of the date, place and
affected: (a) Judgments; (b) Resolutions; (c) manner of service (Sec. 13, Rule 13).
Orders; (d) Pleadings subsequent to the 2) Proof of service by registered mail
complaint; (e) Written motions; (f) Notices;
 Shall be shown by the affidavit of the
(g) Appearances; (h) Demands; (i) Offers of
mailer showing compliance with Sec. 7,
judgment; (j) Similar papers (Sec. 4, Rule
Rule 13 and the registry receipt issued
13).
by the mailing office and present the
document returned or the card.
WHEN SERVICE IS DEEMED COMPLETE
3) Proof of service of ordinary mail
Personal service is deemed complete upon the  Service shall be proved by affidavit of
actual delivery following the above procedure the mailer showing compliance with
(Sec. 10, Rule 13). Sec. 7, Rule 13
Service by ordinary mail is deemed complete AMENDMENT (RULE 10)

upon the expiration of ten (10) days after
mailing, unless the court otherwise provides. On
the other hand, service by registered mail is AMENDMENT AS A MATTER OF RIGHT
complete upon actual receipt by the addressee,
or after five (5) days from the date he received A plaintiff has the right to amend his complaint
the first notice of the postmaster, whichever is once at any time before a responsive
earlier (Sec. 8, Rule 13). pleading is served by the other party or in
case of a reply to which there is no responsive
Substituted service is complete at the time of pleading, at any time within ten (10) days after
delivery of the copy to the clerk of court. it is served (Sec. 2, Rule 10).
PROOF OF FILING AND SERVICE Thus, before an answer is served on the

plaintiff, the latter may amend his complaint as
PROOF OF FILING a matter of right for whatever reasons as
The filing of a pleading or paper is proved by its it may be, even to correct the error of
existence in the record. If it is not in the record judgment. The defendant may also amend his
1) If filed PERSONALLY: answer, also as a matter of right, before a reply
is served upon him. (Sec. 2 refers to an
amendment made before the trial court, not to parties, they shall be treated in all respects as if
amendments before the CA). they had been raised in the pleadings. Such
amendment of the pleadings as may be
The CA is vested with jurisdiction to admit or necessary to cause them to conform to the
deny amended petitions filed before it. Hence, evidence and to raise these issues may be
even if no responsive pleading has yet been made upon motion of any party at any time,
served, if the amendment is subsequent to a even after judgment; but failure to amend does
previous amendment made as a matter of right, not affect the result of the trial of these issues.
the subsequent amendment must be with leave
of court. If evidence is objected to at the trial on the
ground that it is not within the issues made by
So you can amend the complaint to correct the the pleadings, the court may allow the
error of jurisdiction as a matter of right (without pleadings to be amended and shall do so with
leave of court) before a responsive pleading is liberality if the presentation of the merits of the
served even though there is already a motion to action and the ends of substantial justice will be
dismiss filed for lack of jurisdiction. The court subserved thereby. The court may grant a
should deny the motion since such motion is not continuance to enable the amendment to be
a responsive pleading. Note: The amendment as made (Sec. 5, Rule 10).
a matter of right should be filed before the order
to dismiss becomes final. DIFFERENT FROM SUPPLEMENTAL
PLEADINGS
AMENDMENTS BY LEAVE OF COURT
A supplemental pleading is one which sets forth
Leave of court is required for substantial transactions, occurrences, or events which have
amendment made after service of a responsive happened since the date of the pleading sought
pleading (Sec. 3, Rule 10). The plaintiff, for to be supplemented. The filing of supplemental
example, cannot amend his complaint by pleadings requires leave of court. The court may
changing his cause of action or adding a new allow the pleading only upon such terms as are
one without leave of court. just. This leave is sought by the filing of a
motion with notice to all parties (Sec. 6, Rule
After a responsive pleading is filed, an 10).
amendment to the complaint may be
substantial and will correspondingly require a A supplemental pleading does not extinguish
substantial alteration in the defenses of the the existence of the original pleading, while an
adverse party. The amendment of the complaint amended pleading takes the place of the
is not only unfair to the defendant but will cause original pleading. A supplemental pleading
unnecessary delay in the proceedings. Leave of exists side with the original; it does not replace
court is thus, required. that which it supplements it does not supersede
the original but assumes that the original
Where no responsive pleading has yet been pleading remain as the issues to be tried in the
served, no defenses would be altered. The action. A supplemental pleading supplies the
amendment of the pleading will not then require deficiencies in aid of an original pleading, not to
leave of court. entirely substitute the latter.
FORMAL AMENDMENT EFFECT OF AMENDED PLEADING
A defect in the designation of the parties and  An amended pleading supersedes the
other clearly clerical or typographical errors original one which it amends (Sec. 8, Rule
may be summarily corrected by the court at 10).
any stage of the action, at its initiative or on  The original pleading loses its status as a
motion, provided no prejudice is caused thereby pleading, is deemed withdrawn and
to the adverse party (Sec. 4, Rule 10). disappears from the record. It has been held
that the original complaint is deemed
AMENDMENTS TO CONFORM TO OR superseded and abandoned by the
AUTHORIZE PRESENTATION OF EVIDENCE amendatory complaint only if the latter
introduces a new or different cause of
When issues not raised by the pleadings are action.
tried with the express or implied consent of the
 The defenses in the original pleadings not In an action in rem or quasi in rem,
reproduced in the amended pleadings are jurisdiction over the defendant is not required
waived. and the court acquires jurisdiction over an
 Admissions in the superseded pleading can action as long as it acquires jurisdiction over the
still be received in evidence against the res. The purpose of summons in these actions is
pleader. not the acquisition of jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due process.
SUMMONS (Rule 14)
VOLUNTARY APPEARANCE
 Summons is a writ or process issued and The defendant's voluntary appearance in the
served upon the defendant in a civil action action shall be equivalent to service of
for the purpose of securing his appearance summons. The inclusion in a motion to dismiss
therein. of other grounds aside from lack of jurisdiction
 The purpose of summons is to comply with over the person of the defendant shall not be
the constitutional rights on due process deemed a voluntary appearance (Sec. 20, Rule
 The service of summons enables the court to 14).
acquire jurisdiction over the person of the
defendant. If there is no service of Jurisdiction over the defendant is acquired by:
summons, any judgment rendered or a) Valid service of summons; or
proceedings had in a case are null and void, b) By his voluntary appearance or
except in case of voluntary appearance. The submission to the jurisdiction of the
law requiring the manner of service of court.
summons is jurisdictional.
 When the defendant is a corporation, The defendant’s voluntary appearance in the
partnership or association organized under action shall be equivalent to service of
the laws of the Philippines with a juridical summons. Lack of jurisdiction over one’s person
personality, service may be made on the maybe invoked in a motion to dismiss alleging
president, managing partner, general such ground. If no motion to dismiss is filed, it
manager, corporate secretary, treasurer, or may be raised as an affirmative defense in the
in-house counsel (Sec 11). answer.
 If a party dies and there is substitute, there
is no need for summons but only an order The inclusion in a motion to dismiss of other
for him tom appear. grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a
NATURE AND PURPOSE OF SUMMONS IN voluntary appearance.
RELATION TO ACTIONS IN PERSONAM,
IN REM AND QUASI IN REM PERSONAL SERVICE
In an action in personam, the purpose of It shall be served by HANDLING a copy to the

summons is not only to notify the defendant of defendant in person, or if he refuses it, by
the action against him but also to acquire TENDERING it to him (Sec. 6, Rule 14).
jurisdiction over his person. The filing of the
complaint does not enable the courts to acquire SUBSTITUTED SERVICE (SUMMONS)
jurisdiction over the person of the defendant. By
the filing of the complaint and the payment of If the defendant cannot be served within a
the required filing and docket fees, the court reasonable time, service may be effected:
acquires jurisdiction only over the person of the 1) By leaving copies of the summons at the
plaintiff, not over the person of the defendant. defendant’s dwelling house or residence
Acquisition of jurisdiction over the latter is with some person of suitable age and
accomplished by a valid service of summons discretion then residing therein; or
upon him. Service of summons logically follows 2) By leaving copies at defendant’s office or
the filing of the complaint. Note further that the regular place of business with some
filing of the complaint tolls the running of the competent person in charge thereof
prescriptive period of the cause of action in (Sec. 7).
accordance with Article 1155 of the Civil Code.
The following facts must first be shown for the him. This is in fact the only way of acquiring
service to be valid: jurisdiction over his person if he does not
1) The impossibility of the personal service voluntarily appear in the action. Summons by
within a reasonable time publication against a nonresident in an action in
2) The effort exerted to locate the person to personam is not a proper mode of service.
be served
3) Service upon a person of sufficient age Publication is notice to the whole world that the
and discretion residing in the same place proceeding has for its object to bar indefinitely
or some competent person in charge of all who might be minded to make an objection
his office or regular place of business of any sort against the right sought to be
4) There should be at least 3 attempts in 2 established. It is the publication of such notice
days. that brings the whole world as a party in the
case and vests the court with jurisdiction to
It may be resorted to if there are justifiable hear and decide it.
causes, where the defendant cannot be served
within a REASONABLE TIME (for plaintiff = 7 SERVICE UPON A DEFENDANT WHERE HIS
days; sheriff = 15 – 30 days). An example is IDENTITY IS UNKNOWN OR WHERE HIS
when the defendant is in hiding and resorted to WHEREABOUTS ARE UNKNOWN
it intentionally to avoid service of summons, or
when the defendant refuses without justifiable Where the defendant is designated as unknown,
reason to receive the summons. or whenever his whereabouts are unknown and
cannot be ascertained despite a diligent inquiry,
In substituted service of summons, actual service may, with prior leave of court, be
receipt of the summons by the defendant effected upon the defendant, by publication in a
through the person served must be shown. It newspaper of general circulation. The place and
further requires that where there is substituted the frequency of the publication is a matter for
service, there should be a report indicating that the court to determine (Sec. 14, Rule 14).
the person who received the summons in
defendant’s behalf was one with whom The rule does not distinguish whether the action
petitioner had a relation of confidence ensuring is in personam, in rem or quasi in rem. The
that the latter would receive or would be tenor of the rule authorizes summons by
notified of the summons issued in his name. publication whatever the action may be as long
as the identity of the defendant is unknown or
Substituted service is not allowed in service of his whereabouts are unknown.
summons on domestic corporations.
RULES ON SUMMONS ON DEFENDANT
CONSTRUCTIVE SERVICE (BY PUBLICATION)
(1) Resident
As a rule, summons by publication is available (a) Present in the Philippines
only in actions in rem or quasi in rem. It is not 1) Personal service (Rule 14, Sec. 6)
available as a means of acquiring jurisdiction 2) Substituted service (Rule 14, Sec.
over the person of the defendant in an action in 7)
personam. 3) Publication, but only if
a) his identity or whereabouts is
Against a resident, the recognized mode of unknown (Rule 14, Sec. 14);
service is service in person on the defendant and
under Sec. 6 Rule 14. In a case where the b) the action is in rem or quasi in
defendant cannot be served within a reasonable rem
time, substituted service will apply (Sec. 7, Rule (b) Absent from the Philippines
14), but no summons by publication which is 1) Substituted service (Rule 14, Sec.
permissible however, under the conditions set 7)
forth in Sec. 14, Rule 14. 2) Extraterritorial service (Rule 14,
Sec. 16 and 15); action need not
Against a non-resident, jurisdiction is acquired be in rem or quasi in rem
over the defendant by service upon his person
while said defendant is within the Philippines. As (2) Non-resident
once held, when the defendant is a nonresident, 1. Present in the Philippines
personal service of summons in the state is a) Personal service (Sec. 6, Rule 14)
essential to the acquisition of jurisdiction over
b) Substituted service (Sec. 7, Rule Under Sec. 15, Rule 14, extraterritorial service
14) of summons is proper only in four (4) instances
2. Absent from the Philippines namely:
a) Action in rem or quasi in rem – 1) When the action affects the personal
only Extraterritorial service (Rule status of the plaintiffs;
14, Sec. 15) 2) When the action relates to, or the subject
b) Action in personam, and of which is, property within the
judgment cannot be secured by Philippines, in which the defendant has
attachment (e.g. action for or claims a lien or interest, actual or
injunction) contingent;
1) Wait for the defendant to 3) When the relief demanded in such action
come to the Philippines consists, wholly or in part, in excluding
and to serve summons the defendant from any interest in
then property located in the Philippines; and
2) Wait the defendant to 4) When the defendant non-resident’s
voluntarily appear in court property has been attached within the
(Rule 14, Sec. 20) Philippines.
3) Plaintiff cannot resort to
extraterritorial service of Extraterritorial service of summons applies
summons when the following requisites concur:
1) The defendant is nonresident;
SERVICE UPON RESIDENTS TEMPORARILY 2) He is not found in the Philippines; and
OUTSIDE THE PHILIPPINES 3) The action against him is either in rem or
quasi in rem.
Service of summons upon a resident of the
Philippines who is temporarily out of the If the action is in personam, this mode of service
country, may, by leave of court be effected out will not be available. There is no extraterritorial
of the Philippines as under the rules on service of summons in an action in personam.
extraterritorial service in Sec. 15, Rule 14 by Hence, extraterritorial service upon a
any of the following modes: nonresident in an action for injunction which is
1) by personal service as in Sec. 6, in personam is not proper (Banco Do Brasil vs.
2) by publication in a news paper of general CA, 333 SCRA 545).
circulation together with a registered
mailing of a copy of the summons and When the action is in personam, jurisdiction
the order of the court to the last known over the person of the defendant is necessary
address of the defendant, or for the court to validly try and decide the case.
3) by any manner the court may deem However, when the defendant is a nonresident,
sufficient under Sec. 16. personal service of summons in the state is
essential to the acquisition of jurisdiction over
Like in the case of an unknown defendant or him.
one whose whereabouts are unknown, the rule
affecting residents who are temporarily out of SERVICE UPON PRISONERS AND MINORS
the Philippines applies in any action. Note also,
that summons by publication may be effected On a minor. Service shall be made on him
against the defendant. personally and on his legal guardian if he has
one, or if none, upon his guardian ad litem
The defendant may however, also be served by whose appointment shall be applied for by the
substituted service. This is because even if he is plaintiff, or upon a person exercising parental
abroad, he has a residence in the Philippines or authority over him, but the court may order that
a place of business and surely, because of his service made on a minor of 15 or more years of
absence, he cannot be served in person within a age shall be sufficient (Sec. 10);
reasonable time.
On prisoners. It shall be made upon him
EXTRA-TERRITORIAL SERVICE, WHEN (prisoner) by serving on the officer (becomes
ALLOWED the deputy sheriff) having the management of
the jail or institution who is deemed deputized
as a special sheriff for said purpose (Sec. 9).
If served by the sheriff, his deputy, or other A motion is not a pleading, even when reduced
proper court officer, there is no need to be to writing; it relates generally to procedural
sworn but this is needed if served by other matters, unlike pleadings which generally states
persons. substantial questions. Moreover, a motion is not
an independent remedy, and thus cannot
PROOF OF SERVICE replace an action to enforce a legal right.
When the service has been completed, the CONTENTS AND FORM OF MOTIONS
server shall, within five (5) days therefrom,
serve a copy of the return, personally or by A motion shall state the order sought to be
registered mail, to the plaintiff‘s counsel, and obtained, and the grounds which it is based, and
shall return the summons to the clerk who if necessary shall be accompanied by
issued it, accompanied by proof of service (Sec. supporting affidavits and other papers (Sec. 3).
4, Rule 14).
All motions must be in writing except those
The proof of service of summons shall be made made in open court or in the course of a hearing
in writing by the server and shall set forth the or trial (Sec. 2).
manner, place and date of service; shall specify
any papers which have been served with the NOTICE OF HEARING AND HEARING OF
process and the name of the person who MOTIONS
received the same; and shall be sworn to when
made by a person other than a sheriff or his Except for motions which the court may act
deputy (Sec. 18). upon without prejudicing the rights of the
adverse party, every written motion shall be set
If the service has been made by publication, for hearing by the applicant.
service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of the The motion which contains the notice of hearing
editor, business or advertising manager, to shall be served as to ensure its receipt by the
which affidavit a copy of the publication shall be other party at least three (3) days before the
attached and by an affidavit showing the date of hearing, unless the court for good cause
deposit of a copy of the summons and order for sets the hearing on shorter notice. It shall be
publication in the post office, postage prepaid, addressed to all parties concerned, and shall
directed to the defendant by registered mail to specify the time and date of the hearing which
his last known address (Sec. 19). must not be later than ten (10) days after the
filing of the motion (Sec. 4, Rule 15).
MOTIONS (Rule 15) OMNIBUS MOTION RULE
MOTIONS IN GENERAL, DEFINITION OF The rule is a procedural principle which requires

MOTION that every motion that attacks a pleading,
judgment, order or proceeding shall include all
grounds then available, and all objections not so
A motion is an application for relief other than
included shall be deemed waived (Sec. 8).
by a pleading (Sec. 1, Rule 15).
Since the rule is subject to the provisions of
MOTIONS VERSUS PLEADINGS
Sec. 1, Rule 9, the objections mentioned therein
are not deemed waived even if not included in
A pleading is a written statement of the
the motion. These objections are:
respective claims and defenses of the parties
a) that the court has no jurisdiction over the
submitted to the court for appropriate judgment
subject matter,
(Sec. 1, Rule 6). It may be in the form of a
complaint, counterclaim, cross-claim, third-party b) that there is another action pending
complaint, or complaint-in-intervention, answer between the same parties for the same
or reply (Sec. 2, Rule 6). cause (litis pendencia),
c) that the action is barred by a prior
A motion on the other hand is an application for judgment (res judicata), and
relief other than a pleading (Sec. 1, Rule 15). d) that the action is barred by the statute of
limitations (prescription) (Sec. 1, par. 2,
Rule 9).
entitled as a matter of right, and not as a matter

Even if a motion to dismiss was filed and the of discretion on the part of the court. Moreover,
issue of jurisdiction was not raised therein, a the allegations contained in such a motion do
party may, when he files an answer, raise the not have to be investigated or verified. An
lack of jurisdiction as an affirmative defense example would be a motion filed out of time,
because this defense is not barred under the because this motion may be disposed of the
omnibus motion rule. court on its own initiative. Another example
would be a motion to sell certain property after
A motion to dismiss is a typical example of a the period given by the court to the debtor to
motion subject to omnibus motion rule, since a pay has elapsed, and such previous order had
motion to dismiss attacks a complaint which is a specified that the property be sold in case of
pleading. default.
Under the omnibus motion rule, a motion Special motion – the opposite of a motion of
attacking a pleading like a motion to dismiss course, here the discretion of the court is
shall include all grounds then available and all involved; usually an investigation of the facts
objections not so included shall be deemed alleged is required.
waived. It can no longer be invoked as
affirmative defense in the answer which the PRO-FORMA MOTIONS
movant may file following the denial of his
motion to dismiss. The defense of lack of The Court has consistently held that a motion
jurisdiction over the subject matter is however, which does not meet the requirements of
a defense not barred by the failure to invoke the Sections 4 and 5 of Rule 15 on hearing and
same in a motion to dismiss already filed. notice of the hearing is a mere scrap of paper,
which the clerk of court has no right to receive
LITIGATED AND EX PARTE MOTIONS and the trial court has no authority to act upon
and one which will be treated as a motion
A litigated motion is one which requires the intended to delay the proceedings. Service of a
parties to be heard before a ruling on the copy of a motion containing a notice of the time
motion is made by the court. Sec. 4 establishes and the place of hearing of that motion is a
the general rule that every written motion is mandatory requirement, and the failure of
deemed a litigated motion. A motion to dismiss movants to comply with these requirements
(Rule 16), a motion for judgment for the renders their motions fatally defective.
pleadings (Rule 34), and a summary judgment
(Rule 35), are litigated motions.
MOTIONS FOR BILL OF PARTICULARS
An ex parte motion is one which does not (RULE 12)
require that the parties be heard, and which the
court may act upon without prejudicing the
rights of the other party. This kind of motion is PURPOSE AND WHEN APPLIED FOR
not covered by the hearing requirement of the
Rules (Sec. 2). An example of an ex parte The purpose of the motion is to seek an order
motion is that one filed by the plaintiff pursuant from the court directing the pleader to submit a
to Sec. 1, Rule 18, in which he moves promptly bill of particulars which avers matters with
that the case be set for pre-trial. A motion for sufficient definitiveness or particularity to
extension of time is an ex parte motion made to enable the movant to prepare his responsive
the court in behalf of one or the other of the pleading (Sec. 1, Rule 12), not to enable the
parties to the action, in the absence and usually movant to prepare for trial. The latter purpose is
without the knowledge of the other party or the ultimate objective of the discovery
parties. Ex parte motions are frequently procedures from Rules 23 to 29 and ever of a
permissible in procedural matters, and also in pre-trial under Rule 18.
situations and under circumstances of
emergency; and an exception to the rule In other words, the function of a bill of
requiring notice is sometimes made where particulars is to clarify the allegations in the
notice or the resulting delay might tend to pleading so an adverse party may be informed
defeat the objective of the motion. with certainty of the exact character of a cause
of action or a defense. Without the clarifications
Motion of course – a motion for a certain kind sought by the motion, the movant may be
of relief or remedy to which the movant is
deprived of the opportunity to submit an b) the portions thereof to which the order
intelligent responsive pleading. was directed; or
c) make such other order as it deems just
This is to avert the danger where the opposing (Sec. 4).
party will find difficulty in squarely meeting the
issues raised against him and plead the EFFECT ON THE PERIOD TO FILE A
corresponding defenses which if not timely RESPONSIVE PLEADING
raised in the answer will be deemed waived.
A motion for bill of particulars is not a pleading
A motion for a bill of particulars is to be filed hence, not a responsive pleading. Whether or
before, not after responding to a pleading (Sec. not his motion is granted, the movant may file
1, Rule 12). Thus, where the motion for bill of his responsive pleading. When he files a motion
particulars is directed to a complaint, the for BOP, the period to file the responsive
motion should be filed within fifteen (15) days pleading is stayed or interrupted.
after service of summons. If the motion is
directed to a counterclaim, then the same must After service of the bill of particulars upon him
be filed within ten (10) days from service of the or after notice of the denial of his motion, he
counterclaim which is the period provided for by may file his responsive pleading within the
Sec. 4, Rule 11 to answer a counterclaim. period to which he is entitled to at the time the
motion for bill of particulars is filed. If he has
In case of a reply to which no responsive still eleven (11) days to file his pleading at the
pleading is provided for by the Rules, the time the motion for BOP is filed, then he has the
motion for bill of particulars must be filed within same number of days to file his responsive
ten (10) days of the service of said reply (Sec. pleading from the service upon him of the BOP.
1, Rule 12).
If the motion is denied, then he has the same
ACTIONS OF THE COURT number of days within which to file his pleading
counted from his receipt of the notice of the
Upon receipt of the motion which the clerk of order denying his motion. If the movant has less
court must immediately bring to the attention of than five (5) days to file his responsive pleading
the court, the latter has three possible options, after service of the bill of particulars or after
namely: notice of the denial of his motion, he
1) to deny the motion outright, nevertheless has five (5) days within which to
2) to grant the motion outright or file his responsive pleading. (Sec.5, Rule 12).
3) to hold a hearing on the motion.
A seasonable motion for a bill of particulars
COMPLIANCE WITH THE ORDER AND interrupts the period within which to answer.
EFFECT OF NON-COMPLIANCE After service of the bill of particulars or of a
more definite pleading, or after notice of denial
If a motion for bill of particulars is granted, the of his motion, the moving party shall have the
court shall order the pleader to submit a bill of same time to serve his responsive pleading, if
particulars to the pleading to which the motion any is permitted by the rules, as that to which
is directed. The compliance shall be effected he was entitled at the time of serving his
within ten (10) days from notice of the order, or motion, but no less than five (5) days in any
within the period fixed by the court (Sec. 3, Rule event.
12).
MOTION TO DISMISS (RULE 16)
In complying with the order, the pleader may
file the bill of particulars either in a separate
pleading or in the form or an amended pleading
 A motion to dismiss is not a pleading. It
(Sec. 3, Rule 12). The bill of particulars
is merely a motion. It is an application for
submitted becomes part of the pleading for
relief other than by a pleading (Sec. 1, Rule
which it is intended (Sec. 6, Rule 12).
15).
 The pleadings allowed under the Rules
If the order to file a bill of particulars is
are:
not obeyed, or in case of insufficient
a) complaint, (b) answer, (c)
compliance therewith, the court may:
counterclaim, (d) cross-claim, (e)
a) order the striking out of the pleading; or third (fourth, etc.) –party complaint,
(f) complaint in intervention (Sec. 2, every case, the resolution shall state clearly and
Rule 6), and reply (Sec. 10, Rule 6). A distinctly the reasons therefor (Sec. 3).
motion is not one of those specifically
designated as a pleading. REMEDIES OF PLAINTIFF WHEN THE
 Failure to state a cause of action COMPLAINT IS DISMISSED
GROUNDS Where the dismissal is final but is without

prejudice (interlocutory), the plaintiff may
Under Sec. 1, Rule 16, a motion to dismiss may simply re-file the action depending upon the
be filed on any of the following grounds: ground for the dismissal of the action. For
a) Lack of jurisdiction over the person of instance, if the ground for dismissal was
the defending party; anchored on improper venue, the plaintiff may
b) Lack of jurisdiction over the subject file the action in the proper venue.
matter of the claim;
c) The venue is improperly laid; Where the dismissal is final and it bars the re-
filing of the case, he may appeal from the order
d) The plaintiff has no legal capacity to sue;
of dismissal where the ground relied upon is one
e) There is another action pending between which bars the refiling of the complaint like res
the same parties and for the same cause judicata, prescription, extinguishment of the
(lis pendens); obligation or violation of the statute of frauds
f) The cause of action is barred by a prior (Sec. 5, Rule 16).
judgment (res judicata) or by the statute
of limitations (prescription); Since the complaint cannot be refiled, the
g) The pleading asserting the claim dismissal is with prejudice. Under Sec. 1[h],
states no cause of action; Rule 41, it is an order dismissing an action
h) The claim or demand has been paid, without prejudice which cannot be appealed
waived, abandoned, or otherwise from. Conversely, where the dismissal is with
extinguished; prejudice, an appeal from the order of dismissal
i) The claim on which the action is founded is not precluded.
is unenforceable under the provisions of
the statute of frauds; and Where the dismissal is without prejudice and the
j) A condition precedent for filing the action court gravely abused its discretion in doing so,
has not been complied with. the plaintiff may resort to certiorari (Sec. 1,
Rule 41).
The language of the rule, particularly on the
relation of the words “abandoned” and REMEDIES OF THE DEFENDANT WHEN THE
“otherwise extinguished” to the phrase “claim MOTION IS DENIED
or demand deemed set forth in the plaintiff’s
pleading” is broad enough to include within its 1) File answer within the balance of
ambit the defense of bar by laches. the period prescribed by Rule 11 to which
he was entitled at the time of serving his
However, when a party moves for the dismissal motion, but not less than five (5) days in any
of the complaint based on laches, the trial court event (Sec. 4, Rule 16).
must set a hearing on the motion where the • As a rule, the filing of an answer,
parties shall submit not only their arguments on going through the usual trial process,
the questions of law but also their evidence on and the filing of a timely appeal from
the questions of fact involved. Thus, being an adverse judgment are the proper
factual in nature, the elements of laches must remedies against a denial of a motion
be proved or disproved through the to dismiss.
presentation of evidence by the parties. • The filing of an appeal from an
order denying a motion to dismiss is
RESOLUTION OF MOTION not the remedy prescribed by
existing rules.
After the hearing, the court may dismiss the • The order of denial, being
action or claim, deny the motion, or order the interlocutory is not appealable (Sec
amendment of the pleading. The court shall not 1[c], Rule 4).
defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. In
2) Civil action under Rule 65 • The denial should be raised as an

(Certiorari) error of the trial court on appeal.
• In order to justify the grant of the
extraordinary remedy of certiorari, EFFECT OF DISMISSAL OF COMPLAINT ON
the must be a showing that the CERTAIN GROUNDS
denial of the motion was tainted with
grave abuse of discretion amounting When the complaint is dismissed on the grounds
to lack of jurisdiction. Without such of:
showing, Rule 65 cannot be availed a) prior judgment
of as a remedy. b) by the statute of limitations
• The general rule is that the denial c) payment, waiver, abandonment
of a motion to dismiss cannot be or extinguishment of the claim
questioned in a special civil action for d) unenforceability of the cause of
certiorari which is a remedy designed action under the statute of frauds
to correct errors of jurisdiction and  the dismissal shall bar the refiling
not errors of judgment. Neither can a of the same action or claim, but this
denial of a motion to dismiss be the is without prejudice to the right of the
subject of an appeal unless and until other party to appeal from the order
a final judgment or order is rendered. of dismissal because such dismissal
• A writ of certiorari is not intended is a final order, not merely
to correct every controversial interlocutory (Sec. 5).
interlocutory ruling. It is resorted to
only to correct a grave abuse of WHEN GROUNDS PLEADED AS
discretion or a whimsical exercise of AFFIRMATIVE DEFENSES
judgment equivalent to lack of
jurisdiction. Its function is limited to If no motion to dismiss has been filed, any of
keeping an inferior court within its the grounds provided for dismissal may be
jurisdiction and to relieve persons pleaded as an affirmative defense in the answer
from arbitrary acts, acts which courts and, in the discretion of the court, a preliminary
or judges have no power or authority hearing may be had thereon as if a motion to
in law to perform. It is not designed dismiss has been filed (Sec. 6, Rule 16).
to correct erroneous findings and
conclusions made by the courts. Implied under Sec. 6, Rule 16 is that the
grounds for a motion to dismiss are not waived
3) File an appeal even if the defendant fails to file a motion to
• This remedy is appropriate in the dismiss because he may still avail of the
instances where the defendant is barred defenses under Rule 16 as affirmative defenses
from refiling the same action of claim if in his answer.
the dismissal is based on the following
grounds: As a rule, a preliminary hearing is not
a) The cause of action is authorized when a motion to dismiss has been
barred by a prior judgment filed. An exception previously carved out as if
b) The cause of action is the trial court had not categorically resolved the
barred by the statute of motion to dismiss. Another exception would be
limitations justified under the liberal construction rule as
c) The claim or demand has when it is evident that the action is barred by
been paid, waived, abandoned or res judicata. A strict application of Sec. 6 would
otherwise extinguished accordingly lead to absurdity when an obviously
d) The claim on which the barred complaint continues to be litigated. The
action is founded is unenforceable denial of a motion to dismiss does not preclude
under the provisions of the any future reliance on the grounds relied
statute of frauds. thereupon.
4) The denial of a motion to dismiss is BAR BY DISMISSAL

interlocutory, hence, the remedy is to file an
answer, proceed to trial, and await judgment Res judicata as a ground for dismissal is based
before interposing an appeal. on two grounds, namely:
1) public policy and necessity, which makes a) A motion to dismiss should be filed
it to the interest of the State that there within the time for but prior to the filing
should be an end to litigation (republicae of the answer of the defending party to
ut sit litium); and the pleading asserting the claim against
2) the hardship on the individual of being him; a demurrer to evidence may be
vexed twice for the same cause (nemo filed only after the plaintiff has
debet bis vexari et eadem causa). completed the presentation of his
evidence.
Accordingly, courts will simply refuse to reopen b) A motion to dismiss is anchored on
what has been decided. They will not allow the preliminary objections; a demurrer is
same parties or their privies to litigate anew a anchored on one ground—insufficiency of
question once it has been considered and evidence; and
decided with finality. Litigations must end and c) If a motion to dismiss is denied, the
terminate sometime and somewhere. The defendant may file his responsive
effective and efficient administration of justice pleading (answer) or else he may
requires that once a judgment has become final, declared in default and if granted,
the prevailing party should not be deprived of plaintiff may appeal or if subsequent
the fruits of the verdict by subsequent suits on case is not barred, he may re-file the
the same issues filed by the same parties. case.
d) In a demurrer, if denied, the defendant
Res judicata comprehends two distinct may present his evidence and if granted,
concepts: plaintiff appeals and the order of
a) bar by a former judgment dismissal is reversed, the defendant
 bars the prosecution of a second loses his right to present evidence.
action upon the same claim, demand
or cause of action. Rule 17 is based on allegations; while Rule 33 is
b) conclusiveness of judgment based on evidence
 a fact or question which was in issue
in a former suit and was there DISMISSAL OF ACTIONS (Rule 17)
judicially passed upon and
determined by a court of competent
jurisdiction, is conclusively settled by 1) DISMISSAL UPON NOTICE BY PLAINTIFF
the judgment therein as far as the
parties to that action and persons in • At any time before the service of an
privity with them are concerned and answer or the service of a motion for
cannot be again litigated in any summary judgment, a complaint may be
future action between such parties or dismissed by the plaintiff by filing a
their privies, in the same court or any notice of dismissal. Upon the filing of the
other court of concurrent jurisdiction notice of dismissal, the court shall issue
on either the same or different cause an order confirming the dismissal (Sec.
of action, while the judgment remains 1, Rule 17). This dismissal shall be
unreversed by proper authority. without prejudice to the re-filing of the
complaint, except when:
DISTINGUISHED FROM DEMURRER TO 1) The notice of dismissal provides
EVIDENCE (RULE 33) that the dismissal is with
prejudice; or
Demurrer to evidence is a motion to dismiss 2) The plaintiff has previously
filed by the defendant after the plaintiff had dismissed the same case in a
rested his case on the ground of insufficiency of court of competent jurisdiction.
evidence. It may be filed after the plaintiff has
completed the presentation of his evidence. It is
• It is not the order confirming the
an aid or instrument for the expeditious
dismissal which operates to dismiss the
termination of an action similar to a motion to
complaint. As the name of the order
dismiss, which the court or tribunal may either
implies, said order merely confirms a
grant or deny.
dismissal already effected by the filing of
the notice of dismissal. The court does
Distinctions:
not have to approve the dismissal
because it has no discretion on the
matter. Before an answer or a motion for If a counterclaim has already been pleaded by
summary judgment has been served the defendant prior to the service upon him of
upon the plaintiff, the dismissal by the the plaintiff’s motion to dismiss, and the court
plaintiff by the filing of the notice is a grants said motion to dismiss, the dismissal
matter of right. The dismissal occurs as “shall be limited to the complaint” (Sec. 2, Rule
of the date of the notice is filed by the 17).
plaintiff and not the date the court issues
the order confirming the dismissal. The dismissal of the complaint does not carry
with it the dismissal of the counterclaim,
• The dismissal as a matter of right ceases whether it is a compulsory or a permissive
when an answer or a motion for counterclaim because the rule makes no
summary judgment is served on the distinction. The defendant, if he so desires may
plaintiff and not when the answer or the prosecute his counterclaim either in a separate
motion is filed with the court. Thus, if a action or in the same action. Should he choose
notice of dismissal is filed by the plaintiff to have his counterclaim resolved in the same
even after an answer has been filed in action, he must notify the court of his
court but before the responsive pleading preference within fifteen (15) days from the
has been served on the plaintiff, the notice of the plaintiff‘s motion to dismiss.
notice of dismissal is still a matter of Should he opt to prosecute his counterclaim in a
right. separate action, the court should render the
corresponding order granting and reserving his
TWO-DISMISSAL RULE right to prosecute his claim in a separate
complaint.
The two-dismissal rule applies when the plaintiff
has: DISMISSAL DUE TO THE FAULT OF
a) twice dismissed actions; PLAINTIFF
b) based on or including the same claim;
and A complaint may be dismissed by the court
c) in a court of competent jurisdiction. motu proprio or upon a motion filed by the
 The second notice of dismissal will defendant. The dismissal is this case will be
bar the refiling of the action because through reasons attributed to his fault.
it will operate as an adjudication of
the claim upon the merits. Sec. 2, Rule 17 provides the following grounds
for dismissal:
2) DISMISSAL UPON MOTION BY PLAINTIFF a) Failure of the plaintiff, without justifiable
reasons, to appear on the date on the
date of the presentation of his evidence
• Once either an answer or motion for
in chief;
summary judgment has been served on
b) Failure of the plaintiff to prosecute his
the plaintiff, the dismissal is no longer a
action for an unreasonable length of
matter of right and will require the filing
time;
of a motion to dismiss, not a mere notice
c) Failure of the plaintiff to comply with the
of dismissal.
Rules of Court;
d) Failure of the plaintiff to obey any order
• The motion to dismiss will now be of the court;
subject to the approval of the court e) Failure to appear at the trial; or
which will decide on the motion upon f) Lack of jurisdiction.
such terms and conditions as are just
(Sec. 2, Rule 17) unless otherwise The dismissal shall have the effect of an
specified in the order, the dismissal shall adjudication upon the merits and is thus with
be without prejudice. . The dismissal prejudice to the re-filing of the action, unless
under Sec. 2 is no longer a matter of the court declares otherwise.
right on the part of the plaintiff but a
matter of discretion upon the court. DISMISSAL OF COUNTERCLAIM, CROSS-
CLAIM OR THIRD-PARTY COMPLAINT
EFFECT OF DISMISSAL UPON EXISTING
COUNTERCLAIM
The rule on the dismissal of a complaint applies dismissing the action should a valid
to the dismissal of any counterclaim, cross- ground therefor be found to exist;
claim, or third-party claim. 8) Advisability or necessity of suspending
the proceedings; and
A voluntary dismissal by the claimant alone by 9) Other matters as may aid in the prompt
notice pursuant to Sec. 1, Rule 17 shall be made disposition of the action (Sec. 2, Rule
before a responsive pleading or a motion for 18).
summary judgment is served or, if there is
none, before the introduction of evidence at the NOTICE OF PRE-TRIAL
trial or hearing (Sec. 4).
The notice of pre-trial shall be served on the
counsel of the party if the latter is represented
PRE-TRIAL (Rule18) by counsel. Otherwise, the notice shall be
served on the party himself. The counsel is
CONCEPT OF PRE-TRIAL charged with the duty of notifying his client of
the date, time and place of the pre-trial (Sec. 3,
Rule 18).
Pre-trial is a mandatory conference and
personal confrontation before the judge
Notice of pre-trial is so important that it would
between the parties and their respective
be grave abuse of discretion for the court for
counsel.
example, to allow the plaintiff to present his
evidence ex parte for failure of the defendant to
It is conducted after the last pleading has been
appear before the pre-trial who did not receive
served and filed, it shall be the duty of the
through his counsel a notice of pre-trial.
plaintiff to promptly move ex parte that the
case be set for pre-trial (within 5 days from the
In one case, the SC said that there is no legal
last pleading has been filed).
basis for a court to consider a party notified of
the pre-trial and to consider that there is no
NATURE AND PURPOSE
longer a need to send notice of pre-trial merely
because it was his counsel who suggested the
The conduct of a pre-trial is mandatory. Pre-trial
date of pre-trial.
is a procedural device intended to clarify and
limit the basic issues between the parties. It
If the plaintiff failed to move for pre-trial, the
thus paves the way for a less cluttered trial and
clerk of court shall do so.
resolution of the case. Its main objective is to
simplify, abbreviate and expedite trial, or totally
APPEARANCE OF PARTIES; EFFECT OF
dispense with it.
FAILURE TO APPEAR
It is a basic precept that the parties are bound
It shall be the duty of both the parties and their
to honor the stipulations made during the pre-
counsels to appear at the pre-trial (Sec. 4, Rule
trial.
18).
The court shall consider the following maters in
The failure of the plaintiff to appear shall
the pre-trial:
be cause for the dismissal of the action.
1) The possibility of an amicable settlement
This dismissal shall be with prejudice except
or a submission to alternative modes of
when the court orders otherwise (Sec. 5, Rule
dispute resolution;
18). Since the dismissal of the action shall be
2) Simplification of issues;
with prejudice, unless otherwise provided, the
3) Necessity or desirability of amendments
same shall have the effect of an adjudication on
to the pleadings;
the merits thus, final. The remedy of the plaintiff
4) Possibility of obtaining stipulations or
is to appeal from the order of dismissal. An
admissions of facts and of documents to
order dismissing an action with prejudice is
avoid unnecessary proof;
appealable. Under the Rules, it is only when the
5) Limitation of the number of witnesses;
order of dismissal is without prejudice, that
6) Advisability of a preliminary reference of
appeal cannot be availed of (Sec. 1[h], Rule 41).
issues to a commissioner;
Since appeal is available, certiorari is not the
7) Propriety of rendering judgment on the
remedy because the application of a petition for
pleadings, or summary judgment, or of
certiorari under Rule 65 is conditioned upon the
absence of appeal or any plain, speedy and  A pre-trial brief is not required in a criminal
adequate remedy (Sec. 1, Rule 65). case.
The failure of the defendant to appear DISTINCTION BETWEEN PRE-TRIAL IN CIVIL

shall be cause to allow the plaintiff to CASE AND PRE-TRIAL IN CRIMINAL CASE
present his evidence ex parte and for the
court to render judgment on the basis of The pre-trial in a civil case is set when the
the evidence presented by the plaintiff plaintiff moves ex parte to set the case for pre-
(Sec. 5, Rule 18). The order of the court allowing trial (Sec.1, Rule 18). The pre-trial in criminal
the plaintiff to present his evidence ex parte case is ordered by the court and no motion to
does not dispose of the case with finality. The set the case for pre-trial is required from either
order is therefore, merely interlocutory; hence, the prosecution or the defense (Sec. 1, Rule
not appealable. Under Sec. 1(c) of Rule 41, no 118).
appeal may be taken from an interlocutory
order. The defendant who feels aggrieved by The motion to set the case for pre-trial in a civil
the order may move for the reconsideration of case is made after the last pleading has been
the order and if the denial is tainted with grave served and. In a criminal case, the pre-trial is
abuse of discretion, he may file a petition for ordered by the court after arraignment and
certiorari. within thirty (30) days from the date the court
acquires jurisdiction over the person of the
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO accused.
FILE
The pre-trial in a civil case considers the
The parties shall file with the court their possibility of an amicable settlement as an
respective pre-trial briefs which shall be important objective. The pre-trial in a criminal
received at least three (3) days before the date case does not include the considering of the
of the pre-trial. This pre-trial brief shall be possibility of amicable settlement of criminal
served on the adverse party (Sec. 6, Rule 18). liability as one of its purposes.
The pre-trial brief shall contain the following In a civil case, the agreements and admissions
matters: made in the pre-trial are not required to be
1) A statement of their willingness to enter signed by the parties and their counsels. They
into an amicable settlement or are to be contained in the record of pre-trial and
alternative modes of dispute resolution, the pre-trial order (Sec. 7, Rule 18). In a criminal
indicating the desired terms thereof; case, all agreements or admissions made or
2) A summary of admitted facts and entered during the pre-trial conference shall be
proposed stipulation of facts; reduced in writing and signed by the accused
3) The issues to be tried or resolved; and counsel; otherwise, they cannot be used
4) The documents or exhibits to be against the accuse (Sec. 2, Rule 118).
presented, stating the purposes thereof;
5) A manifestation of their having availed of The sanctions for non-appearance in a pre-trial
or their intention to avail of discovery are imposed upon the plaintiff or the defendant
procedures or referral to commissioners; in a civil case. The sanctions in a criminal case
and are imposed upon the counsel for the accused
6) The number and names of the witnesses, or the prosecutor.
and the substance of their respective
testimonies (Sec.6, Rule 18). CIVIL PRE-TRIAL CRIMINAL PRE-TRIAL
 Failure to file the pre-trial brief shall have Mandatory Mandatory

the same effect as failure to appear at the Presence of defendant Accused need not be
pre-trial. and counsel present, but his
a. If it is the plaintiff who fails to file a mandatory counsel must be
pre-trial brief, such failure shall be present, otherwise he
cause for dismissal of the action. may be sanctioned
b. If it is the defendant who fails to do Amicable settlement is Amicable settlement is
so, such failure shall be cause to discussed not discussed, unless
allow the plaintiff to present his the criminal case is
evidence ex parte. covered by summary
procedure counsel to be
Agreement included in Agreements or admissible against
pre-trial order need admissions must be him.
not be in writing written and signed by
the accused and
REQUISITES FOR INTERVENTION
ALTERNATIVE DISPUTE RESOLUTION (ADR) 1) There must be a motion for intervention

filed before rendition of judgment by the
trial court. A motion is necessary because
1) If the case has already filed a complaint leave of court is required before a person
with the trial court without prior recourse
may be allowed to intervene.
to arbitration, the proper procedure to
2) The movant must show in his motion
enable an arbitration panel to resolve the
that he has:
parties dispute pursuant to the contract
a) A legal interest in the matter in
is for the trial court to stay the
litigation, the success of either of the
proceedings. After the arbitration
parties in the action, or against both
proceeding has already been pursued
parties;
and completed, then the trial court may
b) That the movant is so situated as
confirm the award made by the
to be adversely affected by a distribution
arbitration panel.
or other disposition of property in the
custody of the court or of an officer
A party has several judicial remedies available
thereof; and
at its disposal after the Arbitration Committee
c) That the intervention must not
denied its Motion for Reconsideration:
only unduly delay or prejudice the
1) It may petition the proper RTC to issue adjudication of the rights of the original
an order vacating the award on the parties and that the intervenor’s rights
grounds provided for under Sec. 24 of may not be fully protected in a separate
the Arbitration Law; proceeding.
2) File a petition for review under Rule 43 d) The intervenor’s rights may not
with the Court of Appeals on questions of be fully protected in a separate
fact, of law, or mixed questions of fact proceeding.
and law (Sec. 41, ADR);
3) File a petition for certiorari under Rule 65 TIME TO INTERVENE
on the ground that the Arbitration
Committee acted without or in excess of The motion to intervene may be filed at any
its jurisdiction or with grave abuse of time before the rendition of judgment by the
discretion amounting to lack or excess of trial court (Sec. 2, Rule 18). Intervention after
jurisdiction. trial and decision can no longer be permitted.
REMEDY FOR THE DENIAL OF MOTION TO

INTERVENTION (Rule 19)
INTERVENTION
Intervention is a legal proceeding by which a 1) The appellate court may exercise sound
person who is not a party to the action is judicial discretion
permitted by the court to become a party by 2) An indispensable party can intervene even
intervening in a pending action after meeting after the rendition of judgment
the conditions and requirements set by the 3) The remedy of the aggrieved party is
Rules. This third person who intervenes is one appeal. Mandamus will not lie except in case
who is not originally impleaded in the action. of grave abuse of discretion and if there is
no other plain, speedy and adequate
Intervention is merely a collateral or accessory remedy.
or ancillary to the principal action ad not an
independent proceeding. With the final
dismissal of the original action, the complaint in SUBPOENA (Rule 21)
intervention can no longer be acted upon.
Court cannot issue subpoena absent any action
where his attendance is required, and the cost

Subpoena is a process directed to a person of such warrant and seizure of such witness
requiring him to attend and to testify at the shall be paid by the witness if the court issuing
hearing or the trial of an action, or at any it shall determine that his failure to answer the
investigation conducted under the laws of the subpoena was wilful and without just cause
Philippines, or for taking of his deposition (Sec. (Sec. 8).
1, Rule 21).
Failure by any person without adequate cause
SUBPOENA DUCES TECUM - is a process to obey a subpoena served upon him shall be
directed to a person requiring him to bring deemed a contempt of the court from which the
with him at the hearing or trial of an action subpoena is issued. If the subpoena was not
any books, documents, or other things under issued by a court, the disobedience thereto shall
his control. be punished in accordance with the applicable
law or Rule (Sec. 9).
SUBPOENA AD TESTIFICANDUM – is a
process directed to a person requiring him Exceptions:
to attend and testify at the hearing or the a) Where the witness resides more than
trial of the action, or at any investigation one hundred (100) kilometers from his
conducted by the competent authority, or residence to the place where he is to
for the taking of his deposition. testify by the ordinary course of travel
(Viatory Right), or
SERVICE OF SUBPOENA b) Where the permission of the court in
which the detained prisoner’s case is
It shall be made in the same manner as pending was not obtained.
personal or substituted service of summons.
1) The original shall be exhibited and a QUASHING OF SUBPOENA
copy thereof delivered to the person on
whom it is served. The court may quash a subpoena duces tecum
2) Tendering to him the fees for one day‘s upon motion promptly made and, in any event,
attendance and the kilometrage allowed at or before the time specified therein:
by the Rules, except that when a a) if it is unreasonable and oppressive, or
subpoena is issued by or on behalf of the b) the relevancy of the books, documents
Republic, or an officer or agency thereof, or things does not appear, or
the tender need not be made. c) if the person is whose behalf the
3) The service must be made so as to allow subpoena is issued fails to advance the
the witness a reasonable time for reasonable cost of the production
preparation and travel to the place of thereof.
attendance.
4) If the subpoena is duces tecum, the Subpoena ad testificandum may be quashed
reasonable cost of producing the books, on the ground that the witness is NOT BOUND
documents or things demanded shall THEREBY. In either case, the subpoena may be
also be tendered. quashed on the ground that the witness fees
and kilometrage (within 100 kilometrage unless
Service of a subpoena shall be made by the the witness maybe cited indirect contempt)
sheriff, by his deputy, or by any other person allowed by the Rules were not tendered when
specially authorized, who is not a party and is the subpoena was served.
not less than eighteen (18) years of age (Sec. 6,
Rule 21).
MODES OF DISCOVERY (Rules 23 -28)
COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT
 You can use this at any stage of the
In case of failure of a witness to attend, the proceeding; applicable also in special
court or judge issuing the subpoena, upon proof proceedings
of the service thereof and of the failure of the  Written interrogatories to parties is used
witness, may issue a warrant to the sheriff of only for the purpose of calling the defendant
the province, or his deputy, to arrest the to the witness stand
witness and bring him before the court or officer
MODES OF DISCOVERY by oral examination, or by a written

interrogatory (Sec. 1, Rule 23).
1) Depositions pending action (Rule 23);
2) Depositions before action or pending USES OF DEPOSITIONS PENDING ACTION
appeal (Rule 24);
3) Interrogatories to parties (Rule 25) At the trial or upon the hearing of a motion or
4) Admission by adverse party (Rule 26); an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules
5) Production or inspection of documents
of evidence, may be used against any party who
and things (Rule 27); and
was present or represented at the taking of the
6) Physical and mental examination of deposition or who had due notice thereof.
persons (Rule 28).
A deposition may be sought for use in a future
The importance of the rules of discovery is that action (Rule 24), during a pending action (Rule
they shorten the period of litigation and speed 23), or for use in a pending appeal (Rule 24).
up adjudication. The evident purpose is to
enable the parties, consistent with recognized
principles, to obtain the fullest possible  deposition benne esse – taken for use
knowledge of the facts and issues before civil during a pending action (Rule 23).
trials and thus prevent said trials from being  deposition in perpetuam rei
carried on in the dark. The rules of discovery memoriam – taken to perpetuate a
serve as (a) devices, along with the pre-trial testimony for use in future proceedings
hearing under Rule 18, to narrow and clarify the as when it is sought before the existence
basis issues between the parties; and (b) of an action, or for cases on appeal.
devices for ascertaining the facts relative to
those issues. Any or all of the deposition, so far as admissible
under the rules of evidence, may be used (a)
The basic purposes of the rules of discovery are: against any party who was present or
a) To enable a party to obtain knowledge of represented at the taking of the deposition, or
material facts within the knowledge of (b) against one who had due notice of the
the adverse party or of third parties deposition (Sec. 4, Rule 23).
through depositions;
b) To obtain knowledge of material facts or The deposition may be used for the following
admissions from the adverse party purposes:
through written interrogatories; 1) For contradicting or impeaching
c) To obtain admissions from the adverse the testimony of the deponent as a
party regarding the genuineness of witness;
relevant documents or relevant matters 2) The deposition of a party or of
of fact through requests for admissions; any one who at the time of taking the
d) To inspect relevant documents or deposition was an officer, director, or
objects, and lands or other property in managing agent of a public or private
the possession and control of the corporation, partnership, or association
adverse party; and which is a party may be used by an
e) To determine the physical or mental adverse party for any purpose;
condition of a party when such is in 3) For any purpose by any party,
controversy. where the deponent is a witness if the
court finds that:
a) The witness is dead;
DEPOSITIONS PENDING ACTION (RULE 23); b) The witness resides more
DEPOSITIONS BEFORE ACTION OR PENDING than 100 kilometers from the
APPEAL place of trial or hearing, or is out
of the Philippines, unless it
appears that his absence was
MEANING OF DEPOSITION procured by the party offering the
deposition;
A deposition is the taking of the testimony of c) That the witness is unable
any person, whether he be a party or not, but at to attend or testify because of
the instance of a party to the action. This age, sickness, infirmity, or
testimony is taken out of court. It may be either imprisonment; or
d) That the party offering the give testimony in open court, or to give
deposition has been unable to deposition pending appeal, unless allowed by
procure the attendance of the court or to prevent a failure of justice (Sec.
witnesses by subpoena; or 6, Rule 25).
e) When exceptional
circumstances exist (Sec. 4, Rule This provision encourages the use of written
23). interrogatories although a party is not
compelled to use this discovery procedure, the
SCOPE OF EXAMINATION rule imposes sanctions for his failure to serve
written interrogatories by depriving him of the
Unless otherwise ordered by the court as privilege to call the adverse party as a witness
provided by Sec. 16 or 18, the deponent may be or to give a deposition pending appeal.
examined regarding:
a) any matter not privileged
REQUEST FOR ADMISSION (RULE 26)
b) which is relevant to the pending action,
whether relating to the claim or defense
of any other party, including the A party, although not compelled by the Rules, is
existence, description, nature, custody, advised to file and serve a written request for
condition, and location of any books, admission on the adverse party of those
documents, or other tangible things and material and relevant facts at issue and
the identity and location of persons actionable document (as a result, you need not
having knowledge of relevant facts authenticate it) which are, or ought to be, within
c) Not restricted by a protective order. the personal knowledge of said adverse party.
WHEN MAY OBJECTIONS TO ADMISSIBILITY The party who fails to file and serve the request
BE MADE shall not be permitted to present evidence on
such facts (Sec. 5, Rule 26).
Objection may be made at the trial or hearing to
receiving in evidence any deposition or part IMPLIED ADMISSION BY ADVERSE PARTY
thereof for any reason which would require the
exclusion of the evidence if the witness were Each of the matters of which an admission is
then present and testifying (Sec. 6). requested shall be deemed admitted unless,
within a period designated in the request, which
WHEN MAY TAKING OF DEPOSITION BE shall not be less than fifteen (15) days after
TERMINATED OR ITS SCOPE LIMITED service thereof, or within such further time as
the court may allow on motion, the party to
At any time during the taking of the deposition, whom the request is directed files and serves
any party or deponent may ask for the upon the party requesting the admission a
termination or limiting of the scope of the sworn statement either denying specifically the
deposition upon showing: matters of which an admission is requested or
1) that the examination is being conducted setting forth in detail the reasons why he cannot
in bad faith; or truthfully either admit or deny those matters.
2) that it is conducted in such manner as
reasonably to annoy, embarrass, or Objections to any request for admission shall be
oppress the deponent or party. submitted to the court by the party requested
within the period for and prior to the filing of his
WRITTEN INTERROGATORIES TO ADVERSE sworn statement as contemplated in the
PARTIES preceding paragraph and his compliance
therewith shall be deferred until such objections
CONSEQUENCES OF REFUSAL TO ANSWER are resolved, which resolution shall be made as
The party who fails to serve his answer to early as practicable.
written interrogatories may be the subject of a
judgment by default CONSEQUENCES OF FAILURE TO ANSWER
REQUEST FOR ADMISSION
EFFECT OF FAILURE TO SERVE WRITTEN
INTERROGATORIES Each of the matters of which an admission is
A party not served with written interrogatories requested (facts or documents) shall be deemed
may not be compelled by the adverse party to admitted unless within a period designated in
the request which shall not be less than 15 days must be those within the possession, control
after service thereof, or within such further time or custody of a party. The petition must be
as the court may allow on motion, the party to sufficiently described and identified as well
whom the request is directed files and serves as material to any matter involved in the
upon the party requesting the admission a pending action.
sworn statement either denying specifically the
matter of which an admission is requested or
setting forth in detail the reason why he cannot PHYSICAL AND MENTAL EXAMINATION OF
truthfully either admit or deny those matters. PERSONS (RULE 28)
EFFECT OF ADMISSION
This mode of discovery applies to an action in
which the mental or physical condition of a
Any admission made by a party pursuant to
party is in controversy.
such request is for the purpose of the pending
action only and shall not constitute an
Requisites to obtain Order for Examination:
admission by him for any other purpose nor
a) A MOTION must be filed for the physical
may the same be used against him in any other
and mental examination;
proceeding (Sec. 3).
b) The motion showing Good Cause for the
examination;
EFFECT OF FAILURE TO FILE AND SERVE c) NOTICE to the party to be examined and
REQUEST FOR ADMISSION to all the other parties
d) The motion shall SPECIFY the time, place,
A party who fails to file and serve a request for manner, condition and scope of the
admission on the adverse party of material and examination and the person or persons
relevant facts at issue which are, or ought to be, by whom it is made.
within the personal knowledge of the latter,
shall not be permitted to present evidence on Waiver of privilege. Where the person
such facts (Sec. 5). examined requests and obtains a report or the
results of the examination, the consequences
PRODUCTION OR INSPECTION OF are:
DOCUMENTS OR THINGS (RULE 27) 1) He has to furnish the other party a copy
of any previous or subsequent
examination of the same physical and
 This is prelude to the presentation of mental condition; and
secondary evidence. 2) He waives any privilege he may have in
that action or any other involving the
 This Rule applies only to a pending same controversy regarding the
action and the documents or things subject testimony of any other person who has
of the motion should not be privileged and so examined him or may thereafter
examine him.
CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY (RULE 29)
REFUSAL TO COMPLY
WITH MODES OF SANCTIONS
DISCOVERY
 The court may, upon application, compel a refusing deponent an
Refusal to answer answer.
any question  If granted and refusal to answer is without substantial justification,
the court may require the refusing party to pay the proponent the
amount of the reasonable expenses incurred in obtaining the order,
including attorney's fees.
 If denied and filed without substantial justification, the court may
require the proponent to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing the
application, including attorney's fees.
 A refusal to answer after being directed by the court to do so may
be considered a contempt of that court.

Refusal to be Sworn Cite the disobedient deponent in Contempt of court
The court may make the following orders:
1) An order that the matters regarding which the questions were
asked, or the character or description of the thing or land, or
the contents of the paper, or the physical or mental condition of
the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with
Refusal to answer the claim of the party obtaining the order;
designated questions 2) An order refusing to allow the disobedient party to support or
or refusal to produce oppose designated claims or defenses or prohibiting him from
documents or to introducing in evidence designated documents or things or
submit to physical or items of testimony, or from introducing evidence of physical or
mental examination mental condition;
3) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party; and
4) In lieu of any of the foregoing orders or in addition thereto, an
order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a
physical or mental examination (Sec. 3, Rule 29).
Refusal to admit The court may, upon application, issue an order to pay the proponent
actionable document the amount of the reasonable expenses incurred in obtaining the
order, including attorney's fees.
The court, on motion and notice, may:

Failure of party to 1) may strike out all or any part of any pleading of that party;
attend or serve 2) dismiss the action or proceeding or any part thereof;
answers 3) enter a judgment by default against disobedient party;
4) order to pay reasonable expenses incurred by the other,
including attorney's fees.
A motion for postponement should not be filed

TRIAL (Rule 30) on the last hour especially when there is no
reason why it could not have been presented
earlier.
A trial is the judicial process of investigating and
determining the legal controversies, starting
Postponement is not a matter of right. It is
with the production of evidence by the plaintiff
addressed to the sound discretion of the court.
and ending with his closing arguments.
REQUISITES OF MOTION TO POSTPONE
ADJOURNMENTS AND POSTPONEMENTS
TRIAL FOR ABSENCE OF EVIDENCE
The general rule is that a court may adjourn a
1) A motion for postponement stating the
trial from day to day, and to any stated time, as
ground relied upon must be filed;
the expeditious and convenient transaction of
2) The motion must be supported by an
business may require (Sec. 2).
affidavit or sworn certification showing:
a. the materiality or relevancy of the
However, the court has no power to adjourn a
evidence; and
trial for a period longer than one month from
b. that due diligence has been used to
each adjournment, nor more than three (3)
procure it (Sec. 3).
months in all, except when authorized in writing
3) If the adverse party admits the facts given in
by the Court Administrator.
evidence, the trial shall not be postponed
even if he reserves the right to object to the
admissibility of the evidence.
6) The parties may then respectively

REQUISITES OF MOTION TO POSTPONE adduce rebutting evidence only, unless
TRIAL FOR ILLNESS OF PARTY OR COUNSEL the court, for good reasons and in the
furtherance of justice, permits them to
1) A motion for postponement stating the adduce evidence upon their original
ground relied upon must be filed; case; and
2) The motion must be supported by an 7) Upon admission of the evidence, the
affidavit or sworn certification showing: case shall be deemed submitted for
a. that the presence of the party or decision, unless the court directs the
counsel at the trial is indispensable; parties to argue or to submit their
and respective memoranda or any further
b. that the character of his illness is pleadings.
such as to render his non-attendance
excusable (Sec. 4). If several defendants or third party defendants
and so forth having separate defenses appear
AGREED STATEMENTS OF FACTS by different counsel, the court shall determine
the relative order of presentation of their
The parties to any action may agree in writing evidence (Sec. 5).
upon the facts involved in litigation d submit
the case for judgment on the facts agreed upon, REVERSAL OF ORDER
without the introduction of evidence. No trial
shall thus be held. When the accused admits the act or omission
charged in the complaint or information but
If the parties agree to only some facts in issue, interposes a lawful defense, the order of trial
trial shall be held as to the disputed facts in may be modified (Sec. 11, Rule 119).
such order as the court shall prescribe.
Since the defendant admits the plaintiff’s claim
The agreed statement of facts is conclusive on but seeks to avoid liability based on his
the parties, as well as on the court. Neither of affirmative defense, he shall proceed first to
the parties may withdraw from the agreement, prove his exemption.
nor may the court ignore the same.
CONSOLIDATION OR SEVERANCE OF
ORDER OF TRIAL
HEARING OR TRIAL (RULE 31)
Subject to the provisions of Sec. 2, Rule 31
(Separate trials), and unless the court for Consolidation When actions involving a
special reasons otherwise directs, the trial shall common question of law OR facts are pending
be limited to the issues stated in the pre-trial before the court, it may order a joint hearing or
order and shall proceed as follows: trial of any or all the matters in issue in the
1) The plaintiff shall adduce evidence in actions; it may order all the actions
support of his complaint; consolidated; and it may make such orders
2) The defendant shall then adduce concerning proceedings therein as may tend to
evidence in support of his defense, avoid unnecessary costs or delay (Sec. 1).
counterclaim, cross-claim and third party
complaint; Modes of consolidating cases:
3) The third party defendant, if any, shall a) By recasting the cases already instituted
adduce evidence of his defense, – reshaping of the case by amending the
counterclaim, cross-claim and fourth- pleading and dismissing some cases and
party complaint; retaining only one case. There must be
4) The fourth party, and so forth, if any, joinder of causes of action and of parties;
shall adduce evidence of the material b) By consolidation proper or by
facts pleaded by them; consolidating the existing cases – it is a
5) The parties against whom any joint trial with a joint decision, the cases
counterclaim or cross-claim has been retaining their original docket numbers;
pleaded, shall adduce evidence in and
support of their defense, in the order to
c) By test-case method – by hearing only
be prescribed by the court;
the principal case and suspending the
hearing on the other cases until
judgement has been rendered in the case the commissioner may be

principal case. The cases retain their directed to hear and report upon the
original docket numbers. whole issue or any specific question
involved therein;
Severance (Separate) Trials. The court, in 2) When the taking of an account is
furtherance of convenience or to avoid necessary for the information of the
prejudice, may order a separate trial of any court before judgment, or for carrying
claim, cross-claim, counterclaim, or third party a judgment or order into effect;
complaint, or of any separate issue or of any 3) When a question of fact, other
number of claims, cross-claims, counterclaim, than upon the pleadings, arises upon
third party complaints or issue (Sec. 2). motion or otherwise, in any stage of a
 Note: Consolidation is not a remedy case, or for carrying a judgment or
in case of forum shopping! order into effect (Sec. 2).
DELEGATION OF RECEPTION OF EVIDENCE POWERS OF COMMISSIONER
As a general rule, the judge shall personally Under the Rules, the court’s order may specify
receive the evidence to be adduced by the or limit the powers of the commissioner. Hence,
parties. However, the reception of evidence may the order may direct him to:
be delegated under the following conditions: a) Report only upon particular issues;
1) The delegation may be made only in b) Do or perform particular acts; or
default or ex parte hearings, and in any c) Receive and report evidence only.
case where the parties agree in writing;
2) The delegation may be made only by the The order may also fix the date for beginning
clerk of court who is a member of the and closing of the hearings and for the filing of
bar; his report.
3) Said clerk of court shall have no power to
rule on of evidence objections to any Subject to such limitations stated in the order,
question or to the admission of exhibits; the commissioner:
and a) Shall exercise the power to regulate the
4) He shall submit his report and the proceedings in every hearing before him;
transcripts of the proceedings, together b) Shall do all acts and take all measures
with the objections to be resolved by the necessary or proper for the efficient
court, within ten (10) days from performance of his duties under the
termination of the hearing. order;
c) May issue subpoenas and subpoenas
duces tecum, and swear witnesses; and
TRIAL BY COMMISSIONERS (RULE 32) d) Rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference (Sec. 3, Rule 32).
Commissioner includes a referee, an auditor and
an examiner (Sec. 1)
COMMISSIONER’S REPORT; NOTICE TO
PARTIES AND HEARING ON THE REPORT
REFERENCE BY CONSENT
The commissioner’s report is not binding upon
By written consent of both parties, the court
the court which is free to adopt, modify, or
may order any or all of the issues in a case to be
reject, in whole or in part, the report. The court
referred to a commissioner to be agreed upon
may receive further evidence or recommit the
by the parties or to be appointed by the court.
report with instructions (Sec. 11, Rule 32)
REFERENCE ORDERED ON MOTION
Notice of the filing of the report must be sent to
the parties for the purpose of giving them an
When the parties do not consent, the court may,
opportunity to present their objections. The
upon the application of either or on its own
failure to grant the parties, in due form, this
motion, direct a reference to a commissioner in
opportunity to object, may, in some instances,
the following cases:
constitute a serious error in violation of their
1) When the trial of an issue of fact
substantial rights.
requires the examination of a LONG
ACCOUNT on either side, in which
The rule, however, is not absolute. In one case, It is not correct for the appellate court reversing
it was ruled that although the parties were not the order granting the demurrer to remand the
notified of the filing of the commissioner’s case to the trial court for further proceedings.
reports, and the court failed to set said report The appellate court should, instead of
for hearing, if the parties who appeared before remanding the case, render judgment on the
the commissioner were duly represented by basis of the evidence submitted by the plaintiff.
counsel and given an opportunity to be heard,
the requirement of due process has been WAIVER OF RIGHT TO PRESENT EVIDENCE
satisfied, and a decision on the basis of such
report, with the other evidence of the case is a If the demurrer is granted but on appeal the
decision which meets the requirements of fair order of dismissal is reversed, the defendant is
and open hearing. deemed to have waived his right to present
evidence.
In the hearing to be conducted on the
commissioner’s report, the court will review only DEMURRER TO EVIDENCE IN A CIVIL CASE
so much as may be drawn in question by proper VERSUS DEMURRER TO EVIDENCE IN A
objections. It is not expected to rehear the case CRIMINAL CASE
upon the entire record.
In a civil case, leave of court is not required
before filing a demurrer. In a criminal case,
DEMURRER TO EVIDENCE (Rule 33) leave of court is filed with or without leave of
court (Sec. 23, Rule 119).
Demurrer to evidence is a motion to dismiss
filed by the defendant after the plaintiff had In a civil case, if the demurrer is granted, the
rested his case on the ground of INSUFFICIENCY order of dismissal is appealable—since the
OF EVIDENCE. motion is interlocutory. In a criminal case, the
order of dismissal is not appealable because of
The provision of the Rules governing demurrer the constitutional policy against double jeopardy
to evidence does not apply to an election case. —denial is tantamount to acquittal, final and
executory.
GROUND
In civil case, if the demurrer is denied, the
defendant may proceed to present his evidence.
After plaintiff has finished presenting his
In a criminal case, the accused may adduce his
evidence, the defendant may move for the
evidence only if the demurrer is filed with leave
dismissal of the complaint on the ground that
of court. He cannot present his evidence if he
upon the facts and the law, the plaintiff has
filed the demurrer without leave of court (Sec.
shown no right to relief.
23, Rule 119).
EFFECT OF DENIAL; EFFECT OF GRANT
In civil case, the plaintiff files a motion to deny
motion to demurrer to evidence. In criminal
In the event his motion is denied, the defendant
case, the court may motu proprio deny the
does not waive his right to offer evidence. The
motion.
defendant shll have the right to present his
evidence. An order denying a demurrer to
evidence is interlocutory and is therefore, not JUDGMENTS AND FINAL ORDERS (Rules 34 –
appealable. It can however be the subject of a 36)
petition for certiorari in case of grave abuse of
discretion or an oppressive exercise of judicial
authority. JUDGMENT WITHOUT TRIAL
If the motion is granted and the order of The theory of summary judgment is that
dismissal is reversed on appeal , the movants although an answer may on its face appear to
loses his right to present the evidence on his tender issues—requiring trial—yet if it is
behalf. The appellate court in case it reverses demonstrated by affidavits, depositions, or
the grant of the motion, should render the admissions that those issues are not genuine,
judgment therein based on the evidence but sham or fictitious, the Court is justified in
submitted by the plaintiff. dispensing with the trial and rendering
summary judgment for plaintiff.
Where an answer fails to tender an issue, or

The court is expected to act chiefly on the basis otherwise admits the material allegations of the
of the affidavits, depositions, admissions adverse party‘s pleading, the court may, on
submitted by the movants, and those of the motion of that party, direct judgment on such
other party in opposition thereto. pleading.
The hearing contemplated (with 10-day notice) The following actions CANNOT be the subject of
is for the purpose of determining whether the a judgment on the pleadings:
issues are genuine or not, not to receive 1) declaration of nullity of marriage
evidence on the issues set up in the pleadings. 2) annulment of marriage
A hearing is not thus de riguer. The matter may 3) legal separation
be resolved, and usually is, on the basis of
affidavits, depositions, admissions. In cases of unliquidated damages, or admission
of the truth of allegation of adverse party, the
In one case, the summary judgment here was material facts alleged in the complaint shall
justified, considering the absence of opposing always be proved.
affidavits to contradict the affidavits.
CONTENTS OF A JUDGMENT SUMMARY JUDGMENTS (RULE 35)
Judgment has two parts:

A summary judgment or accelerated judgment
1) the body of the judgment or the is a procedural technique to promptly dispose of
ratio decidendi, and cases where the facts appear undisputed and
2) the dispositive portion of the certain from the pleadings, depositions,
judgment or fallo. admissions and affidavits on record, of for
 The body of the decision (ratio weeding out sham claims or defenses at an
decidendi) is not the part of the early stage of the litigation to avoid the expense
judgment that is subject to execution and loss of time involved in a trial.
but the fallo because it is the latter
which is the judgment of the court. Moreover, said summary judgment must be
 The importance of fallo or premised on the absence of any other triable
dispositive portion of a decision genuine issues of fact. Otherwise, the movants
should state whether the complaint cannot be allowed to obtain immediate relief. A
or petition is granted or denied, the genuine issue is such issue of fact which
specific relief granted, and the costs. requires presentation of evidence as
 It is the dispositive part of the distinguished from a sham, fictitious, contrived
judgment that actually settles and or false claim.
declares the rights and obligations of
the parties, finally, definitively, and The requisites are:
authoritatively. 1) there must be no genuine issue as to any
material fact, except for the amount of
The general rule is that where there is a conflict damages; and
between the fallo and the ratio decidendi, the 2) the party presenting the motion for
fallo controls. This rule rests on the theory that summary judgment must be entitled to a
the fallo is the final order while the opinion in judgment as a matter of law.
the body is merely a statement ordering
nothing. Where the inevitable conclusion from FOR THE CLAIMANT
the body of the decision is so clear that there
was a mere mistake in the dispositive portion, A party seeking to recover upon a claim,
the body of the decision prevails. counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
A judgment must have the signature of the pleading in answer thereto has been served,
judge. move with supporting affidavits, depositions or
admissions for a summary judgment in his favor
upon all or any part thereof (Sec. 1).
JUDGMENT ON THE PLEADINGS (RULE 34)
FOR THE DEFENDANT
A party against whom a claim, counterclaim, or d) In judgment on the pleadings, only the
cross-claim is asserted or a declaratory relief is plaintiff or the defendants as far as the
sought may, at any time, move with supporting counterclaim, cross-claim or third-party
affidavits, depositions or admissions for a complaint is concerned can file the same;
summary judgment in his favor as to all or any while in summary judgment, either the
part thereof (Sec. 2). plaintiff or the defendant may file it.
WHEN THE CASE NOT FULLY ADJUDICATED RENDITION OF JUDGMENTS AND FINAL
ORDERS
If judgment is not rendered upon the whole
case, the court shall ascertain what material Rendition of judgment is the filing of the
facts exist without substantial controversy and same with the clerk of court. It is NOT the
those that are controverted. The court shall pronouncement of the judgment in open court
then render a partial judgement with trial to that constitutes the rendition. Even if the
proceed on the matters that remain judgment has already been put in writing and
controverted. signed, it is still subject to amendment if it has
not yet been filed with the clerk of court and
AFFIDAVITS AND ATTACHMENTS before its filing does not yet constitute the real
judgment of the court. It is NOT the writing of
Supporting and opposing affidavits shall be the judgment or its signing which constitutes
made on personal knowledge, shall set forth rendition of the judgment.
such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is A judgment or final order determining the
competent to testify to the matters stated merits of the case shall be in writing personally
therein. Certified true copies of all papers or and directly prepared by the judge, stating
parts thereof referred to in the affidavit shall be clearly and distinctly the facts and the law on
attached thereto or served therewith (Sec. 5). which it is based, signed by him, and filed with
the clerk of the court (Sec. 1, Rule 36).
Should it appear to its satisfaction at any time
that any of the affidavits presented pursuant to ENTRY OF JUDGMENT AND FINAL ORDER
the Rules are presented in bad faith, or solely
for the purpose of delay, the court shall If no appeal or motion for new trial or
forthwith order the offending party or counsel to reconsideration is filed within the time provided
pay to the other party the amount of the in the Rules, the judgment or final order shall
reasonable expenses which the filing of the forthwith be entered by the clerk in the book of
affidavits caused him to incur, including entries of judgments.
attorney‘s fees. It may, after hearing, further
adjudge the offending party or counsel guilty of The record shall contain the dispositive part of
contempt (Sec. 6). the judgment or final order and shall be signed
by the clerk, with a certificate that such
JUDGMENTS ON THE PLEADINGS VERSUS judgment or final order has become final and
SUMMARY JUDGMENTS executory (Sec. 2).
a) In the judgment on the pleadings, the The entry of judgment refers to the physical act
answer does not tender an issue; in performed by the clerk of court in entering the
summary judgment, there is an issue dispositive portion of the judgment in the book
tendered in the answer, but it is not genuine of entries of judgment and after the same has
or real issue as may be shown by affidavits become final and executory.
and depositions that there is no real issue
and that the party is entitled to judgment as The date of finality of the judgment or final
a matter of right; order shall be deemed the date of its entry.
b) In judgment on the pleadings, the movants Thus, while there has been no physical
must give a 3-day notice of hearing; while in entry of judgment in the book of entries, it
summary judgment, the opposing party is is deemed to have been constructively
given 10 days notice; made at the time of the finality of the
c) In judgment on the pleadings, the entire judgment or final order.
case may be terminated; while in summary
judgment, it may only be partial;
There are some proceedings the filing of which 2) The evidence is insufficient to justify the
is reckoned from the date of the entry of decision or final order;
judgment: 3) The decision or final order is contrary to law.
1) the execution of a judgment by
motion is within five (5) years from the  2nd MR is not allowed except in SC
entry of the judgment (Sec. 6, Rule 39);
2) the filing of a petition for relief WHEN TO FILE
has, as one of its periods, not more than
six (6) months from the entry of the  A motion for new trial should be filed within
judgment or final order (Sec. 3, Rule 38). the period for taking an appeal. Hence, it
must be filed before the finality of the
judgment.
POST JUDGMENT REMEDIES
 No motion for extension of time to file a
(Rules 37, 38, 40–47, 52, 53)
motion for reconsideration shall be allowed.
 The period for appeal is within 15 days after
Remedies before a judgment becomes notice to the appellant of the judgment or
final and executory final order appealed from.
a) Motion for reconsideration (prohibited in  Where a record on appeal is required, the
a case that falls under summary appellant shall file a notice of appeal and a
procedure) (Rules 37, 52); record on appeal within 30 days from notice
b) Motion for new trial (Rules 37, 53); and of the judgment or final order. A record on
c) Appeal (Rules 40, 41, 42, 43, 45) appeal shall be required only in special
proceedings and other cases of multiple or
Remedies after judgment becomes final separate appeals (Sec. 3, Rule 40).
and executory
a) Petition for relief from judgment; DENIAL OF THE MOTION; EFFECT
b) Action to annul a judgment;
c) Certiorari; and  If the motion is denied, the movants has a
d) Collateral attack of a judgment. “fresh period" of fifteen days from
receipt or notice of the order denying or
dismissing the motion for reconsideration
MOTION FOR NEW TRIAL OR within which to file a notice of appeal of the
RECONSIDERATION (RULE 37) judgment or final order.
 Meaning, the defendant is given a “fresh
GROUNDS FOR A MOTION FOR NEW TRIAL period” of 15 days counted from the receipt
of the order dismissing the motion for new
trial or reconsideration.
1) Fraud (extrinsic), accident, mistake (of fact
and not of law) or excusable negligence  When the motion for new trial is denied on
(FAMEN) which ordinary prudence could not the ground of fraud, accident, mistake of
have guarded against and by reason of fact or law, or excusable negligence, the
which such aggrieved party has probably aggrieved party can no longer avail of the
been impaired in his rights; remedy of petition for relief from judgment
2) Newly discovered evidence (Berry Rule),
which he could not, with reasonable GRANT OF THE MOTION; EFFECT
diligence, have discovered and produced at
the trial, and which if presented would  If a new trial be granted, the original
probably alter the result; and judgment shall be vacated or set aside, and
3) Award of excessive damages, or the action shall stand for trial de novo; but
insufficiency of the evidence to justify the the recorded evidence taken upon the
decision, or that the decision is against the former trial so far as the same is material
law (Sec. 1, Rule 37). and competent to establish the issues, shall
be used at the new trial without retaking the
GROUNDS FOR A MOTION FOR same (Sec. 6).
RECONSIDERATION  The filing of the motion for new trial or
reconsideration interrupts the period to
1) The damages awarded are excessive; appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
 If the court grants the motion (e.g., it finds the Rules to afford fair opportunity to review
that excessive damages have been awarded the case and, in the process, minimize errors
or that the judgment or final order is of judgment.
contrary to the evidence or law), it may  Obviously, the new 15 day period may
amend such judgment or final order be availed of only if either motion is
accordingly (Sec. 3). The amended judgment filed; otherwise, the decision becomes final
is in the nature of a new judgment which and executory after the lapse of the original
supersedes the original judgment. It is not a appeal period provided in Rule 41 (Neypes
mere supplemental decision which does not vs. CA., Sept. 14, 2005).
supplant the original but only serves to add  The Neypes ruling shall not be applied where
something to it. no motion for new trial or motion for
 If the court finds that a motion affects the reconsideration has been filed in which case
issues of the case as to only a part, or less the 15-day period shall run from notice of
than all of the matters in controversy, or the judgment.
only one, or less that all of the parties to it,  The fresh period rule does not refer to the
the order may grant a reconsideration as to period within which to appeal from the order
such issues if severable without interfering denying the motion for new trial because the
with the judgment or final order upon the order is not appealable under Sec. 9, Rule
rest (Sec. 7). 37. The non-appealability of the order of
denial is also confirmed by Sec. 1(a), Rule
REMEDY WHEN MOTION IS DENIED 41, which provides that no appeal may be
taken from an order denying a motion for
 The party aggrieved should appeal the new trial or a motion for reconsideration.
judgment. This is so because a second  The SC ruled in one case that this “fresh
motion for reconsideration is expressly period of appeal” is also applicable in
prohibited. criminal cases (Judith Yu vs. Judge
 An order denying a motion for Samson, Feb. 9, 2011)
reconsideration or new trial is not
appealable, the remedy being an appeal APPEALS IN GENERAL
from the judgment or final order under Rule
38. The remedy from an order denying a The right to appeal is not part of due process
motion for new trial is not to appeal from the but a mere statutory privilege that has to be
order of denial. Again, the order is not exercised only in the manner and in accordance
appealable. The remedy is to appeal from with the provisions of law
the judgment or final order itself subject of
the motion for new trial (Sec. 9, rule 37). The general rule is that the remedy to obtain
reversal or modification of judgment on the
FRESH 15-DAY PERIOD RULE merits is appeal. This is true even if the error, or
one of the errors, ascribed to the court
rendering the judgment is its lack of jurisdiction
 If the motion is denied, the movants has a
over the subject matter, or the exercise of
fresh period of 15 days from receipt or
power in excess thereof, or grave abuse of
notice of the order denying or dismissing the
discretion in the findings of facts or of law set
motion for reconsideration within which to
out in the decision.
file a notice to appeal.
 This new period becomes significant if either
Certain rules on appeal:
a motion for reconsideration or a motion for
new trial has been filed but was denied or
a) No trial de novo anymore. The appellate
courts must decide the case on the basis
dismissed.
of the record, except when the
 This fresh period rule applies only to Rule 41
proceedings were not duly recorded as
governing appeals from the RTC but also to
when there was absence of a qualified
Rule 40 governing appeals from MTC to RTC,
stenographer.
Rule 42 on petitions for review from the RTC
b) There can be no new parties.
to the CA, Rule 43 on appeal from quasi-
judicial agencies to the CA, and Rule 45
c) There can be no change of theory (Naval
governing appeals by certiorari to the SC. vs. CA, 483 SCRA 102).
d) There can be no new matters.
 Accordingly, this rule was adopted to
standardize the appeal periods provided in
e) There can be amendments of pleadings should have been raised in the court below. It
to conform to the evidence submitted would be unfair to the adverse party who would
before the trial court. have no opportunity to present evidence in
f) The liability of solidarity defendant who contra to the new theory, which it could have
did not appeal is not affected by appeal done had it been aware of it at the time of the
of solidarity debtor. hearing before the trial court. It is true that this
g) Appeal by guarantor does not inure to rule admits of exceptions as in cases of lack of
the principal. jurisdiction, where the lower court committed
h) In ejectment cases, the RTC cannot plain error, where there are jurisprudential
award to the appellant on his developments affecting the issues, or when the
counterclaim more than the amount of issues raised present a matter of public policy.
damages beyond the jurisdiction of the
MTC. The court may consider an error not raised on
i) The appellate court cannot dismiss the appeal provided the same falls within any of the
appealed case for failure to prosecute following categories:
because the case must be decided on 1) It is an error that affects the jurisdiction
the basis of the record. over the subject matter;
2) It is an error that affects the validity of
JUDGMENTS AND FINAL ORDERS SUBJECT the judgment appealed from;
TO APPEAL 3) It is an error which affects the
proceedings;
An appeal may be taken only from judgments or 4) It is an error closely related to or
final orders that completely dispose of the case dependent on an assigned error and
(Sec. 1, Rule 41). An interlocutory order is not properly argued in the brief; or
appealable until after the rendition of the 5) It is a plain and clerical error.
judgment on the merits.
REMEDY AGAINST JUDGMENTS AND
MATTERS NOT APPEALABLE ORDERS WHICH ARE NOT APPEALABLE
No appeal may be taken from:  In those instances where the judgment or

1) An order denying a motion for new trial final order is not appealable, the aggrieved
or a motion for reconsideration; party may file the appropriate special civil
2) An order denying a petition for relief or action under Rule 65.
any similar motion seeking relief from  Rule 65 refers to the special civil actions of
judgment; certiorari, prohibition and mandamus (CPM).
3) An interlocutory order;  Practically, it would be the special civil
4) An order disallowing or dismissing an action of certiorari that would be availed of
appeal; under most circumstances. The most potent
5) An order denying a motion to set aside a remedy against those judgments and orders
judgment by consent, confession or from which appeal cannot be taken is to
compromise on the ground of fraud, allege and prove that the same were issued
mistake or duress, or any other ground without jurisdiction, with grave abuse of
vitiating consent; discretion or in excess of jurisdiction, all
6) An order of execution; amounting to lack of jurisdiction.
7) 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 MODES OF APPEAL (SEC. 2, RULE 41)
the main case is pending, unless the
court allows an appeal therefrom; and
8) An order dismissing and action without (a) ORDINARY APPEAL
prejudice (Sec. 1, Rule 41). The appeal to the CA in cases decided by
the RTC in the exercise of its original
A question that was never raised in the courts jurisdiction shall be taken by filing a
below cannot be allowed to be raised for the notice of appeal with the court which
first time on appeal without offending basic rendered the judgment or final order
rules of fair play, justice and due process. For an appealed from and serving a copy
appellate court to consider a legal question, it thereof upon the adverse party.
 No record on appeal shall be required  No motion for extension of time to file a

except in special proceedings and motion for new trial or reconsideration
other cases of multiple or separate shall be allowed (Sec. 2).
appeals where the law or the Rules
so require. In such cases, the record PERIOD OF ORDINARY APPEAL UNDER
on appeal shall be filed and served in RULE 41)
like manner.  The appeal shall be taken within 15 days
from notice of the judgment or final
(b) PETITION FOR REVIEW order appealed from. Where a record on
 The appeal to the CA in cases appeal is required, the appellants shall
decided by the RTC in the exercise of file a notice of appeal and a record on
its appellate jurisdiction shall be by appeal within 30 days from notice of the
petition for review in accordance judgment or final order.
with Rule 42.  However, on appeal in habeas corpus
cases shall be taken within 48 hours
(c) PETITION FOR REVIEW ON CERTIORARI from notice of the judgment or final
 In all cases where only questions order appealed from (AM No. 01-1-03-SC,
of law are raised or involved, the appeal June 19, 2001).
shall be to the SC by petition for  The period of appeal shall be interrupted
review on certiorari in accordance by a timely motion for new trial or
with Rule 45. reconsideration.
 No motion for extension of time to file a
ISSUES TO BE RAISED ON APPEAL motion for new trial or reconsideration
shall be allowed (Sec. 3).
Whether or not the appellant has filed a motion  If the record on appeal is not transmitted
for new trial in the court below, he may include to the CA within 30 days after the
in his assignment or errors any question of law perfection of appeal, either party may
or fact that has been raised in the court below file a motion with the trial court, with
and which is within the issues framed by the notice to the other, for the transmittal of
parties (Sec. 15, Rule 44). such record or record on appeal (Sec. 3,
1) In an Ordinary Appeal, the appeal Rule 44).
raises the questions of fact or mixed
questions of fact and law. PERIOD OF PETITION FOR REVIEW UNDER
2) In Petition for Review, the appeal RULE 42
raises questions of fact, of law or mixed  The petition shall be filed and served
questions of fact and law. within 15 days from notice of the
3) In a Petition for Review on Certiorari, decision sought to be reviewed or of the
the appeal raises purely questions of denial of petitioner’s motion for new trial
law. or reconsideration filed in due time after
judgment.
PERIOD OF APPEAL  The court may grant and additional
period of 15 days only provided the
PERIOD OF ORDINARY APPEAL UNDER extension is sought
RULE 40 a) upon proper motion, and
 An appeal may be taken (from MTC to b) there is payment of the full
RTC) within 15 days after notice to the amount of the docket and other
appellant of the judgment or final order lawful fees and the deposit for
appealed from. Where a record on costs before the expiration of the
appeal is required, the appellant shall file reglementary period.
a notice of appeal and a record on  No further extension shall be granted
appeal within 30 days after notice of the except for the most compelling reason
judgment or final order. and in no case to exceed 15 days.
 The period of appeal shall be interrupted
by a timely motion for new trial or PERIOD OF APPEAL BY PETITION FOR
reconsideration. REVIEW UNDER RULE 43
 The appeal shall be taken within 15 days
from notice of the award, judgment, final
order or resolution, or from the date of  The appeal which shall be in the form of
its last publication, if publication is a verified petition shall be filed within 15
required by law for its effectivity, or of days from notice of the judgment, final
the denial of petitioner’s motion for new order or resolution appealed from, or
trial or reconsideration duly filed in within 15 days from notice of the denial
accordance with the governing law of the of the petitioner’s motion for new trail or
court or agency a quo. motion for reconsideration filed in due
 Only one (1) motion for reconsideration time.
shall be allowed. Upon proper motion  The Supreme Court may, for justifiable
and the payment of the full amount of reasons, grant an extension of 30 days
the docket fee before the expiration of only within which to file the petition
the reglementary period, the CA may provided:
grant an additional period of 15 days a) there is a motion for extension of
only within which to file the petition for time duly filed and served;
review. b) there is full payment of the
 No further extension shall be granted docket and other lawful fees and
except for the most compelling reason the deposit for costs; and
and in no case to exceed 15 days (Sec. c) the motion is filed and served and
4). the payment is made before the
expiration of the reglementary
PERIOD OF APPEAL BY PETITION FOR period.
REVIEW ON CERTIORARI UNDER RULE 45
MODE OF PERIOD OF APPEAL Period of appeal if party files MFR or New

APPEAL Trial (Neypes Doctrine)
Ordinary Appeal
(Rules 40, 41)
a) Notice of Within 15 days from Within 15 days from receipt of order denying
Appeal (Rule 40) receipt of judgment or final motion for reconsideration or new trial
order
b) Record on Within 30 days from The 30-day to file the notice of appeal and record
Appeal (Rule 41) receipt of judgment or final on appeal should reckoned from the receipt of the
order order denying the motion for new trial or motion
for reconsideration (Zayco vs. Himlo, April 16,
2008)
Petition for Within 15 days from Within 15 days from receipt of the order denying
Review (Rule 42) receipt of judgment motion for reconsideration or new trial
Petition for Within 15 days from Within 15 days from receipt of the order denying
Review (Rule 43) receipt of judgment or final motion for reconsideration or new trial
order or of last publication
Appeal by Within 15 days from Within 15 days from receipt of the order denying
Certiorari (Rule receipt of judgment or final motion for reconsideration or new trial
45) order
PERFECTION OF APPEALS  A party’s appeal by record on appeal is

deemed perfected as to him with respect
For Ordinary Appeals from MTC to the RTC to the subject matter thereof upon the
(Rule 40) and from the RTC to the CA (Rule approval of the record on appeal filed in
41). due time. The court has jurisdiction only
 A party’s appeal by notice of appeal is over the subject matter thereof upon
deemed perfected as to him upon the such approval for the expiration of the
filing of the notice of appeal in due time. time to appeal of the other parties.
Upon such perfection or the expiration of  In either case, prior to the transmittal of
the same to appeal by the other parties, the original record or the record on
the court loses jurisdiction over the appeal, the court may issue orders for
subject matter thereof the protection and preservation of the
rights of the parties which do not involve judgment or final order or part thereof appealed
any matter litigated by the appeal, from, and state the material dates showing the
approve compromises, permit appeals of timeliness of the appeal. A record on appeal
indigent litigants, order execution shall be required only in special proceedings
pending appeal in accordance with Sec. and in other cases of multiple or separate
2, Rule 39, and allow withdrawal of the appeals.
appeal (Sec. 9, Rule 41).
APPEAL FROM JUDGMENTS OR FINAL
Perfection of Appeal by Petition for Review ORDERS OF THE RTC
under Rule 42. (Sec.8)
 Upon the timely filing of a petition for There are three modes of appealing a judgment
review and the payment of the or final order of the RTC:
corresponding docket and other lawful 1) Ordinary Appeal (Rule 41) from the
fees, the appeal is deemed perfected as judgment or final order of the RTC in the
to the petitioner. exercise of its original jurisdiction
 The RTC loses jurisdiction over the case 2) Petition for Review (Rule 42) from the
upon the perfection of the appeals filed judgment or final order of the RTC to the
in due time and the expiration of the CA in cases decided by the RTC in the
time to appeal of the other parties. exercise of its appellate jurisdiction
 However, before the CA give due course 3) Petition for Review on Certiorari
to the petition, the RTC may issue orders (Rule 45)
for the protection and preservation of the
rights of the parties which do not involve APPEAL FROM JUDGMENTS OR FINAL
any matter litigated by the appeal, ORDERS OF THE CA
approve compromises, permit appeals of
indigent litigants, order execution a) Appeal from the judgments or final orders of
pending appeal in accordance with Sec. the CA concerning purely questions of law
2, Rule 39, and allow withdrawal of the which must be distinctly set forth may be
appeal. elevated to the SC by way of Rule 45:
 Except in civil cases decided under Rules Petitions for Review on Certiorari.
on Summary Procedure, the appeal shall b) The general rule is that the SC shall not
stay the judgment or final order unless entertain questions of fact, except in the
the CA, the law, or the Rules provide following cases:
otherwise. a) The conclusion of the CA is grounded
entirely on speculations, surmises
APPEAL FROM JUDGMENTS OR FINAL and conjectures;
ORDERS OF THE MTC b) The inference made is manifestly
mistaken, absurd or impossible;
An appeal from a judgment or final order of a c) There is grave abuse of discretion;
MTC may be taken to the RTC exercising d) The judgment is based on
jurisdiction over the area over which the MTC misapprehension of facts;
sits. The title of the case shall remain as it was e) The findings of facts are conflicting;
in the court of origin, but the party appealing f) The CA in making its findings went
the case shall be further referred to as the beyond the issues of the case and
appellant and the adverse party as the appellee the same is contrary to the
(Sec. 1, Rule 40). admissions of both appellant and
appellee;
Where the MTC dismisses a case for lack of g) The findings are contrary to those of
jurisdiction of such dismissal is made to the the trial court;
RTC, should the latter affirm the dismissal and if h) The facts set forth in the petition as
it has jurisdiction over the subject matter, the well as in the petitioner‘s main and
RTC is obliged to try the case as if it were reply briefs are not disputed by the
originally filed with it. respondents;
i) The findings of fact of the CA are
The appeal is taken by filing a notice of appeal premised on the supposed absence
with the court that rendered the judgment or of evidence and contradicted by the
final order appealed from. The notice of appeal evidence on record; or
shall indicate the parties to the appeal, the
j) Those filed under Writs of amparo, The CA has jurisdiction over orders, directives
habeas data, or kalikasan. and decisions of the Office of the Ombudsman
in administrative cases only under Rule 43.
APPEAL FROM JUDGMENTS OR FINAL  But in cases in which it is alleged that
ORDERS OF THE CTA the Ombudsman has acted with grave
abuse of discretion amounting to lack or
Under Sec. 11 of RA 9282, no civil proceeding excess of jurisdiction amounting to lack
involving matters arising under the NIRC, the or excess of jurisdiction, a special civil
TCC or the Local Government Code shall be action of certiorari under Rule 65 may be
maintained, except as herein provided, until and filed with the SC to set aside the
unless an appeal has been previously filed with Ombudsman’s order or resolution.
the CTA and disposed of in accordance with the
provisions of the Act. In criminal or non-administrative case,
the ruling of the Ombudsman shall be
A party adversely affected by a resolution of a elevated to the SC by way of Rule 65.
Division of CTA on a motion for reconsideration
or new trial, may file a petition for review with The SC’s power to review over resolutions and
the CTA en banc. orders of the Office of the Ombudsman is
restricted on to determining whether grave
Sec. 11 of RA 9282 further provides that a party abuse of discretion has been committed by it.
adversely affected by a decision or ruling of the The Court is not authorized to correct every
CTA en banc may file with the SC a verified error or mistake of the Office of the
petition for review on certiorari pursuant to Ombudsman other than grave abuse of
Rule 45. discretion. The remedy is not a petition for
review on certiorari under Rule 45.
REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC REVIEW OF FINAL ORDERS OF THE NLRC
A judgment, resolution or final order of the The remedy of a party aggrieved by the decision
COMELEC may be brought by the aggrieved of the National Labor Relations Commission
party to the SC on certiorari under Rule 65 in (NLRC) is to promptly move for the
relation to Rule 64, by filing the petition within reconsideration of the decision and if denied to
30 days from notice. timely file a special civil action of certiorari
under Rule 65 within 60 days from notice of the
REVIEW OF FINAL ORDERS OF THE CSC decision.
A judgment, final order or resolution of the Civil In observance of the doctrine of hierarchy of
Service Commission may be taken to the CA courts, the petition for certiorari should be filed
under Rule 43. Note the difference between the in the CA (St. Martin Funeral Homes vs. NLRC,
mode of appeal from a judgment of the CSC and Sept. 16, 1998). Should the same be filed with
the mode of appeal from the judgments of other the SC, the latter shall dismiss the same instead
constitutional commissions. of referring the action to the CA.
REVIEW OF FINAL ORDERS OF THE COA REVIEW OF FINAL ORDERS OF THE QUASI-
JUDICIAL AGENCIES
A judgment, resolution or final order of the
Commission on Audit may be brought by the  Appeals from judgments and final orders of
aggrieved party to the SC on certiorari under quasi-judicial bodies/agencies are now
Rule 65 in relation to Rule 64, by filing the required to be brought to the CA.
petition within 30 days from notice.  This rule was adopted precisely to provide a
uniform rule of appellate procedure from
REVIEW OF FINAL ORDERS OF THE quasi-judicial bodies.
OMBUDSMAN  The appeal under Rule 43 may be taken to
the CA whether the appeal involves a
Appeals from decisions of the Ombudsman in question of fact, a question of law, or mixed
administrative disciplinary actions should questions of fact and law by filing a verified
be brought to the CA under Rule 43. petition for review with the CA.
 The appeal shall NOT stay the award,  These two periods must concur.
judgment, final order or resolution sought to Both periods are not extendible and
be reviewed UNLESS the CA shall direct are never interrupted.
otherwise upon such terms as it may deem
just. CONTENTS OF PETITION
RELIEFS FROM JUDGMENTS (or petition for The petition must be verified and must be
relief from denial of appeal) ORDERS AND accompanied with affidavits showing fraud,
OTHER PROCEEDINGS (RULE 38) accident, mistake or excusable negligence
relied upon and it must have an affidavit of
A petition for relief from judgment is an merit showing the facts constituting the
equitable remedy that is allowed only in petitioner’s good and substantial cause of action
exceptional cases when there is no other or defense, as the case may be.
available or adequate remedy.
ANNULMENT OF JUDGMENTS OR FINAL
A remedy where a party seek to set aside a ORDERS AND RESOLUTIONS (RULE 47)
judgment rendered against him by a court
whenever he was unjustly deprived of a hearing The annulment of judgment if a remedy
or was prevented from taking an appeal independent of the case where the judgment
because of fraud, accident, mistake or sought to be annulled was rendered and may be
excusable negligence. availed of though the judgment may have been
executed.
Under Sec. 5, Rule 38, the court may grant
preliminary injunction to preserve the rights of Its purpose is to have the judgment set aside so
the parties upon the filing of a bond in favor of that there will be a renewal of litigation where
the adverse party. The bond is conditioned upon the ordinary remedies of new trial, appeal, relief
the payment to the adverse party of all from judgment are no longer available without
damages and costs that may be awarded to the petitioner’s fault.
such adverse party by reason of the issuance of
the injunction (Sec. 5). GROUNDS FOR ANNULMENT
(you should be a party to the case)
GROUNDS FOR AVAILING OF THE REMEDY
(PETITION FOR RELIEF) 1) Extrinsic Fraud – exists when there is a
fraudulent act committed by the prevailing
When a judgment or final order is entered, or party outside the trial of the case, whereby
any other proceeding is thereafter taken against the defeated party was prevented from
a party in any court through (a) fraud, (b) presenting fully his side of the case by
accident, (c) mistake, or (c) excusable deception practiced on him by the prevailing
negligence (FAMEN), he may file a petition in party.
such court and in the same case praying that 2) Lack of Jurisdiction – refers to either lack
the judgment, order or proceeding be set aside of jurisdiction over the person of the
(Sec. 1, Rule 38). defendant or over the subject matter of the
claim.
When the petitioner has been prevented from
taking an appeal by fraud, mistake, or PERIOD TO FILE ACTION
excusable negligence (Sec. 2).
If based on Extrinsic Fraud
TIME TO FILE PETITION
 action must be filed within four (4) years
from its discovery
A petition for relief from judgment, order or
other proceedings must be verified, filed:
If based on Lack of Jurisdiction
1) within 60 days after the petitioner
 before it is barred by laches or estoppels
learns of the judgment, final order, or
other proceeding to be set aside, and
EFFECTS OF JUDGMENT OF ANNULMENT
2) not more than six (6) months
after such judgment or final order was
entered, or such proceeding was taken. 1) On Extrinsic Fraud
a) The court, upon motion may order the JUDGMENT FOR PURPOSE OF APPEAL; FOR
trial court to try the case as if a motion PURPOSES OF EXECUTION
for new trial had been granted.
b) The prescriptive period shall not be For purposes of appeal, an order is final if it
suspended if the extrinsic fraud is disposes of the action as opposed to an
attributable to the plaintiff in the original interlocutory order which leaves something to
action. be done in the trial court with respect to the
2) On the ground of Lack of Jurisdiction merits of the case.
a) The questioned judgment, order or
resolution shall be set aside and For purposes of execution, an order is final or
rendered null and void. The nullity executory after the lapse of the reglementary
shall be without prejudice to the period to appeal and no such appeal has been
refiling of the original action in the perfected.
proper court.
b) The prescriptive period to re-file shall WHEN EXECUTION SHALL ISSUE;
be deemed suspended from the filing EXECUTION AS A MATTER OF RIGHT (SEC.
of such original action until the 1)
finality of the judgment of
annulment. Execution is a matter of right upon the
expiration of the period to appeal and no appeal
COLLATERAL ATTACK OF JUDGMENTS was perfected from a judgment or order that
disposes of the action or proceeding. Once a
A collateral attack is made when, in another judgment becomes final and executory, the
action to obtain a different relief, an attack on prevailing party can have it executed as a
the judgment is made as an incident in said matter of right, and the issuance of a writ of
action. execution becomes the ministerial duty of the
court compellable by mandamus except in
This is proper only when the judgment, on its certain cases, as when subsequent events
face, is null and void, as where it is patent that would render execution of judgment unjust.
the court which rendered said judgment has no
jurisdiction. Judgments and orders become final and
executor by operation of law and not by judicial
Examples: declaration. The trial court need not even
 A petition for certiorari under Rule 65 is a pronounce the finality of the order as the same
direct attack. It is filed primarily to have becomes final by operation of law. Its finality
an order annulled. becomes a fact when the reglementary period
 An action for annulment of a judgment is for appeal lapses, and no appeal is perfected
likewise a direct attack on a judgment. within such period.
 A motion to dismiss a complaint for
collection of a sum of money filed by a Execution is a matter or right, except in the
corporation against the defendant on the following cases:
ground that the plaintiff has no legal a) Where judgment turns out to be
capacity to use is a collateral attack on incomplete or conditional;
the corporation. A motion to dismiss is b) Judgment is novated by the parties;
incidental to the main action for sum of c) Equitable grounds (i.e., change in the
money. It is not filed as an action situation of the parties—supervening fact
intended to attack the legal existence of doctrine)
the plaintiff. d) Execution is enjoined (i.e., petition for
relief from judgment or annulment of
judgment with TRO or writ of preliminary
EXECUTION, SATISFACTION AND EFFECT OF injunction);
JUDGMENTS (Rule 39) e) Judgment has become dormant; or
f) Execution is unjust or impossible.
 Issuance of the writ is ministerial DISCRETIONARY EXECUTION (SEC. 2) –

 Granting of the writ is judicial execution pending appeal
DIFFERENCE BETWEEN FINALITY OF

It constitutes an exception to the general rule EXECUTION BY MOTION OR BY

that a judgment cannot be executed before the INDEPENDENT ACTION (SEC. 6)
lapse of the period for appeal or during the
pendency of an appeal. a) Once revived, then you can file a motion
for execution
Under Sec. 1, Rule 39, execution shall issue only
as a matter of right upon a judgment or final b) Execution by MOTION may be had if the
order that finally disposes of the action or enforcement of the judgment is sought
proceeding upon the execution of the period to within 5 years from the date of its entry.
appeal therefrom if no appeal has been duly
perfected. c) Execution by INDEPENDENT ACTION is
when the 5 year period has lapsed from the
A discretionary execution is called entry of judgment and before it is barred by
“discretionary” precisely because it is not a the statute of limitations. This action to
matter of right. The execution of a judgment revive the judgment must be filed within 10
under this concept is addressed to the years from the date the judgment became
discretionary power of the court and cannot be final.
insisted upon but simply prayed and hoped for
because a discretionary execution is not a ISSUANCE AND CONTENTS OF A WRIT OF
matter of right. EXECUTION (SEC. 8)
Requisites for discretionary execution: This is only upon motion and its lifetime is 5
1) There must be a motion filed by the years; as a rule, it is issued by the court of
prevailing party with notice to the original jurisdiction
adverse party;
2) There must be a hearing of the motion The writ of execution shall:
for discretionary execution; 1) issue in the name of the Republic of the
3) There must be good reasons to justify Philippines from the court which granted
the discretionary execution; and the motion;
4) The good reasons must be stated in a 2) state the name of the court, the case
special order (Sec. 2, Rule 39). number and title, the dispositive part of
the subject judgment or order; and
HOW A JUDGMENT IS EXECUTED (SEC. 4) 3) require the SHERIFF (should make a
report every 30 days) or other proper
Judgments in actions for injunction, officer to whom it is directed to enforce
receivership, accounting and support, and such the writ according to its term, in the
other judgments as are now or may hereafter be manner hereinafter provided:
declared to be immediately executory, shall be a) If the execution be against the
enforceable after their rendition and shall not be property of the judgment obligor, to
stayed by an appeal taken therefrom, unless satisfy the judgment, with interest,
otherwise ordered by the trial court. out of the real or personal property of
such judgment obligor;
On appeal, the appellate court in its discretion b) If it be against real or personal
may make an order suspending, modifying, property in the hands of personal
restoring or granting the injunction, representatives, heirs, devisees,
receivership, accounting, or award of support. legatees, tenants, or trustees of the
The stay of execution shall be upon such terms judgment obligor, to satisfy the
as to bond or otherwise as may be considered judgment, with interest, out of such
proper for the security or protection of the property;
rights of the adverse party. c) If it be for the sale of real or personal
property, to sell such property,
Judgments that may be altered or modified after describing it, and apply the proceeds
becoming final and executory: in conformity with the judgment, the
1) Facts and circumstances transpire which material parts of which shall be
render its execution impossible or unjust; recited in the writ of execution;
2) Support; d) If it be for the delivery of the
3) Interlocutory judgment. possession of real or personal
property, to deliver the possession of
the same, describing it, to the party manual delivery in the possession or control
entitled thereto, and to satisfy any of the third persons.
costs, damages, rents, or profits
covered by the judgment out of the EXECUTION OF JUDGMENT FOR SPECIFIC
personal property of the person ACTS (SEC. 10)
against whom it was rendered, and if
sufficient personal property cannot If the judgment requires a person to perform a
be found, then out of the real specific act, said act must be performed but if
property; and the party fails to comply within the specified
e) In all cases, the writ of execution time, the court may direct the act to be done by
shall specifically state the amount of someone at the cost of the disobedient party
the interest, costs, damages, rents, and the act when so done shall have the effect
or profits due as of the date of the as if done by the party
issuance of the writ, aside from the
principal obligation under the If the judgment directs a conveyance of real or
judgment. For this purpose, the personal property, and said property is in the
motion for execution shall specify the Philippines, the court in lieu of directing the
amounts of the foregoing reliefs conveyance thereof, may by an order divest the
sought by the movants. title of any party and vest it in others, which
shall have the force and effect of a conveyance
EXECUTION OF JUDGMENT FOR MONEY executed in due form of law.
(SEC. 9)
EXECUTION OF SPECIAL JUDGMENTS (SEC.
a) Immediate payment on demand – 11)
The officer enforcing the writ shall demand
from the judgment obligor the immediate When a judgment requires the performance of
payment of the full amount stated in the any act other, a certified copy of the judgment
judgment including the lawful fees in cash, shall be attached to the writ of execution and
certified check payable to the judgment shall be served by the officer upon the party
oblige or any other form of payment against whom the same is rendered, or upon
acceptable to him (Sec. 9). any other person required thereby, or by law, to
 the sheriff is required to first make a obey the same, and such party or person may
demand on the obligor for the immediate be punished for contempt if he disobeys such
payment of the full amount stated in the judgment.
writ of execution
EFFECT OF LEVY ON THIRD PERSONS
b) Satisfaction by levy – If the judgment
obligor cannot pay all or part of the The levy on execution shall create a lien in favor
obligation in cash, certified check or other of the judgment obligee over the right, title and
mode of payment, the officer shall levy upon interest of the judgment obligor in such
the properties of the judgment obligor. property at the time of the levy, subject to liens
 The judgment obligor shall have the and encumbrances then existing.
option to choose which property or part
thereof may be levied upon. Should he PROPERTIES EXEMPT FROM EXECUTION
fail to exercise the option, the officer (SEC. 13)
shall first levy on the personal
properties, if any, and then on the real EXCEPT as otherwise expressly provided by law,
properties if the personal properties are the following property, and no other, shall be
insufficient to answer for the personal exempt from execution:
judgment but the sheriff shall sell only so 1) The judgment obligor‘s family home as
much of the property that is sufficient to provided by law, or the homestead in which
satisfy the judgment and lawful fees he resides, and the land necessarily used in
connection therewith;
c) Garnishment of debts and credits – 2) Ordinary tools and implements personally
The officer may levy on the debts due the used by him in his trade, employment, or
judgment obligor including bank deposits, livelihood;
financial interests, royalties, commissions 3) Three horses, or three cows, or three
and other personal property not capable of carabaos, or other beasts of burden, such as
the judgment obligor may select necessarily Requisites for a claim by a third person:
used by him in his ordinary occupation; a) The property is levied;
4) His necessary clothing and articles for b) The claimant is a person other than the
ordinary personal use, excluding jewelry; judgment obligor or his agent;
5) Household furniture and utensils necessary c) Makes an affidavit of his title thereto or
for housekeeping, and used for that purpose right to the possession thereof stating
by the judgment obligor and his family, such the grounds of such right or title; and
as the judgment obligor may select, of a d) Serves the same upon the officer making
value not exceeding 100,000 pesos. the levy and the judgment obligee.
6) Provisions for individual or family use
sufficient for four months; IN RELATION TO THIRD PARTY CLAIM IN
7) The professional libraries and equipment of ATTACHMENT AND REPLEVIN
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, Remedies available to a third person not party
teachers, and other professionals, not to the action but whose property is the subject
exceeding 300,000 pesos; of execution:
8) One fishing boat and accessories not
exceeding the total value of 100,000 pesos a) TERCERIA
owned by a fisherman and by the lawful use  By making an affidavit of his title thereto
of which he earns his livelihood; or his right to possession thereof, stating
9) So much of the salaries, wages, or earnings the grounds of such right or title.
of the judgment obligor for his personal  The affidavit must be served upon the
services with 4 months preceding the levy sheriff and the attaching party (Sec. 14,
as are necessary for the support of his Rule 57).
family;
 Upon service of the affidavit upon him,
10) Lettered gravestones; the sheriff shall not be bound to keep the
11) Monies, benefits, privileges, or annuities
property under attachment except if the
accruing or in any manner growing out of attaching party files a bond approved by
any life insurance;
the court.
12) The right to receive legal support, or money
 The sheriff shall not be liable for
or property obtained as such support, or any
damages for the taking or keeping of the
pension or gratuity from the government;
property, if such bond shall be filed.
and
13) Properties specially exempted by law
b) EXCLUSION OR RELEASE OF PROPERTY
(Sec. 13, Rule 39).
 Upon application of the third person
If the property is the subject of execution through a motion to set aside the levy on
because of a judgment for the recovery of the attachment, the court shall order a
price or upon judgment of foreclosure of a summary hearing for the purpose of
mortgage upon the property, the property is not determining whether the sheriff has
exempt from execution. acted rightly or wrongly in the
performance of his duties in the
execution of the writ of attachment.
PROCEEDINGS WHERE PROPERTY IS
CLAIMED BY THIRD PERSONS (SEC. 16)  The court may order the sheriff to
release the property from the erroneous
If the property levied on is claimed by any levy and to return the same to the third
person other than the judgment obligor or his person.
agent, the officer shall not be bound to keep the  In resolving the application, the court
property, unless such judgment obligee, on cannot pass upon the question of title to
demand of the officer, files a bond approved by the property with any character of
the court to indemnify the third-party claimant finality but only insofar as may be
in a sum not less than the value of the property necessary to decide if the sheriff has
levied on. acted correctly or not.
The officer shall not be liable for damages for c) INTERVENTION

the taking or keeping of the property, to any  This is possible because no judgment has
third-party claimant if such bond is filed. yet been rendered and under the rules, a
motion for intervention may be filed any
time before the rendition of the
judgment by the trial court (Sec. 2, Rule a) By the judgment obligor

19). 1. Purchase price
2. 1% interest thereon up to the
d) ACCION REINVINDICATORIA time of redemption
 The third party claimant is not precluded 3. Any amount of assessments or
by Sec. 14, Rule 57 from vindicating his taxes which the purchaser may have
claim to the property in the same or in a paid thereon after purchase, and
separate action. interest on such last named amount
 He may file a separate action to nullify at the same rate.
the levy with damages resulting from the  If the purchaser be also a creditor having
unlawful levy and seizure. This action a prior lien to that of the redemptioner,
may be a totally distinct action from the other than the judgment under which
former case. such purchase was made, the amount of
such other lien, with interest.
RULES ON REDEMPTION
b) By the redemptioner
WHAT MAY BE REDEEMED? 1. Amount paid on the last
redemption;
 The right of redemption is available only
2. 2% interest thereon
to real properties. When personal
3. Any amount of assessments or
properties are sold in execution their
taxes which the last previous
sale is absolute and no right of
redemptioner paid after the
redemption may be exercised.
redemption by him with interest on
such last-named amount;
WHO MAY REDEEM?
4. Amount of any liens held by the
a) Judgment obligor, or his successor
last redemptioner prior to his own,
in interest in the whole or any part of the
with interest.
property;
b) Redemptioner – a creditor having
Generally in judicial foreclosure sale, there is no
a lien by virtue of an attachment,
right of redemption, but only equity of
judgment or mortgage on the property
redemption. In sale of estate property to pay off
sold, or on some part thereof,
debts of the estate, there is no redemption at
subsequent to the lien under which the
all. Only in extrajudicial foreclosure sale and
property was sold.
sale on execution is there the right of
redemption.
WHEN TO REDEEM?
a) By the judgment obligor - within 1
If no redemption be made within one (1) year
year from the date of the registration of
from the date of the registration of the
the certificate of sale.
certificate of sale, the purchaser is entitled to a
b) By the redemptioner - within 1
conveyance and possession of the property; or,
year from the date of the registration of
if so redeemed whenever sixty (60) days have
the certificate of sale if he is the first
elapsed and no other redemption has been
redemptioner, or
made, and notice thereof given, and the time
c) Within 60 days after the last
for redemption has expired, the last
redemption if he is a subsequent
redemptioner is entitled to the conveyance and
redemptioner, provided that the
possession.
judgment debtor has not exercised his
right of redemption.
Upon the expiration of the right of redemption,
the purchaser or redemptioner shall be
 In all cases the judgment obligor shall substituted to and acquire all the rights, title,
have the entire period of one (1) year interest and claim of the judgment obligor to the
from the date of the registration of the property as of the time of the levy.
sale to redeem the property. If the
judgment obligor redeems, no further The possession of the property shall be given to
redemption is allowed and he is restored the purchaser or last redemptioner by the same
to his estate. officer unless a third party is actually holding
the property adversely to the judgment obligor.
REDEMPTION PRICE
EXAMINATION OF JUDGMENTS OBLIGOR deceased person, or in respect to the personal,

WHEN JUDGMENT IS UNSATISFIED (SEC. political, or legal condition or status of a
36) particular person or his relationship to another,
the judgment or final order is conclusive upon
When the return of a writ of execution issued the title to the thing, the will or administration,
against property of a judgment obligor, or any or the condition, status or relationship of the
one of several obligors in the same judgment, person; however, the probate of a will or
shows that the judgment remains unsatisfied, in granting of letters of administration shall only
whole or in part, the judgment obligee, at any be prima facie evidence of the truth of the
time after such return is made, shall be entitled testator or intestate;
to an order from the court which rendered the
said judgment, requiring such judgment obligor In other cases, the judgment or final order is,
to appear and be examined concerning his with respect to the matter directly adjudged or
property and income before such court or as to any other matter that could have been
before a commissioner appointed by it, at a raised in relation thereto, conclusive between
specified time and place; and proceedings may the parties and their successors in interest by
thereupon be had for the application of the title subsequent to the commencement of the
property and income of the judgment obligor action or special proceeding, litigating for the
towards the satisfaction of the judgment. same thing and under the same title and in the
same capacity; and
But no judgment obligor shall be so required to
appear before a court or commissioner outside In any other litigation between the same parties
the province or city in which such obligor or their successors in interest, that only is
resides or is found. deemed to have been adjudged in a former
judgment or final order which appears upon its
EXAMINATION OF OBLIGOR OF JUDGMENT face to have been so adjudged, or which was
OBLIGOR (SEC. 37) actually and necessarily included therein or
necessary thereto.
When the return of a writ of execution against
the property of a judgment obligor shows that ENFORCEMENT AND EFFECT OF FOREIGN
the judgment remains unsatisfied, in whole or in JUDGMENTS OR FINAL ORDERS (SEC. 48)
part, and upon proof to the satisfaction of the
court which issued the writ, that person, 1) In case of a judgment or final order upon a
corporation, or other juridical entity has specific thing, the judgment or final order is
property of such judgment obligor or is indebted conclusive upon the title to the thing; and
to him, the court may, by an order, require such 2) In case of a judgment or final order against a
person, corporation, or other juridical entity, or person, the judgment or final order is
any officer or member thereof, to appear before presumptive evidence of a right as between
the court or a commissioner appointed by it, at the parties and their successors in interest
a time and place within the province or city by a subsequent title. In either case, the
where such debtor resides or is found, and be judgment or final order may be repelled by
examined concerning the same. evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
The service of the order shall bind all credits mistake of law or fact.
due the judgment obligor and all money and
property of the judgment obligor in the A foreign judgment on the mere strength of its
possession or in control of such person, promulgation is not yet conclusive, as it can be
corporation, or juridical entity from the time of annulled on the grounds of want of jurisdiction,
service; and the court may also require notice of want of notice to the party, collusion, fraud, or
such proceedings to be given to any party to the clear mistake of law or fact.
action in such manner as it may deem proper.
It is likewise recognized in Philippine
EFFECT OF JUDGMENT OR FINAL ORDERS: jurisprudence and international law that a
RES JUDICATA (SEC. 47) foreign judgment may be barred from
recognition if it runs counter to public policy.
In case of a judgment or final order against a
specific thing, or in respect to the probate of a
will, or the administration of the estate of a
sufficient. Jurisdiction over the person of the

PROVISIONAL REMEDIES (Rules defendant is not required.
57-61)
There is no separate action called preliminary
attachment. It is availed of in relation to a
principal action.
NATURE OF PROVISIONAL REMEDIES
Preliminary attachment is designed to:
Provisional remedies are temporary, auxiliary, 1) Seize the property of the debtor before
and ancillary remedies available to a litigant for final judgment and put the same in
the protection and preservation of his rights custodial egis even while the action is
while the main action is pending. They are writs pending for the satisfaction of a later
and processes which are not main actions and judgment.
they presuppose the existence of a principal 2) To enable the court to acquire
action. jurisdiction over the res or the property
subject of the action in cases where
Provisional remedies are resorted to by litigants service in person or any other service to
for any of the following reasons: acquire jurisdiction over the defendant
1) To preserve or protect their rights or cannot be affected.
interests while the main action is
pending; Three stages in the grant of the Preliminary
2) To secure the judgment; Attachment
3) To preserve the status quo; or 1) The court issues the order granting the
4) To preserve the subject matter of the application
action. 2) The writ of attachment issues pursuant
to the order granting the writ
Provisional remedies specified under the 3) The writ if implemented
rules are:
1. Preliminary attachment (Rule 57); For the 2 initial stages, it is not necessary that
2. Preliminary injunction (Rule 58); jurisdiction over the person of the defendant be
3. Receivership (Rule 59); first obtained. However, once the
4. Replevin (Rule 60); and implementation of the writ commences, the
5. Support pendent lite (Rule 61). court must have acquired jurisdiction over the
defendant for without such jurisdiction, the
JURISDICTION OVER PROVISIONAL court has no power or authority to act in any
REMEDIES manner against the defendant.
The court which grants or issues a provisional PRELIMINARY ATTACHMENT HAS

remedy is the court which has jurisdiction over THREE TYPES
the main action. Even an inferior court may
grant a provisional remedy in an action pending (a) PRELIMINARY ATTACHMENT – one issued
with it and within its jurisdiction. at the commencement of the action or at any
time before entry of judgment as security for
the satisfaction of any judgment that may be
PRELIMINARY ATTACHMENT (RULE 57) recovered. Here the court takes custody of the
property of the party against whom attachment
is directed.
Preliminary attachment is a provisional remedy
issued upon order of the court where an action (b) GARNISHMENT – plaintiff seeks to subject
is pending to be levied upon the property of the either the property of defendant in the hands of
defendant so the property may be held by the a third person (garnishee) to his claim or the
sheriff as security for the satisfaction of money which said third person owes the
whatever judgment may be rendered in the. defendant. Garnishment does not involve actual
seizure of property which remains in the hands
When availed of and is granted in an action of the garnishee. It simply impounds the
purely in personam, it converts the action to property in the garnishee’s possession and
one that is quasi in rem. In an action in rem or maintains the status quo until the main action is
quasi in rem, jurisdiction over the res is finally decided. Garnishment proceedings are
usually directed against personal property, which the action the action is brought, or
tangible or intangible and whether capable of in the performance thereof;
manual delivery or not. 5) In an action against a party who has
removed or disposed of his property, or
(c) LEVY ON EXECUTION – writ issued by the is about to do so, with intent to defraud
court after judgment by which the property of his creditors; or
the judgment obligor is taken into custody of 6) In an action against a party who does not
the court before the sale of the property on reside and is not found in the Philippines,
execution for the satisfaction of a final or on whom summons may be served by
judgment. It is the preliminary step to the sale publication (Sec. 1).
on execution of the property of the judgment
debtor. REQUISITES
 The grant of the remedy is addressed to The issuance of an order/writ of execution

the discretion of the court whether or not requires the following:
the application shall be given full credit 1) The case must be any of those
is discretionary upon the court. In where preliminary attachment is proper;
determining the propriety of the grant, 2) The applicant must file a motion
the court also considers the principal whether ex parte or with notice and
case upon which the provisional remedy hearing;
depends. 3) The applicant must show by
affidavit (under oath) that there is no
GROUNDS FOR ISSUANCE OF WRIT OF sufficient security for the claim sought to
ATTACHMENT be enforced; that the amount claimed in
the action is as much as the sum of
At the commencement of the action or at any which the order is granted above all
time before entry of judgment, a plaintiff or any counterclaims; and
proper party may have the property of the 4) The applicant must post a bond
adverse party attached as security for the executed to the adverse party.
satisfaction of any judgment that may be
 This is called an
recovered in the following cases:
ATTACHMENT BOND, which
1) In an action for the recovery of a
answers for all damages incurred
specified amount of money or damages,
by the party against whom the
other than moral and exemplary, on a
attachment was issued and
cause of action arising from law,
sustained by him by reason of the
contract, quasi-contract, delict or quasi-
attachment.
delict against a party who is about to
depart from the Philippines with intent to
ISSUANCE AND CONTENTS OF ORDER OF
defraud his creditors;
ATTACHMENT
2) In an action for money or property
embezzled or fraudulently misapplied or
An order of attachment may be issued either ex
converted to his own use by a public
parte or upon motion with notice and hearing by
officer, or an officer of a corporation, or
the court in which the action is pending, or by
an attorney, factor, broker, agent or
the CA or the SC.
clerk, in the course of his employment as
such, or by any other person in a
It may issue ex parte and even before the
fiduciary capacity, or for a willful
summons is served upon the defendant.
violation of duty;
However, the writ may not be enforced and
3) In an action to recover the possession of
validly implemented unless preceded or
property unjustly or fraudulently taken,
simultaneously served with the summons, a
detained or converted, when the
copy of the complaint, application for
property, or any party thereof, has been
attachment, the order of attachment and the
concealed, removed, or disposed of to
attachment bond.
prevent its being found or taken by the
applicant or an authorized person;
4) In an action against a party who has AFFIDAVIT AND BOND
been guilty of a fraud in contracting the
debt or incurring the obligation upon The order of attachment shall be granted only
when it appears by the affidavit of the applicant
that the requisites for a grant of attachment are In attaching PERSONAL PROPERTY capable of
present. manual delivery - by taking and safely keeping
it in his custody after issuing the corresponding
The applicant must thereafter give a bond receipt therefor.
executed to the adverse party in the amount
fixed by the court in its order granting the As to STOCKS OR SHARES, or an interest
issuance of the writ, conditioned that the latter thereon, by leaving with the president or
will pay all the costs which may be adjudged to managing agent of the company, a copy of the
the adverse party and all damages which he writ, and a notice stating that the stock or
may sustain by reason of the attachment, if the interest of the party against whom the
court shall finally adjudge that the applicant was attachment is issued is attached in pursuance of
not entitled thereto such writ.
RULE ON PRIOR OR CONTEMPORANEOUS DEBTS AND CREDITS, including bank deposits,

SERVICE OF SUMMONS financial interest, royalties, commissions and
other personal property not capable of manual
 Enforcement of the writ or preliminary delivery shall be attached by leaving with the
attachment must be preceded by person owing such debts, or in possession or
contemporaneously accompanied by the control of such credits or other personal
service of summons, copy of the complaint, property, or with his agent, a copy of the writ,
application and affidavit of the attachment and notice that such properties are attached.
and the bond in favor of the adverse party.
 The failure to acquire jurisdiction over the As to interest of the party against whom
person of the adverse party shall render the attachment is issued in property BELONGING TO
implementation of the writ void. THE ESTATE OF THE DECEDENT are attached by
giving a copy of the writ and notice to the
Exceptions to the requirement: executor or administrator and the office of the
1) Where the summons could not be served clerk of court where is the estate is being
personally or by substituted service settled.
despite diligent efforts;
2) The defendant is a resident of the If the property to be attached is IN CUSTODIA
Philippines who is temporarily out of the LEGIS, a copy of the writ shall be filed with the
country; proper court or quasi-judicial agency, and notice
3) The defendant is a non-resident; or of the attachment served upon the custodian of
such property.
4) The action is one in rem or quasi in rem
(Sec. 5).
WHEN PROPERTY ATTACHED IS CLAIMED
BY THIRD PERSON
MANNER OF ATTACHING REAL AND
PERSONAL PROPERTY
The third party may resort to any of the
following remedies which are cumulative and
The sheriff enforcing the writ shall without delay
thus could be resorted independently and
and with all reasonable diligence attach, to
separately from the others:
await judgment and execution in the action,
only so much of the property in the Philippines a) He may avail of the remedy of terceria -
of the party against whom the writ is issued, not by making an affidavit of his title thereto
exempt from execution, as may be sufficient to or his right to possession thereof, stating
satisfy the applicant's demand. the grounds of such right or title. The
affidavit must be served upon the sheriff
In attaching REAL PROPERTY, or growing crops and the attaching party. The sheriff shall
thereon or any interest therein, a copy of the not be bound to keep the property under
order shall be filed with the registry of deeds attachment except if the attaching party
along with a description of the property files a bond approved by the court.
attached and by leaving a copy of such order b) The third person may invoke the court’s
with the occupant of the property, if any or such authority in the same case and move for
other person or his agent if found within the a summary hearing on his claim to
province. decide if the sheriff has acted correctly
or not.
c) The third party may file a separate If judgment is rendered in favor of the attaching
action to nullify the levy with damages party and execution issued, the sheriff may
resulting from the unlawful levy and cause the judgment to be satisfied out of the
seizure. This action may be totally property attached, if it be sufficient for that
distinct from the case in which the purpose.
attachment was issued.
HOW TO PREVENT THE ATTACHMENT PRELIMINARY INJUNCTION (RULE 58)
The party whose property is sought to be

 Can be provisional remedy and can also
attached, my prevent the attachment by doing
an action
either of two things:
1) By depositing with the court an amount
DEFINITIONS AND DIFFERENCES:
equal to the value of the property to be
PRELIMINARY INJUNCTION AND
attached; or
TEMPORARY RESTRAINING ORDER
2) By giving a counter bond executed to the
applicant, in an amount equal to the
A preliminary injunction is an order granted
bond posted by the latter to secure the at any stage of an action or proceeding prior to
attachment.
the judgment or final order, requiring a party or
a court, agency or a person to either refrain
DISCHARGE OF ATTACHMENT AND THE (prohibitory) from or to perform (mandatory) a
COUNTER-BOND particular act or acts during the pendency of the
action.
If the attachment has already been enforced,
the party whose property has been attached Temporary restraining order (TRO) is issued is
may file a MOTION to discharge the attachment. an order to maintain the status quo between
This motion shall be with notice and hearing. and among the parties until the determination
After due notice and hearing, the court shall of the prayer for a writ of preliminary injunction.
discharge the attachment if the movants makes The status quo is the last, actual, peaceable and
a CASH DEPOSIT or files a COUNTER-BOND uncontested situation which precedes a
executed to the attaching party with the clerk of controversy.
court where the application is made.
The judge may issue a TRO with a limited life of
Attachment may likewise be discharged without 20 days from date of issue. If before the
the need for filing of a counter-bond. This is expiration of the 20 day period, the application
possible when the party whose property has for preliminary injunction is denied, the TRO
been attached files a motion to set aside or would be deemed automatically vacated. If no
discharge the attachment and during the action is taken by the judge within the 20 day
hearing of the motion, he proves that: period, the TRO would automatically expire on
1) The attachment was improperly or the 20th day by the sheer force of law, no
irregularly issued or enforced; or judicial declaration to that effect being
2) The bond of the attaching creditor is necessary.
insufficient; or
3) The attachment is excessive and must A writ of preliminary injunction cannot be
be discharged as to the excess; or granted without notice and hearing. A TRO may
4) The property is exempt from execution, be granted ex parte if it shall appear from facts
and as such is also exempt from shown by affidavits or by the verified application
preliminary attachment. that great or irreparable injury would result to
 “Improperly” (e.g. writ of attachment the applicant before the matter can be heard on
was not based on the grounds in Sec. 1) notice, the court in which the application for
preliminary injunction was made my issue a
 “Irregularly” (e.g. writ of attachment was TRO ex parte for a period not exceeding 20 days
executed without previous or from service to the party sought to be enjoined.
contemporaneous service of summons)
REQUISITES
SATISFACTION OF JUDGMENT OUT OF
PROPERTY ATTACHED 1) There must be a verified petition,
2) The application must establish that he has a of, or in requiring the performance of an act
right of relief or a right to be protected and or acts either for a limited period or
that the act against which the injunction is perpetually; or
sought violates such right, 2) The commission, continuance or non-
3) The applicant must establish that there is a performance of the act or acts complained
need to restrain the commission of the of during the litigation would probably work
continuance of the acts complained of and if injustice to the applicant; or
not enjoined would work injustice to him, 3) A party, court, agency or a person is doing,
4) A bond must be posted, unless otherwise threatening or is attempting to do, or is
exempted by the court. procuring or suffering to be done, some act
5) The threatened injury must be incapable of or acts probably in violation of the rights of
pecuniary estimation. the applicant respecting the subject of the
action or proceeding, and tending to render
KINDS OF INJUNCTION the judgment ineffectual.
PROHIBITORY – its purpose is to prevent a GROUNDS FOR OBJECTION TO OR FOR THE

person from the performance of a particular act DISSOLUTION OF INJUNCTION OR
which has not yet been performed. RESTRAINING ORDER
1) Preliminary – secured before the finality
of judgment. 1) Upon showing of insufficiency of the
application;
2) Final – issued as a judgment, making
2) Other grounds upon affidavit of the party or
the injunction permanent. It perpetually
person enjoined;
restrains a person from the continuance
or commission of an act and confirms the 3) Appears after hearing that irreparable
previous preliminary injunction. It is one damage to the party or person enjoined will
included in the judgment as the relief or be caused while the applicant can be fully
part of the relief granted as a result of compensated for such damages as he may
the action, hence, granted only after trial suffer, and the party enjoined files a
and no bond is required. counter-bond;
4) Insufficiency of the bond;
MANDATORY – its purpose is to require a 5) Insufficiency of the surety or sureties.
person to perform a particular positive act which
has already been performed and has violated DURATION OF TRO
the rights of another.
a) Preliminary The lifetime of a TRO is 20 days, which is non-
b) Final extendible (AM 02-02-07-SC).
Requisites for the issuance of mandatory
preliminary injunction If it is shown that the applicant would suffer
(a) The invasion of the right is great or irreparable injury before the application
material and substantial; for the writ of injunction can be heard, the court
(b) The right of a complainant is clear may issue a temporary restraining order (TRP)
and unmistakable; ex parte which shall be effective for a period not
(c) There is an urgent and permanent exceeding twenty (20) days from service on the
necessity for the writ to prevent serious party sought to be enjoined. Within the said
damage. twenty-day period, the court must order said
party to show cause why the injunction should
WHEN WRIT MAY BE ISSUED not be granted, determine within the same
period whether or not the preliminary injunction
It may be issued at any stage prior to the shall be granted, and accordingly issue the
judgment or final order. corresponding order.
If the matter is of extreme urgency and the

GROUNDS FOR ISSUANCE OF PRELIMINARY
applicant will suffer grave injustice and
INJUNCTION
irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a
1) The applicant is entitled to the relief
single sala court may issue ex parte a
demanded, and the whole or part of such
temporary restraining order effective for only
relief consists in restraining the commission
seventy-two (72) hours. Within such period, the
or continuance of the act or acts complained
judge shall conduct a summary hearing to SERVICE OF SUMMONS IN RELATION TO

determine whether the temporary restraining ATTACHMENT
order shall be extended to 20 days. The 72
hours shall be included in the maximum 20 day When an application for a writ of preliminary
period. injunction or TRO is made in a complaint or
other initiatory pleading, the case, if filed in a
If a TRO is by the Court of Appeals or a member multi-sala court, shall be raffled only after
thereof, it shall be effective for sixty (60) days notice to and in the presence of the adverse
from notice to service party to be enjoined. party. In any event, such notice shall be
preceded or contemporaneously accompanied
If a TRO is issued by the Supreme Court or a by a service of summons, together with a copy
member thereof, it shall be effective until of the complaint or initiatory pleading and the
further orders. applicant’s affidavit and bond, upon the adverse
party in the Philippines.
BAN OF TRO OR WRIT OF INJUNCTION IN
CASES INVOLVING GOVERNMENT It is not available where
INFRASTRUCTURE PROJECTS: RA 8975 a) the summons could not be served
personally or by substituted service
No court except the SC shall issue any or despite diligent efforts or
preliminary injunction or preliminary mandatory b) where the adverse party is a resident of
injunction against the government or it the Philippines temporarily absent
subdivisions, officials or any person or entity therefrom or is a non-resident thereof.
whether public or private acting under the
government direction, to restrain, prohibit or SUMMARY/STAGES OF INJUNCTION
compel the following acts:
1) Acquisition, clearance and (1) SEVENTY-TWO (72) HOUR TEMPORARY
development of the right of way and/or RESTRAINING ORDER
site or location of any government a) If the matter is of extreme
project, urgency and the applicant will suffer
2) Bidding or awarding of a contract grave injustice and irreparable injury;
or project of the national government, b) Issued by executive judge of a
3) Commencement, prosecution, multi-sala court or the presiding judge of
execution, implementation, operation of a single-sala court;
any such contract or project, c) Thereafter must
4) Termination or rescission of any i. Serve summons and other
such contract/project and documents
5) The undertaking or authorization ii. Conduct summary hearing
of any other lawful activity necessary for to determine whether the TRO
such contract or project. shall be extended to 20 days until
 Any TRO, preliminary injunction the application for preliminary
and preliminary mandatory injunction injunction can be heard.
issued in violation of the above
prohibition shall be void. (2) TWENTY (20) DAY TRO
a) If it shall appear from the facts
Exceptions to the prohibition: shown by affidavits or by the verified
a) In cases of extreme urgency; application that great or irreparable
b) If it involves constitutional issue; injury would result to the applicant
c) Grave injustice and irreparable before the matter can be heard on
injury will arise unless a TRO is notice;
issued. b) If application is included in
initiatory pleading:
 In one case, the SC said that 1. Notice of raffle shall be
injunction is not available to stop preceded, or contemporaneously
infrastructure projects of the government accompanied, by service of
including arrastre and stevedoring summons, together with a copy of
operations. the complaint or initiatory
pleading and the applicant‘s
RULE ON PRIOR OR CONTEMPORANEOUS
affidavit and bond, upon the • Note that a bond is required only in
adverse party in the Philippines; preliminary injunctions, but is not
2. Raffled only after notice to required in TROs. After lapse of the 20
and in the presence of the day TRO, the court can still grant a
adverse party or the person to be preliminary injunction.
enjoined. • Note that irreparable injury is always a
c) Issued with summary hearing (to requisite in TROs. But in the 72 hour
determine whether the applicant will TRO, grave injustice must also be shown.
suffer great or irreparable injury) within In the 20 day TRO, the ground is great or
24 hours after sheriff‘s return of service irreparable injury. Without a preliminary
and/or records are received by the injunction, a TRO issued by the CA
branch selected by raffle; expires without necessity of court action.
d) Within 20-day period, the court
must order said person to show cause
 Only SC ca issue a Status Quo Order
why the injunction should not be
granted, and determine whether or not
the preliminary injunction shall be
granted, and accordingly issue the RECEIVERSHIP (RULE 59)
corresponding order;
e) Including the original 72 hours,
total effectivity of TRO shall:  Can be applied even judgment is final and
1. Not exceed 20 days, if executory
issued by an RTC or MTC;  Receivership is a provisional remedy
2. Not exceed 60 days, if wherein the court appoints a representative
issued by the CA or a member to preserve, administer, dispose of and
thereof; prevent the loss or dissipation of the real or
3. Until further orders, if personal property during the pendency of an
issued by the SC. action.
f) TRO is automatically vacated  It may be the principal action itself or a
upon expiration of the period and mere provisional remedy; it can be availed
without granting of preliminary of even after the judgment has become final
injunction; and executory as it may be applied for to aid
g) Effectivity is not extendible execution or carry judgment into effect.
without need of any judicial declaration
to that effect; CASES WHEN RECEIVER MAY BE
h) No court shall have authority to APPOINTED
extend or renew the same on the same
ground for which it was issued. Upon a verified application, one or more
receivers of the property subject of the action or
(3) PRELIMINARY INJUNCTION proceeding may be appointed by the court
a) Hearing and prior notice to the where the action is pending or by the Court of
party sought to be enjoined; Appeals or by the Supreme Court, or a member
b) If application is included in thereof, in the following cases:
initiatory pleading: 1. The party applying for the appointment
1. Notice of raffle shall be of a receiver has an interest in the
preceded, or contemporaneously property or fund which is the subject of
accompanied, by service of the action or proceeding, and that such
summons, together with a copy of property or fund is in danger of being
the complaint or initiatory lost, or materially injured unless a
pleading and the applicant's receiver be appointed to administer and
affidavit and bond, upon the preserve it;
adverse party in the Philippines.
2. In an action by the mortgagee for the
2. Raffled only after notice to
foreclosure of a mortgage that the
and in the presence of the
property is in danger of being wasted or
adverse party or the person to be
dissipated or materially injured, and that
enjoined
its value is probably insufficient to
c) Applicant posts a bond
discharge the mortgage debt, or that the
(4) FINAL INJUNCTION
parties have so stipulated in the contract 3) To receive rents

of mortgage; 4) To collect debts due to himself as receiver or
3. After judgment, to preserve the property to the fund, property, estate, person, or
during the pendency of an appeal, or to corporation of which he is the receiver
dispose of it according to the judgment, 5) To compound for and compromise the same
or to aid execution when the execution 6) To make transfer
has been returned unsatisfied or the 7) To pay outstanding debts
judgment obligor refuses to apply his 8) To divide the money and other property that
property in satisfaction of the judgment, shall remain among the persons legally
or otherwise to carry the judgment into entitled to receive the same
effect; 9) To do such acts respecting the property as
4. Whenever in other cases it appears that the court may authorize.
the appointment of a receiver is the most 10) However, funds in the hands of a receiver
convenient and feasible means of may be invested only by order of the court
preserving, administering, or disposing upon the written consent of all the parties to
of the property in litigation. the action. No action may be filed by or
against a receiver without leave of the court
REQUISITES which appointed him.
1) Verified application; TWO (2) KINDS OF BONDS

2) Appointed by the court where the action is
pending, or by the CA or by the SC, or a 1) Applicant’s Bond (for appointment of
member thereof; receiver) – To pay the damages the adverse
 During the pendency of an appeal, the party may sustain by reason of appointment
appellate court may allow an application of receiver; and
for the appointment of a receiver to be 2) Receiver’s Bond (of the appointed
filed in and decided by the court of origin receiver, aside from oath) – To answer for
and the receiver appointed to be subject receiver’s faithful discharge of his duties.
to the control of said court. 3) Counter Bond
3) Applicant’s bond conditioned on paying the
adverse party all damages he may sustain TERMINATION OF RECEIVERSHIP
by the appointment of the receiver in case
the appointment is without sufficient cause; Whenever the court, motu proprio or on motion
4) Receiver takes his oath and files his bond. of either party, shall determine that the
necessity for a receiver no longer exists, it shall,
REQUIREMENTS BEFORE ISSUANCE OF AN after due notice to all interested parties and
ORDER hearing, settle the accounts of the receiver,
direct the delivery of the funds and other
1) Before issuing the order appointing a property in his possession to the person
receiver the court shall require the applicant adjudged to be entitled to receive them, and
to file a bond executed to the party against order the discharge of the receiver from further
whom the application is presented, in an duty as such.
amount to be fixed by the court, to the
effect that the applicant will pay such party The court shall allow the receiver such
all damages he may sustain by reason of the reasonable compensation as the circumstances
appointment of such receiver in case the of the case warrant, to be taxed as costs
applicant shall have procured such against the defeated party, or apportioned, as
appointment without sufficient cause; and justice requires.
2) The court may, in its discretion, at any time
after the appointment, require an additional Receivership shall also be terminated when:
bond as further security for such damages. a) its continuance is not justified by the
facts and circumstances of the case; or
GENERAL POWERS OF A RECEIVER b) court is convinced that the powers are
abused.
1) To bring and defend, in such capacity,
actions in his own name
REPLEVIN (RULE 60)
2) To take and keep possession of the property
in controversy
It is a proceeding by which the owner or one 4) The applicant must give a bond,
who has a general or special property in the executed to the adverse party and
thing taken or detained seeks to recover double the value of the property.
possession in specie, the recovery of damages
being only incidental. AFFIDAVIT AND BOND; REDELIVERY BOND
Replevin may be a main action or a provisional Affidavit, alleging:

remedy. As a principal action its ultimate goal is a) That the applicant is the owner of
to recover personal property capable of manual property claimed, describing it or entitled
delivery wrongfully detained by a person. Used to its possession;
in this sense, it is a suit in itself. b) That the property is wrongfully detained
by the adverse party, alleging cause of
It is a provisional remedy in the nature of its detention;
possessory action and the applicant who seeks c) That the property has not been
immediate possession of the property involved distrained or taken for tax assessment or
need not be the holder of the legal title thereto. fine or under writ of
It is sufficient that he is entitled to possession execution/attachment or placed under
thereof. custodia legis or if seized, that it is
exempt or should be released; and
WHEN MAY WRIT BE ISSUED d) The actual market value of the property.
a) The provisional remedy of replevin can only Bond, which must be double the value of
be applied for before answer. property, to answer for the return of property if
b) A party praying for the recovery of adjudged and pay for such sum as he may
possession of personal property may, at the recover from the applicant.
commencement of the action or at any time
before answer, apply for an order for the It is required that the redelivery bond be filed
delivery of such property to him. within the period of 5 days after the taking of
the property. The rule is MANDATORY.
REQUISITES
SHERIFF’S DUTY IN THE IMPLEMENTATION
The applicant must show by his own affidavit or OF THE WRIT; WHEN PROPERTY IS
that of some other person who personally knows CLAIMED BY THIRD PARTY
the facts:
1) A party praying for the provisional Upon receiving such order, the sheriff must
remedy must file an application for a writ serve a copy on the adverse party, together
of replevin. His application must be filed with a copy of the application, affidavit and
at the commencement of the action or at bond, and must take the property and retain it
any time before the defendant answers, in his custody.
and must contain an affidavit particularly
describing the property to which he If the property be concealed in a building or
entitled of possession. enclosure, the sheriff must demand its delivery,
2) The affidavit must state that the and if it be not delivered, he must cause the
property is wrongfully detained by the building or enclosure to be broken open and
adverse party, alleging therein the cause take the property into his possession.
of the detention. It must also state that
the property has not been destrained or If within five (5) days after the taking of the
taken for tax assessment or a fine property by the sheriff, the adverse party does
pursuant to law, or seized under a writ of not object to the sufficiency of the bond or if the
execution or preliminary attachment, or adverse party so objects and the court affirms
otherwise placed in custodia legis. If it its approval of the applicant's bond or approves
has been seized, then the affidavit must a new bond, or if the adverse party requires the
state that it is exempt from such seizure return of the property but his bond is objected
or custody. to and found insufficient and he does not file an
3) The affidavit must state the actual approved bond, the property shall be delivered
market value of the property; and to the applicant.
If for any reason the property is not delivered to

the applicant, the sheriff must return it to the Although both types of actions are governed by
adverse party. the rules for ordinary civil actions, there are
certain rules that are applicable only to specific
A 3rd party claimant may vindicate his claim to special civil actions. The fact that an action is
the property, and the applicant may claim subject to special rules other than those
damages against such 3rd party, in the same or applicable to ordinary civil actions is what
separate action. makes a civil action special.
A claim on the indemnity bond should be filed An ordinary civil action must be based on a
within 120 days from posting of such bond. CAUSE OF ACTION. This means that the
defendant must have performed an act or
If the property taken is claimed by a third omitted to do an act in violation of the rights of
person and make an affidavit of his title or right another. These definitions do not fit the
to the possession thereof and serves such requirements of a cause of action in certain
affidavit upon the sheriff while the latter has special civil actions.
possession of the property and a copy thereof
upon the applicant, the sheriff shall not be  The cause of action as defined and required
bound to keep the property under replevin or of an ordinary civil action finds no
deliver it to the applicant UNLESS the applicant application to the special civil action of
on demand of said sheriff, shall file a bond declaratory relief. It finds no application also
approved by the court to indemnify the third- in a complaint for interpleader. In this
party claimant in the sum not less than the action, the plaintiff may file a complaint
value of the property. even if he has sustained no actual
transgression of his rights. In fact, he
The sheriff shall not be liable for damages, for actually has no interest in the subject matter
the taking or keeping of such property, to any of the action. This is not so in an ordinary
such third-party claimant if such bond shall be civil action.
filed.
Ordinary civil actions may be filed initially in
either the MTC or the RTC depending upon the
JURISDICTIONAL AMOUNT OR THE NATURE of
the action involved. On the other hand, there
SPECIAL CIVIL ACTIONS (Rules 62 – are special civil actions which can only be filed
71) in an MTC like the actions for forcible entry and
unlawful detainer. There are also special civil
actions which cannot be commenced in the
MTC, foremost of which are the petitions for
NATURE OF SPECIAL CIVIL ACTIONS certiorari, prohibition, and mandamus.
Special civil actions are basically ordinary civil The VENUE in ordinary civil actions is
proceedings; what makes them special are the determined by either the residence of the
distinct peculiarities inherent in their very parties where the action is personal or by the
nature not found in ordinary civil actions. location of the property where the action is real.
This does not always apply to a special civil
They are actions in themselves, but possessing action.
special matters that required special
procedures. For this reason, these proceedings While ordinary civil actions when filed are
are classified as special civil actions. denominated as ―complaints, some special civil
actions are not denominated as such but
Sec. 1, Rule 62 provides that rules provided for ―petitions.
ordinary civil actions are applicable in special
civil proceedings, which are not inconsistent (a) Special civil actions initiated by filing
with or may serve to supplement the provisions of a Petition:
of the rules relating to such special civil actions. 1) Declaratory relief other than similar
remedies;
ORDINARY CIVIL ACTIONS VERSUS SPECIAL 2) Review of adjudication of the COMELEC
CIVIL ACTIONS and COA;
3) Certiorari, prohibition and mandamus; to compel them to interplead and litigate their
4) Quo warranto; and several claims among themselves.
5) Contempt
(b) Special civil actions initiated by filing DECLARATORY RELIEFS AND SIMILAR
of a Complaint: REMEDIES (RULE 63)
1) Interpleader;
2) Expropriation;
An action for declaratory relief is brought to
3) Foreclosure of real estate mortgage;
secure an authoritative statement of the rights
4) Partition; and
and obligations of the parties under a contract
5) Forcible entry and unlawful detainer.
or a statute for their guidance in the
enforcement or compliance with the same.
JURISDICTION AND VENUE Thus, the purpose is to seek for a judicial
interpretation of an instrument or for a judicial
The subject matter of a petition for declaratory declaration of a person’s rights under a statute
relief raises issues which are not capable of and not to ask for affirmative reliefs like
pecuniary estimation and must be filed with the injunction, damages or any other relief beyond
Regional Trial Court. It would be error to file the the purpose of the petition as declared under
petition with the Supreme Court which has no the Rules.
original jurisdiction to entertain a petition for
declaratory relief. The subject matter in a petition for declaratory
relief is any of the following:
INTERPLEADER (RULE 62) a) Deed;
b) Will;
c) Contract or other written instrument;
It is a special civil action filed by a person, who d) Statute;
has property in his possession or an obligation e) Executive order or regulation;
to render, wholly or partially, against whom two f) Ordinance; or
conflicting claims are made upon the same g) Any other governmental regulation.
subject matter and over which he claims no
interest, to compel the claimants to interplead The petition for declaratory relief is filed before
and to litigate their conflicting claims among the occurrence of any breach or violation of the
themselves. deed, contract, statute, ordinance or executive
order or regulation. It will not prosper when
REQUISITES FOR INTERPLEADER brought after a contract or a statute has already
been breached or violated. If there has already
1) There must be two or more claimants with been a breach, the appropriate ordinary civil
adverse or conflicting interests to a property action and not declaratory relief should be filed.
in the custody or possession of the plaintiff;
2) The plaintiff in an action for interpleader has WHO MAY FILE THE ACTION
no claim upon the subject matter of the
adverse claims or if he has an interest at all, 1) Any person interested under a deed, will,
such interest is not disputed by the contract or other written instrument or
claimants; whose rights are affected by a statute,
executive order or regulation, ordinance or
3) The subject matter of the adverse claims
other governmental regulation may before
must be one and the same; and
breach or violation thereof, bring an action
4) The parties impleaded must make effective
in the RTC to determine any question of
claims.
construction or validity arising and for a
declaration of his rights or duties,
WHEN TO FILE
thereunder.
2) Those who may sue under the contract
Whenever conflicting claims upon the same
should be those with interest under the
subject matter are or may be made against a
contract like the parties, the assignees and
person who claims no interest whatever in the
the heirs as required by substantive law.
subject matter, or an interest which in whole or
3) If it be a statute, executive order, regulation
in part is not disputed by the claimants, he may
or ordinance, the petitioner is one whose
bring an action against the conflicting claimants
rights are affected by the same. The other
parties are all persons who have or claim On the other hand, the court does not have the
any interest which would be affected by the discretion to refuse to act with respect to
declaration. The rights of person not made actions described as similar remedies. Thus, in
parties to the action do not stand to be an action for reformation of an instrument, to
prejudiced by the declaration. quiet or to consolidate ownership, the court
cannot refuse to render a judgment.
REQUISITES OF ACTION FOR DECLARATORY
RELIEF CONVERSION TO ORDINARY ACTION
1) The subject matter must be a deed, will, If before final termination of the case, a breach
contract or other written instrument, statute, should take place, the action may be converted
executive order or regulation or ordinance; into ordinary action to avoid multiplicity of suits.
2) The terms of said document or the validity
thereof are doubtful and require judicial Ordinary civil action – plaintiff alleges that his
construction; right has been violated by the defendant;
3) There must have been no breach of said judgment rendered is coercive in character; a
document; writ of execution may be executed against the
4) There must be actual justiciable controversy defeated party.
or the ripening seeds of one (there is
threatened litigation the immediate future); Special civil action of declaratory relief – an
5) there must be allegation of any threatened, impending violation is sufficient to file a
imminent and inevitable violation of declaratory relief; no execution may be issued;
petitioner’s right sought to be prevented by the court merely makes a declaration.
the declaratory relief sought;
6) The controversy is between persons whose PROCEEDINGS CONSIDERED AS SIMILAR
interests are adverse; REMEDIES
7) The issue must be ripe for judicial
determination e.g. administrative remedies Similar remedies are:
already exhausted; (a) Action for reformation of an
8) The party seeking the relief has legal instrument;
interest in the controversy; and (b) Action for quieting of title; and
(c) Action to consolidate ownership (Art.
9) Adequate relief is not available thru other
1607, Civil Code).
means.
A. REFORMATION OF AN INSTRUMENT
WHEN COURT MAY REFUSE TO MAKE
JUDICIAL DECLARATION
It is not an action brought to reform a contract
Grounds for the court to refuse to exercise but to reform the instrument evidencing the
declaratory relief; contract. It presupposes that there is nothing
a) A decision would not terminate the wrong with the contract itself because there is a
uncertainty or controversy which gave meeting of minds between the parties.
rise to the action; or
b) The declaration or construction is not The contract is to be reformed because despite
necessary and proper under the the meeting of minds of the parties as to the
circumstances as when the instrument or object and cause of the contract, the instrument
the statute has already been breached. which is supposed to embody the agreement of
the parties does not reflect their true agreement
In declaratory relief, the court is given the by reason of mistake, inequitable conduct or
discretion to act or not to act on the petition. It accident. The action is brought so the true
may therefore choose not to construe the intention of the parties may be expressed in the
instrument sought to be construed or could instrument (Art. 1359, CC).
refrain from declaring the rights of the
petitioner under the deed or the law. The instrument may be reformed if it does not
express the true intention of the parties
 A refusal of the court to declare rights or
because of lack of skill of the person drafting
construe an instrument is actually the
the instrument (Art. 1363, CC).
functional equivalent of the dismissal of
the petition.
If the parties agree upon the mortgage or When the redemption is not made within the
pledge of property, but the instrument states period agreed upon, in case the subject matter
that the property is sold absolutely or with a of the sale is a real property, Art. 1607 provides
right of repurchase, reformation of the that the consolidation of ownership in the
instrument is proper (Art. 1365, CC). vendee shall not be recorded in the Registry of
Property without a judicial order, after the
Where the consent of a party to a contract has vendor has been duly heard.
been procured by fraud, inequitable conduct or
accident, and an instrument was executed by The action brought to consolidate
the parties in accordance with the contract, ownership is not for the purpose of
what is defective is the contract itself because consolidating the ownership of the
of vitiation of consent. property in the person of the vendee or
buyer but for the registration of the
The remedy is not to bring an action for property. The lapse of the redemption period
reformation of the instrument but to file an without the seller a retro exercising his right of
action for annulment of the contract (Art. 1359, redemption consolidates ownership or title upon
CC). the person of the vendee by operation of law.
Art. 1607 requires the filing of the petition to
Reformation of the instrument cannot be consolidate ownership because the law
brought to reform any of the following: precludes the registration of the consolidated
1) Simple donation inter vivos wherein no title without judicial order.
condition is imposed;
2) Wills; or C. QUIETING OF TITLE TO REAL PROPERTY
3) When the agreement is void (Art. 1666,
CC). This action is brought to remove a cloud on title
to real property or any interest therein. The
B. CONSOLIDATION OF OWNERSHIP action contemplates a situation where the
instrument or a record is apparently valid or
The concept of consolidation of ownership under effective but is in truth and in fact invalid,
Art. 1607, Civil Code, has its origin in the ineffective, voidable or unenforceable, and may
substantive provisions of the law on sales. be prejudicial to said title to real property.
Under the law, a contract of sale may be
extinguished either by legal redemption (Art. It may also be brought as a preventive remedy
1619) or conventional redemption (Art. 1601). to prevent a cloud from being cast upon title to
real property or any interest therein (Art. 476).
Legal redemption (retracto legal) is a statutory
mandated redemption of a property previously The plaintiff need not be in possession of the
sold. For instance, a co-owner of a property may real property before he may bring the action as
exercise the right of redemption in case the long as he can show that he has a legal or an
shares of all the other co-owners or any of them equitable title to the property which is the
are sold to a third person (Art. 1620). The subject matter of the action (Art. 477).
owners of adjoining lands shall have the right of
redemption when a piece of rural land with a
REVIEW OF JUDGMENTS AND FINAL ORDERS
size of one hectare or less is alienated (Art.
1621). OR RESOLUTION OF THE COMELEC AND COA
(RULE 64)
Conventional redemption (pacto de retro) sale is
one that is not mandated by the statute but one A judgment or final order or resolution of the
which takes place because of the stipulation of Commission on Elections and the Commission
the parties to the sale. The period of redemption on Audit may be brought by the aggrieved party
may be fixed by the parties in which case the to the Supreme Court on certiorari. The filing of
period cannot exceed ten (10) years from the a petition for certiorari shall not stay the
date of the contract. In the absence of any execution of the judgment or final order or
agreement, the redemption period shall be four resolution sought to be reviewed, unless the SC
(4) years from the date of the contract (Art. directs otherwise upon such terms as it may
1606). deem just. To prevent the execution of the
judgment, the petitioner should obtain a
temporary restraining order or a writ of
preliminary injunction because the mere filing of Sec. 7, Art. IX-A of the Constitution reads,
a petition does not interrupt the course of the “unless otherwise provided by the Constitution
principal case. or by law, any decision, order or ruling of each
commission may be brought to the Supreme
Decisions of the Civil Service Commission shall Court on certiorari by the aggrieved party within
be appealed to the Court of Appeals which has 30 days from receipt of a copy thereof.” The
exclusive appellate jurisdiction over all provision was interpreted by the Supreme Court
judgments or final orders of such commission to refer to certiorari under Rule 65 and not
(RA 7902). appeal by certiorari under Rule 45. To
implement the above constitutional provision,
The petition shall be filed within thirty (30) days the SC promulgated Rule 64.
from notice of the judgment or final order or
resolution sought to be reviewed. The filing of a DISTINCTION IN THE APPLICATION OF RULE
motion for new trial or reconsideration of said 65 TO JUDGMENTS OF THE COMELEC AND
judgment or final order or resolution, if allowed COA AND THE APPLICATION OF RULE 65 TO
under the procedural rules of the Commission OTHER TRIBUNALS, PERSONS AND
concerned, shall interrupt the period herein OFFICERS
fixed. If the motion is denied, the aggrieved
party may file the petition within the remaining Rule 64 Rule 65
period, but which shall not be less than five (5) Directed only to the Directed to any
days in any event, reckoned from notice of judgments, final orders tribunal, board or
denial. or resolutions of the officers exercising
COMELEC and COA; judicial or quasi-
Note that petition for review from decisions of judicial functions;
quasi-judicial agencies to the CA should be Filed within 30 days Filed within 60 days
within 15 days and does not stay the decision from notice of the from notice of the
appealed. judgment; judgment;
The filing of a motion The period within
Petition for review from decisions of the RTC for reconsideration or which to file the
decided in its appellate jurisdiction filed to the a motion for new trial petition if the motion
CA should be filed within 15 days and stays if allowed interrupts for reconsideration or
execution, unless the case is under the rules of the period for the filing new trial is denied is
Summary Procedure. Special civil actions of of the petition for 60 days from notice of
certiorari, prohibition, and mandamus, from certiorari. If the motion the denial of the
Comelec and COA should be filed within 30 is denied, the motion.
days, and does not stay the decision appealed. aggrieved party may
file the petition within
Bottomline: Decisions of quasi-judicial bodies the remaining period,
are not stayed by appeal alone. Decisions of but which shall not be
regular courts are stayed on appeal. Although in less than 5 days
petition for review on certiorari to the SC via reckoned from the
Rule 45, there is no express provision on effect notice of denial.
of appeal on execution.
 5-day Rule does not apply in filing of
The “not less than 5 days” provision for filing a notice of appeal
pleading applies only to:
a) filing an answer after a denial of a MtD;
b) filing an answer after denial or service of CERTIORARI, PROHIBITION AND MANDAMUS
a bill of particulars; (RULE 65)
c) filing an special civil action for certiorari
from a decision of the Comelec or CoA
after denial of a MfR or MNT. It does not Certiorari is a remedy for the correction of
apply to filing appeal from decisions of errors of jurisdiction, not errors of judgment. It
other entities after denial of a MfR or is an original and independent action that was
MNT. In such cases, either the parties not part of the trial that had resulted in the
have a fresh 15 days, or the balance. rendition of the judgment or order complained
of. Since the issue is jurisdiction, an original
APPLICATION OF RULE 65 UNDER RULE 64 action for certiorari may be directed against an
interlocutory order of the lower court prior to an or the exercise of power in excess thereof, or
appeal from the judgment. grave abuse of discretion. The existence and
availability of the right to appeal prohibits the
Where the error is not one of jurisdiction, but of resort to certiorari because one of the
law or fact which is a mistake of judgment, the requirements for certiorari is that there is no
proper remedy should be appeal. Hence, if there appeal.
was no question of jurisdiction involved in the
decision and what was being questioned was Exceptions to the rule that certiorari is not
merely the findings in the decision of whether or available when the period for appeal has lapsed
not the practice of the other party constitutes a and certiorari may still be invoked when appeal
violation of the agreement, the matter is a is lost are the following:
proper subject of appeal, not certiorari. 1) Appeal was lost without the
appellant’s negligence;
Filing of petition for certiorari does not 2) When public welfare and the
interrupt the course of the principal action advancement of public policy dictates;
nor the running of the reglementary 3) When the broader interest of
periods involved in the proceeding, unless justice so requires;
an application for a restraining order or a 4) When the writs issued are null
writ of preliminary injunction to the and void; and
appellate court is granted. Neither does it 5) When the questioned order
interrupt the reglementary period for the filing amounts to an oppressive exercise of
of an answer nor the course of the case where judicial authority.
there is no writ of injunction.
In a summary proceeding, petitions for

certiorari, prohibition or mandamus against an
interlocutory order of the court are not allowed.
Certiorari is not and cannot be made a

substitute for an appeal where the latter
remedy is available but was lost through fault or
negligence. The remedy to obtain a reversal of
judgment on the merits is appeal. This holds
true even if the error ascribed to the lower court
is its lack of jurisdiction over the subject matter,
CERTIORARI PROHIBITION MANDAMUS
Certiorari is an extraordinary Prohibition is an extraordinary Mandamus is an extraordinary

writ ANNULLING OR MODIFYING writ COMMANDING a tribunal, writ commanding a tribunal,
the proceedings of a tribunal, corporation, board or person, corporation, board or person, to
board or officer exercising whether exercising judicial, do an act REQUIRED to be done:
judicial or quasi-judicial quasi-judicial or ministerial a) When he unlawfully neglects
functions when such tribunal, functions, TO DESIST from the performance of an act
board or officer has acted further proceedings when said which the law specifically
without or in excess of its or his proceedings are without or in enjoins as a duty, and there
jurisdiction, or with grave abuse excess of its jurisdiction, or with is no other plain, speedy and
of discretion amounting to lack abuse of its discretion, there adequate remedy in the
or excess of jurisdiction, there being no appeal or any other ordinary course of law; or
being no appeal or any other plain, speedy and adequate b) When one unlawfully
plain, speedy and adequate remedy in the ordinary course excludes another from the
remedy in the ordinary course of law (Sec. 2, Rule 65). use and enjoyment of a right
of law (Sec. 1, Rule 65). or office to which the other
is entitled (Sec. 3, Rule 65).
Directed against a person Directed against a person Directed against a person
exercising to judicial or quasi- exercising judicial or quasi- exercising ministerial duties
judicial functions judicial functions, or ministerial
functions
The tribunal, board or officer The tribunal, corporation, board It must be the duty of the
has acted without, or in excess or person must have acted defendant to perform the act,
of jurisdiction or with abuse of without or in excess of which is ministerial and not
discretion amounting to lack or jurisdiction or with grave abuse discretionary, because the same
excess or jurisdiction of discretion amounting to lack is mandated by law.
of jurisdiction;
There is no appeal or any plain, There is no appeal or any plain, The defendant unlawfully
speedy and adequate remedy speedy and adequate remedy neglects the performance of the
in the ordinary course of law. in the ordinary course of law. duty enjoined by law;
Object is to correct Object is to prevent Object is to compel
Purpose is to annul or modify Purpose is to stop the Purpose is to compel
the proceedings proceedings performance of the act required
and to collect damages
Person or entity must have Person or entity must have Person must have neglected a
acted without or in excess of acted without or in excess of ministerial duty or excluded
jurisdiction, or with grave abuse jurisdiction, or with grave abuse another from a right or office
of discretion of discretion
A person aggrieved thereby A person aggrieved thereby The person aggrieved thereby
may file a verified petition in may file a verified petition in may file a verified petition in
the proper court, alleging the the proper court, alleging the the proper court, alleging the
facts with certainty and praying facts with certainty and praying facts with certainty and praying
that judgment be rendered that judgment be rendered that judgment be rendered
annulling or modifying the commanding the respondent to commanding the respondent,
proceedings of such tribunal, desist from further proceedings immediately or at some other
board or officer, and granting in the action or matter specified time to be specified by the
such incidental reliefs as law therein, or otherwise granting court, to do the act required to
and justice may require. The such incidental reliefs as law be done to protect the rights of
petition shall be accompanied and justice may require. The the petitioner, and to pay the
by a certified true copy of the petition shall likewise be damages sustained by the
judgment, order or resolution accompanied by a certified true petitioner by reason of the
subject thereof, copies of all copy of the judgment, order or wrongful acts of the respondent.
pleadings and documents resolution subject thereof, The petition shall also contain a
relevant and pertinent thereto, copies of all pleadings and sworn certification of non-forum
and a sworn certification of non- documents relevant and shopping.
forum shopping. pertinent thereto, and a sworn
certification of non-forum
shopping.
PROHIBITION INJUNCTION
Always the main action May be the main action or just a provisional
remedy
Directed against a court, a tribunal exercising Directed against a party
judicial or quasi-judicial functions
Ground must be the court acted without or in Does not involve a question of jurisdiction
excess of jurisdiction
PROHIBITION MANDAMUS
To prevent an act by a respondent To compel an act desired

May be directed against entities exercising May be directed against judicial and non-judicial
judicial or quasi-judicial, or ministerial functions entities
Extends to discretionary functions Extends only to ministerial functions
MANDAMUS QUO WARRANTO
Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or
franchise
Respondent, without claiming any right to the Respondent usurps the office
office, excludes the petitioner
 Mandamus can be issued to perform an act but not to approve a certain request
INJUNCTIVE RELIEF the public respondent from further proceeding

in the case.
The court in which the petition is filed may issue
orders expediting the proceedings, and it may The public respondent shall proceed with the
also grant a temporary restraining order or a principal case within ten (10) days from the
writ of preliminary injunction for the filing of a petition for certiorari with a higher
preservation of the rights of the parties pending court or tribunal, absent a Temporary
such proceedings. The petition shall not Restraining Order (TRO) or a Writ of Preliminary
interrupt the course of the principal case unless Injunction, or upon its expiration. Failure of the
a temporary restraining order or a writ of public respondent to proceed with the principal
preliminary injunction has been issued against case may be a ground for an administrative
charge (AM 07-7-12-SC, Dec. 12, 2007).
CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL ACTION

(RULE 45) (RULE 65)
Called petition for review on certiorari, is a A special civil action that is an original action and not a
mode of appeal, which is but a continuation mode of appeal, and not a part of the appellate
of the appellate process over the original process but an independent action.
case;
Seeks to review final judgments or final May be directed against an interlocutory order of the
orders; court or where not appeal or plain or speedy remedy
available in the ordinary course of law
Raises only questions of law; Raises questions of jurisdiction because a tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction;
Filed within 15 days from notice of judgment Filed not later than 60 days from notice of judgment,
or final order appealed from, or of the denial order or resolution sought to be assailed and in case a
of petitioner‘s motion for reconsideration or motion for reconsideration or new trial is timely filed,
new trial; whether such motion is required or not, the 60 day
period is counted from notice of denial of said motion;
Extension of 30 days may be granted for Extension no longer allowed;
justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition precedent,
reconsideration; subject to exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject of the
petition unless enjoined or restrained;
Parties are the original parties with the The tribunal, board, officer exercising judicial or quasi-
appealing party as the petitioner and the judicial functions is impleaded as respondent
adverse party as the respondent without
impleading the lower court or its judge;
Filed with only the Supreme Court May be filed with the Supreme Court, Court of Appeals,
Sandiganbayan, or Regional Trial Court
SC may deny the decision motu propio on
the ground that the appeal is without merit,
or is prosecuted manifestly for delay, or that
the questions raised therein are too

unsubstantial to require consideration.
 The remedies of appeal and certiorari are those rare instances when appeal is
mutually exclusive and not alternative or satisfactorily shown to be an inadequate
successive. The antithetic character of remedy. Thus, a petitioner must show
appeal and certiorari has been generally valid reasons why the issues raised in his
recognized and observed save only on petition for certiorari could not have
been raised on appeal.
PROHIBITION MANDAMUS INJUNCTION
Prohibition is an extraordinary Mandamus is an extraordinary Main action for injunction seeks

writ commanding a tribunal, writ commanding a tribunal, to enjoin the defendant from
corporation, board or person, corporation, board or person, to the commission or continuance
whether exercising judicial, do an act required to be done: of a specific act, or to compel a
quasi-judicial or ministerial (a) When he unlawfully neglects particular act in violation of the
functions, to desist from the performance of an act rights of the applicant.
further proceedings when said which the law specifically Preliminary injunction is a
proceedings are without or in enjoins as a duty, and there is provisional remedy to preserve
excess of its jurisdiction, or no other plain, speedy and the status quo and prevent
with abuse of its discretion, adequate remedy in the future wrongs in order to
there being no appeal or any ordinary course of law; or (b) preserve and protect certain
other plain, speedy and When one unlawfully excludes interests or rights during the
adequate remedy in the another from the use and pendency of an action.
ordinary course of law enjoyment of a right or office to
(Sec. 2, Rule 65). which the other is entitled (Sec.
3, Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, To compel the performance of a For the defendant either to
excess, usurpation or ministerial and legal duty; refrain from an act or to
assumption of jurisdiction; perform not necessarily a legal
and ministerial duty;
May be directed against May be directed against judicial Directed against a party
entities exercising judicial or and non-judicial entities
quasi-judicial, or ministerial
functions
Extends to discretionary Extends only to ministerial Does not necessarily extend to
functions functions ministerial, discretionary or
legal functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the May be brought in the Supreme May be brought in the Regional
Supreme Court, Court of Court, Court of Appeals, Trial Court which has
Appeals, Sandiganbayan, or in Sandiganbayan, or in the jurisdiction over the territorial
the Regional Trial Court which Regional Trial Court which has area where respondent resides.
has jurisdiction over the jurisdiction over the territorial
territorial area where area where respondent resides.
respondent resides.
EXCEPTIONS TO FILING OF MOTION FOR 2) When there is urgency to decide upon the
RECONSIDERATION BEFORE FILING question and any further delay would
PETITION prejudice the interests of the government or
of the petitioner;
1) When the issue is one purely of law; 3) Where the subject matter of the action is
perishable;
4) When order is a patent nullity, as where the filing the same with
court a quo has no jurisdiction or there was the lower courts
no due process; Regional Trial If the petition relates
5) When questions have been duly raised and Court to an act or an
passed upon by the lower court; omission of an MTC,
6) When is urgent necessity for the resolution corporation, board,
of the question; officer or person
7) When Motion for Reconsideration would be Court of Appeals If the petition
useless, e.g. the court already indicated it only involves an act or an
would deny any Motion for Reconsideration; omission of a quasi-
8) In a criminal case, where relief from order of judicial agency,
arrest is urgent and the granting of such unless otherwise
relief by the trial court is improbable; provided by law or
9) Where the proceedings was ex parte or in rules
which the petitioner had no opportunity to Court of Appeals Whether or not in aid
object; or the of appellate
10) When petitioner is deprived of due process Sandiganbayan jurisdiction
and there is extreme urgency for urgent Commission on In election cases
relief; and Elections involving an act or an
11) When issue raised is one purely of law or omission of an MTC or
public interest is involved. RTC
As amended by AM
RELIEFS PETITIONER IS ENTITLED TO No. 07-7-12-SC,
Dec. 12, 2007
The primary relief will be annulment or
modification of the judgment, order or A petition for certiorari must be based on
resolution or proceeding subject of the petition. jurisdictional grounds because as long as the
It may also include such other incidental reliefs respondent acted with jurisdiction, any error
as law and justice may require. The court, in its committed by him or it in the exercise thereof
judgment may also award damages and the will amount to nothing more than an error of
execution of the award for damages or costs. judgment which may be reviewed or corrected
by appeal.
ACTIONS/OMISSIONS OF MTC/RTC IN
ELECTION CASES EFFECTS OF FILING OF AN
UNMERITORIOUS PETITION
Under Rule 65, the proper party who can file a
petition for certiorari, prohibition or mandamus The Court may impose motu proprio, based on
is the person aggrieved by the action of a trial res ipsa loquitur, other disciplinary sanctions or
court or tribunal in a criminal case pending measures on erring lawyers for patently dilatory
before it. an unmeritorious petition for certiorari.
Ordinarily, the petition is filed in the name of The court may dismiss the petition if it finds the
the People of the Philippines by the Solicitor same patently without merit or prosecuted
General. However, there are cases when such manifestly for delay, or if the questions raised
petition may be filed by other parties who have therein are too unsubstantial to require
been aggrieved by the order or ruling of the trial consideration.
courts. In the prosecution of election cases, the
aggrieved party is the Comelec, who may file In such event, the court may award in favor of
the petition in its name through its legal officer the respondent treble costs solidarily against
or through the Solicitor General if he agrees the petitioner and counsel, in addition to
with the action of the Comelec. subjecting counsel to administrative sanctions.
WHERE TO FILE PETITION

Supreme Court Subject to the QUO WARRANTO (RULE 66)
doctrine of hierarchy
of courts and only
when compelling Quo warranto is a demand made by the state
reasons exist for not upon some individual or corporation to show by
what right they exercise some franchise or
privilege appertaining to the state which, duly elected because

according to the Constitution and laws they the law shall consider
cannot legally exercise by virtue of a grant and only the person who,
authority from the State. having duly filed his
certificate of
It is a special civil action commenced by a candidacy, received a
verified petition against: plurality of votes.
a) a person who usurps a public office,  HRET has jurisdiction involving member
position or franchise; of Congress
b) a public officer who performs an act
constituting forfeiture of a public office; WHEN GOVERNMENT COMMENCE AN
or ACTION AGAINST INDIVIDUALS
c) an association which acts as a
corporation within the Philippines without Quo warranto is commenced by a verified
being legally incorporated or without petition brought in the name of the Government
lawful authority to do so. of the Republic of the Philippines by the Solicitor
General, or in some instances, by a public
prosecutor. When the action is commenced by
QUO WARRANTO QUO WARRANTO the Solicitor General, the petition may be
(RULE 66) (ELECTION CODE) brought in the Regional Trial Court of the City of
Manila, the Court of Appeals or the Supreme
Subject of the Subject of the petition Court.
petition is in is in relation to an
relation to an elective office; An action for the usurpation of a public office,
appointive office; position or franchise may be commenced by a
The issue is the Grounds relied upon verified petition brought in the name of the
legality of the are: (a) ineligibility to Republic of the Philippines thru the Solicitor
occupancy of the the position; or (b) General against:
office by virtue of a disloyalty to the 1) A person who usurps, intrudes into, or
legal appointment; Republic. unlawfully holds or exercises a public
Petition is brought May be instituted with office, position or franchise;
either to the the COMELEC by any 2) A public officer who does or suffers an
Supreme Court, the voter contesting the act which, by the provision of law,
Court of Appeals or election of any constitutes a ground for the forfeiture of
the Regional Trial member of Congress, his office;
Court; regional, provincial or 3) An association which acts a corporation
city officer; or to the within the Philippines without being
MeTC, MTC or MCTC if legally incorporated or without lawful
against any barangay authority so to act.
official;
Filed within one (1) Filed within ten (10) WHEN INDIVIDUAL MAY COMMENCE AN
year from the time days after the ACTION
the cause of ouster, proclamation of the
or the right of the results of the election; • The petition may be commenced by a
petitioner to hold private person in his own name where he
the office or claims to be entitled to the public office or
position arose; position alleged to have been usurped or
Petitioner is the Petitioner may be any unlawfully held or exercised by another.
person entitled to voter even if he is not • Accordingly, the private person may
the office; entitled to the office; maintain the action without the intervention
The court has to When the tribunal of the Solicitor General and without need for
declare who the declares the any leave of court.
person entitled to candidate-elect as • In bringing a petition for quo warranto, he
the office is if he is ineligible, he will be must show that he has a clear right to the
the petitioner. unseated but the office allegedly being held by another. It is
person occupying the not enough that he merely asserts the right
second place will not to be appointed to the office.
be declared as the one
JUDGMENT IN QUO WARRANTO ACTION will end in the issuance of an order of

expropriation if the court finds for the
Of office, position or franchise, judgment shall plaintiff or in the dismissal of the complaint
be rendered that such respondent be ousted if it finds otherwise.
and altogether excluded therefrom, and that the 2) Determination of just compensation through
petitioner recover his costs. Such further the court-appointed commissioners.
judgment may be rendered determining the
respective rights in and to the public office, WHEN PLAINTIFF CAN IMMEDIATELY ENTER
position or franchise of the parties to the action INTO POSSESSION OF THE REAL PROPERTY
as justice requires. IN RELATION TO RA 8974
RIGHTS OF A PERSON ADJUDGED ENTITLED Except for the acquisition of right-of-way, site or
TO PUBLIC OFFICE location for any national government
infrastructure project through expropriation, the
If the petitioner is adjudged to be entitled to the expropriator shall have the right to take or enter
office, he may sue for damages against the upon the possession of the real property
alleged usurper within one (1) year from the involved if he deposits with the authorized
entry of judgment establishing his right to the government depositary an amount equivalent to
office in question. the assessed value of the property for purposes
of taxation to be held by such bank subject to
the orders of the court. such deposit shall be in
EXPROPRIATION (RULE 67) money, unless in lieu thereof the court
authorizes the deposit of a certificate of deposit
of a government bank of the Philippines payable
1) To be filed with the RTC; this is action
on demand to the authorized government
incapable of pecuniary estimation
depositary.
2) Expropriation is an exercise of the State’s
power of eminent domain wherein the
NEW SYSTEM OF IMMEDIATE PAYMENT OF
government takes a private property for
INITIAL JUST COMPENSATION
public purpose upon payment of just
compensation.
For the acquisition of right-of-way, site or
location for any national government
MATTERS TO ALLEGE IN COMPLAINT FOR
infrastructure project through expropriation,
EXPROPRIATION
upon the filing of the filing of the complaint, and
after due notice to the defendant, the
An expropriation proceeding is commenced by
implementing agency shall immediately pay the
the filing of a verified complaint which shall:
owner of the property the amount equivalent to
a) State with certainty the right of the
the sum of:
plaintiff to expropriation and the purpose
thereof;
1) 100 PERCENT of the value of the
property based on the current relevant
b) Describe the real or personal property
zonal valuation of the BIR; and
sought to be expropriated; and
c) Join as defendants all persons owning or 2) The value of the improvements and/or
claiming to own, or occupying, any part structures as determined under Sec. 7 of
of the property or interest therein RA 8974 (Sec. 4, RA 8974).
showing as far as practicable the interest
of each defendant. If the plaintiff cannot  LGU – 15% market value
with accuracy identify the real owners,
averment to that effect must be made in DEFENSES AND OBJECTIONS
the complaint.
Omnibus Motion Rule — a motion attacking a
TWO STAGES IN EVERY ACTION FOR pleading, order, judgment or proceeding shall
EXPROPRIATION include all objections then available, and all
objections not so included shall be deemed
1) Determination of the authority of the waived.
plaintiff to expropriate (appealable already
at this stage) – this includes an inquiry into If a defendant has no objection or defense to
the propriety of the expropriation, its the action or the taking of his property, he may
necessity and the public purpose. This stage file and serve a notice of appearance and a
manifestation to that effect, specifically

designating or identifying the property in which  Appealable with the CA
he claims to be interested, within the time
stated in the summons. Thereafter, he shall be ASCERTAINMENT OF JUST COMPENSATION
entitled to notice of all proceedings affecting the
same. The order of expropriation merely declares that
the plaintiff has the lawful to expropriate the
If a defendant has any objection to the filing of property but contains no ascertainment of the
or the allegations in the complaint, or any compensation to be paid to the owner of the
objection or defense to the taking of his property.
property, he shall serve his answer within the
time stated in the summons. The answer shall So upon the rendition of the order of
specifically designate or identify the property in expropriation, the court shall appoint not more
which he claims to have an interest, state the than three (3) commissioners to ascertain the
nature and extent of the interest claimed, and just compensation for the property. Objections
adduce all his objections and defenses to the to the appointment may be made within 10
taking of his property. No counterclaim, cross- days from service of the order of appointment.
claim or third-party complaint shall be alleged The commissioners are entitled to fees and their
or allowed in the answer or any subsequent fees shall be taxed as part of the costs of the
pleading. proceedings, and all costs shall be paid by the
plaintiff except those costs of rival claimants
A defendant waives all defenses and objections litigating their claims.
not so alleged but the court, in the interest of
justice, may permit amendments to the answer Where the principal issue is the determination
to be made not later than ten (10) days from of just compensation, a hearing before the
the filing thereof. commissioners is indispensable to allow the
parties to present evidence on the issue of just
However, at the trial of the issue of just compensation. Although the findings of the
compensation, whether or not a defendant has commissioners may be disregarded and the trial
previously appeared or answered, he may court may substitute its own estimate of the
present evidence as to the amount of the value, the latter may do so only for valid
compensation to be paid for his property, and reasons, that is where the commissioners have
he may share in the distribution of the award. applied illegal principles to the evidence
submitted to them, where they have
ORDER OF EXPROPRIATION disregarded a clear preponderance of evidence,
or where the amount allowed is either grossly
If the objections to and the defenses against the inadequate or excessive.
right of the plaintiff to expropriate the property
are overruled, or when no party appears to APPOINTMENT OF COMMISSIONERS;
defend as required by this Rule, the court may COMMISSIONER’S REPORT; COURT ACTION
issue an order of expropriation declaring that UPON COMMISSIONER’S REPORT
the plaintiff has a lawful right to take the
property sought to be expropriated, for the Appointment. Upon the rendition of the order
public use or purpose described in the of expropriation, the court shall appoint not
complaint, upon the payment of just more than three (3) competent and
compensation to be determined as of the date disinterested persons as commissioners to
of the taking of the property or the filing of the ascertain and report to the court the just
complaint, whichever came first. compensation for the property sought to be
taken. The order of appointment shall designate
A final order sustaining the right to expropriate the time and place of the first session of the
the property may be appealed by any party hearing to be held by the commissioners and
aggrieved thereby. Such appeal, however, shall specify the time within which their report shall
not prevent the court from determining the just be submitted to the court. Copies of the order
compensation to be paid. shall be served on the parties. Objections to the
appointment of any of the commissioners shall
After the rendition of such an order, the plaintiff be filed with the court within ten (10) days from
shall not be permitted to dismiss or discontinue service, and shall be resolved within thirty (30)
the proceeding except on such terms as the
court deems just and equitable.
days after all the commissioners shall have have the right to enter upon the property
received copies of the objections. expropriated and to appropriate the same for
the public use or purpose defined in the
Report. The court may order the judgment or to retain possession already
commissioners to report when any particular previously made.
portion of the real estate shall have been
passed upon by them, and may render Title to the property expropriated passes from
judgment upon such partial report, and direct the owner to the expropriator upon full payment
the commissioners to proceed with their work as of just compensation.
to subsequent portions of the property sought
to be expropriated, and may from time to time EFFECT OF RECORDING OF JUDGMENT
so deal with such property. The commissioners
shall make a full and accurate report to the The judgment entered in expropriation
court of all their proceedings, and such proceedings shall state definitely, by an
proceedings shall not be effectual until the court adequate description, the particular property or
shall have accepted their report and rendered interest therein expropriated, and the nature of
judgment in accordance with their the public use or purpose for which it is
recommendations. Except as otherwise expropriated.
expressly ordered by the court, such report shall
be filed within sixty (60) days from the date the When real estate is expropriated, a certified
commissioners were notified of their copy of such judgment shall be recorded in the
appointment, which time may be extended in registry of deeds of the place in which the
the discretion of the court. Upon the filing of property is situated, and its effect shall be to
such report, the clerk of the court shall serve vest in the plaintiff the title to the real estate so
copies thereof on all interested parties, with described for such public use or purpose.
notice that they are allowed ten (10) days within
which to file objections to the findings of the
report, if they so desire. FORECLOSURE OF REAL ESTATE MORTGAGE
(RULE 68)
Action upon the report. Upon the expiration
of the period of ten (10) days referred to in the
preceding section, or even before the expiration  A real estate mortgage is an accessory
of such period but after all the interested parties contract executed by a debtor in favor of a
have filed their objections to the report or their creditor as security for the principal
statement of agreement therewith, the court obligation.
may, after hearing, accept the report and  This principal obligation is a simple loan or
render judgment in accordance therewith; or, mutuum described in Art. 1953, Civil Code.
for cause shown, it may recommit the same to To be a real estate mortgage, the contract
the commissioners for further report of facts; or must be constituted on either immovables
it may set aside the report and appoint new (real property) or inalienable real rights. If
commissioners; or it may accept the report in constituted on movables, the contract is a
part and reject it in part; and it may make such chattel mortgage (Art. 2124, CC).
order or render such judgment as shall secure • A mortgage contract may have a
to the plaintiff the property essential to the provision in which the mortgage is a
exercise of his right of expropriation, and to the security for past, present and future
defendant just compensation for the property so indebtedness. This clause known as a
taken. DRAGNET CLAUSE OR BLANKET
mortgage clause has its origins in
RIGHTS OF PLAINTIFF UPON JUDGMENT American jurisprudence.
AND PAYMENT • The Supreme Court ruled that mortgages
given to secure future advancements are
After payment of the just compensation as valid and legal contracts (Prudential
determined in the judgment, the plaintiff shall Bank vs. Alviar, 464 SCRA 353).
JUDGMENT ON FORECLOSURE FOR If after the trial, the court finds that the matters
PAYMENT OR SALE set forth in the complaint are true, it shall
render a judgment containing the following
matters:
a) An ascertainment of the amount due to which ordered the foreclosure unless a third
the plaintiff upon the mortgage debt or party is actually holding the same adversely to
obligation, including interest and other the judgment obligor.
charges as approved by the court, as
well as costs; DISPOSITION OF PROCEEDS OF SALE
b) A judgment of the sum found due;
c) An order that the amount found due be The proceeds of the sale of the mortgaged
paid to the court or to the judgment property shall, after deducting the costs of the
obligee within the period of not less than sale, be paid to the person foreclosing the
90 days nor more than 120 days from mortgage, and when there shall be any balance
the entry of judgment; and or residue after paying off the mortgage debt
d) An admonition that in default of such due, the same shall be paid to junior
payment the property shall be sold at encumbrancers in the order of their priority. If
public auction to satisfy the judgment. there be any further balance after paying them
or if there be no junior encumbrancers, the
The judgment of the court on the above matters same shall be paid to the mortgagor or any
is considered a final adjudication of the case person entitled thereto.
and hence, is subject to challenge by the
aggrieved party by appeal or by other post- DEFICIENCY JUDGMENT
judgment remedies.
If there be a balance due to the plaintiff after
The period granted to the mortgagor for the applying the proceeds of the sale, the court,
payment of the amount found due by the court upon motion, shall render judgment against the
is not just a procedural requirement but s defendant for any such balance. Execution may
substantive right given by law to the mortgagee issue immediately if the balance is all due the
as his first chance to save his property from plaintiff shall be entitled to execution at such
final disposition at the foreclosure sale. time as the remaining balance shall become due
and such due date shall be stated in the
SALE OF MORTGAGED PROPERTY; EFFECT judgment. Note that the deficiency judgment is
in itself a judgment hence, also appealable.
The confirmation of the sale shall divest the
rights in the property of all parties to the action No independent action need be filed to recover
and shall vest their rights in the purchaser, the deficiency from the mortgagor. The
subject to such rights of redemption as may be deficiency judgment shall be rendered upon
allowed by law. The title vests in the purchaser motion of the mortgagee. The motion must be
upon a valid confirmation of the sale and made only after the sale and after it is known
retroacts to the date of sale. that a deficiency exists. Before that, any court
order to recover the deficiency is void. It has
The import of Sec. 3 includes one vital effect: been held that the mortgagor who is not the
The equity of redemption of the mortgagor or debtor and who merely executed the mortgage
redemptioner is cut-off and there will be no to secure the principal debtor’s obligation is not
further redemption, unless allowed by law (as in liable for the deficiency unless he assumed
the case of banks as mortgagees). liability for the same in the contract.
The equity of redemption starts from the ninety- Since a deficiency judgment cannot be obtained
day period set in the judgment of the court up against the mortgagor who is not the debtor in
to the time before the sale is confirmed by an the principal obligation, mortgagee may have to
order of the court. Once confirmed, no equity file a separate suit against the principal debtor.
of redemption may further be exercised.
INSTANCES WHEN COURT CANNOT RENDER
The order of confirmation is appealable and if DEFICIENCY JUDGMENT
not appealed within the period for appeal
becomes final. Upon the finality of the order of Where the debtor-mortgagor is a non-resident
confirmation or upon the expiration of the and who at the time of the filing of the action for
period of redemption when allowed by law, the foreclosure and during the pendency of the
purchaser at the auction sale or last proceedings was outside the Philippines, it is
redemptioner, if any, shall be entitled to the believed that a deficiency judgment would not
possession of the property and he may secure a be procedurally feasible.
writ of possession, upon, motion, from the court
confirmation of the
A deficiency judgment is by nature in personam sale and even after
and jurisdiction over the person is mandatory. the registration of the
Having been outside the country, jurisdiction certificate of
over his person could not have been acquired. foreclosure sale.
May be exercised There is no right of
even after the redemption in a
EXTRA-JUDICIAL JUDICIAL foreclosure sale judicial foreclosure of
FORECLOSURE FORECLOSURE provided it is made mortgage under Rule
(ACT 3135) (RULE 68) before the sale is 68. This right of
confirmed by order redemption exists only
No complaint is filed; Complaint is filed of the court. in extrajudicial
with the courts; foreclosures where
There is a right of No right of there is always a right
redemption. redemption except of redemption within
Mortgagor has a right when mortgagee is a one year from the date
of redemption for 1 banking institution; of sale (Sec. 3, Act
year from equity of redemption 3135), but interpreted
registration of the only (90 to 120 days, by the Court to mean
sale; and any time before one year from the
confirmation of registration of the
foreclosure sale); sale.
Mortgagee has to file Mortagagee can May also exist in General rule: In
a separate action to move for deficiency favor or other judicial foreclosures
recover any judgment in the same encumbrances. If there is only an equity
deficiency; action subsequent lien of redemption which
Buyer at public Buyer at public holders are not can be exercised prior
auction becomes auction becomes impleaded as to the confirmation of
absolute owner only absolute owner only parties in the the foreclosure sale.
after finality of an after confirmation of foreclosure suit, the This means that after
action for the sale; judgment in favor of the foreclosure sale
consolidation of the foreclosing but before its
ownership; mortgagee does not confirmation, the
Mortgagee is given a Mortgagee need not bind the other lien mortgagor may
special power of be given a special holders. In this case, exercise his right of
attorney in the power of attorney. their equity of pay the proceeds of
mortgage contract to redemption remains the sale and prevent
foreclose the unforeclosed. A the confirmation of the
mortgaged property separate foreclosure sale.
in case of default. proceeding has to
be brought against
them to require
EQUITY OF RIGHT OF them to redeem
REDEMPTION REDEMPTION from the first
The right of A right granted to a mortgagee or from
defendant debtor mortgagor, his the party acquiring
mortgagor to successor in interest the title to the
extinguish the or any judicial creditor mortgaged
mortgage and retain or judgment creditor property.
ownership of the or any person having a If not by banks, the Exception: there is a
property by paying lien on the property mortgagors merely right of redemption if
the debt within 90 subsequent to the have an equity of the foreclosure is in
to 120 days after mortgage or deed of redemption, which favor of banks as
the entry of trust under which the is simply their right, mortgagees, whether
judgment or even property is sold to as mortgagor, to the foreclosure be
after the foreclosure repurchase the extinguish the judicial or
sale but prior to property within one mortgage and retain extrajudicial. This right
confirmation. year even after the ownership of the of redemption is
property by paying explicitly provided in the property or estate sought to be partitioned.

the secured debt Sec. 47 of the General The defendants are all the co-owners. All the co-
prior to the Banking Law of 2000. owners must be joined.
confirmation of the While the law
foreclosure sale. mentions the Accordingly, an action will not lie without the
redemption period to joinder of all co-owners and other persons
be one year counted having interest in the property. All the co-
from the date of owners, therefore, are indispensable parties.
registration of the
certificate in the MATTERS TO ALLEGE IN THE COMPLAINT
Registry of Property FOR PARTITION
The plaintiff shall state in his complaint, the

nature and extent of his title, an adequate
PARTITION (RULE 69) description of the real estate of which partition
is demanded, and shall join as defendants all
other persons interested in the property. He
Partition is the separation, division and must also include a demand for the accounting
assignment of a thing held in common among of the rents, profits and other income from the
those to whom it may belong. property which he may be entitled to. These
cannot be demanded in another action because
It presupposes the existence of a co-ownership they are parts of the cause of action for
over a property between two or more persons. partition. They will be barred if not set up in the
The rule allowing partition originates from a same action pursuant to the rule against
well-known principle embodied in the Civil Code, splitting a single cause of action.
that no co-owner shall be obliged to remain the
co-ownership. Because of this rule, he may STAGES IN EVERY ACTION FOR PARTITION
demand at any time the partition of the
property owned in common.
A reading of the Rules will reveal that there are
actually three (3) stages in the action, each of
Instances when a co-owner may not demand
which could be the subject of appeal:
partition at any time:
1) the order of partition where the property
1) There is an agreement among the co- of the partition is determined;
owners to keep the property undivided 2) the judgment as to the accounting of the
for a certain period of time but not fruits and income of the property; and
exceeding ten years (Art. 494); 3) the judgment of partition.
2) When partition is prohibited by the donor
or testator for a period not exceeding 20 ORDER OF PARTITION AND PARTITION BY
years (Art. 494); AGREEMENT
3) When partition is prohibited by law (Art.
494); During the trial, the court shall determine
4) When the property is not subject to a whether or not the plaintiff is truly a co-owner of
physical division and to do so would the property, that there is indeed a co-
render it unserviceable for the use for ownership among the parties, and that a
which it is intended (Art. 495); partition is not legally proscribed thus may be
5) When the condition imposed upon allowed. If the court so finds that the facts are
voluntary heirs before they can demand such that a partition would be in order, and that
partition has not yet been fulfilled (Art. the plaintiff has a right to demand partition, the
1084). court will issue an order of partition.
WHO MAY FILE COMPLAINT; WHO SHOULD The court shall order the partition of the
BE MADE DEFENDANTS property among all the parties in interest, if
after trial it finds that the plaintiff has the right
The action shall be brought by the person who to partition. It was held that this order of
has a right to compel the partition of real estate partition including an order directing an
or of an estate composed of personal property, accounting is final and not interlocutory and
or both real and personal property. The plaintiff hence, appealable; thus, revoking previous
is a person who is supposed to be a co-owner of contrary rulings on the matter. A final order
decreeing partition and accounting may be title to the property or bind the parties until the
appealed by any party aggrieved thereby. court shall have accepted the report of the
commissioners and rendered judgment thereon.
Partition by agreement. The order of
partition is one that directs the parties or co- Upon the expiration of the period of ten (10)
owners to partition the property and the parties days referred to in the preceding section, or
may make the partition among themselves by even before the expiration of such period but
proper instruments of conveyance, if they agree after the interested parties have filed their
among themselves. If they do agree, the court objections to the report or their statement of
shall then confirm the partition so agreed upon agreement therewith, the court may, upon
by all of the parties, and such partition, together hearing, accept the report and render judgment
with the order of the court confirming the same, in accordance therewith; or, for cause shown,
shall be recorded in the registry of deeds of the recommit the same to the commissioners for
place in which the property is situated. There further report of facts; or set aside the report
always exists the possibility that the co-owners and appoint new commissioners; or accept the
are unable to agree on the partition. If they report in part and reject it in part; and may
cannot partition the property among make such order and render such judgment as
themselves, the next stage in the action will shall effectuate a fair and just partition of the
follow the appointment of commissioners. real estate, or of its value, if assigned or sold as
above provided, between the several owners
PARTITION BY COMMISSIONERS; thereof.
APPOINTMENT OF COMMISSIONERS
COMMISSIONER’S REPORT; COURT ACTION JUDGMENT AND ITS EFFECTS
UPON COMMISSIONER’S REPORT
The judgment shall state definitely, by metes
If the parties are unable to agree upon the and bounds and adequate description, the
partition, the court shall appoint not more than particular portion of the real estate assigned to
three (3) competent and disinterested persons each party, the effect of the judgment shall be
as commissioners to make the partition, to vest in each party to the action in severalty
commanding them to set off to the plaintiff and the portion of the real estate assigned to him.
to each party in interest such part and
proportion of the property as the court shall If the whole property is assigned to one of the
direct. parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall
When it is made to appear to the commissioners state the fact of such payment and of the
that the real estate, or a portion thereof, cannot assignment of the real estate to the party
be divided without prejudice to the interests of making the payment, and the effect of the
the parties, the court may order it assigned to judgment shall be to vest in the party making
one of the parties willing to take the same, the payment the whole of the real estate free
provided he pays to the other parties such from any interest on the part of the other
amounts as the commissioners deem equitable, parties to the action.
unless one of the interested parties asks that
the property be sold instead of being so If the property is sold and the sale confirmed by
assigned, in which case the court shall order the the court, the judgment shall state the name of
commissioners to sell the real estate at public the purchaser or purchasers and a definite
sale under such conditions and within such time description of the parcels of real estate sold to
as the court may determine. each purchaser, and the effect of the judgment
shall be to vest the real estate in the purchaser
The commissioners shall make a full and or purchasers making the payment or
accurate report to the court of all their payments, free from the claims of any of the
proceedings as to the partition, or the parties to the action.
assignment of real estate to one of the parties,
or the sale of the same. Upon the filing of such A certified copy of the judgment shall in either
report, the clerk of court shall serve copies case be recorded in the registry of deeds of the
thereof on all the interested parties with notice place in which the real estate is situated, and
that they are allowed ten (10) days within which the expenses of such recording shall be taxed
to file objections to the findings of the report, if as part of the costs of the action.
they so desire. No proceeding had before or
conducted by the commissioners shall pass the
PARTITION OF PERSONAL PROPERTY beginning; issue is becomes illegal by

which party has reason of the
The provisions of this Rule shall apply to prior de facto expiration or
partitions of estates composed of personal possession; termination of his right
property, or of both real and personal property, to the possession of
in so far as the same may be applicable. the property;
The law does not Plaintiff must first
PRESCRIPTION OF ACTION require previous make such demand
demand for the which is jurisdictional
 Prescription of action does not run in defendant to in nature;
favor of a co-owner or co-heir against his co- vacate;
owner or co-heirs as long as there is a The plaintiff must The plaintiff need not
recognition of the co-ownership expressly or prove that he was have been in prior
impliedly. in prior physical physical possession;
possession of the
 The action for partition cannot be barred premises until he
by prescription as long as the co-ownership was deprived by
exists. the defendant;
and
 But while the action to demand partition The one year The one-year period is
of a co-owned property does not prescribe, a period is generally counted from the date
co-owner may acquire ownership thereof by counted from the of last demand.
prescription where there exists a clear date of actual
repudiation of the co-ownership and the co- entry on the
owners are apprised of the claim of adverse property.
and exclusive ownership.
ACCION ACCION
FORCIBLE ENTRY AND UNLAWFUL DETAINER PUBLICIANA REINVINDICATORIA
(RULE 70) A plenary ordinary An action for the
civil action for the recovery of the
recovery of the exercise of ownership,
The actions for forcible entry and unlawful better right of particularly recovery
detainer belong to the class of actions known by possession (juridical of possession as an
the generic name accion interdictal (ejectment) possession), must attribute or incident
where the issue is the right of physical or be filed after the of ownership;
material possession of the subject real property expiration of one
independent of any claim of ownership by the year from the
parties involved. accrual of the cause
of action or from
Accion Interdictal comprises two distinct the unlawful
causes of action: withholding of
 FORCIBLE ENTRY (DETENTACION), possession of the
where one is deprived of physical realty. In other
possession of real property by means of words, if at the time
force, intimidation, strategy, threats or of the filing of the
stealth (FISTS); complaint more
 UNLAWFUL DETAINER (DESAHUICO), than one year had
where one illegally withholds possession elapsed since
after the expiration or termination of his defendant had
right to hold possession under any turned plaintiff out
contract, express or implied. of possession or
defendant‘s
FORCIBLE ENTRY UNLAWFUL possession had
DETAINER become illegal, the
The possession of The possession of the action will be not
the defendant is defendant is lawful one of forcible entry
unlawful from the from the beginning or unlawful detainer
but an accion A person deprived of the possession of any land

The basis of the The basis for the or building by force, intimidation, threat,
recovery of recovery of strategy, or stealth, or a lessor, vendor, vendee,
possession is the possession is or other person against whom the possession of
plaintiff‘s real right ownership itself. any land or building is unlawfully withheld after
of possession or jus the expiration or termination of the right to hold
possessionis, which possession, by virtue of any contract, express or
is the right to the implied, or the legal representatives or assigns
possession of the of any such lessor, vendor, vendee, or other
real property person, may, at any time within one (1) year
independent of after such unlawful deprivation or withholding of
ownership. possession, bring an action in the proper
Jurisdiction is based on the value of the of Municipal Trial Court against the person or
the property applying 20K and 50K rule persons unlawfully withholding or depriving of
possession, or any person or persons claiming
under them, for the restitution of such
HOW TO DETERMINE JURISDICTION IN possession, together with damages and costs.
ACCION PUBLICIANA AND ACCION
REINVINDICATORIA Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand
The actions of forcible entry and unlawful to pay or comply with the conditions of the
detainer are within the exclusive and original lease and to vacate is made upon the lessee, or
jurisdiction of the MTC, MeTC and MCTC and by serving written notice of such demand upon
shall be governed by the rules on summary the person found on the premises, or by posting
procedure irrespective of the amount of such notice on the premises if no person be
damages or rental sought to be recovered. found thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case of
In actions for forcible entry, two allegations are land or five (5) days in the case of buildings.
mandatory for the MTC to acquire jurisdiction:
1) plaintiff must allege his prior physical PLEADINGS ALLOWED
possession of the property; and
2) he must also allege that he was deprived The only pleadings allowed to be filed are the
of his possession by force, intimidation, complaint, compulsory counterclaim and cross-
strategy, threat or stealth. claim pleaded in the answer, and the answers
thereto. All pleadings shall be verified.
If the alleged dispossession did not occur by any
of these means, the proper recourse is to file ACTION ON THE COMPLAINT
not an action for forcible entry but a plenary
action to recover possession. The court may, from an examination of the
allegations in the complaint and such evidence
Both actions must be brought within one year as may be attached thereto, dismiss the case
from the date of actual entry on the land, in outright on any of the grounds for the dismissal
case of forcible entry, and from the date of last of a civil action which are apparent therein. If no
demand, in case of unlawful detainer. ground for dismissal is found, it shall forthwith
issue summons.
Jurisdiction is determined by the allegations of
the complaint. The mere raising of the issue of WHEN DEMAND IS NECESSARY
tenancy does not automatically divest the court
of jurisdiction because the jurisdiction of the Unless there exists a stipulation to the contrary,
court is determined by the allegations of the an unlawful detainer case shall be commenced
complaint and is not dependent upon the only after the demand to pay or comply with the
defenses set up by the defendant. conditions of the lease and to vacate is made
upon the lessee.
WHO MAY INSTITUTE THE ACTION AND
WHEN; AGAINST WHOM THE ACTION MAY The requirement for a demand implies that the
BE MAINTAINED mere failure of the occupant to pay rentals or
his failure to comply with the conditions of the
lease does not ipso facto render his possession
of the premises unlawful. It is the failure to resolved in a separate action brought

comply with the demand that vests upon the specifically to settle the question with finality.
lessor a cause of action.
HOW TO STAY THE IMMEDIATE EXECUTION
The demand may be in the form of a written OF JUDGMENT
notice served upon the person found in the
premises. The demand may also be made by Defendant must take the following steps to stay
posting a written notice on the premises if no the execution of the judgment:
person can be found thereon. It has been ruled, 1) Perfect an appeal;
however, that the demand upon a tenant may 2) File a supersedeas bond to pay for the
be oral. Sufficient evidence must be adduced to rents, damages and costs accruing down
show that there was indeed a demand like to the time of the judgment appealed
testimonies from disinterested and unbiased from; and
witnesses. 3) Deposit periodically with the RTC, during
the pendency of the appeal, the
PRELIMINARY INJUNCTION AND adjudged amount of rent due under the
PRELIMINARY MANDATORY INJUNCTION contract or if there be no contract, the
reasonable value of the use and
The court may grant preliminary injunction, in occupation of the premises.
accordance with the provisions of Rule 58, to
prevent the defendant from committing further Exceptions to the rule:
acts of dispossession against the plaintiff. 1) Where delay in the deposit is due to
fraud, accident, mistake, or excusable
A possessor deprived of his possession through negligence;
forcible entry or unlawful detainer may, within 2) Where supervening events occur
five (5) days from the filing of the complaint, subsequent to the judgment bringing
present a motion in the action for forcible entry about a material change in the situation
or unlawful detainer for the issuance of a writ of of the parties which makes execution
preliminary mandatory injunction to restore him inequitable; and
in his possession. The court shall decide the 3) Where there is no compelling urgency for
motion within thirty (30) days from the filing the execution because it is not justified
thereof. by the circumstances.
RESOLVING DEFENSE OF OWNERSHIP SUMMARY PROCEDURE, PROHIBITED

PLEADINGS
The assertion by the defendant of ownership
over the disputed property does not serve to Forcible entry and unlawful detainer actions are
divest the inferior court of its jurisdiction. The summary in nature designed to provide for an
defendant cannot deprive the court of expeditious means of protecting actual
jurisdiction by merely claiming ownership of the possession or the right to possession of the
property involved. property involved. These actions shall both fall
under the coverage of the Rules of Summary
When the defendant raises the issue of Procedure irrespective of the amount of
ownership, the court may resolve the issue of damages or unpaid rental sought to be
ownership only under the following conditions: recovered.
1) When the issue of possession cannot be
resolved without resolving the issue of Prohibited pleadings and motions:
ownership; and a) Motion to dismiss the complaint except
2) The issue of ownership shall be resolved on the ground of lack of jurisdiction over
only to determine the issue of the subject matter, or failure to comply
possession. with section 12;
b) Motion for a bill of particulars;
Such judgment would not bar an action between c) Motion for new trial, or for
the same parties respecting title to the land or reconsideration of a judgment, or for
building. The resolution of the MeTC on the reopening of trial;
ownership of the property is merely provisional d) Petition for relief from judgment;
or interlocutory. Any question involving the e) Motion for extension of time to file
issue of ownership should be raised and pleadings, affidavits or any other paper;
f) Memoranda; 1) Civil or Criminal, depending on the nature

g) Petition for certiorari, mandamus, or and effect of the contemptuous act.
prohibition against any interlocutory 2) Direct or indirect, according to the manner
order issued by the court; of commission.
h) Motion to declare the defendant in
default; CIVIL CONTEMPT CRIMINAL
i) Dilatory motions for postponement; CONTEMPT
j) Reply; It is the failure to do It is a conduct directed
k) Third-party complaints; something ordered to against the authority
l) Interventions be done by a court or and dignity of the court
a judge for the benefit or a judge acting
of the opposing party judicially; it is an
therein and is obstructing the
CONTEMPT (RULE 71) therefore and offense administration of
against the party in justice which tends to
whose behalf the bring the court into
Contempt is a disregard of, or disobedience to
violated order was disrepute or
the rules or orders of a judicial body, or an
made; disrespect;
interruption of its proceedings by disorderly
behavior or insolent language, in its presence or The purpose is to The purpose is to
so near thereto as to disturb the proceedings or compensate for the punish, to vindicate
to impair the respect due to such body. benefit of a party; the authority of the
court and protect its
Contempt of court is disobedience to the court outraged dignity;
by acting in opposition to its authority, justice The rules of procedure Should be conducted in
and dignity. It signifies not only a willful governing contempt accordance with the
disregard or disobedience of the court‘s orders proceedings or principles and rules
but also conduct tending to bring the authority criminal prosecutions applicable to criminal
of the court and the administration of law into ordinarily are cases, insofar as such
disrepute or, in some manner to impede the due inapplicable to civil procedure is consistent
administration of justice. contempt proceedings. with the summary
nature of contempt
The reason for the power to punish for contempt proceedings.
is that respect of the courts guarantees the
stability of their institution. Without such
guarantee, said institution would be resting on DIRECT INDIRECT CONTEMPT
shaky foundation. CONTEMPT
In general is It is not committed in the
It is inherent in all courts; its existence is committed in the presence of the court, but
essential to the preservation of order in judicial presence of or so done at a distance which
proceedings and to the enforcement of near the court or tends to belittle, degrade,
judgments, orders and mandates of the courts, judge while obstruct or embarrass the
and consequently, to the due administration of performing the court and justice;
justice. judicial function
as to obstruct or
Contempt proceedings has dual function: interrupt the
1) Vindication of public interest by proceedings
punishment of contemptuous conduct; before it;
and Acts constituting Acts constituting indirect
2) Coercion to compel the contemnor to do direct contempt contempt are:
what the law requires him to uphold the are:
power of the Court, and also to secure a) Misbehavior in After a charge in writing
the rights of the parties to a suit the presence has been filed, and an
awarded by the Court. of or so near opportunity given to the
the court as to respondent to comment
KINDS OF CONTEMPT; PURPOSE AND obstruct or thereon within such period
NATURE OF EACH interrupt the as may be fixed by the
proceedings court and to be heard by
before it; himself or counsel, a
b) Disrespect person guilty of any of the Failure by counsel to inform

toward the following acts may be the court of the death of his
court; punished for indirect client constitutes indirect
c) Offensive contempt: contempt within the
personalities purview of Sec. 3, Rule 71,
towards 1) Misbehavior an officer since it constitutes an
others; of a court in the improper conduct tending
d) Refusal to be performance of his to impede the
sworn as a official duties or in his administration of justice.
witness or to official transactions;
answer as a 2) Disobedience of or
witness; resistance to a lawful
e) Refusal to writ, process, order, or REMEDY AGAINST INDIRECT CONTEMPT;
subscribe an judgment of a court, PENALTY
affidavit or including the act of a
deposition person who, after being The punishment for indirect contempt depends
when lawfully dispossessed or ejected upon the level of the court against which the act
required to do from any real property was committed;
so; by the judgment or a) Where the act was committed against an
f) Acts of a party process of any court of RTC or a court of equivalent or higher
or a counsel competent jurisdiction, rank, he may be punished by a fine not
which enters or attempts or exceeding 30,000 pesos or imprisonment
constitute induces another to not exceeding 6 months, or both;
willful and enter into or upon such b) Where the act was committed against a
deliberate real property, for the lower court, he may be punished by a
forum purpose of executing fine not exceeding 5,000 pesos or
shopping; acts of ownership or imprisonment not exceeding one month,
g) Unfounded possession, or in any or both. Aside from the applicable
accusations or manner disturbs the penalties, if the contempt consists in the
allegations or possession given to the violation of a writ of injunction, TRO or
words in a person adjudged to be status quo order, he may also be ordered
pleading entitled thereto; to make complete restitution to the party
tending to 3) Any abuse of or any injured by such violation of the property
embarrass the unlawful interference involved or such amount as may be
court or to with the processes or alleged and proved;
bring it into proceedings of a court c) Where the act was committed against a
disrepute. not constituting direct person or entity exercising quasi-judicial
contempt under section functions, the penalty imposed shall
1 of this Rule; depend upon the provisions of the law
4) Any improper conduct which authorizes a penalty for contempt
tending, directly or against such persons or entities.
indirectly, to impede,
obstruct, or degrade the The person adjudged in indirect contempt may
administration of appeal from the judgment or final order of the
justice; court in the same manner as in criminal cases.
5) Assuming to be an The appeal will not however have the effect of
attorney or an officer of suspending the judgment if the person adjudged
a court, and acting as in contempt does not file a bond in an amount
such without authority; fixed by the court from which the appeal is
6) Failure to obey a taken. This bond is conditioned upon his
subpoena duly served; performance of the judgment or final order if
7) The rescue, or the appeal is decided against.
attempted rescue, of a
person or property in HOW CONTEMPT PROCEEDINGS ARE
the custody of an officer COMMENCED
by virtue of an order or
process of a court held Proceedings for indirect contempt may be
by him. initiated motu proprio by the court against
which the contempt was committed by an order • When a person or party is legally and validly
or any other formal charge requiring the required by a court to appear before it for a
respondent to show cause why he should not be certain purpose, and when that requirement
punished for contempt. is disobeyed, the only remedy left for the
court is to use force to bring the person or
In all other cases, charges for indirect contempt party before it.
shall be commenced by a verified petition with • The punishment is imposed for the benefit of
supporting particulars and certified true copies a complainant or a party to a suit who has
of documents or papers involved therein, and been injured aside from the need to compel
upon full compliance with the requirements for performance of the orders or decrees of the
filing initiatory pleadings for civil actions in the court, which the contemnor refuses to obey
court concerned. If the contempt charges arose although able to do so. In effect, it is within
out of or are related to a principal action the power of the person adjudged guilty of
pending in the court, the petition for contempt contempt to set himself free.
shall allege that fact but said petition shall be
docketed, heard and decided separately, unless CONTEMPT AGAINST QUASI-JUDICIAL
the court in its discretion orders the BODIES
consolidation of the contempt charge and the • The rules on contempt apply to contempt
principal action for joint hearing and decision. committed against persons or entities
exercising quasi-judicial functions or in
WHEN IMPRISONMENT SHALL BE IMPOSED case there are rules for contempt
adopted for such bodies or entities
 When the contempt consists in the refusal or pursuant to law, Rule 71 shall apply
omission to do an act which is yet in the suppletorily.
power of the respondent to perform, he may • Quasi-judicial bodies that have the power
be imprisoned by order of the court to cite persons for indirect contempt can
concerned until he performs it. only do so by initiating them in the
 Indefinite incarceration may be resorted to proper RTC. It is not within their
where the attendant circumstances are such jurisdiction and competence to decide
that the non-compliance with the court order the indirect contempt cases. The RTC of
is an utter disregard of the authority of the the place where contempt has been
court which has then no other recourse but committed shall have jurisdiction over
to use its coercive power. the charges for indirect contempt that
may be filed.
CATCH AGED SHARC
PECIAL PROCEEDINGS (Rules 72 –

109)
Subject Matters of Special Proceedings:

1) Change of Name 9) (Voluntary) Dissolution of Corporation
2) Adoption 10) Settlement of Estate of Deceased
3) Trustees Persons
4) Constitution of Family Home 11) Habeas Corpus
5) Hospitalization of Insane Persons 12) (Judicial) Approval of Voluntary
6) Absence and Death, Declaration of Recognition of Minor Natural Children
7) Guardianship and Custody of Children 13) Rescission and Revocation of Adoption
8) Escheat 14) Cancellation or Correction of Entries in
the Civil Registry
pleading as may be provided for by the
Special Proceedings is an application or particular rule or law.
proceeding to establish the status or right of a
party, or a particular fact, generally commenced
SETTLEMENT OF ESTATE OF DECEASED
by application, petition or special form of
Venue is waivable. If instituted in two courts,

PERSONS (Rules 73 – 91)
the court in which the proceeding was first filed
has exclusive jurisdiction to resolve the issue.
SETTLEMENT OF ESTATE OF DECEASED
EXTENT OF JURISDICTION OF PROBATE
PERSONS VENUE AND PROCESS (RULE 73)
COURT
WHICH COURT HAS JURISDICTION The main function of a probate court is to settle
and liquidate the estates of deceased person
either summarily or through the process of
If the decedent is an inhabitant of the
administration.
Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or
The probate court exercises limited jurisdiction,
letters of administration granted, and his estate
thus it has no power to take cognizance of and
settled, in the RTC in the province in which he
determine the issue of title to property claimed
resides at the time of his death, and if he is an
by a third person adversely to the decedent
inhabitant of a foreign country, the RTC of any
unless the claimant and all other parties have
province in which he had his estate. The court
legal interest in the property consent, expressly
first taking cognizance of the settlement of the
or impliedly, to the submission of the question
estate of a decedent, shall exercise jurisdiction
to the probate court. In that case, if the probate
to the exclusion of all other courts.
court allows the introduction of evidence on
ownership it is for the sole purpose of
Under RA 7691, the law expanding the
determining whether the subject properties
jurisdiction of the inferior courts, MTC, MeTC
should be included in the inventory, which is
and MCTC shall exercise exclusive original
within the probate court’s competence.
jurisdiction over probate proceedings, testate
and intestate, where the value of the estate
The determination is only provisional subject to
does not exceed P300,000 (outside Metro
a proper action in a separate action to resolve
Manila) or where such estate does not exceed
the title.
P400,000 (in Metro Manila).
The jurisdiction of the probate court merely
The jurisdiction of the RTC is limited to the
relates to matters having to do with the
settlement and adjudication of properties of the
settlement of the estate and the probate of
deceased and cannot extend to collateral
wills, the appointment and removal of
matters.
administrators, executors, guardians and
trustees. The question of ownership is, as a rule,
VENUE IN JUDICIAL SETTLEMENT OF
an extraneous matter which the probate court
ESTATE
cannot resolve with finality.
The residence of the decedent at the time of his
POWERS AND DUTIES OF PROBATE COURT
death is determinative of the venue of the
proceeding.
The powers and duties of a probate court:
1) Distribute shares;
If he was a resident (inhabitant, whether citizen
2) Determine the legal heirs;
or alien) of the Philippines, venue is laid
3) Issue warrants and processes to secure
exclusively in the province of his residence at
attendance of witnesses;
the time of his death. Residence means his
4) Determine and rile upon issues relating
personal, actual, or physical habitation, his
to the settlement of the estate, such as
actual residence or place of abode.
administration, liquidation, and
distribution of the estate; and
It is only where the decedent was a nonresident
5) Determine the following:
of the Philippines at the time of his death that
a) Heirs of the decedent;
venue lies in any province in which he had an
b) Recognition of natural child;
estate, The question of residence is
c) Validity of the disinheritance
determinative only of the venue and does not
effected by testator;
affect the jurisdiction of the court.
d) Status of a woman who claims
to be the lawful wife of the
decedent;
e) Validity of waiver of hereditary to the value of the personal property involved

heirs; as certified to under oath by the parties
f) Status of each heir; concerned and conditioned upon the payment
g) Whatever property in of any just claim that may be filed under section
inventory is conjugal or 4 of this rule.
exclusive property of
deceased spouse; and The fact of the extrajudicial settlement or
h) Matters incidental or collateral administration shall be published in a
to the settlement and newspaper of general circulation in the manner
distribution of the estate. provided in the next succeeding section; but no
extrajudicial settlement shall be binding upon
any person who has not participated therein or
SUMMARY SETTLEMENT OF ESTATES (RULE had no notice thereof.
74)
Extrajudicial partition of the estate shall be valid
when the following conditions concur:
Summary settlement of estate is a judicial
1) The decedent left no will;
proceeding wherein, without the appointment of
2) The decedent left no debts, or if there
executor or administrator, and without delay,
were debts left, all had been paid;
the competent court summarily proceeds to
3) The heirs are all of age or if they are
value the estate of the decedent; ascertain his
minors, the latter are represented by
debts and order payment thereof; allow his will
their judicial guardian or legal
if any; declare his heirs, devisee and legatees;
representative;
and distribute his net estate among his known
4) The partition was made by means of a
heirs, devisees, and legatees, who shall
public instrument or affidavit duly filed
thereupon be entitled to receive and enter into
with the Register of Deeds; and
the possession of the parts of the estate so
5) The fact of the extrajudicial settlement
awarded to them, respectively.
or administration shall be published in a
newspaper of general circulation.
EXTRAJUDICIAL SETTLEMENT BY
AGREEMENT BETWEEN HEIRS
TWO-YEAR PRESCRIPTIVE PERIOD
WHEN ALLOWED
It shall be presumed that the decedent left no
If the decedent left no will and no debts and the
debts if no creditor files a petition for letters of
heirs are all of age, or the minors are
administration within two (2) years after the
represented by their judicial or legal
death of the decedent.
representatives duly authorized for the purpose,
the parties may, without securing letters of
If it shall appear at any time within two (2) years
administration, divide the estate among
after the settlement and distribution of an
themselves as they see fit by means of a public
estate in accordance with the provisions of
instrument filed in the office of the register of
either of the first two sections of this rule, that
deeds, and should they disagree, they may do
an heir or other person has been unduly
so in an ordinary action of partition.
deprived of his lawful participation in the estate,
such heir or such other person may compel the
If there is only one heir, he may adjudicate to
settlement of the estate in the courts in the
himself the entire estate by means of an
manner hereinafter provided for the purpose of
affidavit filed in the office of the register of
satisfying such lawful participation.
deeds.
And if within the same time of two (2) years, it
The parties to an extrajudicial settlement,
shall appear that there are debts outstanding
whether by public instrument or by stipulation
against the estate which have not been paid, or
in a pending action for partition, or the sole heir
that an heir or other person has been unduly
who adjudicates the entire estate to himself by
deprived of his lawful participation payable in
means of an affidavit shall file, simultaneously
money, the court having jurisdiction of the
with and as a condition precedent to the filing of
estate may, by order for that purpose, after
the public instrument, or stipulation in the
hearing, settle the amount of such debts or
action for partition, or of the affidavit in the
lawful participation and order how much and in
office of the register of deeds, a bond with the
what manner each distributee shall contribute in
said register of deeds, in an amount equivalent
the payment thereof, and may issue execution,
if circumstances require, against the bond real is to be distributed, to file a bond in an

provided in the preceding section or against the amount to be fixed by court, conditioned for the
real estate belonging to the deceased, or both. payment of any just claim.
Such bond and such real estate shall remain
charged with a liability to creditors, heirs, or REMEDIES OF AGGRIEVED PARTIES AFTER
other persons for the full period of two (2) years EXTRA-JUDICIAL SETTLEMENT OF ESTATE
after such distribution, notwithstanding any
transfers of real estate that may have been 1) The creditor may ask for administration of
made. enough property of the estate sufficient to
pay the debt, but the heirs cannot prevent
AFFIDAVIT OF SELF-ADJUDICATION such administration by paying the
BY SOLE HEIR obligation.
2) Where the estate has been summarily
If there is only one heir, he may adjudicate to settled, the unpaid creditor may, within the
himself the entire estate by means of an two-year period, file a motion in the court
affidavit filed in the office of the register of wherein such summary settlement was for
deeds. the payment of his credit. After the lapse of
the two-year period, an ordinary action may
SUMMARY SETTLEMENT OF ESTATES OF be instituted against the distributees within
SMALL VALUE; WHEN ALLOWED the statute of limitations, but not against the
bond.
Whenever the gross value of the estate of a 3) The action to annul a deed of extrajudicial
deceased person, whether he died testate or settlement on the ground of fraud should be
intestate, does not exceed ten thousand pesos, filed within four years from the discovery of
and that fact is made to appear to the RTC the fraud.
having jurisdiction of the estate by the petition
of an interested person and upon hearing, which
shall be held not less than (1) month nor more PRODUCTION AND PROBATE OF WILL
than three (3) months from the date of the last (RULE 75)
publication of a notice which shall be published
once a week for three (3) consecutive weeks in
NATURE OF PROBATE PROCEEDING
a newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may direct, the  Probate of a will is a proceeding in rem. It
court may proceed summarily, without the cannot be dispensed with and substituted by
appointment of an executor or administrator, another proceeding, judicial or extrajudicial,
and without delay, to grant, if proper, allowance without offending public policy.
of the will, if any there be, to determine who are  It is mandatory as no will shall pass either
the persons legally entitled to participate in the real or personal property unless proved and
estate, and to apportion and divide it among allowed in accordance with the Rules.
them after the payment of such debts of the  It is imprescriptible, because it is required by
estate as the court shall then find to be due; public policy and the state could not have
and such persons, in their own right, if they are intended to defeat the same by applying
of lawful age and legal capacity, or by their thereto the statute of limitation of actions.
guardians or trustees legally appointed and
qualified, if otherwise, shall thereupon be WHO MAY PETITION FOR PROBATE;
entitled to receive and enter into the possession PERSONS ENTITLED TO NOTICE
of the portions of the estate so awarded to them
respectively. The court shall make such order as Any executor, devisee, or legatee named in a
may be just respecting the costs of the will, or any other person interested in the
proceedings, and all orders and judgments estate, may, at any time after the death of the
made or rendered in the course thereof shall be testator, petition the court having jurisdiction to
recorded in the office of the clerk, and the order have the will allowed, whether the same be in
of partition or award, if it involves real estate, his possession or not, or is lost or destroyed.
shall be recorded in the proper register's office.  The testator himself may, during his
lifetime, petition the court for the
The court, before allowing a partition, may allowance of his will.
require the distributees, if property other than
The court shall also cause copies of the notice of 4) If it was procured by undue and improper
the time and place fixed for proving the will to pressure and influence, on the part of
be addressed to the designated or other known the beneficiary, or of some other person
heirs, legatees, and devisees of the testator for his benefit;
resident in the Philippines at their places of 5) If the signature of the testator was
residence, and deposited in the post office with procured by fraud or trick
the postage thereon prepaid at least twenty 6) If the testator acted by mistake or did
(20) days before the hearing, if such places of not intend that the instrument he signed
residence be known. should be his will at the time of affixing
his signature thereto.
A copy of the notice must in like manner be
mailed to the person named as executor, if he REPROBATE; REQUISITES BEFORE WILL
be not be petitioner; also, to any person named PROVED OUTSIDE ALLOWED IN THE
as co-executor not petitioning, if their places of PHILIPPINES; EFFECTS OF PROBATE
residence be known. Personal service of copies
of the notice at least ten (10) days before the Will proved outside Philippines may be allowed
day of hearing shall be equivalent to mailing. If here. Wills proved and allowed in a foreign
the testator asks for the allowance of his own country, according to the laws of such country,
will, notice shall be sent only to his compulsory may be allowed, filed, and recorded by the
heirs. proper Court of First Instance in the Philippines.
If it appears at the hearing that the will should

ALLOWANCE OR DISALLOWANCE OF WILL be allowed in the Philippines, the court shall so
(RULE 76) allow it, and a certificate of its allowance, signed
by the judge, and attested by the seal of the
court, to which shall be attached a copy of the
CONTENTS OF PETITION FOR ALLOWANCE will, shall be filed and recorded by the clerk, and
OF WILL the will shall have the same effect as if
originally proved and allowed in such court.
A petition for the allowance of a will must show,
so far as known to the petitioner: When a will is thus allowed, the court shall grant
1) The jurisdictional facts; letters testamentary or letters of administration
2) The names, ages, and residences of the with the will annexed, and such letters
heirs, legatees, and devisees of the testamentary or of administration, shall extend
testator or decedent; to all the estate of the testator in the
3) The probable value and character of the Philippines. Such estate, after the payment of
property of the estate; just debts and expenses of administration, shall
4) The name of the person for whom letters be disposed of according to such will, so far as
are prayed; such will may operate upon it; and the residue,
5) If the will has not been delivered to the if any, shall be disposed of as is provided by law
court, the name of the person having in cases of estates in the Philippines belonging
custody of it. to persons who are inhabitants of another state
or country.
But no defect in the petition shall render void
the allowance of the will, or the issuance of If the court is satisfied, upon proof taken and
letters testamentary or of administration with filed, that the will was duly executed, and that
the will annexed. the testator at the time of its execution was of
sound and disposing mind, and not acting under
GROUNDS FOR DISALLOWING A WILL duress, menace, and undue influence, or fraud,
a certificate of its allowance, signed by the
The will shall be disallowed in any of the judge, and attested by the seal of the court shall
following cases; be attached to the will and the will and
1) If not executed and attested as required certificate filed and recorded by the clerk.
by law; Attested copies of the will devising real estate
2) If the testator was insane, or otherwise and of certificate of allowance thereof, shall be
mentally incapable to make a will, at the recorded in the register of deeds of the province
time of its execution; in which the lands lie.
3) If it was executed under duress, or the
influence of fear, or threats;
The general rule universally recognized is that competent, accepts the trust, and gives bond as
administration extends only to the assets of the required by these rules.
decedent found within the state or country
where it was granted, so that an administrator When all of the executors named in a will
appointed in one state or country has no power cannot act because of incompetency, refusal to
over the property in another state or country. accept the trust, or failure to give bond, on the
part of one or more of them, letters
When a person dies intestate owning property in testamentary may issue to such of them as are
the country of his domicile as well as in foreign competent, accept and give bond, and they may
country, administration shall be had in both perform the duties and discharge the trust
countries. That which is granted in the required by the will.
jurisdiction of the decedent’s domicile is termed
the principal administration, while any other If no executor is named in the will, or the
administration is termed ancillary executor or executors are incompetent, refuse
administration. The ancillary administration is the trust, or fail to give bond, or a person dies
proper whenever a person dies leaving in a intestate, administration shall be granted:
country other than that of his domicile, property a) To the surviving husband or wife, as the
to be administered in the nature of assets of the case may be, or next of kin, or both, in
decedent, liable for his individual debts or to be the discretion of the court, or to such
distributed among his heirs. person as such surviving husband or
wife, or next of kin, requests to have
appointed, if competent and willing to
LETTERS TESTAMENTARY AND OF serve;
ADMINISTRATION (RULE 78) b) If such surviving husband or wife, as the
case may be, or next of kin, or the
person selected by them, be
Letters testamentary is the appointment issued
incompetent or unwilling, or if the
by a probate court, after the will has been
husband or widow, or next of kin,
admitted to probate, to the executor named in
neglects for thirty (30) days after the
the will to administer the estate of the deceased
death of the person to apply for
testator, provided the executor named in the
administration or to request that
will is competent, accepts the trust and gives a
administration be granted to some other
bond.
person, it may be granted to one or more
of the principal creditors, if competent
WHEN AND TO WHOM LETTERS OF and willing to serve;
ADMINISTRATION GRANTED c) If there is no such creditor competent
and willing to serve, it may be granted to
No person is competent to serve as executor or such other person as the court may
administrator who: select.
a) Is a minor;
b) Is not a resident of the Philippines; and ORDER OF PREFERENCE; PRIORITY IN
c) Is in the opinion of the court unfit to SELECTING AN ADMINISTRATOR
execute the duties of the trust by reason
of drunkenness, improvidence, or want
1) Surviving spouse, or next of kin, or both, or
of understanding or integrity, or by
person as such surviving spouse, or next of
reason of conviction of an offense
kin, requests;
involving moral turpitude.
2) One or more of the principal creditors – if
such surviving spouse, or next of kin, or the
The executor of an executor shall not, as such,
person selected, be incompetent or
administer the estate of the first testator.
unwilling, or if they neglect for 30 days after
the death of the decedent to apply for
A married woman may serve as executrix or
administration or to request that
administratrix, and the marriage of a single
administration be granted to some other
woman shall not affect her authority so to serve
person, it may be granted to, if competent
under a previous appointment.
and willing to serve;
3) Such other person as the court may select.
When a will has been proved and allowed, the
court shall issue letters testamentary thereon to
OPPOSITION TO ISSUANCE OF LETTERS
the person named as executor therein, if he is
TESTAMENTARY; SIMULTANEOUS FILING An administrator of an intestate cannot exercise

OF PETITION FOR ADMINISTRATION the right of legal redemption over a portion of
the property owned in common sold by one of
Any person interested in a will may state in the other co-owners since this is not within the
writing the grounds why letters testamentary powers of administration.
should not issue to the persons named therein
executors, or any of them, and the court, after Where the estate of a deceased person is
hearing upon notice, shall pass upon the already the subject of a testate or intestate
sufficiency of such grounds. A petition may, at proceeding, the administrator cannot enter into
the same time, be filed for letters of any transaction involving it without any prior
administration with the will annexed. approval of the Court.
POWERS AND DUTIES OF EXECUTORS AND The right of an executor or administrator to the
ADMINISTRATORS; RESTRICTIONS ON THE possession and management of the real and
POWERS (RULE 84) personal properties of the deceased is not
absolute and can only be exercised so long as it
An EXECUTOR is the person nominated by a is necessary for the payment of the debts and
testator to carry out the directions and requests expenses of administration.
in his will and to dispose of his property
according to his testamentary provisions after APPOINTMENT OF SPECIAL
his death. ADMINISTRATOR
An ADMINISTRATOR is person appointed by the When there is delay in granting letters

court, in accordance with the governing statute, testamentary or of administration by any cause
to administer and settle intestate estate and including an appeal from the allowance or
such testate estate as no competent executor disallowance of a will, the court may appoint a
was designated by the testator. special administrator to take possession and
charge of the estate of the deceased until the
The executor or administrator of the estate of a questions causing the delay are decided and
deceased partner shall at all times have access executors or administrators appointed.
to, and may examine and take copies of, books
and papers relating to the partnership business, GROUNDS FOR REMOVAL OF
and may examine and make invoices of the ADMINISTRATOR
property belonging to such partnership; and the
surviving partner or partners, on request, shall Administration revoked if will discovered - If
exhibit to him all such books, papers, and after letters of administration have been
property in their hands or control. On the granted on the estate of a decedent as if he had
written application of such executor or died intestate, his will is proved and allowed by
administrator, the court having jurisdiction of the court, the letters of administration shall be
the estate may order any such surviving partner revoked and all powers thereunder cease, and
or partners to freely permit the exercise of the the administrator shall forthwith surrender the
rights, and to exhibit the books, papers, and letters to the court, and render his account
property, as in this section provided, and may within such time as the court directs.
punish any partner failing to do so for contempt. Proceedings for the issuance of letters
testamentary or of administration under the will
An executor or administrator shall maintain in shall be as hereinbefore provided.
tenantable repair the houses and other
structures and fences belonging to the estate, If an executor or administrator neglects to
and deliver the same in such repair to the heirs render his account and settle the estate
or devisees when directed so to do by the court. according to law, or to perform an order or
judgment of the court, or a duty expressly
An executor or administrator shall have the provided by these rules, or absconds, or
right to the possession and management of the becomes insane, or otherwise incapable or
real as well as the personal estate of the unsuitable to discharge the trust, the court may
deceased so long as it is necessary for the remove him, or, in its discretion, may permit
payment of the debts and the expenses of him to resign. When an executor or
administration. administrator dies, resigns, or is removed the
remaining executor or administrator may
administer the trust alone, unless the court

grants letters to someone to act with him. If CLAIM OF EXECUTOR OR ADMINISTRATOR
there is no remaining executor or administrator, AGAINST THE ESTATE
administration may be granted to any suitable
person (Sec. 2, Rule 82). If the executor or administrator has a claim
against the estate he represents, he shall give
notice thereof, in writing, to the court, and the
CLAIMS AGAINST THE ESTATE (RULE 86) court shall appoint a special administrator, who
shall, in the adjustment of such claim, have the
same power and be subject to the same liability
Administration is for the purpose of liquidation
as the general administrator or executor in the
of the estate and distribution of the residue
settlement of other claims.
among the heirs and legatees. Liquidation
means the determination of all the assets of the
The court may order the executor or
estate and payment of all debts and expenses.
administrator to pay to the special administrator
necessary funds to defend such claim.
The purpose of presentation of claims against
decedents of the estate in the probate court is
to protect the estate of deceased persons. That PAYMENT OF DEBTS (RULE 88)
way, the executor or administrator will be able
to examine each claim and determine whether If there are sufficient properties, the debts shall
it is a proper one which should be allowed. be paid, thus:
1) All debts shall be paid in full within the
Further, the primary object of the provisions time limited for the purpose (Sec. 1);
requiring presentation is to apprise the 2) If the testator makes provision by his
administrator and the probate court of the will, or designates the estate to be
existence of the claim so that a proper and appropriated for the payment of debts
timely arrangement may be made for its they shall be paid according to the
payment in full or by pro rata portion in the due provisions of the will, which must be
course of the administration, inasmuch as upon respected (Sec. 2);
the death of a person, his entire estate is 3) If the estate designated in the will is not
burdened with the payment of all his debts and sufficient, such part of the estate as is
no creditor shall enjoy any preference or not disposed of by will shall be
priority; all of them shall share pro rata in the appropriated for the purpose (Sec. 2);
liquidation of the estate of the deceased. 4) The personal estate not disposed of by
will shall be first chargeable with
TIME WITHIN WHICH CLAIMS SHALL BE payment of debts and expenses (Sec. 3);
FILED; EXCEPTIONS 5) If the personal estate is not sufficient, or
its sale would be detrimental to the
participants of the estate, the real estate
The court shall state the time for the filing of
not disposed of by will shall be sold or
claims against the estate, which shall not be
encumbered for that purpose (Sec. 3);
more than twelve (12) nor less than six (6)
6) Any deficiency shall be met by
months after the date of the first publication of
contributions from devisees, legatees
the notice. However, at any time before an
and heirs who have entered into
order of distribution is entered, on application of
possession of portions of the estate
a creditor who has failed to file his claim within
before debts and expenses have been
the time previously limited, the court may, for
paid (Sec. 6);
cause shown and on such terms as are
7) The executor or administrator shall
equitable, allow such claim to be filed within a
retain sufficient estate to pay contingent
time not exceeding one (1) month.
claims when the same becomes absolute
(Sec. 4).
STATUTE OF NON-CLAIMS
If the estate is insolvent, the debts shall be paid
A claim by a person against the estate of
in the following manner:
deceased should be made in not less than 6
1) The executor or administrator shall pay
months nor more than 12 months since the first
the debts in accordance with the
publication of allowance of the will. If the said
preference of credits established by the
claims are not filed within the time limited in the
Civil Code (Sec. 7);
notice, they are forever be barred.
2) No creditor of any one class shall receive

any payment until those of the preceding ACTIONS THAT MAY BE BROUGHT AGAINST
class are paid (Sec. 8); EXECUTORS AND ADMINISTRATORS
3) If there are no assets sufficient to pay
the credits of any one class of creditors, An action to recover real or personal property,
each creditor within such class shall be or an interest therein, from the estate, or to
paid a dividend in proportion to his claim enforce a lien thereon, and actions to recover
(Sec. 8); damages for an injury to person or property,
4) Where the deceased was a nonresident, real or personal, may be commenced against
his estate in the Philippines shall be the executor or administrator.
disposed of in such a way that creditors
in the Philippines and elsewhere may Whenever a party to a pending action dies, and
receive an equal share in proportion to the claim is not thereby extinguished, it shall be
their respective credits (Sec. 9); the duty of his counsel to inform the court
5) Claims duly proved against the estate of within thirty (30) days after such death of the
an insolvent resident of the Philippines, fact thereof, and to give the name and address
the executor or administrator, having of his legal representative or representatives.
had the opportunity to contest such Failure of counsel to comply with this duty shall
claims, shall e included in the certified be a ground for disciplinary action. The heirs of
list of claims proved against the the deceased may be allowed to be substituted
deceased. The owner of such claims shall for the deceased, without requiring the
be entitled to a just distribution of the appointment of an executor or administrator
estate in accordance with the preceding and the court may appoint a guardian ad litem
rules if the property of such deceased for the minor heirs.
person in another country is likewise
equally apportioned to the creditors The court shall forthwith order said legal
residing in the Philippines and other representative or representatives to appear and
creditors, according to their respective be substituted within a period of thirty (30) days
claims (Sec. 10); from notice. If no legal representative is named
6) It must be noted that the payments of by the counsel for the deceased party, or if the
debts of the decedent shall be made one so named shall fail to appear within the
pursuant to the order of the probate specified period, the court may order the
court (Sec. 11). opposing party, within a specified time, to
procure the appointment of an executor or
On granting letters testamentary or administrator for the estate of the deceased and
administration the court shall allow to the the latter shall immediately appear for and on
executor or administrator a time for disposing of behalf of the deceased. The court charges in
the estate and paying the debts and legacies of procuring such appointment, if defrayed by the
the deceased, which shall not, in the first opposing party, may be recovered as costs.
instance, exceed one (1) year; but the court
may, on application of the executor or When the action is for recovery of money arising
administrator and after hearing on such notice from contract, express or implied, and the
of the time and place therefor given to all defendant dies before entry of final judgment in
persons interested as it shall direct, extend the the court in which the action was pending at the
time as the circumstances of the estate require time of such death, it shall not be dismissed but
not exceeding six (6) months for a single shall instead be allowed to continue until entry
extension nor so that the whole period allowed of final judgment. A favorable judgment
to the original executor or administrator shall obtained by the plaintiff therein shall be
exceed two (2) years (Sec. 15). enforced in the manner especially provided in
these Rules for prosecuting claims against the
estate of a deceased person.
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS (RULE 87) REQUISITES BEFORE CREDITOR MAY BRING
AN ACTION FOR RECOVERY OF PROPERTY
No action upon a claim for the recovery of FRAUDULENTLY CONVEYED BY THE
money or debts or interest thereon shall be DECEASED
commenced against the executor or
administrator.
1) There is a deficiency of assets in the hands is binding against the whole world. All persons
of an executor or administrator for the having interest in the subject matter involved,
payment of debts and expenses of whether they were notified or not, are equally
administration; bound.
2) The deceased in his lifetime had made or
attempted to make a fraudulent conveyance LIQUIDATION
of his real or personal property, or a right or
interest therein, or a debt or credit, with When order for distribution of residue
intent to defraud his creditors or to avoid made. When the debts, funeral charges, and
any right, debt or duty; or had so conveyed expenses of administration, the allowance to
such property, right, debt, or credit that by the widow, and inheritance tax, if any,
law the conveyance would be void as chargeable to the estate in accordance with law,
against his creditors; have been paid, the court, on the application of
3) The subject of the attempted conveyance the executor or administrator, or of a person
would be liable to attachment by any of interested in the estate, and after hearing upon
them in his lifetime; notice, shall assign the residue of the estate to
4) The executor or administrator has shown to the persons entitled to the same, naming them
have no desire to file the action or failed to and the proportions, or parts, to which each is
institute the same within a reasonable time; entitled, and such person may demand and
5) Leave is granted by the court to the creditor recover their respective shares from the
to file the action; executor or administrator, or any other person
6) A bond is filed by the creditor as prescribed having the same in his possession. If there is a
in the Rules; controversy before the court as to who are the
7) The action by the creditor is in the name of lawful heirs of the deceased person or as to the
the executor or administrator. distributive shares to which each person is
entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
DISTRIBUTION AND PARTITION (RULE 90) No distribution shall be allowed until the
payment of the obligations above mentioned
has been made or provided for, unless the
Before there could be a distribution of the
distributees, or any of them, give a bond, in a
estate, the following two stages must be
sum to be fixed by the court, conditioned for the
followed:
payment of said obligations within such time as
1) Payment of obligations (liquidation of
the court directs.
estate) – under the Rules, the
distribution of a decedent‘s assets
Questions as to advancement to be
may only be ordered under any of the
determined. Questions as to advancement
following three circumstances:
made, or alleged to have been made, by the
a. when the inheritance tax,
deceased to any heir may be heard and
among other is paid;
determined by the court having jurisdiction of
b. when a sufficient bond is
the estate proceedings; and the final order of
given to meet the payment of
the court thereon shall be binding on the person
the inheritance tax and all
raising the questions and on the heir.
other obligations; and
c. when the payment of the said
By whom expenses of partition paid. If at
tax and all other obligations
the time of the distribution the executor or
has been provided for; and
administrator has retained sufficient effects in
2) Declaration of heirs – there must first
his hands which may lawfully be applied for the
be declaration of heirs to determine
expenses of partition of the properties
to whom the residue of the estate
distributed, such expenses of partition may be
should e distributed. A separate
paid by such executor or administrator when it
action for the declaration of heirs is
appears equitable to the court and not
not proper.
inconsistent with the intention of the testator;
otherwise, they shall be paid by the parties in
And likewise after, not before the declaration of
proportion to their respective shares or interest
heirs is made may the residue be distributed
in the premises, and the apportionment shall be
and delivered to the heirs. The settlement of a
settled and allowed by the court, and, if any
decedent‘s estate is a proceeding in rem which
person interested in the partition does not pay
his proportion or share, the court may issue an

execution in the name of the executor or GENERAL GUARDIANS AND GUARDIANSHIP
administrator against the party not paying for
the sum assessed.
PROJECT OF PARTITION TRUSTEES (RULE 98)
 Project of partition is a document prepared Requisites for existence of a valid trust:

by the executor or administrator setting 1) Existence of a person competent to
forth the manner in which the estate of the create;
deceased is to be distributed among the 2) Sufficient words to create it;
heirs. 3) A person capable of holding as trustee a
 If the estate is a testate estate, the project specified or ascertainable object;
of partition must conform to the terms of the 4) A definite trust res; and
will; if intestate, the project of partition must 5) A declaration of the terms of the trust
be in accordance with the provisions of the
Civil Code. TRUSTEE EXECUTOR /
ADMINISTRATOR
REMEDY OF AN HEIR ENTITLED TO RESIDUE An instrument or agent An executor is the
BUT NOT GIVEN HIS SHARE of the cestui que trust, person named in
who acquires no the will to
1) If there is a controversy before the court as beneficial interest in the administer the
to who are the lawful heirs of the deceased estate; he merely took decedent‘s estate
person or as to the distributive shares to the legal estate only as and carry out the
which each person is entitled under the law, the proper execution of provisions thereof.
the controversy shall be heard and decided the trust required; and, An administrator is
as in ordinary cases. his estate ceases upon the person
2) The better practice for the heir who has not the fulfilment of the appointed by the
received his share is to demand his share testator‘s wishes, in court to administer
through a proper motion in the same which case, the same the estate where
probate or administration proceedings, or for vest absolutely in the the decedent died
reopening of the probate or administrative beneficiary. intestate, or where
proceedings if it had already been closed, the will was void
and not through an independent action, and not allowed to
which would be tried by another court or probate, or where
judge. no executor was
3) It has been held that an order which named in the will,
determines the distributive share of the or the executor
heirs of a deceased person is appealable. If named therein in
not appealed within the reglementary incompetent or
period, it becomes final. refuses to serve as
4) The Court allowed the continuation of a such.
separate action to annul the project of An association or An association or
partition by a preterited heir, since the corporation authorized corporation
estate proceedings have been closed and to conduct the business authorized to
terminated for over three years, and on the of a trust company in conduct the
ground of lesion, preterition and fraud. the Philippines may business of a trust
appointed as trustee of company in the
INSTANCES WHEN PROBATE COURT MAY an estate in the same Philippines may
ISSUE WRIT OF EXECUTION manner as an individual appointed as
(Art. 1060, CC). executor or
a) To satisfy the contributive shares of administrator of an
devisees, legatees and heirs in possession of estate in the same
the decedent‘s assets; manner as an
b) To enforce payment of expenses of partition; individual (Art.
and 1060, CC).
c) To satisfy the costs when a person is cited Duties are usually Duties are fixed
for examination in probate proceedings. governed by the and/or limited by
intention of the trustor law (Rule 84). a court shall be required to furnish a bond in
or the parties if order to qualify him to administer the trust.
established by a
contract. However, the court may until further order
Duties may cover a exempt a trustee under a will from giving a
wider range. bond when the testator has directed or
Grounds for removal of Grounds for requested such exemption or when all persons
trustee: removal: beneficially interested in the trust, being of full
a) Insanity; a) Neglect to age, request the exemption. Such exemption
b) Incapability of render an may be cancelled by the court at any time, and
discharging trust or account and the trustee required to forthwith file a bond. If
evidently unsuitable settle the estate the trustee fails to furnish a bond as required by
therefor (Sec. 8, according to the court, he fails to qualify as such.
Rule 98); law; Nonetheless the trust is not defeated by such a
c) Neglect in the b) Neglect to failure to give bond.
performance of his perform an
duties; order or The following conditions shall be deemed to be
d) Breach of trust judgment of the a part of the bond whether written therein or
displaying a want of court; not:
fidelity, not mere c) Neglect to a) That the trustee will make and return to
error in the perform a duty the court, at such time as it may order, a
administration of the expressly true inventory of all the real and
trust; provided by personal estate belonging to him as
e) Abuse and these rules; trustee, which at the time of the making
abandonment of the d) Absconds, or of such inventory shall have come to his
trust; becomes possession or knowledge;
f) Refusal to recognize insane, or b) That he will manage and dispose of all
or administer the e) otherwise such estate, and faithfully discharge his
trust; incapable or trust in relation thereto, according to law
g) Failure or neglect or unsuitable to and the will of the testator or the
impropriety in discharge trust; provisions of the instrument or order
investment of the f) (e) Fraud or under which he is appointed;
trust estate as to misrepresentati c) That he will render upon oath at least
give rise to waste of on once a year until his trust is fulfilled,
trust property; unless he is excused therefrom in any
h) Failure to file year by the court, a true account of the
accounts, and failure property in his hands and of the
of one co-trustee to management and disposition thereof,
keep himself and will render such other accounts as
informed of the the court may order.
conduct of the other
in the administration That at the expiration of his trust he will settle
of the trust. his accounts in court and pay over and deliver
all the estate remaining in his hands, or due
CONDITIONS OF THE BOND from him on such settlement, to the person or
persons entitled thereto. But when the trustee is
A trustee appointed by the court is required to appointed as a successor to a prior trustee, the
furnish a bond and the terms of the trust or a court may dispense with the making and return
statute may provide that a trustee appointed by of an inventory, if one has already been filed,
and in such case the condition of the bond shall
be deemed to be altered accordingly.
REQUISITES FOR THE REMOVAL AND petitioners. The court may also, after due notice
RESIGNATION OF A TRUSTEE to all persons interested, remove a trustee who
is insane or otherwise incapable of discharging
A trustee may be removed upon petition to the his trust or evidently unsuitable therefor. A
proper RTC of the parties beneficially interested, trustee, whether appointed by the court or
after due notice to the trustee and hearing, if it under a written instrument, may resign his trust
appears essential in the interests of the if it appears to the court proper to allow such
resignation.
Philippines, become the property of the state

A trustee whose acts or omissions are such as upon his death, without leaving any will or legal
to show a want of reasonable fidelity will be heirs.
removed by the court and where trust funds are
to be invested by the trustee, neglect to invest WHEN TO FILE
constitutes of itself a breach of trust, and is a
ground for removal. When a person dies intestate, seized of real or
personal property in the Philippines, leaving no
GROUNDS FOR REMOVAL AND heir or person by law entitled to the same, the
RESIGNATION OF A TRUSTEE Solicitor General or his representative in behalf
of the Republic of the Philippines, may file a
The proper Regional Trial Court may, upon petition in the Court of First Instance of the
petition of the parties beneficially interested province where the deceased last resided or in
and after due notice to the trustee and hearing; which he had estate, if he resided out of the
remove a trustee if such removal appears Philippines, setting forth the facts, and praying
essential in the interests of the petitioners. The that the estate of the deceased be declared
court may also, after due notice to all persons escheated.
interested, remove a trustee who is insane or
otherwise incapable of discharging his trust or REQUISITES FOR FILING OF PETITION
evidently unsuitable therefor. A trustee,
whether appointed by the court or under a a) That a person died intestate;
written instrument, may resign his trust if it b) That he left no heirs or person by law
appears to the court proper to allow such entitled to the same; and
resignation. c) That the deceased left properties.
A trustee whose acts or omissions are such as REMEDY OF RESPONDENT AGAINST

to show a want of reasonable fidelity will be PETITION; PERIOD FOR FILING A CLAIM
removed by the court and where trust funds are
to be invested by the trustee, neglect to invest If a devisee, legatee, heir, widow, widower or
constitutes of itself a breach of trust, and is a other person entitled to such estate appears
ground for removal. and files a claim thereto with the court within 5
years from the date of such judgment, such
EXTENT OF AUTHORITY OF TRUSTEE person shall have possession of and title to the
same, or if sold, the municipality or city shall be
A trustee appointed by the RTC shall have the accountable to him for the proceeds, after
same rights, powers, and duties as if he had deducting reasonable charges for the care of
been appointed by the testator. No person the estate; hence, claim not made within such
succeeding to a trust as executor or time limit shall forever be barred.
administrator of a former trustee shall be
required to accept such trust.
GUARDIANSHIP (RULES 92 – 97)
Such new trustee shall have and exercise the
same powers, rights, and duties as if he had
been originally appointed, and the trust estate Guardianship is the power of protective
shall vest in him in like manner as it had vested authority given by law and imposed on an
or would have vested, in the trustee in whose individual who is free and in the enjoyment of
place he is substituted; and the court may order his rights, over one whose weakness on account
such conveyance to be made by the former of his age or other infirmity renders him unable
trustee or his representatives, or by the other to protect himself. Guardianship may also
remaining trustees, as may be necessary or describe the relation subsisting between the
proper to vest the trust estate in the new guardian and the ward. It involves the taking of
trustee, either alone or jointly with the others. possession of an management of, the estate of
another unable to act for himself.
ESCHEAT (RULE 91) A guardian is a person lawfully invested with

power and charged with the duty of taking care
of a person who for some peculiarity or status or
Escheat is a proceeding whereby the real and defect of age, understanding or self-control is
personal property of a deceased person in the
considered incapable of administering his own GUARDIAN

affairs.
a) To file with the court complete inventory of
Kinds of guardians: the estate of the ward within 3 months;
1) According to scope or extent b) To faithfully execute the duties of his trust to
a) Guardian of the person – one who has manage and dispose of the estate according
been lawfully invested with the care of to the Rules for the best interests of the
the person of minor whose father is ward, and to provide for the proper use,
dead. His authority is derived out of that custody, and education of the ward;
of the parent; c) To render a true account of all the estate,
b) Guardian of the property – that and of the management and disposition of
appointed by the court to have the the same;
management of the estate of a minor or d) To settle his accounts with the court and
incompetent person; deliver over all the estate remaining in his
c) General guardians – those appointed by hands to the person entitled thereto;
the court to have the care and custody of e) To perform all orders of the court by him to
the person and of all the property of the be performed (Sec. 1; Sec. 14, AM 03-02-05-
ward. SC).
2) According to constitution
a) Legal – those deemed as guardians RULE ON GUARDIANSHIP OVER MINORS
without need of a court appointment (AM 03-02-05-SC)
(Art. 225, Family Court);
b) Guardian ad litem – those appointed by The father and mother shall jointly exercise
courts of justice to prosecute or defend a legal guardianship over the person and property
minor, insane or person declared to be of their unemancipated common child without
incompetent, in an action in court; and the necessity of a court appointment. The Rule
c) Judicial – those who are appointed by the shall be suppletory to the provisions of the
court in pursuance to law, as guardian Family Code on guardianship.
for insane persons, prodigals, minor heirs
or deceased was veterans and other On grounds authorized by law, any relative or
incompetent persons. other person on behalf of a minor, or the minor
himself if 14 years of age or over, may petition
the Family Court for the appointment of a
GENERAL POWERS AND DUTIES OF general guardian over the person or property, or
GUARDIANS (RULE 96) both, of such minor. The petition may also be
filed by the Secretary of DSWD and of the DOH
in the case of an insane minor who needs to be
a) To have care and custody over the person of
hospitalized.
his ward, and/or the management of his
estate (Sec. 1);
Grounds of petition:
b) To pay the just debts of his ward out of the
a) Death, continued absence, or incapacity
latter‘s estate (Sec. 2);
of his parents;
c) To bring or defend suits in behalf of the
b) Suspension, deprivation or termination of
ward, and, with the approval of the court,
parental authority;
compound for debts due the ward and give
c) Remarriage of his surviving parent, if the
discharges to the debtor (Sec. 3);
latter is found unsuitable to exercise
d) To manage the estate frugally and without
parental authority; or
waste, and apply the income and profits to
d) When the best interest of the minor so
the comfortable and suitable maintenance of
require.
the ward and his family (Sec. 4);
e) To sell or encumber the real estate of the
Qualifications of guardians:
ward upon being authorized to do so (Sec.
a) Moral character;
4);
b) Physical, mental and psychological
f) To join in an assent to a partition of real or
condition;
personal estate held by the ward jointly or in
c) Financial status;
common with others (Sec. 5).
d) Relationship of trust with the minor;
CONDITIONS OF THE BOND OF THE
e) Availability to exercise the powers and e) The nature and frequency of contact with
duties of a guardian for the full period of both parents;
the guardianship; f) Habitual use of alcohol, dangerous drugs
f) Lack of conflict of interest with the or regulated substances;
minor; and g) Marital misconduct;
g) Ability to manage the property of the h) The most suitable physical, emotional,
minor. spiritual, psychological and educational
environment for the holistic development
Order of preference in the appointment of and growth of the minor; and
guardian or the person and/or property of i) The preference of the minor over 7 years
minor: of age and of sufficient discernment,
a) The SURVIVING GRANDPARENT and in unless the parent chosen is unfit (Sec.
case several grandparents survive, the 14, AM No. 03-04-04-SC).
court shall select any of them taking into  The court shall order a social worker to
account all relevant considerations; conduct a case study of the minor and all
b) The OLDEST BROTHER OR SISTER of the the prospective guardians and submit his
minor over 21 years of age, unless unfit report and recommendation to the court
or disqualified; for its guidance before the scheduled
c) The ACTUAL CUSTODIAN of the minor hearing.
over 21 years of age, unless unfit or
disqualified; and
d) Any OTHER PERSON, who in the sound ADOPTION (RULES 99
discretion of the court, would serve the 100, SUPERSEDED BY AM 02-6-02-SC)
best interests of the minor.
 Adoption is a juridical act which creates
Factors to consider in determining custody: between two persons a relationship similar
a) Any extrajudicial agreement which the to that which results from legitimate
parties may have bound themselves to paternity.
comply with respecting the rights of the  Adoption is a juridical act, a proceeding in
minor to maintain direct contact with the rem, which creates between the two persons
non-custodial parent on a regular basis, a relationship similar to that which results
except when there is an existing threat from legitimate paternity and filiation.
or danger of physical, mental, sexual or  Adoption is not an adversarial proceeding.
emotional violence which endangers the An adversarial proceeding is one having
safety and best interests of the minor; opposing parties, contested, as
b) The desire and ability of one parent to distinguished from an ex parte application,
foster an open and loving relationship one of which the party seeking relief has
between the minor and the other parent; given legal warning to the other party and
c) The health, safety and welfare of the afforded the latter an opportunity to contest
minor; it excludes an adoption proceeding. In
d) Any history of child or spousal abuse by adoption, there is no particular defendant to
the person seeking custody or who has speak of since the proceeding involves the
had any filial relationship with the minor, status of a person it being an action in rem.
including anyone courting the parent;
DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

Governed by RA 8552, the Domestic Governed by RA 8043, the Inter-Country Adoption
Adoption Act of 1998; procedure governed Act of 1995; procedure governed by the Amended
by AM No. 02-06-02-SC, Aug. 22, 2002. Implementing Rules and Regulations on ICAA.
Applies to domestic adoption of Filipino Applies to adoption of a Filipino child in a foreign
children, where the entire adoption country, where the petition for adoption is filed, the
process beginning from the filing of the supervised trial custody is undertaken and the
petition up to the issuance of the adoption decree of adoption is issued outside of the
decree takes place in the Philippines. Philippines.
Who may be adopted Who may be adopted
A child legally available for adoption. Only a legally free child may be adopted.
Requisites: Requisites:
a) Below 18 years of age; and a) Below 15 years of age; and
b) Judicially declared available for b) Has been voluntarily or involuntarily
adoption. committed to the DSWD in accordance with
c) Exceptions: PD 603.
d) Legitimate son/daughter of one
spouse by the other spouse;
e) Illegitimate son/daughter by a
qualified adopter;
f) 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.
Who may adopt Who may adopt
A. FILIPINO CITIZENS A. FILIPINO CITIZENS
1) Of legal age; 1) Permanent resident of a foreign country;

2) In possession of full civil capacity 2) Has the capacity to act and assume all rights
and legal rights; and responsibilities of parental authority
3) Of good moral character; under Philippine laws;
4) Has not been convicted of any 3) Has undergone the appropriate counseling
crime involving moral turpitude; from an accredited counselor in country of
5) Emotionally and psychologically domicile;
capable of caring for children; 4) Has not been convicted of a crime involving
6) In a position to support and care for moral turpitude;
his/her children in keeping with the 5) Eligible to adopt under Philippine laws;
means of the family; 6) In a position to provide the proper care and
7) At least 16 years older than the support and to give the necessary moral
adoptee but this latter requirement values and example to all his children,
may be waived if (a) the adopter is including the child to be adopted;
the biological parent of the 7) Agrees to uphold the basic rights of the child
adoptee; or (b) the adopter is the as embodied under Philippine laws, the UN
spouse of the adoptee‘s parent; and Convention on Rights of the Child, and to
8) Permanent resident of the abide by the rules and regulations issued to
Philippines. implement the provisions of the ICAA;
8) Residing in a country with whom the
B. ALIENS Philippines has diplomatic relations and
whose government maintains a similarly
1) Same qualifications as above, and authorized and accredited agency and that
in addition: adoption is allowed in that country;
2) His/her country has diplomatic 9) Possesses all the qualifications and none of
relations with the Republic of the the disqualifications provided in the ICAA and
Philippines; in other applicable Philippine laws;
3) His/her government allows the 10) At least 27 years of age at the time of the
adoptee to enter his/her country as application; and
his/her adopted son/daughter; 11) At least 16 years older than the child to be
4) Has been living in the Philippines adopted at the time of application, unless (a)
for at least 3 continuous years prior adopted is the parent by nature of the child to
to the filing of the application for be adopted; or (b) adopter is the spouse of
adoption and maintains such the parent by nature of the child to be
residence until the adoption decree adopted.
is entered; and
5) Has been certified by his/her B. ALIENS
diplomatic or consular office or any
appropriate government agency 1) At least 27 years of age at the time of the
that he/she has the legal capacity application;
to adopt in his/her country. This 2) At least 16 years older than the child to be
requirement may be waived if (a) a adopted at the time of application unless the
former Filipino citizens seeks to adopter is the parent by nature of the child to
adopt a relative within the 4th be adopted or the spouse of such parent;
degree of consanguinity or affinity; 3) Has the capacity to act and assume all rights
(b) one seeks to adopt the and responsibilities of parental authority
legitimate son/daughter of his/her under his national laws;
Filipino spouse; (c) one who is 4) Has undergone the appropriate counseling
married to a Filipino citizen and from an accredited counselor in his/her
seeks to adopt a relative within the country;
4th degree of consanguinity or 5) Has not been convicted of a crime involving
affinity of the Filipino spouse. moral turpitude;
6) Eligible to adopt under his/her national law;
7) 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;
8) Agrees to uphold the basic rights of the child

as embodied under Philippine laws, the UN
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of the ICAA;
9) 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; and
10) Possesses all the qualifications and none of
the disqualifications provided in the ICAA and
in other applicable Philippine laws.
Requirement of Joint Adoption by Requirement of Joint Adoption by
Spouses Spouses
General rule: husband and wife shall jointly Rule: if the adopter is married, his/her spouse must
adopt; otherwise, the adoption shall not be jointly file for the adoption.
allowed.
Exceptions:
1) If one spouse seeks to adopt the
legitimate son/daughter of the
other;
2) If one spouse seeks to adopt his/her
own illegitimate son/daughter but
the other spouse must give his/her
consent;
3) If the spouses are legally separated
from each other.
Procedure Procedure
Where to file application: In the Family Where to file application: Either in (a) Family Court
Court of the province or city where the having jurisdiction over the place where the child
prospective parents reside. resides or may be found, or (b) Inter-Country
After filing: The petition shall not be set for Adoption Board (ICAB) through an intermediate
hearing without a case study report by a agency, whether governmental or an authorized and
licensed social worker. accredited agency, in the country of the prospective
adoptive parents.
Supervised Trial Custody:
a) Temporary parental authority is After filing:
vested in prospective adopter; a) if filed in the FC, court determines sufficiency
b) Period is at least 6 months, but may of petition in respect to form and substance,
be reduced by the court motu after which, petition is transmitted to ICAB;
propio or upon motion; b) if petition is already with ICAB, it conducts
c) If adopter is alien, the law matching of the applicant with an adoptive
mandatorily requires completion of child;
the 6-month trial custody and may c) after matchmaking, the child is personally
not be reduced, except if: fetched by the applicant for the trial custody
1) a former Filipino citizen seeks to which takes place outside of the Philippines.
adopt a relative within 4th
degree of consanguinity or Supervised Trial Custody:
affinity; a) This process takes place outside of the
2) one seeks to adopt the country and under the supervision of the
legitimate son/daughter of foreign adoption agency;
his/her Filipino spouse; b) For a period of 6 months;
3) one who is married to a Filipino c) If unsuccessful, ICAB shall look for another
citizen and seeks to adopt prospective applicant. Repatriation of the
jointly with his/her spouse a child is to be resorted only as a last resort;
relative within the 4th degree of d) If successful, ICAB transmits a written consent
consanguinity or affinity of the for the adoption to be executed by the DSWD,

Filipino spouse. and the applicant then files a petition for
adoption in his/her country.
Decree of Adoption: Issued by Philippine
Family Court. Decree of Adoption: Issued by a foreign court.
Consent Required: Written consent of the Consent Required:
following to the adoption is required, in the 1) Written consent of biological or adopted
form of affidavit: children above 10 years of age, in the form of
sworn statement is required to be attached to
1) adoptee, if 10 years of age or over; the application to be filed with the FC or ICAB;
2) biological parent/s of the child, if 2) If a satisfactory pre-adoptive relationship is
known, or the legal guardian, or the formed between the applicant and the child,
proper government instrumentality the written consent to the adoption executed
which has legal custody of the child; by the DSWD is required.
3) legitimate and adopted sons or
daughters, 10 years of age or over, of
the adopter/s and adoptee, if any;
4) illegitimate sons/daughters, 10 years of
age of over, of the adopter if living with
said adopter and the latter‘s spouse, if
any;
5) spouse, if any, of the person adopting
or to be adopted.
DOMESTIC ADOPTION ACT a) The adoption decree shall state the

(RA 8552; AM 02-06-02-SC) name by which the child is to be known.
An amended certificate of birth shall be
issued by the Civil Registry attesting to
EFFECTS OF ADOPTION the fact that the adoptee is the child of
the adopter(s) by being registered with
Transfer of parental authority – except in his/her surname;
cases where the biological parent is the spouse b) The original certificate of birth shall be
of the adopter, the parental authority of the stamped “cancelled” with the annotation
biological parents shall terminate and the same of the issuance of an amended birth
shall be vested in the adopters. certificate in its place and shall be sealed
in the civil registry records. The new
Legitimacy – the adoptee shall be considered birth certificate to be issued to the
the legitimate son/daughter of the adopter(s) adoptee shall not bear any notation that
for all intents and purposes and as such is it is an amended issue;
entitled to all the rights and obligations c) All records, books, and papers relating to
provided by law to legitimate sons/daughters the adoption cases in the files of the
born to them without discrimination of any kind. court, the DSWD, or any other agency or
institution participating in the adoption
Successional rights proceedings shall be kept strictly
a) In legal and intestate succession, the confidential and the court may order its
adopter(s) and the adoptee shall have release under the following conditions
reciprocal rights of succession without only: (1) the disclosure of the information
distinction from legitimate filiation; to a third person is necessary for
b) However, if the adoptee and his/her purposes connected with or arising out of
biological parent(s) had left a will, the the adoption; (2) the disclosure will be
law on testamentary succession shall for the best interest of the adoptee; and
govern; (3) the court may restrict the purposes
c) The adoptee remains an intestate heir of for which it may be used.
his/her biological parent.
INSTANCES WHEN ADOPTION MAY BE
Issuance of new certificate and first name RESCINDED
and surname of adoptee
Grounds for rescission: the Board, through an intermediate agency,

a) Repeated physical and verbal whether governmental or an authorized and
maltreatment by the adopter(s) despite accredited agency, in the country of the
having undergone counselling; prospective adoptive parents, which application
b) Attempt on the life of the adoptee; shall be in accordance with the requirements as
c) Sexual assault or violence; or set forth in the implementing rules and
d) Abandonment and failure to comply with regulations.
parental obligations.
“BEST INTEREST OF THE MINOR”
Prescriptive period: STANDARD
a) If incapacitated – within five (5) years
after he reaches the age of majority; In case of custody cases of minor children, the
b) If incompetent at the time of the court after hearing and bearing in mind the best
adoption – within five (5) years after interest of the minor, shall award the custody as
recovery from such incompetency. will be for the minor‘s best interests.
EFFECTS OF RESCISSION OF ADOPTION “Best interests of the child” - means the

totality of the circumstances and conditions as
1) Parental authority of the adoptee‘s biological are most congenial to the survival, protection,
parent(s), if known, or the legal custody of and feelings of security of the child and most
the DSWD shall be restored if the adoptee is encouraging to his physical, psychological, and
still a minor or incapacitated; emotional development. It also means the least
2) Reciprocal rights and obligations of the detrimental available alternative for
adopter(s) and the adoptee to each other safeguarding the growth and development of
shall be extinguished; the child.
3) Cancellation of the amended certificate of
birth of the adoptee and restoration of
his/her original birth certificate; and
4) Succession rights shall revert to its status WRIT OF HABEAS CORPUS (RULE 102)
prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights
Writ of habeas corpus is a writ which has been
acquired prior to judicial rescission shall be
esteemed to the best and only sufficient
respected.
defense of personal freedom having for its
object the speedy release by judicial decree of
INTER-COUNTRY ADOPTION (RA 8043)
persons who are illegally restrained of their
liberty, or illegally detained from the control of
Inter-Country Adoption refers to the socio-legal
those who are entitled to their custody.
process of adopting a Filipino child by a
foreigner or a Filipino citizen permanently
The writ of habeas corpus shall extend to all
residing abroad where the petition is filed, the
cases of illegal confinement or detention by
supervised trial custody is undertaken, and the
which any person is deprived of his liberty, or by
decree of adoption is issued in the Philippines.
which the rightful custody of any person is
withheld from the person entitled thereto. The
WHEN ALLOWED function of the special proceeding of habeas
corpus is to inquire into the legality of one’s
 Inter-country adoptions are allowed when detention.
the same shall prove beneficial to the child‘s
best interests, and shall serve and protect In all petitions for habeas corpus, the court must
his/her fundamental rights. inquire into every phase and aspect of the
 It is allowed when all the requirements and petitioner’s detention from the moment
standards set forth under RA 8043 are petitioner was taken into custody up to the
complied with. moment the court passes upon the merits of the
petition and only after such scrutiny can the
FUNCTIONS OF THE RTC court satisfy itself that the due process clause of
the Constitution has been satisfied.
An application to adopt a Filipino child shall be
filed either with the Philippine Regional Trial However, once the person detained is duly
Court having jurisdiction over the child, or with charged in court, he may no longer question his
detention by a petition for the issuance of a writ stay with her employer, maintains illicit
of habeas corpus. His remedy then is the relationship with him.
quashal of the information and/or the warrant of 9) When a bond given by an accused
arrest duly issued. The reason for the issuance entitled thereto is not admitted or
of the writ even becomes more unavailing when excessive bail is required of him.
the person detained files a bond for his 10) To determine the legality of an
temporary release. extradition.
11) To determine the legality of the action of
Habeas corpus may not be used as a means of a legislative body in punishing a citizen
obtaining evidence on the whereabouts of a for contempt.
person, or as a means of finding out who has 12) To obtain freedom after serving
specifically abducted or caused the minimum sentence when the penalty
disappearance of a certain person. under an old law has been reduced by an
amendatory law.
The writs of habeas corpus and certiorari may
be ancillary to each other where necessary to (Note: for CONTENTS OF THE PETITION and
give effect to the supervisory powers of the CONTENTS OF THE RETURN of Habeas
higher courts. A writ of habeas corpus reaches Corpus, please see the table below)
the body and the jurisdictional matters, but not
the record. A writ of certiorari reaches the PEREMPTORY WRIT PRELIMINARY
record but not the body. Hence, a writ of habeas CITATION
corpus may be used with the writ of certiorari Unconditionally Requires the
for the purpose of review. commands the respondent to appear
respondent to have and show cause why
The general rule is that the release, whether the body of the the peremptory writ
permanent or temporary, of a detained person detained person should not be granted
renders the petition for habeas corpus moot and before the court at a
academic, unless there are restraints attached time and place therein
to his release which precludes freedom of specified;
action, in which case the Court can still inquire
into the nature of his involuntary restraint.
Petitioner’s temporary release does not render WHEN NOT PROPER/APPLICABLE
the petition for writ moot and academic.
Instances when the writ of habeas corpus is not
Some instances when the writ may issue: proper are:
1) To inquire into the legality of an order of a) For asserting or vindicating denial of
confinement by a court martial. right to bail;
2) To test the legality of an alien’s b) For correcting errors in appreciation of
confinement and proposed expulsion facts or appreciation of law – where the
from the Philippines. trial court had no jurisdiction over the
3) To enable parents to regain custody of a cause, over the person of the accused,
minor child, even if the latter be in the and to impose the penalty provided for
custody of a third person of her own free by law, the mistake committed by the
will. trial court, in the appreciation of the
4) To obtain freedom for an accused facts and/or in the appreciation of the
confined for failure to post bail where the law cannot be corrected by habeas
prosecuting officer unreasonably delays corpus;
trial by continued postponement. c) Once a person detained is duly charged
5) To give retroactive effect to a penal in court, he may no longer file a petition
provision favorable to the accused when for habeas corpus. His remedy would be
the trial judge has lost jurisdiction by to quash the information or warrant.
virtue of the finality of the judgment of
conviction. WHEN WRIT DISALLOWED/DISCHARGED
6) To determine the constitutionality of a
statute. If it appears that the person alleged to be
7) To permit an alien to land in the restrained of his liberty is in the custody of an
Philippines. officer under process issued by a court or judge
8) To put an end to an immoral situation, as or by virtue of a judgment or order of a court of
when a minor girl, although preferring to
record, and that the court or judge had defect in the process, judgment, or order. Nor
jurisdiction to issue the process, render the shall anything in this rule be held to authorize
judgment, or make the order, the writ shall not the discharge of a person charged with or
be allowed; or if the jurisdiction appears after convicted of an offense in the Philippines, or of
the writ is allowed, the person shall not be a person suffering imprisonment under lawful
discharged by reason of any informality or judgment.
WRIT OF HABEAS WRIT OF AMPARO WRIT OF HABEAS DATA

CORPUS
A remedy available to any A remedy available to any A remedy available to any person
person, it covers cases of person whose right to life, whose right to privacy in life,
illegal confinement or liberty and security is liberty or security is violated or
detention by which any violated or threatened with threatened by an unlawful act or
person is deprived of his violation by an unlawful act or omission of a public official or
liberty, or by which the omission of a public official or employee, or of a private individual
rightful custody of any employee, or of a private or entity engaged in the gathering,
person is withheld from the individual or entity. The writ collecting or storing of data or
person entitled thereto. covers extrajudicial killings information regarding the person,
and enforced disappearances family, home and correspondence
or threats thereof. of the aggrieved party.
It is a form of constitutional
relief.
Who may file petition: Who may file (in order): Who may file (in order):
By the party for whose relief a) Any member of the a) Any member of the immediate
it is intended, or by some immediate family: spouse, family: spouse, children and
person on his behalf. children and parents of the parents of the aggrieved party;
aggrieved party; b) Any ascendant, descendant or
b) Any ascendant, collateral relative of aggrieved
descendant or collateral party within the 4th civil degree
relative of aggrieved party of consanguinity or affinity.
within the 4th civil degree
of consanguinity or
affinity;
c) Any concerned citizen,
organization, association
or institution, if no known
member of immediate
family.
Filing by the aggrieved party
suspends the right of all other
authorized person to file such
petition.
Where to file: Where to file: Where to file:
RTC, enforceable within its RTC, Sandiganbayan, CA, SC; RTC, SC, CA, Sandiganbayan; Writ is
area of jurisdiction. CA or Writ is enforceable anywhere also enforceable anywhere in the
SC, enforceable anywhere in in the Philippines. Philippines.
the Philippines.
Where is the venue:
If filed in the RTC:
a) in the place where the
petitioner resides;
b) in the place where the
respondents reside;
c) in the place where the data
or information is gathered,
collected or stored.
– At the option of the
petitioner
Petitioner is exempted to pay Indigent petitioner is exempted to
docket and other lawful fees. pay docket and other lawful fees.
When issued: When issued: When issued:
Forthwith when a petition Immediately if on its face it Immediately if on its face it ought to
therefor is presented and it ought to be issued; Served be issued; Served within 3 days
appears that the writ ought immediately; Summary from issuance; Summary hearing
to issue, hearing set not later than set not later than ten (10) work
seven (7) days from date of days from date of issuance.
issuance.
Contents of verified petition: Contents of verified petition: Contents of verified petition:
a) That the person in whose a) Personal circumstances of a) Personal circumstances of
behalf the application is petitioner and of petitioner and respondent;
made is imprisoned or respondent responsible for b) The manner the right to privacy
restrained of his liberty; the threat, act or omission; is violated or threatened and
b) The officer or name of b) Violated or threatened how it affects the right to life,
the person by whom he right to life, liberty and liberty or security of aggrieved
is so imprisoned or security of aggrieved party;
restrained; or, if both are party, and how committed c) Actions and recourses taken by
unknown or uncertain, with attendance petitioner to secure the data or
such officer or person circumstances detailed in information;
may be described by an supporting affidavits; d) Location of files, registers or
assumed appellation, c) Investigation conducted, databases, government office,
and the person who is specifying names, personal and the person in charge, in
served with the writ shall circumstances and possession or in control of the
be deemed the person addresses of investigating data or information, if known;
intended; authority or individuals, as e) Reliefs prayed for, which may
c) The place where he is so well as manner and include the updating,
imprisoned or restrained, conduct of investigation rectification, suppression or
if known; together with any report; destruction of the database or
d) A copy of the d) Actions and recourses information or files kept by
commitment or cause of taken by petitioner to respondent;
detention of such person, determine the fate or f) In case of threats, relief may
if it can be procured whereabouts of aggrieved include a prayer for an order
without impairing the party and identity of enjoining the act complained of;
efficiency of the remedy; person responsible for the and
or, if the imprisonment or threat, act or omission; g) Such other reliefs as are just
restraint is without any and and equitable.
legal authority, such fact e) The relief prayed for.
shall appear f) May include general prayer
for other just and equitable
reliefs.
b) If he has the party in his Contents of return: Contents of return:
custody or power, or Within 72 hours after service a) Lawful defenses such as
under restraint, the of the writ, respondent shall national security, state secrets,
authority and the true file a verified written return privileged communications,
and whole cause thereof, together with the supporting confidentiality of source of
set forth at large, with a affidavits, which shall contain: information;
copy of the writ, order, a) Lawful defenses; b) Disclosure of data/info about
execution, or other b) Steps or actions taken to petitioner, nature of data/info,
process, if any, upon determine whereabouts of purpose of collection;
c) which
If thethe partyisis held;
party in his aggrieved party; c) Steps or actions taken by
custody or power or is c) All relevant information respondent to ensure security
restrained by him, and is pertaining to threat, act or and confidentiality of data or
not produced, omission against information;
particularly the nature aggrieved party; d) Currency and accuracy of data
and gravity of the d) If respondent is a public or information;
sickness or infirmity of official or employee, e) Other allegations relevant to
such party by reason of further state: resolution of the proceedings.

which he cannot, without 1) verify the identity of
danger, be brought aggrieved; * A general denial of the
before the court or 2) recover and preserve allegations in the petition is not
judge; evidence related to allowed.
d) If he has had the party in death or disappearance
his custody or power, or of person identified in
under restraint, and has petition;
transferred such custody 3) identify witnesses and
or restraint to another, their statements;
particularly to whom, at 4) determine cause,
what time, for what manner, location and
cause, and by what time of death or
authority such transfer disappearance as well
was made. as pattern or practice;
5) identify and apprehend
person/s involved in
the
death/disappearance;
6) bring suspected
offenders before a
competent court.
Effects of failure to file return: Effects of failure to file return:
The court, justice or judge The court, justice or judge shall
shall proceed to hear the proceed to hear the petition ex
petition ex parte. parte, granting the petitioner such
relief as the petition may warrant
unless the court in its discretion
requires petitioner to submit
evidence.
Procedure for hearing: Procedure for hearing:
The hearing on the petition The hearing on the petition shall be
shall be summary. However summary. However the court,
the court, justice or judge may justice or judge may call for a
call for a preliminary preliminary conference to simplify
conference to simplify the the issues and determine the
issues and determine the possibility of obtaining stipulations
possibility of obtaining and admissions from the parties.
stipulations and admissions
from the parties. The hearing
shall be from day to day until
completed and given the
same priority as petitions for
habeas corpus.
a) ) Temporary Protection (Not applicable)
Order – protected in a
government agency of by
an accredited person or
private institution capable
of keeping and securing
b) Inspection Order – with a
lifetime of 5 days which
may be extended, may be
opposed on the ground of
national security or
privileged information,
allows entry into and
inspect, measure, survey
or photograph the
property;
c) Production Order – to
require respondents to
produce and permit
inspection, copying or
photographing of
documents, papers, books,
accounts, letters,
photographs, objects or
tangible things that
contain evidence.
d) Witness Protection Order –
the court may refer the
witnessed to the DOJ
Effect of filing criminal action: Effect of filing criminal action:
A criminal action first filed A criminal action first filed excludes
excludes the filing of the writ; the filing of the writ; relief shall be
relief shall be by motion in the by motion in the criminal case; A
criminal case. A criminal case criminal case filed subsequently
filed subsequently shall be shall be consolidated with the
consolidated with the petition petition for the writ of habeas data.
for the writ of amparo.
Appeal: Appeal: Appeal:
To the SC under Rule 45, To the SC under Rule 45, Any party may appeal the decision
within 48 hours from notice within 5 days from notice of within 5 working days from the final
of judgment. A writ of adverse judgment, to be given judgment or order to the SC by way
habeas corpus does not lie the same priority as habeas of Petition for Review on Certiorari
where petitioner has the corpus cases. under Rule 45 on pure questions of
remedy of appeal or law and facts or both, to be given
certiorari because it will not the same priority as habeas corpus
be permitted to perform the and amparo cases.
functions of a writ of error or
appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court
having jurisdiction over the
person and the subject
matter.
Quantum of proof: Quantum of proof:
By substantial evidence. The court shall render judgment
Private respondent to prove within 10 days from the time the
ordinary diligence was petition is submitted for decision. If
observed in the performance the allegations are proven by
of duty. Public substantial evidence, the court shall
official/employee respondent enjoin the act complained of, or the
to prove extraordinary deletion, destruction, or rectification
diligence was observed, and of the erroneous data or
cannot invoke the information and grant other reliefs
presumption that official duty as may be just and equitable;
has been regularly performed otherwise the privilege shall be
to evade responsibility or denied.
liability.
RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO

CUSTODY OF MINORS (AM NO. 03-04-04-SC) WRIT OF AMPARO (AM NO. 07-9-12-SC) (See
table above)
The Family Court has exclusive original

jurisdiction to hear petitions for custody of WRIT OF AMPARO SEARCH WARRANT
minors and the issuance of the writ of habeas Issuance of the Writ. Requisites for issuing
corpus in relation to custody of minors. The search warrant
Court is tasked with the duty of promulgating Upon the filing of the
special rules or procedure for the disposition of petition, the court, A search warrant shall
family cases with the best interests of the minor justice or judge shall not issue except upon
as primary consideration, taking into account immediately order the probable cause in
the United Nations Convention on the Rights of issuance of the writ if connection with one
the Child. It should be clarified that the writ is on its face it ought to specific offense to be
issued by the Family Court only in relation to issue. The clerk of determined personally
custody of minors. An ordinary petition for court shall issue the by the judge after
habeas corpus should be filed in the regular writ under the seal of examination under
Court. The issue of child custody may be tackled the court; or in case of oath or affirmation of
by the Family Court without need of a separate urgent necessity, the the complainant and
petition for custody being filed. justice or the judge the witness he may
may issue the writ in produce, and
The Committee chose the phrase “any person his or her own hand, particularly describing
claiming custody” as it is broad enough to cover and may deputize the place to be
the following: (a) the unlawful deprivation of the any officer or person searched and the
custody of a minor; or (b) which parent shall to serve it. The writ things to be seized
have the care and custody of a minor, when shall also set the date which may be
such parent is in the midst of nullity, annulment and time for summary anywhere in the
or legal separation proceedings. hearing of the petition Philippines.
which shall not be
The hearings on custody of minors may, at the later than seven (7)
discretion of the court, be closed to the public days from the date of
and the records of the case shall not be its issuance.
released to non-parties without its approval.
A motion to dismiss the petition is not allowed OMNIBUS WAIVER RULE

except on the ground of lack of jurisdiction over
the subject matter or over the parties. Any other Defenses Not Pleaded Deemed Waived — All
ground that might warrant the dismissal of the defenses shall be raised in the return,
petition shall be raised as an affirmative otherwise, they shall be deemed waived.
defense in the answer.
Upon the filing of the verified answer of the WRIT OF HABEAS DATA (AM NO. 08-1-16-SC)
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 a report Scope of writ; Availability of writ;
and recommendation to the court at least three Distinguish from Habeas Corpus and
days before the scheduled pre-trial. Amparo; Who may file; Contents of the
petition; Consolidation; Effect of filing of a
Hold Departure Order – The minor child criminal action; Institution of separate
subject of the petition shall not be brought out action (See table above)
of the country without prior order from the court
while the petition is pending. The court motu INSTANCES WHEN PETITION BE HEARD IN
propio or upon application under oath may issue CHAMBERS
ex parte a hold departure order addressed to
the BID of the DOJ a copy of the hold departure A hearing in chambers may be conducted where
order within 24 hours from its issuance and the respondent invokes the defense that the
through the fastest available means of release of the data or information in question
transmittal. shall compromise national security or state
secrets, or when the data or information cannot
be divulged to the public due to its nature or therefor. For this purpose, the only name
privileged character. that may be changed is the true or official
name as recorded in the civil register.
CHANGE OF NAME (RULE 103)  A mere change of name would not cause
in one’s existing family relations, nor create
new family rights and duties where none
 A change of name is a special
exists before. Neither would it affect a
proceeding to establish the status of a
person’s legal capacity, civil status or
person involving his relation with others,
citizenship.
that is, his legal position in, or with regard
to, the rest of the community. It is
 A change of name granted by the court
proceeding in rem and as such, strict
affects only the petitioner. A separate
compliance with jurisdictional requirements,
petition for change of name must be filed by
particularly on publication, is essential in
his wife and children.
order to vest the court with jurisdiction
RULE 103 (Change of Name) RA 9048 (Clerical Error RULE 108 (Cancellation
Act) or correction of entries in
the civil registry)
Petition should be filed in the RTC Petitions filed with the city or Verified petition filed in the
where the petitioner resides municipal civil registrar, or RTC where the
with consul general for corresponding Civil Registry
citizens living abroad is located
Civil Registrar is not a party. Civil Registrar is an
Solicitor General to be notified by indispensable party. If not
service of a copy of petition. made a party, proceedings
are null and void. Reason: he
is interested party in
protecting the integrity of
public documents. Solicitor
General must also be
notified by service of a copy
of the petition.
Petition is filed by the person Verified petition in the form By a person interested in
desiring to change his name of affidavit is filed by any any acts, event, order or
person having direct and decree
personal interest in the
correction
Involves change of name only Involves first name and All cancellation or correction
nickname of entries of: (see below
grounds or instances)
Involves substantial changes Involves clerical or Substantial and adversary if
typographical errors change affects the civil
status, citizenship or
nationality of a party;
Summary if involves mere
clerical errors.
Grounds: Grounds: Grounds:
a) Name is ridiculous, dishonorable a) First name or nickname is Cancellation or correction of
or extremely difficult to write or found to be ridiculous, entries of: (a) births; (b)
pronounce; tainted with dishonor or marriages; (c) deaths; (d)
b) Change is a legal consequence extremely difficult to write legal separation; (e)
of legitimation or adoption; or pronounce; judgments or annulments of
c) Change will avoid confusion; b) The first name or marriage; (f) judgments
d) One has continuously used and nickname has been declaring marriages void
been known since childhood by habitually and continuous from the beginning; (g)
a Filipino name and was used by petitioner legitimations; (h) adoptions;
unaware of alien parentage; publicly known by that (i) acknowledgments of
e) Change is based on a sincere first name or nickname in natural children; (j)

desire to adopt a Filipino name the community; naturalizations; (k) election,
to erase signs of former c) Change will avoid loss or recovery of
alienage, all in good faith and confusion. citizenship; (l) civil
without prejudice to anybody; interdiction; (m) judicial
and determination of filiation; (n)
f) Surname causes voluntary emancipation of a
embarrassment and there is no minor; and (o) changes of
showing that the desired change name.
of name was for a fraudulent
purpose, or that the change of
name would prejudice public
interest.
Order for hearing to be published Petition shall be published at Order shall also be published
once a week for three consecutive least once a week for two once a week for three
weeks in a newspaper of general consecutive weeks in a consecutive weeks in a
circulation in the province. newspaper of general newspaper of general
circulation. Also to be posted circulation in the province,
in a conspicuous place for ten and court shall cause
consecutive days. reasonable notice to persons
named in the petition.
Entry is correct but petitioner Entry is incorrect. Cancellation or correction of
desires to change the entry correct or incorrect entries
An appropriate adversary An appropriate administrative An appropriate summary or
proceeding proceeding. adversary proceeding
depending on effects
Requires judicial order Does not require judicial Directed or changed by the
order. city or municipal civil
registrar or consul general
without judicial order
Service of judgment shall be upon Transmittal of decision to civil Service of judgment shall be
the civil register concerned registrar general upon the civil register
concerned
Appeal may be availed of if In case denied by the city or Appeal may be availed of if
judgment or final order rendered municipal civil registrar or the judgment or final order
affects substantial rights of person consul general, petitioner rendered affects substantial
appealing. may either appeal the rights of person appealing,
decision to the civil register to the RTC or to the CA.
general or file appropriate
petition with proper court by
petition for review under Rule
43.
GROUNDS FOR CHANGE OF NAME The purpose of the Rule is to allow the court to
(please see table above) appoint an administrator or representative to
take care of the property of the person who is
sought to be judicially declared absent. It also
ABSENTEES (RULE 107) aims to have the court appoint the present
spouse as administrator or administratrix of the
absent spouse‘s properties, or for the
Stages of absence: separation of properties of the spouses.
1) provisional absence
2) declaration of absence WHO MAY FILE; WHEN TO FILE
3) presumption of death
The following may file an application for the
PURPOSE OF THE RULE declaration of absence of a person:
a) Spouse present;
b) Heirs instituted in a will, who may unknown, and without having left an
present an authentic copy of the same; agent to administer his property, or the
c) Relatives who would succeed by the law power conferred upon the agent has
of intestacy; and expired, any interested party, relative or
d) Those who have over the property of the friend, may petition the Court of First
absentee some right subordinated to the Instance of the place where the absentee
condition of his death. resided before his disappearance for the
e) Those who have over the property of the appointment of a person to represent
absentee some right subordinated to the him provisionally in all that may be
condition of his death. necessary.
• After the lapse of two (2) years from his
disappearance and without any news CANCELLATION OR CORRECTION OF
about the absentee or since the receipt ENTRIES IN THE CIVIL REGISTRY (RULE
of the last news, or of five (5) years in 108)
case the absentee has left a person in
charge of the administration of his Entries subject to cancellation or
property, the declaration of his absence correction under Rule 108, in relation to
and appointment of a trustee or RA 9048
administrator may be applied for.  Upon good and valid grounds, the
• When a person disappears from his following entries in the civil register may
domicile, his whereabouts being be cancelled or corrected:
1) births; 9) acknowledgments of natural children;
2) marriages; 10) naturalization
3) deaths; 11) election, loss or recovery of citizenship
4) legal separations; 12) civil interdiction;
5) judgments of annulments of marriage; 13) judicial determination of filiation;
6) judgments declaring marriages void from 14) voluntary emancipation of a minor; and
the beginning; 15) changes of name.
7) legitimations;
8) adoptions;
rendered by a Court of First Instance or a
Correction may be effected in two ways. One is Juvenile and Domestic Relations Court, where
without judicial authority or by administrative such order or judgment:
proceeding, which is governed by RA 9048 on a) Allows or disallows a will;
matters relating to correction of mere clerical or b) Determines who are the lawful heirs of a
typographical errors. The other is through deceased person, or the distributive
judicial or court proceedings, which is governed share of the estate to which such person
by Rule 108. is entitled;
c) Allows or disallows, in whole or in part,
The petition for change of first names or any claim against the estate of a
nicknames may be allowed when such names or deceased person, or any claim presented
nicknames are ridiculous, tainted with dishonor on behalf of the estate in offset to a
or extremely difficult to write or pronounce; or claim against it;
the new name or nickname has been used d) Settles the account of an executor,
habitually and continuously petitioner and has administrator, trustee or guardian;
been publicly known by that first name or e) Constitutes, in proceedings relating to
nickname in the community; or the change will the settlement of the estate of a
avoid confusion. deceased person, or the administration
of a trustee or guardian, a final
determination in the lower court of the
APPEALS IN SPECIAL PROCEEDING (RULE rights of the party appealing, except that
109) no appeal shall be allowed from the
appointment of a special administrator;
and
JUDGMENTS AND ORDERS FOR WHICH f) Is the final order or judgment rendered in
APPEAL MAY BE TAKEN the case, and affects the substantial
rights of the person appealing, unless it
An interested person may appeal in special
proceedings from an order or judgment
be an order granting or denying a motion separate appeals where the law or the Rules
for a new trial or for reconsideration. so require. In such cases, the record on
appeal shall be filed and served in like
manner.
WHEN TO APPEAL
2) Petition for review. The appeal to the CA
Appeals in special proceedings necessitate a in cases decided by the RTC in the exercise
record on appeal as the original record should of its appellate jurisdiction shall be by
remain with the trial court; hence the petition for review in accordance with Rule
reglementary period of thirty (30) days is 42.
provided for the perfection of appeals in special
proceedings. 3) Petition for review on certiorari. In all
cases where only questions of law are raised
MODES OF APPEAL or involved, the appeal shall be to the SC by
petition for review on certiorari in
 While under the concept in ordinary civil accordance with Rule 45.
actions some of the orders stated in Sec. 1
may be considered interlocutory, the nature
of special proceedings declares them as
appealable orders, as exceptions to the RULE ON ADVANCE DISTRIBUTION
provisions of Sec., Rule 41. Thus:
Notwithstanding a pending controversy or
1) Ordinary appeal. The appeal to the CA in appeal in proceedings to settle the estate of a
cases decided by the RTC in the exercise of decedent, the court may, in its discretion and
its original jurisdiction shall be taken by upon such terms as it may deem proper and
filing a notice of appeal with the court which just, permit that such part of the estate as may
rendered the judgment or final order not be affected by the controversy or appeal be
appealed from and serving a copy thereof distributed among the heirs or legatees, upon
upon the adverse party. No record on appeal compliance with the conditions set forth in Rule
shall be required except in special 90 of these rules.
proceedings and other cases of multiple or
RULES OF CRIMINAL PROCEDURE (Rules 110 – 127)
GENERAL MATTERS such objection is

never waived.
JURISDICTION JURISDICTION Jurisdiction over the Jurisdiction over the
OVER SUBJECT OVER PERSON OF subject matter is person of the
MATTER THE ACCUSED determined upon the accused by voluntary
Derived from the law. May be conferred by allegations made in appearance or
Does not depend consent expressly or the complaint, surrender of the
upon the consent or impliedly given, or it irrespective of accused or by his
omission of the may, by objection, be whether the plaintiff arrest.
parties to the action prevented from is entitled or not, to
or any of them; attaching or being recover upon the
removed after it is claim asserted
attached. therein, a matter
Objection that the If he fails to make his resolved only after
court has no objections in time, he and as a result of the
jurisdiction over the will be deemed to trial.
subject matter may have waived it.
be made at any stage
of the proceeding, REQUISITES FOR EXERCISE OF CRIMINAL
and the right to make JURISDICTION
2) For all other offenses, by filing the complaint

1) The offense if one which the court is by or information directly with the Municipal
law authorized to take cognizance of; Trial Courts and Municipal Circuit Trial
2) The offense must have been committed Courts, or the complaint with the office of
within its territorial jurisdiction; and the prosecutor.
3) The person charged with the offense 3) In Manila and other chartered cities, the
must have been brought into its forum for complaint shall be filed with the office of the
trial, forcibly or by warrant of arrest or upon prosecutor, unless otherwise provided in
his voluntary submission to the court. their charters.
JURISDICTION OF CRIMINAL COURTS (see  The institution of the criminal action shall
jurisdiction of courts in civil pro) interrupt the period of prescription of the
offense charged unless otherwise provided
WHEN INJUNCTION MAY BE ISSUED TO in special laws.
RESTRAIN CRIMINAL PROSECUTION
 Preliminary investigation is required for
GENERAL RULE: Criminal prosecution may not offenses punishable by at least 4 years, 2
be restrained or stayed by injunction. months, and 1 day, unless the accused was
lawfully arrested without a warrant, in which
EXCEPTIONS: case, an inquest must have been conducted.
1) To afford adequate protection to the
constitutional rights of the accused; WHO MAY FILE THE CRIMINAL ACTION
2) Then necessary for the orderly
administration of justice or to avoid 1) Offended party
oppression or multiplicity of actions; 2) Any peace officer; or
3) When there is a pre-judicial question 3) Other public officer charged with the
which is sub judice; enforcement of the law violated.
4) When the acts of the officer are without
or in excess of authority; All criminal actions commenced by complaint or
5) Where the prosecution is under an information shall be prosecuted under the
invalid law, ordinance or regulation; direction and control of the prosecutor.
6) When double jeopardy is clearly
apparent; In the Municipal Trial Courts or Municipal Circuit
7) Where the court has no jurisdiction over Trial Courts when the prosecutor assigned
the offense; thereto or to the case is not available, the
8) Where it is a case of persecution rather offended party, any peace officer, or public
than prosecution; officer charged with the enforcement of the law
9) Where the charges are manifestly false violated may prosecute the case. This authority
and motivated by the lust for vengeance; shall cease upon actual intervention of the
10) When there is clearly no prima facie case prosecutor or upon elevation of the case to the
against the accused and a motion to Regional Trial Court.
quash on that ground has been denied;
and RIMES THAT CANNOT BE PROSECUTED DE
11) To prevent the threatened unlawful OFICIO
arrest of petitioners.
1) Adultery and concubinage – to be
PROSECUTION OF OFFENSES RULE 110) prosecuted upon a complaint filed by the
offended spouse, impleading both guilty
parties, if both alive, unless he shall have
CRIMINAL ACTIONS; HOW INSTITUTED consented or pardoned the offenders;
2) Seduction, abduction, or acts or
1) For offenses where a preliminary lasciviousness – to be prosecuted upon a
investigation is required pursuant to section complaint filed by the offended party or her
1 of Rule 112, by filing the complaint with parents, grandparents, or guardian, unless
the proper officer for the purpose of expressly pardoned by the above named
conducting the requisite preliminary persons (in such stated order);
investigation. 3) Defamation imputing a person any of
the following crimes of concubinage,
adultery, seduction, abduction or 4) The private prosecutor shall continue to

lasciviousness – can be prosecuted only by prosecute the case until the end of the
the party defamed. trial unless the authority is withdrawn or
otherwise revoked;
The offended party, even if a minor, has the 5) In case of the withdrawal or revocation of
right to initiate the prosecution of the offenses the authority of the private prosecutor,
of seduction, abduction and acts of the same must be approved by court.
lasciviousness independently of her parents,
grandparents or guardian, unless she is SUFFICIENCY OF COMPLAINT OR
incompetent or incapable of doing so. Where INFORMATION
the offended party, who is a minor, fails to file
the complaint, her parents, grandparents, or A complaint or information is sufficient if it
guardian may file the same. The right to file the states:
action granted to parents, grandparents or 1) The name of the accused;
guardian shall be exclusive of all other persons 2) The designation of the offense given by
and shall be exercised successively in the order the statute;
herein provided, except as stated in the 3) The acts or omissions complained of as
preceding paragraph. constituting the offense;
4) The name of the offended party;
CONTROL OF PROSECUTION 5) The approximate date of the commission
of the offense; and
Only the Solicitor General may represent the 6) The place wherein the offense was
People of the Philippines on appeal. The private committed.
offended party or complainant may question
such acquittal or dismissal or appeal therefrom When an offense is committed by more than
only insofar as the civil aspect is concerned, in one person, all of them shall be included in the
the name of the petitioner or appellant and not complaint or information. If the prosecutor
in the name of the People of the Philippines. The refuses to include one accused, the remedy is
rule that the Solicitor General is the lawyer of mandamus.
the People in appellate courts admits an
exception, “in all cases elevated to the DESIGNATION OF OFFENSE
Sandiganbayan and from the Sandiganbayan to
the Supreme Court, the Office of the The complaint or information shall state the
Ombudsman, through its special prosecutor, designation of the offense given by the statute,
shall represent the People of the Philippines, aver the acts or omissions constituting the
except in cases filed pursuant to EO 1, 2, 14 offense, and specify its qualifying and
and 14-A, issued in 1986.” aggravating circumstances.
The prosecution determines the charges to be If there is no designation of the offense,

filed and how the legal and factual elements in reference shall be made to the section or
the case shall be utilized as components of the subsection of the statute punishing it.
information. Whenever a criminal case is
prosecuted and the State is the offended party, CAUSE OF THE ACCUSATION
the case must always be prosecuted under
control and guidance of the State through the The acts or omissions complained of as
government prosecutors. constituting the offense and the qualifying and
aggravating circumstances must be stated in
The prosecution may however be allowed to a ordinary and concise language and not
private prosecutor upon compliance with the necessarily in the language used in the statute
following conditions: but in terms sufficient to enable a person of
1) The public prosecutor has a heavy work common understanding to know what offense is
schedule or there is no public prosecutor being charged as well as its qualifying and
assigned in the city or province; aggravating circumstances and for the court to
2) The private prosecutor is authorized in pronounce judgment.
writing by the Chief of the Prosecutor
Office or the Regional State Prosecutor DUPLICITY OF THE OFFENSE; EXCEPTION
3) The authority of the private prosecutor
must be approved by the court;
 A complaint or information must charge only be with leave of court, as the original
one offense, EXCEPT when the law information has to be dismissed;
prescribes a single punishment for various 3) Where the amendment is only as to
offenses (Sec. 13). form, there is no need for another
 Exception: The law prescribes a single preliminary investigation and the
punishment for various offenses, such as in retaking of the plea of the accused; in
continuing and complex crimes. substitution of information, another
preliminary investigation is entailed and
AMENDMENT OR SUBSTITUTION OF the accused has to plead anew to the
COMPLAINT OR INFORMATION new information; and
4) An amended information refers to the
same offense charged in the original
A complaint or information may be amended, in
information or to an offense which
form or in substance, without leave of court, at
necessarily includes or is necessarily
any time before the accused enters his plea.
included in the original charge; hence
 After the plea and during the trial, a
substantial amendments to the
formal amendment may only be made
information after the plea has been
with leave of court and when it can be
taken cannot be made over the objection
done without causing prejudice to the
of the accused, for if the original
rights of the accused.
information would be withdrawn, the
accused could invoke double jeopardy.
However, any amendment before plea, which
Substitution requires or presupposes that
downgrades the nature of the offense charged
the new information involves different
in or excludes any accused from the complaint
offense which does not include or is not
or information, can be made only upon motion
necessarily included in the original
by the prosecutor, with notice to the offended
charge; hence the accused cannot claim
party and with leave of court. The court shall
double jeopardy.
state its reasons in resolving the motion and
copies of its order shall be furnished all parties,
VENUE OF CRIMINAL ACTIONS
especially the offended party.
GENERAL RULE: The criminal action shall be
If it appears at any time before judgment that a
instituted and tried in the court of the
mistake has been made in charging the proper
municipality or territory where the offense was
offense, the court shall dismiss the original
committed or where any of its essential
complaint or information upon the filing of a
ingredients occurred.
new one charging the proper offense in
accordance with Section 19, Rule 119, provided
EXCEPTIONS:
the accused would not be placed in double
jeopardy. The court may require the witnesses 1) Where an offense is committed in a
to give bail for their appearance at the trial railroad train, aircraft, or other
(Sec. 14). public or private vehicle in the
course of its trip - the criminal action
shall be instituted and tried in the court
 Exception: When a fact supervenes
of any municipality or territory where
which changes the nature of the crime
said train, aircraft or other vehicle
charged in the information or upgrades it
passed during its trip, including the place
to a higher crime, a substantial
of its departure and arrival.
amendment may be made with a need
for a re-arraignment of the accused
2) Where an offense is committed on
under the amended information. board a vessel in the course of its
voyage - the criminal action shall be
AMENDMENT AND SUBSTITUTION instituted and tried in the court of the
DISTINGUISHED: first port of entry or of any municipality
1) Amendment may involve either formal or or territory where the vessel passed
substantial changes; substitution during such voyage, subject to the
necessarily involves a substantial change generally accepted principles of
from the original charge; international law.
2) Amendment before plea has been 3) Felonies under Article 2 of the
entered can be effected without leave of Revised Penal Code - shall be
court; substitution of information must
cognizable by the court where the The exception to the reservation requirement is
criminal action is first filed. a claim arising out of a dishonored check under
4) Piracy – the venue of piracy, unlike all BP 22, where no reservation to file such civil
other crimes, has no territorial limits. It action separately shall be allowed, which means
may be tried anywhere. that the filing of the criminal action for violation
5) Libel – the action may be instituted at of BP 22 shall be deemed to include the
the election of the offended or suing corresponding civil action and that unless a
party in the province or city: separate civil action has been filed before the
a) Where the libellous article is institution of the criminal action, no such civil
printed and first published; action can be instituted after the criminal action
b) If one of the offended parties is a has been filed as the same has been included
private individual, where said therein.
individual actually resides at the
time of the commission of the Another instance where no reservation shall be
offense; allowed and where a civil action filed prior to
c) If the offended party is a public the criminal action has to be transferred to the
official, where the latter holds subsequently filed criminal action for joint
office at the time of the hearing is a claim arising from an offense which
commission of the offense; is cognizable by the Sandiganbayan.
6) In exceptional cases – to ensure a fair
and impartial inquiry. The SC shall have WHEN SEPARATE CIVIL ACTION IS
the power to order a change of venue or SUSPENDED
place of trial to avoid the miscarriage of
justice. a) If criminal action has been commenced
7) In cases filed under BP 22 – the earlier – separate civil action cannot be
criminal action shall be filed in the place instituted until final judgment has been
where the check was issued and entered in the criminal action.
bounced. In case of crossed-check, in the b) If the criminal action is filed after the
place of depository. separate civil action has already been
instituted –
INTERVENTION OF OFFENDED PARTY a. Civil action suspended, in
whatever stage it may be found
Where the civil action for recovery of civil before judgment on the merits, until
liability is instituted in the criminal action final judgment is rendered in the
pursuant to Rule 111, the offended party may criminal action.
intervene by counsel in the prosecution of the b. Civil action may, upon motion of
offense. the offended party, be consolidated
with the criminal action in the court
trying the criminal action
PROSECUTION OF CIVIL ACTION (RULE 111) c. Evidence already adduced in the
civil action shall be deemed
automatically reproduced in the
RULE ON IMPLIED INSTITUTION OF CIVIL criminal action
ACTION WITH CRIMINAL ACTION d. Without prejudice to the right of
the prosecution to cross-examine the
The GENERAL RULE is that the institution or witnesses presented by the offended
filing of the criminal action includes the party in the criminal case and the
institution therein of the civil action for recovery parties to present additional
of civil liability arising from the offense charged, evidence.
EXCEPT in the following cases: c) The consolidated criminal and civil
1) The offended party waives the civil actions shall be tried and decided jointly.
action; d) During the pendency of the criminal
2) He reserves his right to institute the civil action, the running of prescription of the civil
action separately; or action which cannot be instituted separately
3) He institutes the civil action prior to the or whose proceeding has been suspended
criminal action. shall be tolled.
The bar on the institution or suspension of the

separate civil actions has the following GENERAL RULE: Criminal action takes
exception: precedence of civil actions.
 In the cases provided for in Articles 32,
33, 34 and 2176 of the Civil Code, the EXCEPTIONS:
independent civil action may be brought a) independent civil actions
by the offended party. It shall proceed b) prejudicial question
independently of the criminal action and
shall require only a preponderance of Prejudicial question which arises in a case the
evidence. In no case, however, may the resolution of which is a logical antecedent of the
offended party recover damages twice issues involved in said cases, and the
for the same act or omission charged in cognizance of which pertains to another
the criminal action. tribunal.
EFFECT OF THE DEATH OF ACCUSED OR The elements of a prejudicial question are:

CONVICT ON CIVIL ACTION a) the previously instituted civil
action involves an issue similar or
The death of the accused after arraignment and intimately related to the issue
during the pendency of the criminal action shall raised in the subsequent criminal
extinguish the civil liability arising from the action, and
delict. However, the independent civil action b) the resolution of such issue
instituted under section 3 of this Rule (Rule determines whether or not the
111) or which thereafter is instituted to enforce criminal action may proceed.
liability arising from other sources of obligation
may be continued against the estate or legal TEST: It must appear not only that the civil case
representative of the accused after proper involves the same facts upon which the criminal
substitution or against said estate, as the case prosecution is based, but also that the
may be. The heirs of the accused may be resolution of the issues in said civil action would
substituted for the deceased without requiring be necessarily determinative of the guilt or
the appointment of an executor or administrator innocence of the accused.
and the court may appoint a guardian ad litem
for the minor heirs. A prejudicial question can be interposed at the
Office of the Prosecutor, but;
The court shall forthwith order said legal 1) The question can also be raised in court;
representative or representatives to appear and 2) If raised, the court should merely
be substituted within a period of thirty (30) days suspend the criminal case;
from notice. 3) The court must wait for a motion,
otherwise, that is a waiver;
A final judgment entered in favor of the 4) The court cannot motu propio suspend
offended party shall be enforced against the the criminal case.
estate of the deceased.
RULE ON FILING FEES IN CIVIL ACTION
If the accused dies before arraignment, the case DEEMED INSTITUTED WITH THE CRIMINAL
shall be dismissed without prejudice to any civil ACTION
action the offended party may file against the
estate of the deceased. When the offended party seeks to enforce civil
liability against the accused by way of moral,
PREJUDICIAL QUESTION nominal, temperate or exemplary damages
without specifying the amount thereof in the
A petition for suspension of the criminal action complaint or information, the filing fees therefor
based upon the pendency of a prejudicial shall constitute a first lien on the judgment
question in a civil action may be filed in the awarding such damages.
office of the prosecutor or the court conducting
the preliminary investigation. When the criminal Where the amount of damages, other than
action has been filed in court for trial, the actual, is specified in the complaint or
petition to suspend shall be filed in the same information, the corresponding filing fees shall
criminal action at any time before the be paid by the offended party upon filing
prosecution rests. thereof in court. Except as otherwise provided in
these Rules, no filing fees shall be required for probable cause for believing him guilty,
actual damages. that the state may take the necessary
steps to bring him to trial;
With respect to criminal actions for violations of 2) To preserve the evidence and keep the
BP 22, the offended party shall pay in full the witnesses within the control of the state;
filing fees based on the face value of the checks and
as the actual damages. 3) To determine the amount of bail, if the
offense is bailable.
PRELIMINARY INVESTIGATION (RULE 112) WHO MAY CONDUCT DETERMINATION OF

EXISTENCE OF PROBABLE CAUSE
Preliminary investigation is an inquiry or
On the basis of the evidence before him, the
proceeding for the purpose of determining
investigating office must decide whether to
whether there is sufficient ground to engender a
dismiss the case or to file the information in
well-founded belief that a crime has been
court. This involves the determination of
committed and that the respondent is probably
probable cause.
guilty thereof, and should be held for trial.
The Court has maintained the policy of non-
NATURE OF RIGHT
interference in the determination of the
existence of probable cause, provided there is
The right to preliminary investigation is not a
no grave abuse in the exercise of such
constitutional grant; it is merely statutory and
discretion. The rule is based not only upon
may be invoked only when specifically created
respect for the investigatory and prosecutorial
by statute. It is a component part of due
powers of prosecutors but upon practicality as
process in criminal justice.
well.
Preliminary investigation is a function that
OFFICERS AUTHORIZED TO CONDUCT
belongs to the public prosecutor. It is an
PRELIMINARY INVESTIGATION
executive function, although the prosecutor, in
the discharge of such function, is a quasi-judicial
1) Provincial or city prosecutors and their
authority tasked to determine whether or not a
assistants;
criminal case must be filed in court.
2) National and Regional State Prosecutors;
and
The right to preliminary investigation may be
3) Other officers as may be authorized by law
waived by the accused either expressly or
(COMELEC, PCGG, Ombudsman)
impliedly. The posting of a bond by the accused
constitutes such a waiver, such that even if the
Their authority to conduct preliminary
warrant was irregularly issued, any infirmity
investigation shall include all crimes cognizable
attached to it is cured when the accused
by the proper court in their respective territorial
submits himself to the jurisdiction of the court
jurisdictions.
by applying for bail. It is also cured by
submitting himself to arraignment
RESOLUTION OF INVESTIGATION
PROSECUTOR
PURPOSES OF PRELIMINARY
INVESTIGATION
If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare
The basic purpose of preliminary investigation is
the resolution and information. He shall certify
to determine whether a crime has been
under oath in the information that he, or as
committed and whether there is probable cause
shown by the record, an authorized officer, has
to believe that the accused is guilty thereof.
personally examined the complainant and his
witnesses; that there is reasonable ground to
Generally, preliminary investigation has a three-
believe that a crime has been committed and
fold purpose:
that the accused is probably guilty thereof; that
1) To inquire concerning the commission of
the accused was informed of the complaint and
crime and the connection of accused
of the evidence submitted against him; and that
with it, in order that he may be informed
he was given an opportunity to submit
of the nature and character of the crime
charged against him, and if there is
controverting evidence. Otherwise, he shall basis of the finding of probable cause in the
recommend the dismissal of the complaint. assailed decision. If the Secretary of Justice
reverses or modifies the resolution of the
Within five (5) days from his resolution, he shall provincial or city prosecutor or chief state
forward the record of the case to the provincial prosecutor, he shall direct the prosecutor
or city prosecutor or chief state prosecutor, or concerned either to file the corresponding
to the Ombudsman or his deputy in cases of information without conducting another
offenses cognizable by the Sandiganbayan in preliminary investigation, or to dismiss or move
the exercise of its original jurisdiction. They for dismissal of the complaint or information
shall act on the resolution within ten (10) days with notice to the parties.
from their receipt thereof and shall immediately
inform the parties of such action. WHEN WARRANT OF ARREST MAY ISSUE
No complaint or information may be filed or (a) By the Regional Trial Court

dismissed by an investigating prosecutor  Within ten (10) days from the filing of the
without the prior written authority or approval of complaint or information, the judge shall
the provincial or city prosecutor or chief state personally evaluate the resolution of the
prosecutor or the Ombudsman or his deputy. prosecutor and its supporting evidence.
Where such the recommendation of dismissal  He may immediately dismiss the case if
was disapproved on the ground that a probable the evidence on record clearly fails to
cause exists, the chief prosecutor may file the establish probable cause.
information against the respondent, or direct  If he finds probable cause, he shall issue
another assistant prosecutor or state prosecutor a warrant of arrest, or a commitment
to do so without conducting another preliminary order if the accused has already been
investigation. arrested pursuant to a warrant issued by
the judge who conducted the preliminary
REVIEW investigation or when the complaint or
information was filed pursuant to section
A preliminary investigation falls under the 6 of this Rule.
authority of the state prosecutor who is given by  In case of doubt on the existence of
law the power to direct and control criminal probable cause, the judge may order the
actions. He is, however, subject to the prosecutor to present additional
control/appeal to the Secretary of Justice, which evidence within five (5) days from notice
the latter may exercise motu propio or upon and the issue must be resolved by the
petition of the proper party. court within thirty (30) days from the
filing of the complaint or information.
The Secretary of Justice exercises the power of
direct control and supervision over prosecutors, (b) By the Municipal Trial Court
and may thus affirm, nullify, reverse or modify
 When required pursuant to the second
their rulings. In reviewing resolutions of state
paragraph of section 1 of this Rule, the PI
prosecutors, the Secretary of Justice is not
of cases falling under the original
precluded from considering errors, although
jurisdiction of the MTCs shall be
unassigned, for the purpose of determining
conducted by the prosecutor. The
whether there is probable cause for filing cases
procedure for the issuance of a warrant
in court.
of arrest by the judge shall be governed
by paragraph (a) of this section (Sec. 5,
An aggrieved party may appeal by filing a
Rule112).
verified petition for review with the Secretary
and by furnishing copies thereof to the adverse
(c) When warrant of arrest not necessary
party and prosecution office issuing the
A warrant of arrest shall not issue if the
appealed resolution. The appeal shall be taken
accused is already under detention
within 15 days from receipt of the resolution or
pursuant to a warrant issued by the
of the denial of the motion for
Municipal Trial Court in accordance with
reconsideration/reinvestigation if one has been
paragraph (b) of this section, or if the
filed within 15v days from receipt of the assailed
complaint or information was filed
resolution. Only one motion for reconsideration
pursuant to section 6 of this Rule or is for
shall be allowed. Unless the Secretary directs
an offense penalized by fine only. The
otherwise, the appeal SHALL NOT STAY the filing
court shall then proceed in the exercise
of the corresponding information in court on the
of its original jurisdiction (Sec. 5, as Arrest is the taking of a person into custody in
amended by AM 05-8-26-SC). order that he may be bound to answer for the
commission of an offense.
CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION HOW AN ARREST MADE?
1) Cases in which the imposable penalty 1) by an actual restraint of a person to be

DOES NOT EXCEED four (4) years, two (2) arrested, OR
months and one (1) day 2) by his submission to the custody of the
2) When the accused has undergone person making the arrest.
inquest proceeding.  No violence or unnecessary force
shall he used in making an arrest. The
REMEDIES OF ACCUSED IF THERE WAS NO person arrested shall not be subject to a
PRELIMINARY INVESTIGATION greater restraint than is necessary for his
detention.
 Refuse to enter a plea upon arraignment
and object to further proceedings upon such ARREST WITHOUT WARRANT,WHEN
grounds LAWFUL
 To hold in abeyance the proceedings and
order/insist the prosecutor to hold 1) When, in his presence, the person to be
preliminary investigation. arrested has committed, is actually
 Raised the lack of PI as an error in appeal committing, or is attempting to commit an
offense;
If the case has been conducted, the accused 2) When an offense has just been committed
may within 5 days from the time he learns of its and he has probable cause to believe based
filing ask for a preliminary investigation. The on his personal knowledge of facts or
five-day period to file the motion for preliminary circumstances that the person to be
investigation is mandatory, and an accused is arrested has committed the crime;
entitled to ask for preliminary investigation by 3) When the person to be arrested is a prisoner
filing the motion within the said period. The who has escaped from a penal
failure to file the motion within the five-day establishment or place where he is serving
period amounts to a waiver of the right to ask final judgment or is temporarily confined
for preliminary investigation. Apart from such while his case is pending, or has escaped
waiver, posting bail without previously or while being transferred from one
simultaneously demanding for a preliminary confinement to another.
investigation justifies denial of the motion for 4) Where a person who has been lawfully
investigation. arrested escape or is rescued;
5) When the bondsmen arrests a prisoner out
INQUEST on bail for the purpose of bringing him to
court;
It is a summary investigation conducted by a 6) Where the accused attempts to leave the
public prosecutor in criminal cases involving country without the permission of the court.
persons arrested and detained without the
benefit of a warrant of arrest issued by the court METHOD OF ARREST
for the purpose of determining whether or not
said persons should remain under custody and Method of arrest by officer by virtue of
correspondingly be charged in court. Such warrant
proceedings must terminate within the period
prescribed under Art. 125 of the Revised Penal The officer shall inform the person to be
Code. arrested of the cause of the arrest and the fact
that a warrant has been issued for his arrest,
Required where the crime is punishable by at except when he flees or forcibly resists before
least 4 years, 2 months and 1 day. the officer has opportunity to so inform him, or
when the giving of such information will imperil
the arrest.
ARREST (RULE 113)
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, 3) In the determination of probable cause,
the warrant shall be shown to him as soon as the judge must examine under oath or
practicable. affirmation, the complainant and the
witness he may produce; and
Method of arrest by officer without 4) The warrant issued must particularly
warrant describe the person to be arrested in
connection with a specific offense or
The officer shall inform the person to be crime.
arrested of his authority and the cause of the
arrest, unless the latter is either engaged in the DETERMINATION OF PROBABLE CAUSE FOR
commission of an offense, is pursued ISSUANCE OF WARRANT OF ARREST
immediately after its commission, has escaped,
flees or forcibly resists before the officer has It is the judge alone who determines the
opportunity to so inform him, or when the giving probable cause for the issuance of warrant of
of such information will imperil the arrest. arrest. It is not for the provincial fiscal or
prosecutor to ascertain.
Method of arrest by private person
DISTINGUISH PROBABLE CAUSE OF FISCAL
A private person shall inform the person to be FROM THAT OF A JUDGE
arrested of the intention to arrest him and
cause of the arrest, unless the latter is either The determination by the prosecutor of
engaged in the commission of an offense, is probable cause is for the purpose of either filing
pursued immediately after its commission, or an information in court or dismissing the
has escaped, flees or forcibly resists before the charges against the respondent, which is an
person making the arrest has opportunity to so executive function.
inform him, or when the giving of such
information will imperil the arrest. The determination by the judge of probable
cause begins only after the prosecutor has filed
REQUISITES OF A VALID WARRANT OF the information in court and the latter’s
ARREST determination of probable cause is for the
purpose of issuing an arrest warrant against the
Requisites for arrest warrant issued by a accused, which is judicial function. . A judge
RTC judge under Sec. 5, Rule 112: cannot be compelled to issue a warrant of arrest
1) Within 10 days from the filing of the if he or she believes honestly that there is no
complaint or information probable cause for doing so.
2) The judge shall personally evaluate the
resolution of the prosecutor and its Probable cause to hold a person for trial refers
supporting evidence. to the finding of the investigating prosecutor
3) If he finds probable cause, he shall issue after the conduct of a preliminary investigation,
a warrant of arrest that there is sufficient ground to hold a well-
4) In case of doubt on the existence of founded belief that a crime has been committed
probable cause and that the respondent is probably guilty
a. The judge may order the thereof and should be held for trial. Based on
prosecutor to present additional such finding, the investigating prosecutor files
evidence within 5 days from the corresponding complaint or information in
notice; and the competent court against the accused.
b. The issue must be resolved by the
court within 30 days from the BAIL (RULE 114)
filing of the complaint of
information.
NATURE
Requisites for issuing search warrant under
Sec. 4, Rule 126: All persons, except those charged with offenses
1) It must be issued upon probable cause in punishable by reclusion perpetua when
connection with one specific offense; evidence of guilt is strong, shall before
2) The probable cause must be determined conviction, be bailable by sufficient sureties, or
by the judge himself and not by the be released on recognizance as may be
applicant or any other person; provided by law. The right to bail shall not be
impaired even when the privilege of the writ of a) before or after conviction by the MTC,
habeas corpus is suspended. Excessive bail and
shall not be required (Sec. 13, Art. III, The b) before conviction by the RTC of an
Constitution). offense NOT punishable by death,
reclusion perpetua, or life imprisonment
Bail is the security required by the court and and the evidence of guilt is strong.
given by the accused to ensure that the
accused appear before the proper court at the If bail can be granted in deportation cases and
scheduled time and place to answer the charges extradition cases; both are administrative
brought against him. It is awarded to the proceedings where the innocence or guilt of the
accused to honor the presumption of innocence person detained is not in issue.
until his guilt is proven beyond reasonable
doubt, and to enable him to prepare his defense Bail is a matter of right before final conviction,
without being subject to punishment prior to but the rule is not absolute. The exception is
conviction. Its main purpose is to relieve an when a person is charged with a capital offense
accused from the rigors of imprisonment until when the evidence of guilt is strong, or when
his conviction and secure his appearance at the the offense for which on is charged is
trial. punishable by reclusion perpetua. The exception
to this rule, however, is even if a person is
The person seeking provisional release need not charged with a capital offense where the
wait for a formal complaint or information to be evidence of guilt is strong, if the accused has
filed against him as it is available to all persons failing health, hence, for humanitarian reasons,
where the offense is bailable, so long as the he may be admitted to bail, but that is
applicant is in the custody of the law. discretionary on the part of the court.
Kinds of bail: WHEN A MATTER OF DISCRETION

a) Corporate bond — one issued by a
corporation licensed to provide bail 1) Before conviction, in case of offenses
subscribed jointly by the accused and an punishable by reclusion perpetua, life
officer duly authorized by its board of imprisonment or death;
directors.  If it is determined that it is NOT strong,
b) Property bond — an undertaking then bail is a matter of right. There is no
constituted as a lien on the real property more discretion of the court in denying
given as security for the amount of the the bail, the moment there is a
bond. determination that the evidence of guilt
c) Recognizance — an obligation of record is not strong.
entered into usually by the responsible 2) After conviction by the RTC of a non-
members of the community before some capital offense.
court or magistrate duly authorized to
take it, with the condition to do some The application for bail may be filed and acted
particular act, the most usual act being upon by the trial court despite the filing of a
to assure the appearance of the accused notice of appeal, provided it has not transmitted
for trial. the original record to the appellate court.
d) Cash deposit — the money deposited However, if the decision of the trial court
by the accused or any person acting on convicting the accused changed the nature of
his behalf, with the nearest collector of the offense from non-bailable to bailable, the
internal revenue, or provincial, city or application for bail can only be filed with and
municipal treasurer. Considered as bail, resolved by the appellate court.
it may be applied to the payment of any
fees and costs, and the excess, if any, If the penalty imposed by the trial court is
shall be returned to the accused or to imprisonment exceeding six (6) years, the
whoever made the deposit. accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution,
WHEN A MATTER OF RIGHT; EXCEPTIONS with notice to the accused, of the following or
other similar circumstances:
All persons in custody shall be admitted to bail a) That he is a recidivist, quasi-recidivist, or
as a matter of right, with sufficient sureties, or habitual delinquent, or has committed
released on recognizance:
the crime aggravated by the temporary liberty, but likewise the right of the
circumstance of reiteration; State to protect the people and the peace of the
b) That he has previously escaped from community from dangerous elements. The
legal confinement, evaded sentence, or prosecution must be given ample opportunity to
violated the conditions of his bail without show that the evidence of guilt is strong,
valid justification; because it is on the basis of such evidence that
c) That he committed the offense while judicial discretion is exercised in determining
under probation, parole, or under whether the evidence of guilt is strong is a
conditional pardon; matter of judicial discretion.
d) That the circumstances of his case
indicate the probability of flight if A hearing is absolutely indispensable. In
released on bail; or receiving evidence on bail, while a court is not
e) That there is undue risk that he may required to try the merits of the case, he must
commit another crime during the nevertheless conduct a summary hearing to
pendency of the appeal. determine the weight of the evidence for
purposes of the bail.
Where the grant of bail is a matter of discretion,
or the accused seeks to be released on A judge should not hear a petition for bail in
recognizance, the application may only be filed capital offenses on the same day that the
in the court where the case is pending, whether petition was filed. He should give the
on preliminary investigation, trial, or on appeal. prosecution a reasonable time within which to
oppose the same. Neither is he supposed to
HEARING OF APPLICATION FOR BAIL IN grant bail solely on the belief that the accused
CAPITAL OFFENSES will not flee during the pendency of the case by
reason of the fact that he had even voluntarily
surrendered. Voluntary surrender is merely a
GUIDELINES IN FIXING AMOUNT OF BAIL mitigating circumstance in decreasing the
penalty but is not a ground for granting bail to
A bail application in capital offense does not an accused charged with a capital offense.
only involve the right of the accused to
a) Financial ability of the accused to give g) Probability of the accused appearing at
bail; the trial;
b) Nature and circumstances of the offense; h) Forfeiture of other bail;
c) Penalty for the offense charged; i) The fact that the accused was a fugitive
d) Character and reputation of the accused; from justice when arrested; and
e) Age and health of the accused; j) Pendency of other cases where the
f) Weight of the evidence against the accused is on bail.
accused;
Excessive bail shall not be required. 5) When a person has been in custody for a
period equal to or more than the possible
BAIL WHEN NOT REQUIRED maximum imprisonment prescribed for the
offense charged, he shall be released
1) When the offense charged is a violation of immediately, without prejudice to the
an ordinance, light felony or a criminal continuation of the trial or the proceedings
offense the imposable penalty does not on appeal.
exceed 6 months of imprisonment and/or 6) A person accused of an offense with a
fine of P2,000.00 under RA 6036. maximum penalty of destierro, he shall be
2) Where the accused has applied for probation released after 30 days of preventive
and before the same has been resolved but imprisonment.
no bail was filed or the accused is incapable
of filing one, in which case he may be INCREASE OR REDUCTION OF BAIL
released on recognizance.
3) In case of youthful offender held for physical After the accused is admitted to bail, the court
or mental examination, trial or appeal, if may, upon good cause, either increase or
unable to furnish bail and under the reduce its amount.
circumstances under PD 603, as amended.
4) When the law or these Rules so provide. When increased, the accused may be
committed to custody if he does not give bail in
the increased amount within a reasonable

period. An application for or admission to bail shall not
bar the accused from challenging the validity of
An accused held to answer a criminal charge, his arrest or the legality of the warrant issued
who is released without bail upon filing of the therefor, or from assailing the regularity or
complaint or information, may, at any questioning the absence of a preliminary
subsequent stage of the proceedings whenever investigation of the charge against him,
a strong showing of guilt appears to the court, provided that he raises them before entering his
be required to give bail in the amount fixed, or plea.
in lieu thereof, committed to custody.
The arraignment of an accused is not a
FORFEITURE AND CANCELLATION OF BAIL prerequisite to the conduct of hearings on his
petition for bail. A person is allowed to petition
When the presence of the accused is required, for bail as soon as he is deprived of his liberty
his bondsmen shall be notified to produce him by virtue of his arrest or voluntary surrender.
on a given date and time. If the accused fails to Bail should be granted before arraignment;
appear, his bail shall be declared forfeited and otherwise the accused may be precluded from
the bondsmen given thirty (30) days within filing a motion to quash.
which to produce their principal and to show
cause why no judgment should be rendered HOLD DEPARTURE ORDER & BUREAU OF
against them for the amount of their bail. Within IMMIGRATION WATCHLIST
the said period, the bondsmen must:
a) produce the body of their principal or Supreme Court Cir. No. 39-97 dated June 19,
give the reason for his non-production; 1997 limits the authority to issue hold departure
and orders to the RTCs in criminal cases within their
b) explain why the accused did not appear exclusive jurisdiction. Consequently, MTC judges
before the court when first required to do have no authority to issue hold-departure
so. orders; neither does it has authority to cancel
one which he issued.
Failing in these two requisites, a judgment shall
be rendered against the bondsmen, jointly and A court has the power to prohibit a person
severally, for the amount of the bail. The court admitted to bail from leaving the Philippines.
shall not reduce or otherwise mitigate the This is necessary consequence of the nature
liability of the bondsmen, unless the accused and function of a bail bond. Where it appears
has been surrendered or is acquitted. that the accused had the propensity to evade or
disobey lawful orders, the issuance of a hold
Upon application of the bondsmen, with due departure order is warranted.
notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or The secretary of justice may issue a
proof of his death. watchlist order in the following
circumstances:
The bail shall be deemed automatically 1) Against the accused, irrespective of
cancelled upon acquittal of the accused, nationality, in criminal cases pending
dismissal of the case, or execution of the trial before the RTC;
judgment of conviction. In all instances, the 2) Against the respondent, irrespective of
cancellation shall be without prejudice to any nationality, in criminal cases pending
liability on the bail. preliminary investigation, petition for
review, or motion for reconsideration
APPLICATION NOT A BAR TO OBJECTIONS before DOJ or any of its provincial or city
IN ILLEGAL ARREST, LACK OF OR offices.
IRREGULAR PRELIMINARY INVESTIGATION 3) Against any person, either motu proprio,
or upon request of any government
The posting of the bail does not constitute a agency, including commissions, task
waiver of any question on the irregularity forces or similar entities created by the
attending the arrest of person. He can still office of the President, pursuant to Anti
question the same before arraignment, –Trafficking in Persons Acts of 2003,
otherwise, the right to question it is deemed and/or in connection with any
waived. investigation being conducted by it, or in
the interest of national security, public The following are the rights of persons arrested,
safety of public health. detained or under custodial investigation:
1) To be assisted by counsel at all times;
2) Shall be informed , in a language known
RIGHTS OF THE ACCUSED (RULE115) to and understood by him, of his right to
remain silent and to have competent and
independent counsel, preferably of his
RIGHTS OF ACCUSED AT THE TRIAL own choice, who shall at all times be
allowed to confer privately with him;
1) To be PRESUMED INNOCENT until the 3) The custodial investigation report shall
contrary is proved beyond reasonable doubt. be read and adequately explained to him
2) To be INFORMED OF THE NATURE AND by his counsel or by the assisting counsel
CAUSE OF THE ACCUSATION against him. in the language or dialect known him;
3) To be PRESENT AND DEFEND IN PERSON otherwise, such investigation report shall
AND BY COUNSEL AT EVERY STAGE OF THE be null and void;
PROCEEDINGS, from arraignment to 4) Any extrajudicial confession made by
promulgation of the judgment. him shall be in writing and signed in the
4) To TESTIFY AS A WITNESS IN HIS OWN presence of his counsel or upon a valid
BEHALF but subject to cross-examination on waiver, and in the presence of his any
matters covered by direct examination. His immediate family members, otherwise,
silence shall not in any manner prejudice such extrajudicial confession shall be
him; inadmissible in any proceeding;
5) To be EXEMPT FROM BEING COMPELLED TO
5) Any waiver under the provisions of Art.
BE A WITNESS AGAINST HIMSELF.
125 of the RPC or under custodial
6) To CONFRONT AND CROSS-EXAMINE THE
investigation, shall be in writing signed
WITNESSES against him at the trial.
by such person in the presence of his
7) To have COMPULSORY PROCESS issued to
counsel; otherwise such waiver shall be
secure the attendance of witnesses and
null and void and of no effect;
production of other evidence in his behalf.
6) Shall be allowed visits by his or
8) To have SPEEDY, IMPARTIAL AND PUBLIC
conferences with any member of his
TRIAL.
immediate family, or any medical doctor
9) To appeal in all cases allowed and in the
or priest or religious minister chosen by
manner prescribed by law.
him or by his counsel, or by any national
NGO duly accredited by the Office of the
RIGHTS OF PERSONS UNDER CUSTODIAL President.
INVESTIGATION
THREE RIGHTS ARE MADE AVAILABLE
1) To be informed of his rights to remain silent BY SEC. 12(1):
and to have competent and independent
counsel preferably of his own choice. If the
person cannot afford the services of counsel,
a) The right to remain silent
he must be provided with one. These rights  Under the right against self-
cannot be waived except in writing and in incrimination in Sec. 17, only an
the presence of counsel; accused has the absolute right to
2) No torture, force, violence, intimidation or remain silent. A person who is not an
any other means which vitiate the free will accused may assume the stance of
shall be used against him. Secret detention silence only when asked an
places, solitary, incommunicado, or other incriminatory question.
similar forms of detention are prohibited;  Under Sec. 12, however, a person
3) Any confession or admission in violation of under investigation has the right to
Self-Incrimination Clause shall be refuse to answer any question. His
inadmissible in evidence against him; silence, moreover, may not be used
4) The law shall provide for penal and civil against him.
sanctions as well as compensation to aid
rehabilitation of victims of torture or similar b) The right to counsel — Example of
practice, and their families. those who are not impartial counsel are:
1) Special counsel, private or public
UNDER RA 7834 prosecutor, counsel of the police, or a
municipal attorney whose interest is with a copy of the complaint or information,

adverse to that of the accused; reading the same in the language or dialect
2) a mayor, unless the accused known to him, and asking him whether he
approaches him as counselor or pleads guilty or not guilty.
adviser; b) When the accused is under preventive
3) a barangay captain; detention, his case shall be raffled and its
4) any other whose interest may be records transmitted to the judge to whom
adverse to that of the accused. the case was raffled within three (3) days
from the filing of the information or
c) The right to be informed of his rights complaint. The accused shall be arraigned
— the right guaranteed here is more than within ten (10) days from the date of the
what is shown in television shows where the raffle. The pre-trial conference of his case
police routinely reads out the rights from a shall be held within ten (10) days after
note card; he must also explain their effects arraignment.
in practical terms. c) The private offended party shall be required
to appear at the arraignment for purposes of
CUSTODIAL INVESTIGATION plea-bargaining, determination of civil
liability, and other matters requiring his
The right to custodial investigation begins only presence. In case of failure of the offended
when the investigation is no longer a general party to appear despite due notice, the court
inquiry into an unsolved crime but has begun to may allow the accused to enter a plea of
focus on a particular suspect, the suspect has guilty to a lesser offense which is necessarily
been taken into police custody, the police carry included in the offense charged with the
out a process of interrogations that lends itself conformity of the trial prosecutor alone.
to eliciting incriminating statements. d) The arraignment shall be held within thirty
(30) days from the date the court acquires
It has extended to situations in which an jurisdiction over the person of the accused.
individual has not been formally arrested but The time of the pendency of a motion to
has merely been “invited” for questioning. quash or for a bill of particulars or other
causes justifying suspension of the
arraignment shall be excluded in computing
ARRAIGNMENT AND PLEA (RULE 116) the period.
WHEN SHOULD PLEA OF NOT GUILTY BE

It is the mode of implementing the ENTERED
constitutional right to be informed of the nature
of the accusation against him, and to fix the a) The accused so pleaded;
identity of the accused. b) When he refuses to plead;
c) Where in admitting the act charged, he
SOME RULES ON ARRAIGNMENT: sets up matters of defense or with a
a) Trial in absentia is allowed only after lawful justification;
arraignment; d) When he enters a conditional plea of
b) Judgment is generally void if the accused guilt;
has not been arraigned; e) Where, after a plea of guilt, he
c) There can be no arraignment in absentia; introduces evidence of self-defense or
d) If the accused went to trial without other exculpatory circumstances ; and
arraignment, but his counsel had the f) When the plea is indefinite or
opportunity to cross-examine the ambiguous.
witnesses of the prosecution and after
prosecution, he was arraigned, the WHEN MAY AN ACCUSED ENTER A PLEA OF
defect was cured. GUILTY TO A LESSER OFFENSE
ARRAIGNMENT AND PLEA, HOW MADE AT ARRAIGNMENT, the accused, with the
consent of the offended party and the
a) The accused must be arraigned before the prosecutor, may be allowed by the trial court to
court where the complaint or information plead guilty to a lesser offense which is
was filed or assigned for trial. The necessarily included in the offense charged.
arraignment shall be made in open court by
the judge or clerk by furnishing the accused
AFTER ARRAIGNMENT BUT BEFORE TRIAL, the promulgated but before the same becomes
accused may still be allowed to plead guilty to final.
said lesser offense after withdrawing his plea of  A plea of not guilty can likewise be
not guilty. No amendment of the complaint or withdrawn so that the accused may instead
information is necessary. plead guilty to the same offense, but for
obvious reasons, this must be done before
It has been held that the accused can still plead promulgation of judgment.
guilty to a lesser offense after the prosecution  When the accused pleads guilty but presents
has rested. exculpatory evidence, his plea shall be
deemed withdrawn and a plea of not guilty
If accused entered a plea to a lesser offense shall be entered for him.
without the consent of the offended party and
the prosecutor and he was convicted, his GROUNDS FOR SUSPENSION OF
subsequent conviction in the crime charged ARRAIGNMENT
would not place him in double jeopardy.
Upon motion by the proper party, the
ACCUSED PLEAD GUILTY TO CAPITAL arraignment shall be suspended in the following
OFFENSE, WHAT THE COURT SHOULD DO cases:
1) The accused appears to be suffering
The court should accomplish three (3) things; from an unsound mental condition which
1) It should conduct searching inquiry into effectively renders him unable to fully
the voluntariness and full comprehension understand the charge against him and
of the consequences of the plea; to plead intelligently thereto. In such
2) It should require the prosecution to case, the court shall order his mental
prove the guilt of the accused and the examination and, if necessary, his
precise degree of culpability; and confinement for such purpose.
3) It should inquire whether or not the 2) There exists a prejudicial question; and
accused wishes to present evidence on
3) A petition for review of the resolution of
his behalf and allow him if he so desires.
the prosecutor is pending at either the
DOJ or the Office of the President;
SEARCHING INQUIRY provided that the period of suspension
shall not exceed sixty (60) days counted
Searching question means more than informing from the filing of the petition with the
cursorily the accused that he faces a jail term. It reviewing office.
also includes the exact lengthy of imprisonment
under the law and the certainty that he will
serve at the national penitentiary or a penal MOTION TO QUASH (RULE 117)
colony.
It is intended to undermine the degree of A motion to quash is a hypothetical admission of

culpability of the accused in order that the court the facts alleged in the information, hence the
may be guided in determining the proper court in resolving the motion cannot consider
penalty. facts contrary to those alleged in the
information or which do not appear on the face
IMPROVIDENT PLEA of the information, except those admitted by
the prosecution.
 It is a plea without information as to all the
circumstances affecting it; based upon a The motion to quash must be filed before the
mistaken assumption or misleading arraignment. Thereafter, no motion to quash
information or advise. can be entertained by the court, the only
exceptions being those in Sec. 9 which adopts
 Conviction based on an improvident plea of
the omnibus motion rule, subject to said
guilty may set aside only when such plea is
exceptions. Sec. 3 has been amended to
the sole basis of the judgment.
separately refer to lack to jurisdiction over the
 At any time before the judgment of offense, not over the person of the accused
conviction becomes final, the court may since, by filing a motion to quash on other
permit the withdrawal of an improvident grounds, the accused has submitted himself to
plea of guilty, to be substituted by a plea of the jurisdiction of the court.
not guilty, even after judgment has been
GROUNDS c. By amnesty, which completely

extinguishes the penalty and all its
1) That the facts charged do not constitute an effects;
offense; d. By absolute pardon;
2) That the court trying the case has no e. By prescription of the crime;
jurisdiction over the offense charged; f. By prescription of the penalty;
3) That the court trying the case has no g. By the marriage of the offended
jurisdiction over the person of the accused; woman in
4) That the officer who filed the information i. Seduction
had no authority to do so; ii. abduction or
5) That it does not conform substantially to the iii. acts of lasciviousness (Art.
prescribed form; 344 RPC)
6) That more than one offense is charged 8) That it contains averments which, if true,
except when a single punishment for various would constitute a legal excuse or
offenses is prescribed by law; justification; and
7) That the criminal action or liability has been 9) That the accused has been previously
extinguished - convicted or acquitted of the offense
a. By the death of the convict, as to the charged, or the case against him was
personal penalties; as to pecuniary dismissed or otherwise terminated without
penalties, liability therefor is his express consent.
extinguished only when the death of
the offender occurs before final Grounds that are not waived even if not alleged:
judgment. a) Failure to charge an offense;
b. By service of the sentence; b) Lack of jurisdiction;
c) Extinction of criminal action or liability;
d) Double jeopardy.
MOTION TO QUASH DEMURER TO EVIDENCE

Rule 117 Section 23, Rule 119
When filed At any time before accused enters plea After the prosecution rests its case
Grounds a) That the facts charged do not constitute
an offense;  Insufficiency of evidence
b) That the court trying the case has no
jurisdiction over the offense charged;
c) That the court trying the case has no
jurisdiction over the person of the
accused;
d) That the officer who filed the information
had no authority to do so;
e) That it does not conform substantially to
the prescribed form;
f) That more than one offense is charged
except when a single punishment for
various offenses is prescribed by law;
g) That the criminal action or liability has
been extinguished;
h) That it contains averments which, if true,
would constitute a legal excuse or
justification; and
i) That the 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.
Effect if • If the motion to quash is sustained, • If leave of court is granted,
granted the court may order that another the accused shall file the
complaint or information be filed except demurrer to evidence within
as provided in section 6 of this rule. a non-extendible period of
 If the order is made, the ten (10) days from notice.

accused, if in custody, shall not be • The prosecution may
discharged unless admitted to bail. oppose the demurrer to
 If no order is made or if having evidence within 10 days
been made, no new information is filed from receipt of the motion.
within the time specified in the order
or within such further time as the
court may allow for good cause, the
accused, if in custody, shall be
discharged unless he is also in custody
of another charge.
• The remedy of prosecution is to
amend the information to correct the
defects thereof, except on the grounds of
(g) and (j); of the prosecution may appeal
the quashal of information or complaint
Effect if The usual course to take is for the accused to • An accused who files a
denied proceed with trial, and in case of conviction, demurrer to evidence with
to appeal therefrom and assign as error the leave of court does not lose the
denial of the motion to quash, right to present evidence in the
event his motion is denied.
• On the other hand, if he files
the demurrer without leave of
court and the same is denied,
he loses the right to present
evidence, in which event the
case will be deemed submitted
for decision.
Remedies if The order denying the motion to quash is The order denying the motion for
denied interlocutory and therefore not appealable, leave of court to file demurrer to
nor can it be the subject of a petition for evidence or to demur itself shall
certiorari. not be reviewable by appeal or
certiorari before judgment.
A special civil action may lie against an i) Where the charges are manifestly
order of denial of a motion to quash, as an false and motivated by the lust for
exception to the general rule, in any of the vengeance;
following instances: j) When there is clearly no prima facie
a) Where there is necessity to afford case against the accused; and
protection to the constitutional rights k) To avoid multiplicity of actions.
of the accused;
b) When necessary for the orderly EFFECTS OF SUSTAINING THE MOTION TO
administration of justice or to avoid QUASH
oppression or multiplicity of actions;
c) Where there is prejudicial question If the motion to quash is sustained, the court
which is sub judice; may order that another complaint or
d) When the acts of the officer are information be filed except as provided in
without or in excess of authority; section 6 of this rule.
e) Where the prosecution is under an a) If the order is made, the accused, if in
invalid law, ordinance or regulation; custody, shall not be discharged unless
f) When double jeopardy is clearly admitted to bail.
apparent; b) If no order is made or if having been
g) Where the court has no jurisdiction made, no new information is filed within
over the offense; the time specified in the order or within
h) Where it is a case of persecution such further time as the court may allow
rather than prosecution; for good cause, the accused, if in
custody, shall be discharged unless he is
also in custody of another charge.
in the former complaint or information under

EXCEPTION TO THE RULE THAT any of the following instances:
SUSTAINING THE MOTION IS NOT A BAR TO 1) the graver offense developed due to
ANOTHER PROSECUTION supervening facts arising from the same
act or omission constituting the former
1) An order sustaining the motion to quash is charge;
not a bar to another prosecution for the 2) the facts constituting the graver charge
same offense unless the motion was based became known or were discovered only
on the grounds specified in Sec. 3(g) and (i) after a plea was entered in the former
– that the criminal action or liability has complaint or information; or
been extinguished and that the accused has 3) the plea of guilty to the lesser offense
been previously convicted or in jeopardy of was made without the consent of the
being convicted, or acquitted of the offense prosecutor and of the offended party
charged. except as provided in section 1(f) of Rule
2) An order denying a motion to quash is 116.
interlocutory and not appealable and
generally, such denial cannot be controlled PROVISIONAL DISMISSAL
by certiorari; and the denial of a motion to
quash grounded on double jeopardy is not 1) A case shall not be provisionally dismissed
controllable by mandamus except with the express consent of the
accused and with notice to the offended
DOUBLE JEOPARDY party.
2) The provisional dismissal of offenses
No person shall be twice put in jeopardy of punishable by imprisonment not exceeding
punishment for the same offense. If an act is six (6) years or a fine of any amount, or
punished by a law and an ordinance, conviction both, shall become permanent one (1) year
or acquittal under either shall constitute a bar to after issuance of the order without the case
another prosecution for the same act (Sec. 21, having been revived.
Art. III, Constitution). 3) With respect to offenses punishable by
imprisonment of more than six (6) years,
The requirements of double jeopardy are: their provisional dismissal shall become
a) Valid indictment; permanent two (2) years after issuance of
b) Competent court; the order without the case having been
c) Valid arraignment; revived.
d) Valid plea entered; 4) The raison d‘etre for the requirement of the
e) Case is dismissed or terminated without express consent of the accused to a
the express consent of the accused. provisional dismissal of a criminal case is to
bar him from subsequently asserting that
When an accused has been convicted or the revival of the criminal case will place
acquitted, or the case against him dismissed or him in double jeopardy for the same offense
otherwise terminated WITHOUT HIS EXPRESS or for an offense necessarily included
CONSENT by a court of competent jurisdiction, therein.
upon a valid complaint or information or other
formal charge sufficient in form and substance
PRE-TRIAL (RULE 118)
to sustain a conviction and after the accused
had pleaded to the charge, the conviction or
The court shall, after arraignment and within
acquittal of the accused or the dismissal of the
thirty (30) days from the date the court acquires
case shall be a bar to another prosecution for
jurisdiction over the person of the accused,
the offense charged, or for any attempt to
unless a shorter period is, order a pre-trial
commit the same or frustration thereof, or for
conference. Its main objective is to achieve an
any offense which necessarily includes or is
expeditious resolution of the case.
necessarily included in the offense charged in
the former complaint or information.
MATTERS TO BE CONSIDERED DURING PRE
TRIAL
However, the conviction of the accused shall not
be a bar to another prosecution for an offense
which necessarily includes the offense charged 1) plea bargaining;
2) stipulation of facts;
3) marking for identification of evidence of Dispute Resolution (JDR) is plainly intended to

the parties; put an end to pending litigation through a
4) waiver of objections to admissibility of compromise agreement of the parties and
evidence; thereby help solve the ever-pressing problem of
5) modification of the order of trial if the court docket congestion.
accused admits the charge but
interposes a lawful defense; and Cases that may be referred:
6) such matters as will promote a fair and 1) All civil cases and the civil liability of
expeditious trial of the criminal and civil criminal cases covered by the Rule on
aspects of the Summary Procedure, including the civil
liability for violation of B.P. 22, except
WHAT THE COURT SHOULD DO WHEN those which by law may not be
PROSECUTION AND OFFENDED PARTY compromised;
AGREE TO THE PLEA OFFERED BY THE 2) Special proceedings for the settlement of
ACCUSED estates;
3) All civil and criminal cases filed with a
The agreements shall be approved by the court. certificate to file action issued by the
Provided that the agreement on the plea of the Punong Barangay or the Pangkat ng
accused should be to a lesser offense Tagapagkasundo under the Revised
necessarily included in the offense charged. Katarungang Pambarangay Law;
4) The civil aspect of Quasi-Offenses under
PRE-TRIAL AGREEMENT Title 14 of the Revised Penal Code;
5) The civil aspect of less grave felonies
All agreements or admissions made or entered punishable by correctional penalties not
during the pre-trial conference shall be reduced exceeding 6 years imprisonment, where
in writing and signed by the accused and the offended party is a private person;
counsel; otherwise, they cannot be used against 6) The civil aspect of estafa, theft and libel;
the accused. 7) All civil cases and probate proceedings,
testate and intestate, brought on appeal
NON-APPEARANCE DURING PRE-TRIAL from the exclusive and original
jurisdiction granted to the first level
If the counsel for the accused or the prosecutor courts;
does not appear at the pre-trial conference and 8) All cases of forcible entry and unlawful
does not offer an acceptable excuse for his lack detainer brought on appeal from the
of cooperation, the court may impose proper exclusive and original jurisdiction
sanctions or penalties. granted to the first level courts;
9) All civil cases involving title to or
PRE-TRIAL ORDER possession of real property or an interest
therein brought on appeal from the
exclusive and original jurisdiction
After the pre-trial conference, the court shall
granted to the first level courts; and
issue an order reciting the actions taken, the
10) All habeas corpus cases decided by the
facts stipulated, and evidence marked. Such
first level courts in the absence of the
order shall bind the parties, limit the trial to
Regional Trial Court judge, that are
matters not disposed of, and control the course
brought up on appeal from the special
of the action during the trial, unless modified by
jurisdiction granted to the first level
the court to prevent manifest injustice.
courts.
REFERRAL OF SOME CASES FOR COURT The following CASES SHALL NOT BE REFERRED
ANNEXED AND MEDIATION AND JUDICIAL TO CAM AND JDR:
DISPUTE RESOLUTION (AM 11-1-6-SC PHILJA) 1) Civil cases which by law cannot be
compromised;
2) Other criminal cases not covered under
CONCEPT OF COURT DIVERSION OF paragraphs 3 to 6 above;
PENDING CASES 3) Habeas Corpus petitions;
4) All cases under Republic Act No. 9262
The diversion of pending court cases both to (Violence against Women and Children);
Court-Annexed Mediation (CAM) and to Judicial and
5) Cases with pending application for relative strengths and weaknesses of each
Restraining Orders/Preliminary party's case and makes a non-binding and
Injunctions. impartial evaluation of the chances of each
party's success in the case. On the basis of such
However, in cases covered under 1, 4 and 5 neutral evaluation, the judge persuades the
where the parties inform the court that they parties to a fair and mutually acceptable
have agreed to undergo mediation on some settlement of their dispute.
aspects thereof, e.g., custody of minor children,
separation of property, or support pendente lite, The JDR judge shall not preside over the trial of
the court shall refer them to mediation. the case when the parties did not settle their
dispute at JDR.
PROCEDURE
CRIMINAL CASES
Judicial proceedings shall be divided into two
stages: If settlement is reached on the civil aspect of
1) From the filing of a complaint to the the criminal case, the parties, assisted by their
conduct of CAM and JDR during the pre- respective counsels, shall draft the compromise
trial stage, and agreement which shall be submitted to the
2) pre-trial proper to trial and judgment. court for appropriate action.
The judge to whom the case has been
originally raffled, who shall be called the Action on the criminal aspect of the case will be
JDR Judge, shall preside over the first determined by the Public Prosecutor, subject to
stage. The judge, who shall be called the the appropriate action of the court.
trial judge, shall preside over the second
stage. If settlement is not reached by the parties on
the civil aspect of the criminal case, the JDR
At the initial stage of the pre-trial conference, judge shall proceed to conduct the trial on the
the JDR judge briefs the parties and counsels of merits of the case should the parties file a joint
the CAM and JDR processes. Thereafter, he written motion for him to do so, despite
issues an Order of Referral of the case to CAM confidential information that may have been
and directs the parties and their counsels to divulged during the JDR proceedings. Otherwise,
proceed to the PMCU bringing with them a copy the JDR Judge shall turn over the case to a new
of the Order of Referral. The JDR judge shall judge by re-raffle in multiple sala courts or to
include in said Order, or in another Order, the the originating court in single sala courts, for
pre-setting of the case for JDR not earlier than the conduct of pretrial proper and trial.
forty-five (45) days from the time the parties
first personally appear at the PMCU so that JDR PRE-TRIAL PROPER
will be conducted immediately if the parties do
not settle at CAM. Where no settlement or only a partial
settlement was reached, and there being no
All incidents or motions filed during the first joint written motion submitted by the parties, as
stage shall be dealt with by the JDR judge. If JDR stated in the last preceding paragraphs, the JDR
is not conducted because of the failure of the judge shall turn over the case to the trial judge,
parties to appear, the JDR judge may impose determined by re-raffle in multiple sala courts or
the appropriate sanctions and shall continue to the originating court in single sala courts, as
with the proceedings of the case. the case may be, to conduct pre-trial proper, as
mandated by Rules 18 and 118 of the Rules of
If the parties do not settle their dispute at CAM, Court.
the parties and their counsels shall appear at
the preset date before the JDR judge, who will
then conduct the JDR process as mediator, TRIAL (RULE119)
neutral evaluator and/or conciliator in order to
actively assist and facilitate negotiations among
the parties for them to settle their dispute. As Continuous trial is one where the courts are
mediator and conciliator, the judge facilitates called upon to conduct the trial with utmost
the settlement discussions between the parties dispatch, with judicial exercise of the court’s
and tries to reconcile their differences. As a power to control the trial to avoid delay and for
neutral evaluator, the judge assesses the each party to complete the presentation of
evidence with the trial dates assigned to him.
conviction of the accused, except where he

INSTANCES WHEN PRESENCE OF ACCUSED unqualifiedly admits in open court after his
IS REQUIRED BY LAW arraignment that he is the person named as
defendant in the case on trial. Such waiver does
The only instances when the presence of the not mean a release of the accused from his
accused is required by law and when the law obligation under the bond to appear in court
may forfeit the bond if he fails to appear are: whenever required.
1) On arraignment;
2) On promulgation of judgment except for He can still be subpoenaed to appear for
light offenses; identification purposes, without violating his
3) For identification purposes; right against self-incrimination as he will not
4) When the court with due notice requires take the stand to testify but merely to be
so. present in court, where the prosecution witness
may, while in the witness stand, point to him as
REQUISITE BEFORE TRIAL CAN BE the accused.
SUSPENDED ON ACCOUNT OF ABSENCE OF
WITNESS REMEDY WHEN ACCUSED IS NOT BROUGHT
TO TRIAL WITHIN THE PRESCRIBED PERIOD
 To warrant postponement due to absence of
a witness, it must appear: If the accused is not brought to trial within the
a) That the witness is really material time limit, the information may be dismissed on
and appears to the court to be so; motion of the accused on the ground of denial
b) That the party who applies for of his right to speedy trial. The dismissal shall
postponement has not been guilty of be subject to the rules on double jeopardy.
neglect;
c) That the witness can be had at the Failure of the accused to move for dismissal
time to which the trial has been prior to trial shall constitute a waiver of the right
deferred; and to dismiss under this section.
d) That no similar evidence could be
obtained. REQUISITES FOR DISCHARGE OF ACCUSED
 The non-appearance of the prosecution at TO BECOME A STATE WITNESS
the trial, despite due notice, justifies a
provisional dismissal or an absolute When two or more persons are jointly charged
dismissal, depending on the circumstances. with the commission of any offense, upon
 Any period of delay resulting from the motion of the prosecution before resting its
absence or unavailability of an essential case, the court may direct one or more of the
witness shall be excluded in computing the accused to be discharged with their consent so
time within which trial must commence. that they may be witnesses for the state when,
after requiring the prosecution to present
TRIAL IN ABSENTIA evidence and the sworn statement of each
proposed state witness at a hearing in support
The Constitution permits trial in absentia of an of the discharge, the court is satisfied that:
accused after his arraignment who unjustifiably 1) There is absolute necessity for the
fails to appear during the trial notwithstanding testimony of the accused whose
due notice. The purpose of trial in absentia is to discharge is requested;
speed up the disposition of criminal cases. 2) There is no other direct evidence
available for the proper prosecution of
The REQUISITES OF TRIAL IN ABSENTIA are: the offense committed, except the
a) The accused has been arraigned; testimony of said accused;
b) He has been duly notified of the trial; 3) The testimony of said accused can be
and substantially corroborated in its material
c) His failure to appear is justified. points;
4) Said accused does not appear to be the
The waiver of the accused of appearance or trial most guilty; and
in absentia does not mean that the prosecution 5) Said accused has not at any time been
is thereby deprived of its right to require the convicted of any offense involving moral
presence of the accused for purposes of turpitude.
identification by the witnesses which is vital for
Evidence adduced in support of the discharge demurrer to evidence within a similar period
shall automatically form part of the trial. If the from its receipt.
court denies the motion for discharge of the  The order denying the motion for leave of
accused as state witness, his sworn statement court to file demurrer to evidence or the
shall be inadmissible in evidence. demurrer itself shall not be reviewable by
appeal or by certiorari before judgment.
EFFECTS OF DISCHARGE OF ACCUSED AS
STATE WITNESS
JUDGMENT (RULE 120)
The order shall amount to an acquittal of the
discharged accused and shall be a bar to future
Judgment means the adjudication by the court
prosecution for the same offense, unless:
that the accused is guilty or is not guilty of the
a) The accused fails or refuses to testify
offense charged, and the imposition of the
against his co-accused in accordance
proper penalty and civil liability provided for by
with his sworn statement constituting
law on the accused.
the basis for his discharge.
b) If he was granted immunity and fails to
Memorandum decision is one in which the
keep his part of the agreement, his
appellate court may adopt by reference, the
confession of his participation in the
findings of facts and conclusions of law
commission of the offense is admissible
contained in the decision appealed from.
in evidence against him.
The court shall order the discharge and REQUISITES OF A JUDGMENT

exclusion of the said accused from the
information. Admission into such Program shall It must be written in the official language,
entitle such State Witness to immunity from personally and directly prepared by the judge
criminal prosecution for the offense or offenses and signed by him and shall contain clearly and
in which his testimony will be given or used. distinctly a statement of the facts and the law
upon which it is based.
DEMURRER TO EVIDENCE
CONTENTS OF JUDGMENT
 After the prosecution rests its case, the
If the judgment is of conviction, it shall state:
court may dismiss the action on the ground
1) the legal qualification of the offense
of insufficiency of evidence (1) on its own
constituted by the acts committed by the
initiative after giving the prosecution the
accused and the aggravating or
opportunity to be heard or (2) upon
mitigating circumstances which attended
demurrer to evidence filed by the accused
its commission;
with or without leave of court.
2) the participation of the accused in the
 If the court denies the demurrer to evidence
offense, whether as principal,
filed with leave of court, the accused may
accomplice, or accessory after the fact;
adduce evidence in his defense.
3) the penalty imposed upon the accused;
 When the demurrer to evidence is filed and
without leave of court, the accused waives 4) the civil liability or damages caused by
the right to present evidence and submits his wrongful act or omission to be
the case for judgment on the basis of the recovered from the accused by the
evidence for the prosecution. offended party, if there is any, unless the
 The motion for leave of court to file enforcement of the civil liability by a
demurrer to evidence shall specifically state separate civil action has been reserved
its grounds and shall be filed within a non- or waived.
extendible period of five (5) days after the
prosecution rests its case. The prosecution In case the judgment is of acquittal, it shall
may oppose the motion within a non- state whether the evidence of the prosecution
extendible period of five (5) days from its absolutely failed to prove the guilt of the
receipt. accused or merely failed to prove his guilt
 If leave of court is granted, the accused shall beyond reasonable doubt. In either case, the
file the demurrer to evidence within a non- judgment shall determine if the act or omission
extendible period of ten (10) days from from which the civil liability might arise did not
notice. The prosecution may oppose the exist.
PROMULGATION OF JUDGMENT; INSTANCES WHEN DOES JUDGMENT BECOME FINAL

OF PROMULGATION OF JUDGMENT IN (FOUR INSTANCES)
ABSENTIA
a) After the lapse of the period for
The judgment is promulgated by reading it in perfecting an appeal;
the presence of the accused and any judge of b) When the sentence has been partially or
the court in which it was rendered. However, if totally satisfied or served;
the conviction is for a light offense, the c) When the accused has waived in writing
judgment may be pronounced in the presence his right to appeal; or
of his counsel or representative. When the judge d) Has applied for probation.
is absent or outside the province or city, the
judgment may be promulgated by the clerk of MNT OR MR IN MNT OR MR IN
court. CRIMINAL CASES CIVIL CASES
Either on motion of Must be upon motion
If the accused is confined or detained in another accused, or the court of a party, can’t be
province or city, the judgment may be motu proprio with motu proprio
promulgated by the executive judge of the consent of the
Regional Trial Court having jurisdiction over the accused
place of confinement or detention upon request Grounds for MNT – Grounds for MNT –
of the court which rendered the judgment. The errors of law or FAME, or newly
court promulgating the judgment shall have irregularities discovered evidence
authority to accept the notice of appeal and to committed during the
approve the bail bond pending appeal; trial, or newly
provided, that if the decision of the trial court discovered evidence
convicting the accused changed the nature of Ground for MR – error Grounds for MR –
the offense from non-bailable to bailable, the of law or fact Excessive damages,
application for bail can only be filed and insufficient evidence,
resolved by the appellate court. or decision is
contrary to law
The proper clerk of court shall give notice to the Filed any time before Filed within the
accused personally or through his bondsman or judgment of period for taking an
warden and counsel, requiring him to be conviction becomes appeal
present at the promulgation of the decision. If final
the accused was tried in absentia because he Should include all
jumped bail or escaped from prison, the notice the grounds then
to him shall be served at his last known available and those
address. not so included shall
be deemed waived.
In case the accused fails to appear at the When granted, the There may be partial
scheduled date of promulgation of judgment original judgment is grant
despite notice, the promulgation shall be made always set aside or
by recording the judgment in the criminal vacated and a new
docket and serving him a copy thereof at his judgment rendered
last known address or thru his counsel.
If the judgment is for conviction and the failure GROUNDS FOR NEW TRIAL
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
a) That errors of law or irregularities prejudicial
these rules against the judgment and the court
to the substantial rights of the accused have
shall order his arrest. Within fifteen (15) days
been committed during the trial;
from promulgation of judgment, however, the
accused may surrender and file a motion for b) That new and material evidence has been
leave of court to avail of these remedies. He discovered which the accused could not with
shall state the reasons for his absence at the reasonable diligence have discovered and
scheduled promulgation and if he proves that produced at the trial and which if introduced
his absence was for a justifiable cause, he shall and admitted would probably change the
be allowed to avail of said remedies within judgment.
fifteen (15) days from notice.
GROUNDS FOR RECONSIDERATION reconsideration within which to file a notice to

appeal.
The court shall grant reconsideration on the
ground of errors of law or fact in the judgment, This fresh period rule applies only to Rule 41
which requires no further proceedings. governing appeals from the RTC but also to Rule
40 governing appeals from MTC to RTC, Rule 42
REQUISITES BEFORE A NEW TRIAL MAY BE on petitions for review from the RTC to the CA,
GRANTED ON GROUND OF NEWLY Rule 43 on appeal from quasi-judicial agencies
DISCOVERED EVIDENCE to the CA, and Rule 45 governing appeals by
certiorari to the SC.
a) The evidence was discovered after trial;
b) The evidence could not have been Neypes ruling shall not be applied where no
discovered and produced at the trial even motion for new trial or motion for
with exercise of reasonable diligence; reconsideration has been filed in which case the
c) The evidence is material, not merely 15-day period shall run from notice of the
cumulative, corroborative or impeaching; judgment.
d) It must go to the merits as it would produce
a different result if admitted. The fresh period rule does not refer to the
period within which to appeal from the order
EFFECTS OF GRANTING A NEW TRIAL OR denying the motion for new trial because the
RECONSIDERATION order is not appealable.
a) When a new trial is granted on the ground of In the case of Judith Yu vs. Judge Samson, Feb.
errors of law or irregularities committed 9, 2011, the SC held that the Neypes doctrine is
during the trial, all the proceedings and applicable in criminal cases.
evidence affected thereby shall be set aside
and taken anew. The court may, in the APPEAL (RULE 122)
interest of justice, allow the introduction of
additional evidence.
b) When a new trial is granted on the ground of An appeal opens the whole case for review and
newly-discovered evidence, the evidence this includes the review of the penalty,
already adduced shall stand and the newly- indemnity and the damages involved.
discovered and such other evidence as the
court may, in the interest of justice, allow to EFFECT OF AN APPEAL
be introduced shall be taken and considered
together with the evidence already in the Upon perfection of the appeal, the execution of
record. the judgment or order appealed from is stayed
c) IN ALL CASES, when the court grants new as to the appealing party. The civil appeal of the
trial or reconsideration, the original offended party does not affect the criminal
judgment shall be set aside or vacated and a aspect of the judgment or order appealed from.
new judgment rendered accordingly.
The trial court loses jurisdiction over the,
APPLICATION OF NEYPES DOCTRINE IN except:
CRIMINAL CASES 1) To issue orders for the protection and
preservation of the rights of the parties
This rule was adopted TO STANDARDIZE THE which do not involve any matter litigated
APPEAL PERIODS provided in the Rules to afford by the appeal;
fair opportunity to review the case and, in the 2) To approve compromises offered by the
process, minimize errors of judgment. parties prior to the transmission of the
Obviously, the new 15 day period may be records on appeal to the appellate court.
availed of only if either motion is filed and was
denied; otherwise, the decision becomes final WHERE TO APPEAL
and executory after the lapse of the original
appeal period provided in Rule 41 a) To the Regional Trial Court, in cases decided
by the MTCs;
If the motion is denied, the movants has a fresh b) To the Court of Appeals or to the Supreme
period of 15 days from receipt or notice of the Court in the proper cases provided by law, in
order denying or dismissing the motion for cases decided by the RTC; and
c) To the Supreme Court, in cases decided by aspect of the judgment or order appealed
the Court of Appeals. from.
HOW APPEAL TAKEN GROUNDS FOR DISMISSAL OF APPEAL
a) The appeal to the RTC, or to the CA in cases a) Failure on the part of the appellant to file
decided by the RTC in the exercise of its brief within the reglementary period, except
original jurisdiction, shall be taken by filing a when he is repsented by counsel de officio;
NOTICE OF APPEAL with the court which b) Escape f the appellant from prison or
rendered the judgment or final order confinement;
appealed from and by serving a copy thereof c) When the appellant jumps bail;
upon the adverse party. d) Flight of the appellant for a foreign country
b) The appeal to the CA in cases decided by during the pendency of the appeal;
the RTC in the exercise of its appellate e) Patently without merit;
jurisdiction shall be by PETITION FOR f) Prosecuted manifestly for delay; or
REVIEW under Rule 42. g) The questions raised therein are too
c) The appeal to the SC in cases where the unsubstantial to require consideration.
penalty imposed by the RTC is reclusion
perpetua, or life imprisonment, or where a
lesser penalty is imposed but for offenses SEARCH AND SEIZURE (RULE 126)
committed on the same occasion or which
arose out of the same occurrence that gave
NATURE OF SEARCH WARRANT
rise to the more serious offense for which
the penalty of death, reclusion perpetua, or
The constitutional right against unreasonable
life imprisonment is imposed, shall be by
search and seizure refers to the immunity of
filing a NOTICE OF APPEAL.
one’s person, whether a citizen or alien, from
d) No notice of appeal is necessary in cases
interference by government, included in whish
where the death penalty is imposed by the
is his residence, his papers and other
RTC. The same shall be automatically
possession.
reviewed by the SC.
 Except as provided in the last paragraph The overriding function of the constitutional
of section 13, Rule 124, all other appeals guarantee is to protect personal privacy and
to the Supreme Court shall be by human dignity against unwarranted intrusion by
PETITION FOR REVIEW ON CERTIORARI the State.
under Rule 45.
The right of the people to be secure in their
EFFECT OF APPEAL BY ANY OF SEVERAL persons, houses, papers, and effects against
ACCUSED unreasonable searches and seizures of
whatever nature and for any purpose shall be
a) An appeal taken by one or more of inviolable, and no search warrant or warrant of
several accused shall not affect those who arrest shall issue except upon probable cause to
did not appeal, except insofar as the be determined personally by the judge after
judgment of the appellate court is favorable examination under oath or affirmation of the
and applicable to the latter. complainant and the witnesses he may produce,
b) The appeal of the offended party from and particularly describing the place to be
the civil aspect shall not affect the criminal searched and the persons or things to be seized
(Sec. 2, Art. III, Constitution).
SEARCH WARRANT (RULE 126) WARRANT OF ARREST (RULE 113)

A search warrant is an order in writing issued in Arrest is the taking of a person into custody in
the name of the People of the Philippines, order that he may be bound to answer for the
signed by a judge and directed to a peace commission of an offense (Sec. 1, Rule 113).
officer, commanding him to search for personal
property described therein and bring it before
the court (Sec. 1, Rule 126).
Requisites: Requisites for arrest warrant issued by RTC
A search warrant shall not issue except upon judge under Sec. 5, Rule 112:
probable cause in connection with one specific a) Within 10 days from the filing of the
offense to be determined personally by the complaint or information

judge after examination under oath or b) The judge shall personally evaluate the
affirmation of the complainant and the witness resolution of the prosecutor and its
he may produce, and particularly describing the supporting evidence.
place to be searched and the things to be seized c) If he finds probable cause, he shall issue a
which may be anywhere in the Philippines (Sec. warrant of arrest
4, Rule 126). d) In case of doubt on the existence of
probable cause
e) The judge may order the prosecutor to
present additional evidence within 5 days
from notice; and
f) The issue must be resolved by the court
within 30 days from the filing of the
complaint of information
Search or seizure without warrant, when lawful: Arrest without warrant, when lawful:
1) Consented search; a) When, in his presence, the person to be
2) As an incident to a lawful arrest; arrested has committed, is actually
3) Searches of vessels and aircrafts for committing, or is attempting to commit an
violation of immigration, customs and drug offense;
laws; b) When an offense has just been committed
4) Searches of moving vehicles; and he has probable cause to believe
5) Searches of automobiles at borders or based on personal knowledge of facts or
constructive borders; circumstances that the person to be
6) Where the prohibited articles are in plain arrested has committed it; and
view; c) When the person to be arrested is a
7) Searches of buildings and premises to prisoner who has escaped from a penal
enforce fire, sanitary and building establishment or place where he is serving
regulations; final judgment or is temporarily confined
8) “Stop and frisk” operations; while his case is pending, or has escaped
9) Exigent and emergency circumstances (in while being transferred from one
times of war and within the area of military confinement to another (Sec. 5, Rule 113).
operation)
APPLICATION FOR SEARCH WARRANT, objects sought in connection with the offense
WHERE FILED are in the place sought to be searched.
An application for search warrant shall be filed Requisites for issuing search warrant – A
with the following: search warrant shall not issue except upon
a) Any court within whose territorial probable cause in connection with one specific
jurisdiction a crime was committed. offense to be determined personally by the
b) For compelling reasons stated in the judge after examination under oath or
application, any court within the judicial affirmation of the complainant and the witness
region where the crime was committed if he may produce, and particularly describing the
the place of the commission of the crime place to be searched and the things to be seized
is known, or any court within the judicial which may be anywhere in the Philippines.
region where the warrant shall be
enforced. Issuance and form of search warrant – If
However, if the criminal action has already been the judge is satisfied of the existence of facts
filed, the application shall only be made in the upon which the application is based or that
court where the criminal action is pending. there is probable cause to believe that they
exist, he shall issue the warrant, which must be
PROBABLE CAUSE substantially in the form prescribed by these
Rules.
Probable cause is defined as such facts and
circumstances which could lead a reasonably PERSONAL EXAMINATION BY JUDGE OF THE
discreet and prudent man to believe that an APPLICANT AND WITNESSES
offense has been committed and that the
The judge must, before issuing the warrant, process cannot be reversed. Thus, in a buy-bust
personally examine in the form of searching operation conducted to entrap a drug pusher,
questions and answers, in writing and under the law enforcement agents may seize the
oath, the complainant and the witnesses he marked money found on the person of the
may produce on facts personally known to them pusher immediately after the arrest even
and attach to the record their sworn without arrest and search warrants.
statements, together with the affidavits
submitted. This is absolutely limit a warrantless search of a
person who is lawfully arrested to his or her
PARTICULARITY OF PLACE TO BE person at the time of and incident to his or her
SEARCHED AND THINGS TO BE SEIZED arrest and to dangerous weapons or anything
which may be used as proof of the commission
The warrant must particularly describe the place of the offense. Such warrantless search
to be searched and the persons or things to be obviously cannot be made in any other than the
seized. place of arrest.
The rule is that a description of the place to be 2. CONSENTED SEARCH

searched is sufficient if the officer with the
warrant can, with reasonable effort, ascertain Rights may be waived, unless the waiver is
and identify the place intended to be searched. contrary to law, public order, morals, or good
Where there are several apartments in the place customs, or prejudicial to a third person with a
to be searched, a description of the specific right recognized by law.
place can be determined by reference to the
affidavits supporting the warrant that the To constitute a valid waiver of a constitutional
apartment to be searched is the one occupied right, it must appear:
by the accused. The searching party cannot go a) that the right exists,
from one apartment to the other as the warrant b) the person involved had knowledge
will then become a general warrant. either actual or constructive, of the
existence of such right, and
PERSONAL PROPERTY TO BE SEIZED c) said person has an actual intention to
relinquish the right.
A search warrant may be issued for the search As the constitutional guarantee is not
and seizure of personal property: dependent upon any affirmative act of the
a) Subject of the offense; citizen, the courts do not place the citizen in the
b) Stolen or embezzled and other position of either contesting an officer’s
proceeds, or fruits of the offense; or authority by force, or waiving his constitutional
c) Used or intended to be used as rights, but instead they hold that a peaceful
the means of committing an offense. submission and silence of the accused in a
 It is not necessary that the search or seizure is not a consent or an
property to be searched or seized invitation thereto, but is merely a demonstration
should be owned by the person of regard to the supremacy of the law.
against whom the search is issued; it
is sufficient that the property is under 3. SEARCH OF MOVING VEHICLE
his control or possession.
In carrying out warrantless searches of moving
EXCEPTIONS TO SEARCH WARRANT vehicles, peace officers are limited to routine
REQUIREMENT checks, that is, the vehicles are neither really
searched nor their occupants subjected to
1. SEARCH INCIDENTAL TO LAWFUL ARREST physical or body searches, the examination of
the vehicles being limited to visual inspection.
A person lawfully arrested may be searched for
dangerous weapons or anything which may Warrantless search for moving vehicle is
have been used or constitute proof in the justified on the ground that it is not practicable
commission of an offense without a search to secure a warrant because the vehicle can be
warrant. quickly moved out of the locality or jurisdiction
in which the warrant must be sought.
The law requires that there first be a lawful
arrest before a search can be made. The 4. CHECK POINTS; BODY CHECKS IN
AIRPORT 3) the evidence must be immediately

apparent; and
A warrantless search conducted at police or 4) “plain view” justified mere seizure of
military checkpoints has been upheld for as long evidence without further search.
as the vehicle is neither searched nor its
occupants subjected to body search, and the 6. STOP AND FRISK SITUATION
inspection of the vehicle is merely limited to
visual search. A person who was carrying a bag and acting
suspiciously could be searched by police officers
Routine inspections are not regarded as and the unlicensed firearm seized inside the bag
violative of an individual’s right against is admissible in evidence, being an incident of a
unreasonable search. lawful arrest.
The search is limited to the following instances: A person roaming around in a place where drug
1) where the officer merely draws aside the addicts usually are found, whose eyes were red
curtain of a vacant vehicle which is and who was wobbling like a drunk, could be
parked on the public fair grounds; legally searched of his person and the illegal
2) simply looks into a vehicle; drug seized from him is admissible in evidence
3) flashes a light therein without opening against him.
the car’s doors;
4) where the occupants are not subjected A stop and frisk serves a two-fold interest:
to a physical or body search; a) the general interest of effective criminal
5) where the inspection of the vehicles is protection and detection which underlie
limited to a visual search or visual the recognition that a police officer may,
inspection; and under appropriate circumstances and in
6) where the routine check is conducted in an appropriate manner, approach a
a fixed area. person for purposes of investigating
possible criminal behavior even without
5. PLAIN VIEW SITUATION probable cause; and
b) the more pressing interest of safety and
It recognizes that objects inadvertently falling in self-preservation which permit the police
plain view of an officer who has the right to be officer to take steps to assure himself
in the position to have that view, are subject to that the person with whom he deals is
seizure without warrant. not armed with a deadly weapon that
could unexpectedly and fatally be used
It is usually applied where a police officer is not against him.
searching for evidence against the accused, but
nonetheless inadvertently comes across an 7. ENFORCEMENT OF CUSTOM LAWS
incriminating object.
The intention is to prevent smuggling and to
It is also been suggested that even if an object secure the collection of the legal duties, taxes
is observed in plain view, the seizure of the and other charges.
subject will not be justified where the
incriminating nature of the object is not Under the Tariff and Customs Code, Customs
apparent; it must be immediately apparent to officers are authorized to make arrest, search
the police that the items that they observe may and seizure of any vessel, aircraft, cargo,
be evidence of a crime, contraband or otherwise articles, animals or other movable property
subject to seizure. when the same is subject to forfeiture or liable
for any fine under the customs and tariff laws,
The elements of “plain view”seizure are: rules and regulations and may at any time
1) prior valid intrusion based on the valid enter, pass through or search any land or
warrantless arrest in which the police are inclosure or any warehouse, store or other
legally present in the pursuit of their building without being a dwelling house.
official duties;
2) the evidence was inadvertently A dwelling house may be entered or searched
discovered by the police who had the only upon warrants issued by judge upon sworn
right to be where they are; application showing probable cause and
particularly describing the placed to be generally, cannot be the subject of a separate

searched and person or things to be searched. action.
8. SEARCHES OF AUTOMOBILES AT The provisional remedies are proper only where

BORDERS OR CONSTRUCTIVE BORDERS the civil action for the recovery of civil liability
ex delicto has not been expressly waived or the
9. SEARCHES OF BUILDINGS AND PREMISES right to institute such civil action separately is
TO ENFORCE FIRE, SANITARY AND not reserved, in those cases where such
BUILDING REGULATIONS reservation may be made.
KINDS OF PROVISIONAL REMEDIES

10. EXIGENT AND EMERGENCY
CIRCUMSTANCES
ATTACHMENT
11. IN TERMS OF WAR WITHIN THE AREA When the civil action is properly instituted in the
OF MILITARY OPERATION criminal action as provided in Rule 111, the
offended party may have the property of the
accused attached as security for the satisfaction
REMEDIES FROM UNLAWFUL SEARCH AND of any judgment that may be recovered from
SEIZURE the accused in the following cases:
1) When the accused is about to abscond
A motion to quash a search warrant and/or to from the Philippines;
suppress evidence obtained thereby may be 2) When the criminal action is based on a
filed in and acted upon only by the court where claim for money or property embezzled
the action has been instituted. If no criminal or fraudulently misapplied or converted
action has been instituted, the motion may be to the use of the accused who is a public
filed in and resolved by the court that issued officer, officer of a corporation, attorney,
search warrant. However, if such court failed to factor, broker, agent or clerk, in the
resolve the motion and a criminal case is course of his employment as such, or by
subsequently filed in another court, the motion any other person in a fiduciary capacity,
shall be resolved by the latter court. or for a willful violation of duty;
3) When the accused has concealed,
Alternative remedies of the accused adversely removed, or disposed of his property, or
affected by a search warrant are the following: is about to do so; and
1) Motion to quash the search warrant with 4) When the accused resides outside the
the issuing court; or Philippines.
2) Motion suppress evidence with the court
trying the criminal case.  Rule 57 on preliminary attachment applies
on the procedure to secure an attachment in
The remedies are alternative, not cumulative. If the cases authorized under Rule 127.
the motion to quash is denied, a motion to
 At the commencement of the action or at
suppress cannot be availed of subsequently.
any time before entry of judgment, a
Replevin may also be proper if the objects are
plaintiff or any proper party may have the
legally possessed.
property of the adverse party attached as
security for the satisfaction of any judgment
PROVISIONAL REMEDIES (RULE 127) that may be recovered in the following
cases:
1) In an action for the recovery of a
NATURE specified amount of money or
damages, other than moral and
The provisional remedies in civil actions, insofar exemplary, on a cause of action
as they are applicable, may be availed of in arising from law, contract, quasi-
connection with the civil action deemed contract, delict or quasi-delict against
instituted with the criminal action. a party who is about to depart from
the Philippines with intent to defraud
An application for recovery of damages on the his creditors;
bond posted for purposes of said provisional
remedies shall be made in the same action and,
4) In an action against a party who has

been guilty of a fraud in contracting
2) In an action for money or property the debt or incurring the obligation
embezzled or fraudulently misapplied upon which the action is brought, or
or converted to his own use by a in the performance thereof;
public officer, or an officer or a 5) In an action against a party who has
corporation, or an attorney, factor, removed or disposed of his property,
broker, agent, or clerk, in the course or is about to do so, with intent to
of his employment as such, or by any defraud his creditors; or
other person in a fiduciary capacity, 6) In an action against a party who does
or for a willful violation of duty; not reside and is not found in the
3) In an action to recover the possession Philippines, or on whom summons
of property unjustly or fraudulently may be served by publication.
taken, detained or converted, 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;
EVIDENCE (Rules 128 – 134)
appearing on record, in cases covered by the

CONCEPT OF EVIDENCE Rules on Summary Procedure, and those filed in
administrative or quasi-judicial bodies.
Evidence is the means, sanctioned by the Rules SCOPE OF THE RULES OF EVIDENCE
of Court, of ascertaining in a judicial proceeding
the truth respecting a matter of fact. It is only a The rules of evidence are guided by the
means of ascertaining the truth. This truth principle of uniformity. As a general policy, the
should depend upon the evidence submitted in rules of evidence shall be the same in all courts
a court in accordance with the rules. and in all trials and hearings.
Generally, the manner of proving factual EVIDENCE IN CIVIL EVIDENCE IN

allegations is through witnesses who are placed CASES CRIMINAL CASES
in the witness stand to testify on what they The party having the The guilt of the
personally know or to identify relevant burden of proof must accused has to be
documents. They are presented voluntarily or prove his claim by a proven beyond
through the coercive process of subpoena preponderance of reasonable doubt.
duces tecum. evidence.
An offer of Except in cases of
compromise is not an criminal negligence or
Evidence is also secured by resorting to modes admission of any those allowed by law
of discoveries, such as: liability, and is not to be compromised,
a) Taking of depositions of any person, oral admissible in an offer of
or written (Rule 23); evidence against the compromise by the
b) Serving of interrogatories to parties (Rule offeror. accused may be
25); received in evidence
c) Serving of requests for admission by the as an implied
adverse party (Rule 25); admission of guilt.
d) Production and inspection of documents Generally, there is no The accused enjoys
(Rule 27); and presumption for or the presumption of
e) Examination of physical and mental against a party, innocence.
conditions of persons (Rule 28). except in some civil
cases such as in a
A matter may also be proved by means of contractual suit
affidavit, such as in motions based on facts not against the carrier,
presumption against accompanying the fact in issue and

the defendant. pointing to it, like alibi, or opportunity
and incompatibility;
c) Retrospectant collateral matters – those
EVIDENCE PROOF succeeding the fact in issue but pointing
Medium of proof / Effect and result of backward to it, like flight and
Means to the end evidence / End concealment, behavior of the accused
result. upon being arrested, fingerprints or
FACTUM FACTUM PROBANS footprints, articles left at the scene of the
PROBANDUM crime which may identify the culprit.
Proposition to be Material evidencing
established the proposition MULTIPLE ADMISSIBILITY
There are times when proffered evidence is

ADMISSIBILITY OF EVIDENCE admissible for two or more purposes.
Sometimes it is admissible for one purpose but
Two axioms of admissibility: inadmissible for another or vice versa. It may
a) None but facts having rational probative also be admissible against one party but not
value are admissible (relevance). against another. This kind of evidence is to b
b) All facts having rational probative value received provided it meets the relevancy and
are admissible unless some specific rules competency tests for which it is offered.
forbid (competence).
CONDITIONAL ADMISSIBILITY
ADMISSIBILITY OF WEIGHT OF
EVIDENCE EVIDENCE Evidence which appears to be immaterial is
Pertains to the ability of Pertains to the admitted by the court and the proponent may
the evidence to be effect of evidence ask that the evidence be conditionally admitted
allowed and accepted admitted in the meantime subject to the condition that he
subject to its relevancy is going to establish its relevancy and
and competence competency at a later time. If a promise thus
made is not fulfilled, the court may strike out
the evidence thus conditionally admitted, if a
motion is made by the opposite party.
REQUISITES FOR ADMISSIBILITY OF
EVIDENCE
CURATIVE ADMISSIBILITY
a) That it is relevant to the issue; and
It refers to a situation where incompetent
b) That it is competent, that is, that it does not
evidence was erroneously received by the court
belong to that class of evidence which is
despite objection from the other party. It will not
excluded by the law or the rules.
apply where the evidence was admitted without
objection because of a waiver of the
RELEVANCE OF EVIDENCE AND
admissibility of the evidence. So, where the
COLLATERAL MATTERS
objection was incorrectly overruled, the court
must allow the other party to introduce
Relevance - evidence must have such a relation
evidence to contradict the evidence improperly
to the fact in issue as to induce belief in its
admitted. This is reasons of fairness.
existence or non-existence.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Collateral matters - evidence on collateral
matters shall not be allowed, except when it
DIRECT EVIDENCE is that which proves the
tends in any reasonable degree to establish the
fact in dispute without the aid of any inference
probability or improbability of the fact in issue
or presumption. Evidence which if believed
or to corroborate or supplement facts
proves the existence of a fact in issue without
established previously by direct evidence.
interference or presumption.
a) Prospectant collateral matters – those
preceding of the fact in issue but
CIRCUMSTANTIAL EVIDENCE is the proof of
pointing forward to it, like moral
facts from which, taken collectively, the
character, motive, conspiracy;
existence of the particular fact in dispute may
be inferred as a necessary or probable issue by such quantum the prima facie case
consequence. of evidence as the law created against him
demands in the case in
In a criminal case, circumstantial evidence is which the issue arises.
sufficient for conviction provided the following It remains with the party It shifts from side to
requisites concur: alleging facts and never side as the trial of the
1) There is more than one circumstances; shifts to the other party. case progresses
2) The facts from which the inferences are He who alleges the
derived are proven; and affirmative of the issue
3) The combination of all the circumstances has the burden of proof,
is such as to produce a conviction and the same never
beyond reasonable doubt. parts.
POSITIVE AND NEGATIVE EVIDENCE

PRESUMPTIONS
 Testimony is positive when the witness
affirms that a fact did or did not exist and is A presumption is an assumption of fact resulting
entitled to greater weight. from a rule of law which requires such fact to be
 It is negative when he says that he did not assumed from another fact or group of facts
see or know of the factual occurrence. It is found or otherwise established in the action. It
considered to be a very weak defense and is not evidence in itself but it is an assumption
can never overcome an affirmative or resulting from the evidence. They merely affect
positive testimony particularly when it the burden of offering evidence. In a sense, it is
comes from the mouth of a credible witness. an inference which is mandatory unless
rebutted.
COMPETENT AND CREDIBLE EVIDENCE
A. CONCLUSIVE PRESUMPTIONS
Competent evidence is one that is not excluded (JURIS ET DE JURE)
by law or the rules. If the test of relevance is
logic and common sense, the test of It is conclusive when the presumption becomes
competence is the law or the rules. irrebuttable upon the presentation of the
Competence, in relation to evidence in general, evidence tending to rebut the presumption is
refers to eligibility of an evidence to be received not admissible. This presumption is in reality a
as such. rule of substantive law. Examples:
A witness may be competent, and yet give Whenever a party has, by his own declaration,
incredible testimony; he may be incompetent, act, or omission, intentionally and deliberately
and yet his evidence, if received, be perfectly led another to believe a particular thing true,
credible. and to act upon such belief, he cannot, in any
litigation arising out of such declaration, act or
COMPETENT CREDIBLE omission, be permitted to falsify it:
EVIDENCE EVIDENCE
Competency is a Credibility concerns The tenant is not permitted to deny the title of
question which arises the degree of credit to his landlord at the time of the commencement
before considering the be given to his of the relation of landlord and tenant between
evidence given by the testimony; them.
witness;
Denotes the personal Denotes the veracity
qualification of the of the testimony
witness
B. DISPUTABLE PRESUMPTIONS
(JURIS TANTUM)
BURDEN OF PROOF BURDEN OF It is disputable or rebuttable or it may be

EVIDENCE contradicted or overcome by other evidence.
Denotes the duty of Means the necessity When evidence that rebuts the presumption is
establishing the truth of of going forward with introduced, the force of the presumption
a given proposition or the evidence to meet disappears.
a) That a person is innocent of crime or contradict the presumption of validity and

wrong; regularity in favor of a notarial or public
b) That an unlawful act was done with an document; the law enforcers have regularly
unlawful intent; performed their duties requires that proof of
c) That a person intends the ordinary frame-up; an accused who invokes self-
consequences of his voluntary act; defense).
d) That a person takes ordinary care of his
concerns; This standard should be lower than proof
e) That evidence willfully suppressed would beyond reasonable doubt but higher than
be adverse if produced (Rule 131, Sec preponderance of evidence.
3).
C. PREPONDERANCE OF EVIDENCE
LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE  required in civil cases
 that which is of greater weight or more
The rules of evidence must be liberally convincing than that which is offered in
construed. Rules of procedure are mere tools opposition to it; synonymous with the terms
intended to facilitate rather than to frustrate the “greater weight of evidence” or “greater
attainment of justice. A strict and rigid weight of credible evidence.” It means
application of the rules must always be probably the truth. It is evidence which is
eschewed if it would subvert their primary more convincing to the court as worthy of
objective of enhancing substantial justice. It belief than that which is offered in
means that the words should receive a fair and opposition thereto.
reasonable interpretation, so as to secure a just,
speedy and inexpensive disposition of every D. SUBSTANTIAL EVIDENCE
action or proceeding.
 required in administrative proceedings or
QUANTUM OF EVIDENCE (WEIGHT AND quasi-judicial bodies
SUFFICIENCY OF EVIDENCE [RULE 133])  such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion
A. PROOF BEYOND REASONABLE DOUBT  more than a scintilla but may be somewhat
less than preponderance, even if other
 required for conviction of an accused in reasonable minds might conceivably opine
criminal case otherwise. (SC said that in administrative
 the logical and inevitable result of the cases against judges/sherrifs are highly
evidence on record, exclusive of any other penal in nature and requires proof beyond
consideration, of the moral certainty of the reasonable doubt).
guilt of the accused or that degree of proof
which produces conviction in an JUDICIAL NOTICE AND JUDICIAL
unprejudiced mind. It does not mean such ADMISSIONS
degree of proof as, excluding possibility of
error, produces absolute certainty. Moral
certainty only is required. MATTERS OF JUDICIAL NOTICE
B. CLEAR AND CONVINCING EVIDENCE There are matters which must be admitted
without need for evidence. All these matters
which the court may take cognizance of without
 that measure or degree of proof which will
evidence are called matters of “judicial notice”.
produce in the mind of the trier of facts a
firm belief or conviction as to the allegations
The function of judicial notice is to abbreviate
sought to be established.
litigation by the admission of matters that need
 it is more than preponderance but not to the no evidence. It takes the place of proof and is of
extent of such moral certainty as is required equal force. It displaces evidence and fulfils the
beyond reasonable doubt as in criminal purpose for which the evidence is designed to
cases. It is often said that to overcome a fulfil.
disputable presumption of law, clear and
convincing evidence is required (use to
a. MANDATORY – when the matter is subject to 3) asserting lack of knowledge or

a mandatory judicial notice, no motion of information of the truth of the material
hearing is necessary for the court to take allegations when the same is plainly and
judicial notice of a fact. These are: necessarily within the knowledge of
a) the existence and territorial defendant.
extent of states;
b) the political history, forms of EFFECT OF JUDICIAL ADMISSIONS
government and symbols of nationality
of states; An admission, verbal or written, made by a
c) the law of nations; party in the course of the proceedings in the
d) the admiralty and maritime courts same case, does not require proof. Under Sec.
of the world and their seals; 4, Rule 129, the following are the effects of
e) the political constitution and judicial admissions:
history of the Philippines; 1) They do not require proof; and
f) the official acts of the legislative, 2) They cannot be contradicted because
executive and judicial departments of they are conclusive upon the party
the Philippines; making it.
g) the laws of nature;
h) the measure of time; and HOW JUDICIAL ADMISSIONS MAY BE
i) the geographical divisions. CONTRADICTED
b. DISCRETIONARY - A court may take judicial Judicial admissions can be contradicted:

notice of matters: 1) That it was made through palpable
a) which are of public knowledge; or mistake; or
b) capable of unquestionable 2) No such admission was in fact made.
demonstration; or These exceptions may negate the
c) ought to be known to judges admission. But before the court may
because of their judicial functions. allow a party to relieve him of the effects
of admissions or to withdraw therefrom,
The principles of discretionary judicial notice will he has to show, by proper motion,
apply here the following requisites are met: justifiable reason or palpable mistake.
a) The matter must be of common
knowledge; JUDICIAL NOTICE OF FOREIGN LAWS, LAW
b) The matter must be settled OF NATIONS AND MUNICIPAL ORDINANCE
beyond reasonable doubt (if there is nay
uncertainty about the matter, then Foreign laws may not be taken judicial notice of
evidence must be adduced); and and have to be proven like any other fact by an
c) The knowledge must exist within official publication or by a duly attested and
the jurisdiction of the court. authenticated copy thereof. It must be alleged
and proved. The provisions of the foreign law
JUDICIAL ADMISSIONS may also be the subject of judicial admission
under Sec. 4, Rule 129. Absent any of the
Judicial admissions are conclusive upon the foregoing evidence or admission, the foreign
party making them, while extrajudicial law is presumed to the same as that in the
admissions or other admissions are, as a rule, Philippines, under the so-called doctrine of
and where the elements of estoppels are not processual presumption.
present, disputable and needs to be formally
offered in evidence. However, the court may take judicial notice of
the treatise containing the foreign law.
Declaration of a party favorable to himself are
not admissible as proof of the facts asserted. Law of nations is subject to mandatory judicial
notice under Sec. 1, Rule 129. Under the
They may be express or implied, implied Philippine Constitution, the Philippines adopts
admissions by a defendant of material facts the generally accepted principles of
alleged in a complaint include international law as part of the law of the land.
1) keeping silent on such material facts, They are therefore technically in the nature of
2) denying such material facts without local laws and hence, are subject to a
setting forth the matters upon which he mandatory judicial notice.
relies to support his denial, and
d) The authentication must be made by a

MTCs must take judicial notice of municipal competent witness; and
ordinances in force in the municipality in which e) The object must be formally offered in
they sit. evidence.
RTCs should also take judicial notice of CATEGORIES OF OBJECT EVIDENCE

municipal ordinances in force in the
municipalities within their jurisdiction but only For purposes of authentication of an object or
when so required by law. (i.e. the charter of City for laying the foundation for the exhibit, object
of Manila requires all courts sitting therein to evidence may be classified into the following:
take judicial notice of all ordinances passed by a) Unique Objects - Object that have readily
the city council.) Such court must take judicial identifiable marks (like serial number of
notice also of municipal ordinances on appeal to a calibre 45 pistol);
it from the inferior court in which the latter took b) Objects Made Unique - Objects that are
judicial. made readily identifiable (like a typical
knife, witness may identify by placing
The CA may take judicial notice of municipal marks on it); and
ordinances because nothing in the Rules c) Non-Unique Objects - Objects with no
prohibits it from taking cognizance of an identifying marks and cannot be marked
ordinance which is capable of unquestionable (like drop of blood, oil, and drugs, the
demonstration. proponent must establish a chain of
custody).
RULES OF ADMISSIBILITY (RULE 130)
DEMONSTRATIVE EVIDENCE
OBJECT (REAL) EVIDENCE; NATURE OF Demonstrative evidence is tangible evidence

OBJECT EVIDENCE that merely illustrates a matter of importance in
the litigation. Common types of demonstrative
 Objects as evidence are those addressed to evidence include photographs, motion pictures
the senses of the court. When an object is and recordings, x-ray pictures, scientific tests,
relevant to the fact in issue, it may be demonstrations and experiments, maps,
exhibited to, examined or viewed by the diagrams, models, summaries, and other
court. materials created especially for the litigation.
 Real evidence is also called autoptic
preference, which is inspection by the court In contrast to demonstrative evidence, object
of a thing itself and its conditions, to enable evidence is a tangible object that played some
the court to effectively exercise its judicial actual role in the matter that gave rise to the
power of receiving and weighing the litigation. For instance, the knife used in the
evidence. It is knowledge acquired by the altercation that forms the basis for the lawsuit.
court from inspection or by direct self-
perception or autopsy of the evidence. The foundation for demonstrative evidence does
not involve showing that the object was the one
 Physical evidence is evidence of the highest
used in the underlying event. Rather, the
order. It speaks more eloquently than a
foundation generally involves showing that the
hundred witnesses.
demonstrative object fairly represents or
illustrates what it is alleged to illustrate.
REQUISITES FOR ADMISSIBILITY OF (REAL)
EVIDENCE
VIEW OF AN OBJECT OR SCENE
a) The object must be relevant to the fact in The inspection may be made inside or outside
issue (to be relevant, the evidence must the courtroom. An inspection or view outside
have a relationship to the fact in issue); the courtroom should be made in the presence
b) The object must be competent (must not of the parties or at least with previous notice to
be excluded by the rules); them. It is error for the judge for example, to go
c) The object must be authenticated before alone to the land in question, or to the place
it is admitted (it must be shown that it is where the crime was committed and take a view
the very thing which is the subject without the previous knowledge of the parties.
matter of the suit);
Such inspection or view is part of the trial since together with the representative
evidence is thereby being received. sample/s in the custody of the PDEA,
shall be submitted to the court having
CHAIN OF CUSTODY IN RELATION TO jurisdiction over the case; and
SECTION 21 OF THE COMPREHENSIVE 6) The alleged offender or his/her
DANGEROUS DRUGS ACT OF 2002 representative or counsel shall be
allowed to personally observe all of the
The purpose of chain of custody is to guaranty above proceedings and his/her presence
the integrity of the physical evidence and to shall not constitute an admission of guilt.
prevent the introduction of evidence which is In case the said offender or accused
not authentic. refuses or fails to appoint a
representative after due notice in writing
The PDEA shall take charge and have custody of to the accused or his/her counsel within
all dangerous drugs, plant sources of dangerous 71 hours before the actual burning or
drugs, controlled precursors and essential destruction or the evidence in question,
chemicals, as well as instruments/paraphernalia the SOJ shall appoint a member of the
and/or laboratory equipment so confiscated, PAO to represent the former;
seized and/or surrendered, for proper 7) After the promulgation and judgment in
disposition in the following manner: the criminal case wherein the
1) The apprehending team having initial representative sample/s was presented
custody and control of the drugs shall, as evidence in court, the trial prosecutor
immediately after seizure and shall inform the Board of the final
confiscation, physically inventory and termination of the case and, in turn, shall
photograph the same in the presence of request the court for leave to turn over
the accused and any elected public the said representative sample/s to the
official who shall be required to sign the PDEA for proper disposition and
copies of the inventory and be given a destruction within 24 hours from receipt
copy thereof; of the same.
2) Within 24 hours upon
confiscation/seizure, the same shall be
submitted to the PDEA Forensic
Laboratory for a qualitative and RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-
quantitative examination; SC)
3) A certification of the forensic laboratory
examination results, which shall be done
Notes:
under oath by the forensic laboratory
 DNA report is a documentary evidence
examiner, shall be issued within 24 hours
after the receipt of the subject item/s;  DNA testing order is executory, unless
4) After the filing of the criminal case, the there is an injunction
Court shall, within 72 hours, conduct an  The Rule on DNA Evidence is the primary
ocular inspection of the confiscated, rule to be applied whenever DNA
seized and/or surrendered dangerous evidence is offered, used or proposed to
drugs, plant sources of dangerous drugs, be offered or used as evidence in
and controlled precursors and essential criminal and civil actions and special
chemicals, including the instruments/ proceedings.
paraphernalia and/or laboratory
equipment, and through the PDEA shall MEANING OF DNA
within 24 hours thereafter proceed with
the destruction or burning of the same, DNA means deoxyribonucleic acid, which is the
in the presence of the accused or the chain of molecules found in every nucleated cell
person/s from whom such items were of the body. The totality of an individual’s DNA
confiscated and/or seized, or his/her is unique for the individual, except identical
representative or counsel, a twins.
representative from the media and the
DOJ, civil society groups and any elected DNA evidence constitutes the totality of the
public official. DNA profiles, results and other genetic
5) The Board shall then issue a sworn information directly generated from DNA testing
certification as to the fact of destruction of biological samples.
or burning of the subject item/s which,
DNA profile means genetic information derived the prosecution or any person convicted by final
from DNA testing of a biological sample and executory judgment provided that
obtained from a person, which biological sample a) a biological sample exists,
is clearly identifiable as originating from that b) such sample is relevant to the case,
person; and
c) the testing would probably result in
DNA testing means verified and credible the reversal or modification of the
scientific methods which include the extraction judgment of conviction.
of DNA from biological samples, the generation
of DNA profiles and the comparison of the Remedy - The convict or the prosecution may
information obtained from the DNA testing of file for a writ of habeas corpus in the court of
biological samples for the purpose of origin if he results of the post-conviction DNA
determining, with reasonable certainty, whether testing are favorable to the convict. In case the
or not the DNA obtained from two or more court, after due hearing finds the petition to be
distinct biological samples originates from the meritorious, it shall reverse or modify the
same person (direct identification) of if the judgment of conviction and order the release of
biological samples originate from related the convict, unless continued detention is
persons (kinship analysis). justified for a lawful cause.
APPLICATION FOR DNA TESTING ORDER ASSESSMENT OF PROBATIVE VALUE OF

DNA EVIDENCE AND ADMISSIBILITY
The appropriate court may, at any time, either
motu propio or on application of any person who The following are the guidelines to be used in
has a legal interest in the matter in litigation, assessing the probative value of the DNA
order a DNA testing. Such order shall issue after evidence:
due hearing and notice to the parties upon a a) How the samples were collected;
showing of the following: b) How they were handled;
a) A biological sample exists that is c) The possibility of contamination of the
relevant to the case; samples;
b) The biological sample: d) The procedure followed in analyzing the
1) Was not previously subjected to samples;
the type of DNA testing now e) Whether the proper standards and
requested; or procedures were followed in conducting
2) Was previously subjected to DNA the tests; and
testing but the results may f) The qualification of the analyst who
require confirmation for good conducted the test.
reasons;
c) The DNA testing uses a scientifically The determination of the probative value of the
valid technique; DNA evidence rests upon the sound judicial
d) The DNA testing has the scientific assessment taking into considerations the
potential to produce new information following matters:
that is relevant to the proper resolution a) The chair of custody, including how the
of the case; and biological samples were collected, how
e) The existence of other factors, if any, they were handled, and the possibility of
which the court may consider as contamination of the samples;
potentially affecting the accuracy of b) The DNA testing methodology, including
integrity of the DNA testing. the procedure followed in analyzing the
samples, the advantages and
This rule shall not preclude a DNA testing, disadvantages of the procedure, and
without need of prior court order, at the behest compliance with the scientifically valid
of any party, including law enforcement standards in conducting the tests;
agencies, before a suit or proceeding is c) The forensic DNA laboratory, including
commenced. accreditation by any reputable
standards-setting institution and the
POST-CONVICTION DNA TESTING; REMEDY qualification of the analyst who
conducted the tests. If the laboratory is
not accredited, the relevant experience
Post-conviction DNA testing may be
of the laboratory in forensic casework
available, without need of prior court order, to
and credibility shall be properly c) The document must be authenticated

established; and before it is admitted
d) The reliability of the testing result, as d) The authentication must be made by a
herein after provided. competent witness; and
e) The document must be formally offered
The provisions of the Rules of Court concerning in evidence.
the appreciation of evidence shall apply
suppletorily. BEST EVIDENCE RULE
RULES ON EVALUATION OF RELIABILITY OF MEANING OF THE RULE

THE DNA TESTING METHODOLOGY
It requires the highest grade of evidence
In evaluating whether the DNA testing obtainable to prove a disputed fact. It cannot be
methodology is reliable, the court shall consider invoked unless the contents of writing is the
the following: subject of judicial inquiry, in which case the
a) The falsifiability of the principles or best evidence is the original writing itself.
methods used, that is, whether the
theory or technique can be and has been The best evidence refers to that which the law
tested; or the rules consider as the best evidence to
b) The subjection to peer review and prove the fact in dispute. The best evidence is
publication of the principles or methods; the evidence which the case in its nature is
c) The general acceptance of the principles susceptible and which is within the power of the
or methods by the relevant scientific party to produce. Evidence cannot be received
community; which indicates on its face that it is secondary,
d) The existence and maintenance of that is, merely substitutionary in its nature, and
standards and controls to ensure the that the original source of information is in
correctness of data generated; existence and accessible. The underlying
e) The existence of an appropriate purpose is the prevention of fraud.
reference population database; and
f) The general degree of confidence WHEN APPLICABLE
attributed to mathematical calculations
used in comparing DNA profiles and the When the subject of inquiry is the contents of a
significance and limitation of statistical document, no evidence shall be admissible
calculations used in comparing DNA other than the original document itself, except
profiles. in the following cases:
a) When the original has been lost or
DOCUMENTARY EVIDENCE destroyed, or cannot be produced in
court, without bad faith on the part of
Documentary evidence is evidence supplied by the offeror;
written instruments, or derived from b) When the original is in the custody or
conventional symbols, such as letters, by which under the control of the party against
ideas are represented on material substances; whom the evidence is offered, and the
documents produced for the inspection of the latter fails to produce it after reasonable
court or judge. It includes books, papers notice;
accounts and the like.
c) When the original consists of numerous
accounts or other documents which
Documents as evidence consist of writing or any
cannot be examined in court without
material (not only writing) containing letters,
great loss of time and the fact sought to
words, numbers, figures, symbols or other
be established from them is only the
modes of written expressions offered as proof
general result of the whole; and
of their contents.
d) When the original is a public record in
the custody of a public officer or is
REQUISITES FOR ADMISSIBILITY
recorded in a public office.
 It applies only to documentary evidence.
a) The document must be relevant to the
fact in issue
b) The document must be competent MEANING OF ORIGINAL
The original does not necessarily mean the one authentic document, or by the testimony of
first written; its meaning is relative only to the witnesses in the order stated.
particular issue. The original is the document
whose contents are to be proved. When original document is in adverse
party's custody or control - If the document
Sec. 4, Rule 130 has clarified what constitutes is in the custody or under the control of the
the original of a document: adverse party, he must have reasonable notice
a) The original of a document is one the to produce it. If after such notice and after
contents of which are the subject of satisfactory proof of its existence, he fails to
inquiry; produce the document, secondary evidence
b) When a document is in two or more may be presented as in the case of its loss.
copies executed at or about the same
time, with identical contents, all such Evidence admissible when original
copies are equally regarded as originals; document is a public record - When the
and original of a document is in the custody of a
c) When an entry is repeated in the regular public officer or is recorded in a public office, its
course of business, one being copied contents may be proved by a certified copy
from another at or near the time of the issued by the public officer in custody thereof.
transaction, all the entries are likewise
equally regarded as originals.
REQUISITES FOR INTRODUCTION OF RULES ON ELECTRONIC EVIDENCE

SECONDARY EVIDENCE A.M. NO. 01-7-01-SC)
The offeror must satisfy first the requirements

for laying the basis for the presentation of MEANING OF ELECTRONIC EVIDENCE;
secondary evidence. Laying the basis involves ELECTRONIC DATA MASSAGE
explaining to the satisfaction of the court the
reason for the inability to offer the original of  Electronic evidence is that which use of
the document, in the following: electronic data message as evidence.
1) The execution or existence of the
original;
 Electronic data message refers to
information generated, sent, received or
2) The loss and destruction of the original
stored by electronic, optical or similar
or its nonproduction in court;
means.
3) Unavailability of the original is not due to
bad faith on the part of the offeror.  Electronic documents as functional
equivalent of paper-based documents.
If the offeror has successfully laid the basis for Whenever a rule of evidence to the term of
the presentation of the secondary evidence, writing, document, record, instrument,
then the original need not be presented. memorandum or any other form of writing,
However, one must observe the order in which such term shall be deemed to include an
the secondary evidence is to be offered. This is electronic document.
because not every secondary evidence can be
offered. The following order must therefore, be Electronic document refers to information or
observed: the representation of information, data, figures,
symbols or other modes of written expression,
a) A copy of the original;
described or however represented, by which a
b) If there is no copy, then a recital of its right is established or an obligation
contents in some authentic document;
extinguished, or by which a fact may be proved
c) In default of hereof, by the testimony of and affirmed, which is received, recorded,
witnesses in the order stated. transmitted, stored, processed, retrieved or
produced electronically. It includes digitally
When original document is unavailable - signed documents and any print-out or output,
When the original document has been lost or readable by sight or other means, which
destroyed, or cannot be produced in court, the accurately reflects the electronic data message
offeror, upon proof of its execution or existence or electronic document.
and the cause of its unavailability without bad  The term “electronic document” may be
faith on his part, may prove its contents by a used interchangeably with electronic
copy, or by a recital of its contents in some data message.
PROBATIVE VALUE OF ELECTRONIC AUTHENTICATION OF ELECTRONIC

DOCUMENTS OR EVIDENTIARY WEIGHT; DOCUMENTS AND ELECTRONIC
METHOD OF PROOF SIGNATURES
An electronic document is admissible in The person seeking to introduce an electronic

evidence if it complies with the rules on document in any legal proceeding has the
admissibility prescribed by the Rules and burden of proving its authenticity.
related laws and is authenticated in the manner
prescribed by the Rules on Electronic Evidence. Before any private electronic document offered
as authentic is received in evidence, its
In assessing the evidentiary weight of an authenticity must be proved by any of the
electronic document, the following factors may following means:
be considered: a) By evidence that it had been digitally
a) The reliability of the manner or method signed by the person purported to have
in which it was generated, stored or signed the same;
communicated, including but not limited b) By evidence that other appropriate
to input and output procedures, controls, security procedures or devices as may
tests and checks for accuracy and be authorized by the Supreme Court or
reliability of the electronic data message by law for authentication of electronic
or document, in the light of all the documents were applied to the
circumstances as well as any relevant document; or
agreement; c) By other evidence showing its integrity
b) The reliability of the manner in which its and reliability to the satisfaction of the
originator was identified; judge.
c) The integrity of the information and
communication system in which it is A document electronically notarized in
recorded or stored, including but not accordance with the rules promulgated by the
limited to the hardware and computer Supreme Court shall be considered as a public
programs or software used as well as document and proved as a notarial document
programming errors; under the Rules of Court.
d) The familiarity of the witness or the
person who made the entry with the An electronic signature or a digital signature
communication and information system; authenticated in the manner prescribed
e) The nature and quality of the information hereunder is inadmissible in evidence as the
which went into the communication and functional equivalent of the signature or a
information system upon which the person on a written document.
electronic data message or electronic
document was based; or An electronic signature may be authenticated in
f) Other factors which the court may any of the following manners:
consider as affecting the accuracy or a) By evidence that a method or process
integrity of the electronic document or was utilized to establish a digital
electronic data message. signature and verify the same;
b) By any other means provided by law; or
METHOD OF PROOF: affidavit of evidence - c) By any other means satisfactory to the
All matters relating to the admissibility and judge as establishing the genuineness of
evidentiary weight of an electronic document the electronic signature.
may be established by an affidavit stating facts
of direct personal knowledge of the affiant or Upon the authentication of an electronic
based on authentic records. The affidavit must signature, it shall be presumed that:
affirmatively show the competence of the a) The electronic signature is that of the
affiant to testify on the matters contained person to whom it correlates;
therein. b) The electronic signature was affixed by
that person with the intention of
METHOD OF PROOF: cross-examination of authenticating or approving the
deponent - The affiant shall be made to affirm electronic document to which it is related
the contents of the affidavit in open court and or to indicate such person‘s consent to
may be cross-examined as a matter of right by the transaction embodied therein; and
the adverse party.
c) The methods or processes utilized to qualified witnesses, is excepted from the rule on
affix or verify the electronic signature hearsay evidence.
without error or fault.
The presumption may be overcome by evidence
Upon the authentication of a digital of the untrustworthiness of the source of
signature, it shall be presumed, in addition information of the method or circumstances of
to those mentioned in the immediately the preparation, transmission or storage
preceding section, that: thereof.
a) The information contained in a
certificate is correct; AUDIO, PHOTOGRAPHIC, VIDEO AND
b) The digital signature was created EPHEMERAL EVIDENCE
during the operational period of a
certificate; Audio, photographic and video evidence of
c) The message associated with a events, acts or transactions shall be admissible
digital signature has not been altered provided it shall be shown, presented or
from the time it was signed; and displayed to the court and shall be identified,
d) A certificate had been issued by the explained or authenticated by the person who
certification authority indicated made the recording or by some other person
therein. competent to testify on the accuracy thereof.
ELECTRONIC DOCUMENTS AND THE Ephemeral electronic communications shall be

HEARSAY RULE proven by the testimony of a person who was a
party to the same or has personal knowledge
An electronic document shall be regarded as the thereof. In the absence or unavailability of such
equivalent of an original document under the witnesses, other competent evidence may be
Best Evidence Rule if it is a printout or output admitted.
readable by sight or other means, shown to
reflect the data accurately. If the foregoing communications are recorded or
embodied in an electronic document, then the
When a document is in two or more copies provisions of Rule 5 (authentication of electronic
executed at or about the same time with documents) shall apply.
identical contents, or is a counterpart produced
by the same impression as the original, or from Ephemeral electronic communication refers to
the same matrix, or by mechanical or electronic telephone conversations, text messages,
re-recording, or by chemical reproduction, or by chatroom sessions, streaming audio, streaming
other equivalent techniques which accurately video, and other electronic forms of
reproduces the original, such copies or communication the evidence of which is not
duplicates shall be regarded as the equivalent recorded or retained.
of the original.
Notwithstanding the foregoing, copies or

duplicates shall not be admissible to the same PAROL EVIDENCE RULE (RULE 130)
extent as the original if:
a) A genuine question is raised as to the
authenticity of the original; or APPLICATION OF THE PAROL EVIDENCE
b) In the circumstances it would be unjust RULE
or inequitable to admit a copy in lieu of
the original. When the terms of an agreement have been
reduced to writing, it is considered as containing
A memorandum, report, record or data all the terms agreed upon, and there can be
compilation of acts, events, conditions, opinions, between the parties and their successors in
or diagnoses, made by electronic, optical or interest, no evidence of such terms other than
other similar means at or near the time of or the contents of the written agreement.
from transmission or supply of regular course of
conduct of a business activity, and such was the It seeks to preserve what the parties have
regular practice to make the memorandum, reduced in writing and prohibits evidence
report, record, or data compilation by electronic, alliunde or oral testimonial evidence from being
optical or similar means, all of which are shown presented to vary the terms of, or add
by the testimony of the custodian or other stipulations to, the written agreement. In other
words, any oral evidence of an agreement case falls under any of

should be excluded when the existing the exceptions.
agreement is already in writing. Establishes Not concerned with the
preference for the primacy of evidence
Oral testimony cannot prevail over a written original document but presupposes that
agreement of the parties, the purpose being to over a secondary the original is available.
give stability to written agreements and to evidence thereof.
remove the temptation and possibility of Precludes the Precludes the
perjury, which would be afforded if parol admission of admission of other
evidence were admissible. secondary evidence evidence to prove the
if the original terms of a document
The rule is based on the presumption that the document is other than the contents
parties have made the written instrument the available. of the document itself.
only repository and memorial of the truth and Can be invoked by Can be invoked only be
whatever is not found in the instrument must any litigant to an the parties to the
have been waived and abandoned by the action whether or document and their
parties. Hence, parol evidence cannot serve the not said litigant is a successors in interest.
purpose of incorporation into the contract party to the
additional contemporaneous conditions which document involved.
are not mentioned at all in the writing, unless Applies to all forms Applies to written
the case falls under any of the exceptions to the of writing. agreements (contracts)
rule. and wills.
WHEN PAROLE EVIDENCE CAN BE

INTRODUCED
AUTHENTICATION AND PROOF OF
Introducing parol evidence means offering DOCUMENTS (RULE 132)
extrinsic or extraneous evidence that would
modify, explain or add to the terms of the
written agreement. Parol evidence can be MEANING OF AUTHENTICATION -
introduced as long as the pleader puts in issue Authentication is the process of evidencing the
in the pleading any of the matters set forth in due execution and genuineness of a document.
the rule such as: Evidence when presented in court is not
a) An intrinsic ambiguity, mistake or presumed authentic. The general rule therefore
imperfection in the written agreement; is to prove its authenticity unless it is self-
b) The failure of the written agreement to authenticating.
express the true intent and agreement of
the parties thereto; PUBLIC VERSUS PRIVATE DOCUMENTS
c) The validity of the written agreement; or
d) The existence of other terms agreed to For the purpose of their presentation evidence,
by the parties or their successors in documents are either public or private. Public
interest after the execution of the written documents are:
agreement. a) The written official acts, or
 The terms "agreement" includes wills. records of the official acts of the
sovereign authority, official bodies and
BEST EVIDENCE PAROL EVIDENCE tribunals, and public officers, whether of
RULE RULE the Philippines, or of a foreign country;
The issue is There is no issue as to b) Documents acknowledge before a
contents of a contents of a writing. notary public except last wills and
writing. testaments; and
Secondary evidence The purpose for the c) Public records, kept in the
is offered to prove offer of parol evidence Philippines, of private documents
the contents of a is to change, vary, required by law to the entered therein.
writing, which is not modify, qualify, or All other writings are private. (20a)
allowed unless the contradict the terms of
case falls under any a complete written WHEN A PRIVATE WRITING REQUIRES
of the exceptions. agreement, which is AUTHENTICATION; PROOF OF A PRIVATE
not allowed unless the WRITING
A private writing is not self-authenticating. It the basic characteristics of the handwriting

requires proof of their due execution and under study.
authentication before they can be received in
evidence. The due execution and authenticity PUBLIC DOCUMENTS AS EVIDENCE
must be proved either:
a) By anyone who saw the document Public documents are:
executed or written; or a) The written official acts, or records of the
b) By evidence of the genuineness of the official acts of the sovereign authority,
signature or handwriting of the maker official bodies and tribunals, and public
officers, whether of the Philippines, or of
Any other private document need only be a foreign country;
identified as that which it is claimed to be. b) Documents acknowledged before a
notary public except last wills and
WHEN EVIDENCE OF AUTHENTICITY OF A testaments; and
PRIVATE WRITING IS NOT REQUIRED c) Public records, kept in the Philippines, of
(ANCIENT DOCUMENTS) private documents required by law to be
entered therein.
1) When the genuineness and due
execution of the document is admitted Public documents are of two classes:
by the adverse party; a) Those issued by competent public
2) When such genuineness and due officials by reason of their office, and
execution are immaterial to the issue; b) Those executed by private individuals
3) When the document is an ancient which are authenticated by notaries
document. public.
REQUISITE OF AN ANCIENT DOCUMENT Documents consisting of entries in public

records made in the performance of a duty by a
1) More than thirty (30) years old; public officer are prima facie evidence of the
2) Found in the proper custody; facts therein stated. All other public documents
3) Unblemished by any alteration or by any are evidence, even against a third person, of
circumstance of suspicion; and the fact which gave rise to their execution and
4) It must on its face appear to be genuine. of the date of the latter.
HOW TO PROVE GENUINENESS OF A PROOF OF OFFICIAL RECORD

HANDWRITING
The record of public documents (official acts),
The handwriting of a person may be proved by: when admissible for any purpose, may be
a) any witness who believes it to be the evidenced
handwriting of such person because he a) by an official publication thereof or
has seen the person write, or b) by a copy attested by the officer having
b) has seen writing purporting to be his the legal custody of the record, or by his
upon which the witness has acted or deputy, and accompanied, if the record
been charged, and has thus acquired is not kept in the Philippines, with a
knowledge of the handwriting of such certificate that such officer has the
person. custody.
Evidence respecting the handwriting may also If the office in which the record is kept is in a
be given by a comparison, made by the witness foreign country, the certificate may be made by
or the court, with writings admitted or treated a secretary of the embassy or legation, consul
as genuine by the party against whom the general, consul, vice consul, or consular agent
evidence is offered, or proved to be genuine to or by any officer in the foreign service of the
the satisfaction of the judge. Philippines stationed in the foreign country in
which the record is kept, and authenticated by
the seal of his office.
 Note: The identification of handwriting
should not rest, therefore, on the apparent
ATTESTATION OF A COPY
similarity or dissimilarity of one feature but
should be based on the examination of all
Whenever a copy of a document or record is The party producing a document as genuine

attested for the purpose of evidence, the which has been altered and appears to have
attestation must state, in substance, that the been altered after its execution, in a part
copy is a correct copy of the original, or a material to the question in dispute, must
specific part thereof, as the case may be. The account for the alteration.
attestation must be under the official seal of the
attesting officer, if there be any, or if he be the He may show that the alteration was made by
clerk of a court having a seal, under the seal of another, without his concurrence, or was made
such court. with the consent of the parties affected by it, or
was otherwise properly or innocently made, or
PUBLIC RECORD OF A PRIVATE DOCUMENT that the alteration did not change the meaning
or language of the instrument. If he fails to do
An authorized public record of a private that the document shall not be admissible in
document may be proved by the original record, evidence.
or by a copy thereof, attested by the legal
custodian of the record, with an appropriate DOCUMENTARY EVIDENCE IN AN
certificate that such officer has the custody. UNOFFICIAL LANGUAGE
PROOF OF LACK OF RECORD Documents written in an unofficial language

shall not be admitted as evidence, unless
A written statement signed by an officer having accompanied with a translation into English or
the custody of an official record or by his deputy Filipino. To avoid interruption of proceedings,
that after diligent search no record or entry of a parties or their attorneys are directed to have
specified tenor is found to exist in the records of such translation prepared before trial.
his office, accompanied by a certificate as
above provided, is admissible as evidence that
TESTIMONIAL EVIDENCE
the records of his office contain no such record
or entry.
QUALIFICATIONS OF A WITNESS
HOW A JUDICIAL RECORD IS IMPEACHED
A prospective witness must show that he has
Any judicial record may be impeached by the following abilities:
evidence of: 1) To Observe – the testimonial quality of
a) want of jurisdiction in the court or judicial perception
officer, 2) To Remember – the testimonial quality of
b) collusion between the parties, or memory
c) fraud in the party offering the record, in 3) To Relate – the testimonial quality of
respect to the proceedings narration
 which must be clear, convincing and more 4) To Recognize a duty to tell the truth –
than merely preponderant, in order to the testimonial quality of sincerity.
overcome the presumption of regularity in
the performance of official duties and the  All persons who can perceive, and
presumption of regularity of judicial perceiving, can make known their
proceedings, and the burden of proof lies on perception to others, may be witnesses.
the part of the party who challenges the Religious or political belief, interest in the
validity of judicial records. outcome of the case, or conviction of a
crime unless otherwise provided by law,
PROOF OF NOTARIAL DOCUMENTS shall not be a ground for disqualification.
A document acknowledged before a notary  Loss of the perceptive sense after the
public becomes a public instrument and renders occurrence of the fact does not affect the
it admissible in court without further proof of its admissibility of the testimony.
authenticity.
 A blind man can testify to what he saw
HOW TO EXPLAIN ALTERATIONS IN A prior to his blindness or a deaf man, to what
DOCUMENT he heard prior to his deafness. But a person
incapable of perception is pro tanto
incapable of testifying.
 A witness may have been capable of (a) DEAD MAN’S STATUTE – Parties or
perceiving, yet incapable of narration. He assignors of parties to a case, or persons
may have no powers of speech, and have no in whose behalf a case is prosecuted,
means of expressing himself by signs. He against an executor or administrator or
may have become insane since the other representative of a deceased
occurrence he is called upon to relate. A person, or against a person of unsound
person incapable of narration is pro tanto mind, upon a claim or demand against
incapable of testifying. the estate of such deceased person or
against such person of unsound mind,
COMPETENCY VERSUS CREDIBILITY cannot testify as to any matter of fact
OF A WITNESS occurring before the death of such
deceased person or before such person
Competency of a witness refers to the basic became of unsound mind.
qualifications of a witness as his capacity to
perceive and to communicate the same to (b) DISQUALIFICATION BY REASON
others. It also includes the absence of any of the OF PRIVILEGED COMMUNICATION
disqualifications imposed upon a witness. 1. The husband or the wife,
during or after the marriage,
Credibility of the witness refers to the cannot be examined without the
believability of the witness and has nothing to consent of the other as to any
do with the law or the rules. It refers to the communication received in
weight and the trustworthiness or reliability of confidence by one from the other
the testimony. during the marriage except in a
civil case by one against the
DISQUALIFICATIONS OF WITNESSES other, or in a criminal case for a
crime committed by one against
ABSOLUTE DISQUALIFICATION the other or the latter's direct
descendants or ascendants;
a) Those who cannot perceive. 2. An attorney cannot,
b) Those who can perceive but without the consent of his client,
cannot make their perception known. be examined as to any
communication made by the
c) Mentally incapacity – Those
client to him, or his advice given
whose mental condition, at the time of
thereon in the course of, or with a
their production for examination, is such
view to, professional
that they are incapable of intelligently
employment, nor can an
making known their perception to others.
attorney's secretary,
d) Mentally immaturity – Children
stenographer, or clerk be
whose mental maturity is such as to
examined, without the consent of
render them incapable of perceiving the
the client and his employer,
facts respecting which they are
concerning any fact the
examined and of relating them truthfully.
knowledge of which has been
e) Marital disqualification –
acquired in such capacity;
During their marriage, neither the
3. A person authorized to
husband nor the wife may testify for or
practice medicine, surgery or
against the other without the consent of
obstetrics cannot in a civil case,
the affected spouse, except in a civil
without the consent of the
case by one against the other, or in a
patient, be examined as to any
criminal case for a crime committed by
advice or treatment given by him
one against the other or the latter's
or any information which he may
direct descendants or ascendants.
have acquired in attending such
f) Parental and filial privilege -- No
patient in a professional capacity,
person may be compelled to testify
which information was necessary
against his parents, other direct
to enable him to act in that
ascendants, children or other direct
capacity, and which would
descendants.
blacken the reputation of the
patient;
RELATIVE DISQUALIFICATION
4. A minister or priest (g) INFORMATION CONTAINED IN

cannot, without the consent of TAX RETURNS (RA 2070, as amended
the person making the by RA 2212).
confession, be examined as to
any confession made to or any DISQUALIFICATION BY REASON OF MENTAL
advice given by him in his CAPACITY OR IMMATURITY
professional character in the
course of discipline enjoined by The following persons cannot be witnesses:
the church to which the minister a) Those whose mental condition, at the
or priest belongs; time of their production for examination,
5. A public officer cannot be is such that they are incapable of
examined during his term of intelligently making known their
office or afterwards, as to perception to others;
communications made to him in b) Children whose mental maturity is such
official confidence, when the as to render them incapable of
court finds that the public interest perceiving the facts respecting which
would suffer by the disclosure. they are examined and of relating them
truthfully.
(c) NEWSMAN’S PRIVILEGE -- Without
prejudice to his liability under the civil Regardless of the nature or cause of mental
and criminal laws, the publisher, editor, disability, the test of competency to testify is as
columnist or duly accredited reporter of to whether the individual has sufficient
any newspaper, magazine or periodical understanding to appreciate the nature and
of general circulation cannot be obligation of an oath and sufficient capacity to
compelled to reveal the source of any observe and describe correctly the facts in
news-report or information appearing in regard to which he is called to testify.
said publication which was related in
confidence to such publisher, editor or Basic requirements of a child’s competency as a
reporter unless the court or a House or witness:
committee of Congress finds that such a) Capacity of observation;
revelation is demanded by the security b) Capacity of recollection;
of the State (RA 1477); c) Capacity of communication.
(d) BANK DEPOSITS -- All deposits of In ascertaining whether a child is of

whatever nature with banks or banking sufficient intelligence according to the
institutions in the Philippines including foregoing requirements, it is settled rule that
investments in bonds issued by the the trial court is called upon to make such
Government of the Philippines, its determination.
political subdivisions and its
instrumentalities, are hereby considered DISQUALIFICATION BY REASON OF
as of an absolutely confidential nature MARRIAGE (SPOUSAL IMMUNITY)
and may not be examined, inquired or
looked into by any person, government As a general rule, during their marriage, neither
official, bureau or office, except upon the husband nor the wife may testify for or
written permission of the depositor, or in against the other without the consent of the
cases of impeachment, or upon order of affected spouse. The requisites of this rule are
a competent court in cases of bribery or the following:
dereliction of duty of public officials, or in 1) That the spouse for or against whom the
cases where the money deposited or testimony is offered is a party to the
invested is the subject matter of the case;
litigation (RA 1405). 2) That the spouses are legally married
(valid until annulled);
(e) SANCTITY OF THE BALLOT – voters 3) Testimony is offered during the
may not be compelled to disclose for existence of marriage;
whom they voted. 4) The case is not one of the exceptions
provided in the rule.
(f) TRADE SECRETS
The exceptions are the following:
1) Where the testimony was made outside Applies only if the Can be claimed
the marriage; marriage is existing at even after the
2) In a civil case by one spouse against the the time the testimony is marriage has been
other; or offered; dissolved;
3) In a criminal case for a crime committed Ceases upon the death or Continues even
by one spouse against the other or the either spouse; after the
latter’s direct descendant or ascendants. termination of the
marriage;
DISQUALIFICATION BY REASON OF DEATH Constitutes a total Applies only to
OR INSANITY OF ADVERSE PARTY prohibition against any confidential
(SURVIVORSHIP OR DEAD MAN‘S STATUTE) testimony for or against communications
the spouse of the between the
This rule applies only to a civil case or a special witness; spouses.
proceeding. The following are the elements for The prohibition is a The prohibition is
the application of the rule: testimony for or against the examination of
a) The plaintiff is the person who has a the other. a spouse as to
claim against the estate of the decedent matters related in
or person of unsound mind; confidence to the
b) The defendant in the case is the other spouse.
executor or administrator or a
representative of the deceased or the
BETWEEN ATTORNEY AND CLIENT
person of unsound mind;
c) The suit is upon a claim by the plaintiff
against the estate of said deceased or For the rule to apply, it is required that:
person of unsound mind; 1) There is an attorney and client
d) The witness is the plaintiff, or an relation;
assignor of that party, or a person in 2) The privilege is invoked with
whose behalf the case is prosecuted; and respect to a confidential communication
e) The subject of the testimony is as to any between them in the course of or with a
matter of fact occurring before the death view to professional employment; and
(ante litem motam) of such deceased 3) The client has not given his
person or before such person became of consent to the attorney‘s testimony
unsound mind. thereon; or
If the attorney’s secretary, stenographer
or clerk is sought to be examined, that
DISQUALIFICATION BY REASON OF both the client and the attorney have not
PRIVILEGED COMMUNICATIONS given their consent thereto.
The rule applies when the attorney has been

BETWEEN HUSBAND AND WIFE consulted in his professional capacity, even if no
fee has been paid therefor. Preliminary
The application of the rule requires the communications made for the purpose of
presence of the following elements: creating the attorney-client relationship are
1) There must be a valid marriage between within the privilege. However, if the
the husband and the wife; communications were not made for the purpose
2) The privilege is invoked with respect to a of creating that relationship, they will not be
confidential communication between the covered by the privilege even if thereafter the
spouses during said marriage; and lawyer becomes the counsel of the party in a
3) The spouse against whom such evidence case involving said statements.
is being offered has not given his or her
consent to such testimony. BETWEEN PHYSICIAN AND PATIENT
MARITAL MARITAL
For the disqualification to apply, it is necessary
DISQUALIFICATION PRIVILEGE (SEC.
that:
(SEC. 22) 24)
a) The physician is authorized to practice
Can be invoked only if Can be claimed
medicine, surgery or obstetrics;
one of the spouses is a whether or not the
b) The information was acquired or the
party to the action; spouse is a party to
advice or treatment was given by him in
the action;
his professional capacity for the purpose b) Disclosure would lessen the risk
of treating and curing the patient; of false testimony;
c) The information, advice or treatment, if c) Disclosure is essential to the
revealed, would blacken the reputation proper disposition of the case;
of the patient; and d) The benefit to be gained by a
d) The privilege is invoked in a civil case, correct disposition of the litigation was
whether the patient is a party thereto or greater than any injury which could inure
not. to the relation by a disclosure of the
information.
The privilege does not apply where:
a) The communication was not given in PARENTAL AND FILIAL TESTIMONIAL
confidence; PRIVILEGE RULE
b) The communication is irrelevant to the
professional employment;
No person may be compelled to testify against
c) The communication was made for an
his parents, other direct ascendants, children or
unlawful purpose, as when it is intended
other direct descendants.
for the commission or concealment of a
crime;
Under Art. 215 of the Family Code, the
d) The information was intended to be
descendant may be compelled to testify against
made public; or
his parents and grandparents if such testimony
e) There was a waiver of the privilege
is indispensable in prosecuting a crime against
either by the provisions of contract or
the descendant or by one parent against the
law.
other.
 The privilege survives the death of the
patient.
BETWEEN PRIEST AND PENITENT EXAMINATION OF A WITNESS (RULE 132)
 A minister or priest cannot, without the The examination of witnesses presented in a

consent of the person making the trial or hearing shall be done in open court, and
confession, be examined as to any under oath or affirmation. Unless the witness is
confession made to or any advice given by incapacitated to speak, or the question calls for
him in his professional character in the a different mode of answer, the answers of the
course of discipline enjoined by the church witness shall be given orally.
to which the minister or priest belongs.
 The communication must be made pursuant The entire proceedings shall be recorded by
to confessions of sin. Where the penitent means of shorthand or stenotype or by other
discussed business arrangements with the means of recording found suitable by the court.
priest, the privilege does not apply. A transcript of the record of the proceedings
made by the official stenographer, stenotypist
INVOLVING PUBLIC OFFICERS or recorder and certified as correct by him shall
be deemed prima facie a correct statement of
The disqualification because of privileged such proceedings.
communications to public officers requires that:
a) It was made to the public officer RIGHTS AND OBLIGATIONS OF A WITNESS
in official confidence; and
b) Public interest would suffer by the A witness must answer questions, although his
disclosure of such communications, as in answer may tend to establish a claim against
the case of State secrets. Where no him. However, it is the right of a witness:
public interest would be prejudiced, this 1) To be protected from irrelevant,
rule does not apply. improper, or insulting questions, and
from harsh or insulting demeanor;
Exceptions to the rule: 2) Not to be detained longer than the
a) What is asked is useful evidence interests of justice require;
to vindicate the innocence of an accused 3) Not to be examined except only as to
person; matters pertinent to the issue;
4) Not to give an answer which will tend to INDIVIDUAL WITNESS

subject him to a penalty for an offense
unless otherwise provided by law; or The order in which an individual witness may be
5) Not to give an answer which will tend to examined is as follows:
degrade his reputation, unless it be to 1) Direct examination by the proponent;
the very fact at issue or to a fact from 2) Cross-examination by the opponent;
which the fact in issue would be 3) Re-direct examination by the
presumed. But a witness must answer to proponent;
the fact of his previous final conviction 4) Re-cross-examination by the
for an offense. opponent.
5) Recalling the witness
ORDER IN THE EXAMINATION OF AN
DIRECT Direct examination is the examination- Purpose is to build up the theory of the
EXAMINATION in-chief of a witness by the party case by eliciting facts about the client‘s
presenting him on the facts relevant cause of action or defense.
to the issue.
CROSS Upon the termination of the direct Cross-examination aims to:
EXAMINATION examination, the witness may be a) Test the accuracy and truthfulness
cross-examined by the adverse party of the witness and his freedom from
as to any matters stated in the direct interest or bias or the reverse; and
examination, or connected therewith, b) Elicit all important facts bearing
with sufficient fullness and freedom to upon the issue, not only of those
test his accuracy and truthfulness and covered in the direct examination
freedom from interest or bias, or the but also on all other matters
reverse, and to elicit all important relevant to the issue/s pleaded.
facts bearing upon the issue.
RE-DIRECT After the cross-examination of the Principal objects are:
EXAMINATION witness has been concluded, he may a) to prevent injustice to the witness
be re-examined by the party calling and the party who has called him
him, to explain or supplement his by affording an opportunity to the
answers given during the cross- witness to explain the testimony
examination. On re-direct given on cross-examination,
examination, questions on matters not b) to explain any apparent
dealt with during the cross- contradiction or inconsistency in his
examination, may be allowed by the statements, and
court in its discretion. c) complete the answer of a witness,
or add a new matter which has
been omitted, or correct a possible
misinterpretation of testimony.
RE-CROSS Upon the conclusion of the re-direct A witness cannot be recalled without
EXAMINATION examination, the adverse party may leave of court, which may be granted
re-cross-examine the witness on only upon showing of concrete,
matters stated in his re-direct substantial grounds.
examination, and also on such other
matters as may be allowed by the
court in its discretion.
RECALLING THE After the examination of a witness by Aims to correct or explain his prior
WITNESS both sides has been concluded, the testimony; or lay the proper foundation
witness cannot be recalled without for his impeachment, but this is
leave of the court. The court will grant permitted only with the discretion of
or withhold leave in its discretion, as the court.
the interests of justice may require.
Cross-examination of a witness is the absolute

right, not a mere privilege, of the party against
whom he is called; and with regard to the d) But not by evidence of particular
accused, it is a right granted by the wrongful acts, except that it may be
Constitution. Sec. 14(2), Art. III thereof provides shown by the examination of the
that the accused shall enjoy the right to meet witness, or the record of the judgment,
the witnesses face to face. that he has been convicted of an offense.
LEADING AND MISLEADING QUESTIONS Other modes of impeachment aside from those
(SEC. 10, RULE 132) provided by the Rules are:
a) By producing the record of his conviction
A question which suggests to the witness the of an offense;
answer which the examining party desires is a b) By showing improbability or
leading question. It is not allowed, except: unreasonableness of testimony;
1) On cross examination; c) By showing bias, prejudice or hostility;
2) On Preliminary matters; d) By prior acts or conduct inconsistent with
3) When there is difficulty in getting direct his testimony;
and intelligible answers from a witness e) By showing social connections,
who is ignorant, or a child of tender occupation and manner of living.
years, or is of feeble mind, or a deaf- f) By showing interest.
mute; g) By showing intent and motive.
4) Of an unwilling or hostile witness; or
5) Of a witness who is an adverse party or The party producing a witness is not allowed to
an officer, director, or managing agent of impeach his credibility.
a public or private corporation or of a
partnership or association which is an A witness may be considered as unwilling or
adverse party. hostile only if so declared by the court upon
6) In all stages of examination of a child if adequate showing of his adverse interest,
the same will further the interests of unjustified reluctance to testify, or his having
justice (Sec. 20, AM 004-07-SC). misled the party into calling him to the witness
stand. The unwilling or hostile witness so
A misleading question is one which declared, or the witness who is an adverse
assumes as true a fact not yet testified to by party, may be impeached by the party
the witness, or contrary to that which he has presenting him in all respects as if he had been
previously stated. It is not allowed (Sec. 10). called by the adverse party, except by evidence
The adverse party should object thereto or of his bad character. He may also be impeached
ask the court to expunge the answer from and cross-examined by the adverse party, but
the records, if he has already given his such cross examination must only be on the
answer. subject matter of his examination-in-chief.
METHODS OF IMPEACHMENT OF ADVERSE HOW THE WITNESS IS IMPEACHED BY

PARTY’S WITNESS EVIDENCE OF INCONSISTENT STATEMENTS
(LAYING THE PREDICATE)
To impeach means to call into question the
veracity of the witness’s testimony by means of Before a witness can be impeached by evidence
evidence offered for that purpose, or by that he has made at other times statements
showing that the witness is unworthy of belief. inconsistent with his present testimony:
Impeachment is an allegation, supported by a) the statements must be related to him,
proof, that a witness who has been examined is with the circumstances of the times and
unworthy of credit. places and the persons present, and
b) he must be asked whether he made such
A witness be impeached by the party against statements, and if so, allowed to explain
whom he was called: them. If the statements be in writing
a) By contradictory evidence; they must be shown to the witness
b) By evidence that his general reputation before any question is put to him
for truth, honesty, or integrity is bad; or concerning them.
c) By evidence that he has made at other
times statements inconsistent with his A witness cannot be impeached by evidence of
present testimony; contradictory or prior inconsistent statements
until the proper foundation or predicate has
been laid by the party against whom said  Evidence of the moral character of a
witness was called. party in a civil case is admissible only
when pertinent to the issue of
Laying the predicate means that it is the duty of character involved in the case.
a party trying to impugn the testimony of a
witness by means of prior or subsequent ADMISSION CONFESSION
inconsistent statements, whether oral or in An act, declaration The declaration of an
writing, to give the witness a change to or omission of a accused
reconcile his conflicting declaration. party as to a acknowledging his
relevant fact. guilt of the offense
Where no predicate is laid during the trial proof charged, or of any
of alleged inconsistent statements of the offense necessarily
witness, whether verbal or written, cannot be included therein.
admitted on objection of the adverse party, or It is a voluntary It is a statement by
be pointed out on appeal for the purpose of acknowledgment the accused that he
destroying the credibility of the witness. made by a party of engaged in conduct
the existence of the which constitutes a
An exception to the rule requiring the laying of truth of certain facts crime.
foundation for the admissibility of evidence of which are
inconsistent statements has been allowed in the inconsistent with his
case of dying declarations. claims in an action.
Broader than Specific type of
EVIDENCE OF THE GOOD CHARACTER OF A confession. admission which refers
WITNESS only to an
acknowledgment of
Evidence of the good character of a witness is guilt
not admissible until such character has been May be implied like Cannot be implied, but
impeached. The law presumes every person to admission by should be a direct and
be reputedly truthful until evidence shall have silence. positive
been produced to the contrary. acknowledgment of
guilt.
Character evidence not generally May be judicial or May be judicial or
admissible; exceptions. – extrajudicial. extrajudicial.
May be adoptive,
a) In Criminal Cases: which occurs when
1) The accused may prove his good a person manifests
moral character which is pertinent to his assent to the
the moral trait involved in the offense statements of
charged. another person.
2) Unless in rebuttal, the prosecution
may not prove his bad moral
character which is pertinent it to the RES INTER ALIOS ACTA RULE
moral trait involved in the offense
charged. Res inter alios acta alteri nocere debt means
that "things done to strangers ought not to
 Note that in criminal cases, the injure those who are not parties to them” It has
prosecution goes first. Hence, it two branches, namely:
cannot present evidence on the bad a) The rule that the rights of a party cannot
moral character of the accused on its be prejudiced by an act, declaration, or
evidence in chief. omission of another; and
 The good or bad moral character b) The rule that evidence of previous
of the offended party may be proved conduct or similar acts at one time is not
if it tends to establish in any admissible to prove that one did or did
reasonable degree the probability or not do the same act at another time.
improbability of the offense charged.
The rule has reference to extrajudicial
b) In Civil Cases: declarations. Hence, statements made in open
court by a witness implicating persons aside
from his own judicial admissions are admissible

as declarations from one who has personal For the exception to apply, the following
knowledge of the facts testified to. requisites must concur:
1) The declaration or act be made or done
Exceptions to the first branch of the rule: during the existence of the conspiracy;
a) Admission by a co-partner or agent (Sec. 2) The declaration or act must relate to the
29, Rule 130); conspiracy; and
b) Admission by a co-conspirator (Sec. 30, 3) The conspiracy must be shown by
Rule 130); and evidence other than the declaration or
c) Admission by privies (Sec. 31, Rule 130). act.
ADMISSION BY A PARTY ADMISSION BY PRIVIES

The act, declaration or omission of a party as to
a relevant fact may be given in evidence Privity means mutual succession of relationship
against him. to the same rights of property. Privies are those
who have mutual or successive relationship to
ADMISSION BY A THIRD PARTY the same right of property or subject matter,
The rights of a party cannot be prejudiced by an such as personal representatives, heirs,
act, declaration, or omission of another, except devisees, legatees, assigns, voluntary grantees
as hereinafter provided. or judgment creditors or purchasers from them
with notice of the facts.
ADMISSION BY A CO-PARTNER OR AGENT
The act or declaration of a partner or agent of Three exceptions are recognized to the rule that
the party within the scope of his authority and declarations of the transferor, made subsequent
during the existence of the partnership or to the transfer, are inadmissible:
agency, may be given in evidence against such 1) Where the declarations are made in the
party after the partnership or agency is shown presence of the transferee, and he
by evidence other than such act or declaration. acquiesces in the statements, or asserts
The same rule applies to the act or declaration no rights where he ought to speak;
of a joint owner, joint debtor, or other person 2) Where there has been a prima facie case
jointly interested with the party. of fraud established, as where the thing
after the sale or transfer, remains with
For the admission of a co-partner or agent to be the seller or transferor;
admissible, the following requisites must 3) Where the evidence establishes a
concur: continuing conspiracy to defraud, which
a) The declaration or act of the partner and conspiracy exists between the vendor
agent must have been made or done and the vendee.
within the scope of his authority;
b) The declaration or act of the partner and ADMISSION BY SILENCE
agent must have been made or done An act or declaration made in the presence and
during the existence of the partnership within the hearing or observation of a party who
or agency, and the person making the does or says nothing when the act or
declaration still a partner or an agent; declaration is such as naturally to call for action
and or comment if not true, and when proper and
c) The existence of the partnership or possible for him to do so, may be given in
agency is proven by evidence other than evidence against him.
the declaration or act of the partner and
agent. The common sense of mankind is expressed in
the popular phrase, silence gives consent which
ADMISSION BY A CONSPIRATOR is but another form of expressing the maxim of
Conspiracy exists when two or more persons the law, qui tacet cosentire videtur.
come to an agreement concerning the
commission of a felony and decide to commit it. Before the silence of a party can be taken as an
Once conspiracy is proven, the act of one is the admission of what is said, the following
act of all. The statement therefore of one may requisites must concur:
be admitted against the other co-conspirators a) Hearing and understanding of the
as an exception to the rule of res inter alios statement by the party;
acta. b) Opportunity and necessity of denying the
statements;
c) Statement must refer to a matter presence of this co-defendant,

affecting his right; confessing his guilt and implicating his
d) Facts were within the knowledge of the co-defendant who failed to contradict or
party; and deny it, is admissible against his co-
e) Facts admitted or the inference to be defendant.
drawn from his silence would be material f) When the confession is of a
to the issue. conspirator and made after conspiracy in
furtherance of its object, the same is
CONFESSIONS admissible against his co-conspirator;
and
The declaration of an accused acknowledging g) The confession of one conspirator
his guilt of the offense charged, or of any made after the termination of a
offense necessarily included therein, may be conspiracy is admissible against his co-
given in evidence against him. conspirator if made in his presence and
assented to by him, or admitted its truth
Any confession or admission obtained in or failed to contradict or deny it.
violation of this or Section 17 hereof shall be
inadmissible in evidence against him (Sec. 12, SIMILAR ACTS AS EVIDENCE
Art. III, Constitution).
Evidence that one did or did not do a certain
Confession is an acknowledgment in express thing at one time is not admissible to prove that
words, by the accused in a criminal case, of the he did or did not do the same or a similar thing
truth of the offense charged, or of some at another time; but it may be received to prove
essential parts thereof. To be valid, confessions a specific intent or knowledge, identity, plan,
must be voluntarily and freely made. system, scheme, habit, custom or usage, and
the like. Evidence of collateral offenses must
Exceptions to the rule that confessions of an not be received as substantive evidence of the
accused may be given in evidence against him offenses on trial.
and incompetent against his co-accused:
a) When several accused are tried HEARSAY RULE
together, confession made by one of
them during the trial implicating the A witness can testify only to those facts which
others is evidence against the latter. he knows of his personal knowledge; that is,
b) When one of the defendants is which are derived from his own perception,
discharged from the information and except as otherwise provided in these rules.
testifies as a witness for the prosecution,
the confession made in the course of his Generally, hearsay evidence is inadmissible
testimony is admissible against his co- because the person who testifies does so based
defendants, if corroborated by on matters not of his personal knowledge but
indisputable proof. based on the knowledge of another who is not in
c) If a defendant after having been court and cannot therefore, b cross-examined.
apprised of the confession of his co- The one in courts is the person who merely
defendant ratifies or confirms said repeats matters witnessed personally by
confession, the same is admissible another. This type o evidence is inadmissible
against him. because of its inherent unreliability.
d) Interlocking confessions -- Where
several extra-judicial confession had Hearsay evidence may be in writing. For
been made by several persons charged instance, an affidavit is hearsay unless the
with an offense and there could have affiant affirms the same in court and is subject
been no collusion with reference to said to cross-examination.
several confessions, the facts that the
statements therein are in all material A hearsay testimony involves an outside-
respects identical, is confirmatory of the declarant and an in-court witness. It is the
confession of the co-defendant, and is outside declarant who says something based on
admissible against his other co- what he has perceived. His statement is heard
defendants. by someone who is the one testifies in court as
e) A statement made by one to what he heard.
defendant after his arrest, in the
If the witness offers the statement of the EVIDENCE

outside declarant to prove the truth of such
statement (the one which he heard) the Hearsay evidence is inadmissible according to
testimony of the witness is hearsay. If it’s the general rule. The real basis for the exclusion
offered merely to prove that he heard the is the fact that hearsay testimony is not subject
statement without reference to its truth or to the tests which can ordinarily be applied for
falsity, his testimony is not hearsay. the ascertainment of the truth of testimony,
since the declarant is not present and available
If what he heard is relevant to an issue in the for cross-examination.
case, it will fall under the category of
independent relevant statements which means In criminal cases the admission of hearsay
statements which are relevant as to their tenor evidence would be a violation of the
or to the fact that they were uttered and not as constitutional provision that the accused shall
to whether they are true or false. enjoy the right of being confronted with the
witnesses testifying against him and to cross-
MEANING OF HEARSAY examine them. Moreover, the court is without
the opportunity to test the credibility of hearsay
It also means the evidence not of what the statements by observing the demeanor of the
witness himself knows but of what he has heard person who made them.
from others.
EXCEPTIONS TO THE HEARSAY RULE
REASON FOR EXCLUSION OF HEARSAY (DEVFLECT‘D WI-CAP)
1) Dying declaration; 9) Declaration against interest;
2) Entries in the course of business; 10) Waiver;
3) Verbal acts; 11) Independently relevant evidence;
4) Family reputation or tradition 12) Commercial lists and the like;
regarding pedigree; 13) Act or declaration about pedigree;
5) Learned treatises; and
6) Entries in official records; 14) Part of res gestae.
7) Common reputation;
8) Testimony or deposition at a former
proceeding;
be received in any case wherein his death is the
The statements from which the facts in issue subject of inquiry, as evidence of the cause and
may be inferred may be testified to by surrounding circumstances of such death.
witnesses without violating the hearsay rule. Of
this kind are: REQUISITES:
1) That death is imminent and the
Statements of a person: declarant is conscious of that fact;
a) showing his state of mind, that is his 2) That the declaration refers to the cause
mental condition, knowledge, belief, and surrounding circumstances of such
intention, ill-will and other emotion; death;
b) showing his physical condition, as illness 3) That the declaration relates to facts
and the like; which the victim is competent to testify
c) from which an inference may be made as to; and
to the state of mind of another, that is, 4) That the declaration is offered in a case
knowledge, belief, motive, good or bad wherein the declarant’s death is the
faith, etc. of the latter; subject of the inquiry.
d) which may identify the date, place, and
person in question; and The most significant element is that the
e) showing the lack of credibility of a declaration must have been conscious of his
witness. impending death. It is this consciousness which
is assumed to be the compelling motive to tell
the truth. Any statement he makes not related
DYING DECLARATION
to the circumstances of his death is inadmissible
as a dying declaration.
The declaration of a dying person, made under
the consciousness of an impending death, may
The dying declaration is admissible in ANY CASE

provided the subject of inquiry in that case is The word "pedigree" includes relationship,
the death of the declarant. family genealogy, birth, marriage, death, the
dates when and the places where these facts
It is required that the declarant should die. If he occurred, and the names of the relatives. It
lives, he may testify personally based on his embraces also facts of family history intimately
personal knowledge. If he is unable to testify, connected with pedigree.
his declaration could be admitted as a
statement made by a person immediately Pedigree is the history of family descent which
subsequent to a startling occurrence (could be is transmitted from one generation to another
considered part of res gestae). by both oral and written declarations and by
traditions.
DECLARATION AGAINST INTEREST
Requisites for applicability:
a) Declarant is dead or unable to testify;
The declaration made by a person deceased, or b) Necessity that pedigree be in issue;
unable to testify, against the interest of the c) Declarant must be a relative of the
declarant, if the fact asserted in the declaration person whose pedigree is in question;
was at the time it was made so far contrary to d) Declaration must be made before the
declarant's own interest, that a reasonable man controversy occurred; and
in his position would not have made the e) The relationship between the declarant
declaration unless he believed it to be true, may and the person whose pedigree is in
be received in evidence against himself or his question must be shown by evidence
successors in interest and against third persons. other than such act or declaration.
Requisites for the exception to apply:

FAMILY REPUTATION OR TRADITION
a) That the declarant is dead or unable to
REGARDING PEDIGREE
testify;
b) That it relates to a fact against the
interest of the declarant; Entries in family bibles or other family books or
c) That at the time he made said charts, engravings on rings, family portraits and
declaration the declarant was aware that the like, may be received as evidence of
the same was contrary to his aforesaid pedigree.
interest; and
d) That the declarant had no motive to Requisites for the exception to apply:
falsify and believed such declaration to a) There is a controversy in respect to the
be true. pedigree of any members of a family;
b) The reputation or tradition of the
ADMISSION BY DECLARATION pedigree of the person concerned
PRIVIES AGAINST INTEREST existed ante litem motam or pervious to
One of 3 exceptions Exception to hearsay the controversy; and
to res inter alios acta c) The witness testifying to the reputation
Evidence against the Evidence against even or tradition regarding the pedigree of the
successor in interest the declarant, his person concerned must be a member of
of the admitter successor in interest, the family of said person, either by
or 3rd persons consanguinity or affinity.
Admitter need not Declarant is dead or
be dead or unable to unable to testify COMMON REPUTATION
testify
Relates to title to Relates to any interest
property Requisites for the admissibility of the
Admission need not Declaration must be exception:
be against the against the interest of a) The facts must be of public or general
admitter‘s interest the declarant interest and more than thirty years old;
b) The common reputation must have been
ancient (more than 30 years old or one
generation old);
ACT OR DECLARATION ABOUT PEDIGREE
c) The reputation must have been one The general classes of declarations to which the
formed among the class of persons who term res gestae is usually applied are (a)
were in a position to have some sources spontaneous statements, and (b) verbal acts.
of information and to contribute
intelligently to the formation of the SPONTANEOUS VERBAL ACTS
opinion; and STATEMENTS
Statement or Utterances which
The common reputation must have been exclamation made accompany some
existing previous to the controversy. immediately after act or conduct to
some exciting which it is desired to
Requisites for the admissibility of common occasion by a give a legal effect.
reputation respecting marriage: participant or When such act has
a) The common reputation must have been spectator and intrinsically no
formed previous to the controversy; and asserting the definite legal
b) The common reputation must have been circumstances of that significance, or only
formed in the community or among the occasion as it is an ambiguous one,
class of persons who are in a position to observed by him. its legal purport or
have sources of information and to tenor may be
contribute intelligently to the formation ascertained by
of the opinion. considering the
Requisites for the admissibility of common words accompanying
reputation respecting moral character: it, and these
a) That it is the reputation in the place utterances thus
where the person in question is best enter merely as
known; verbal part of the
b) That it was formed ante litem motam. act.
The res gestae is the The res gestae is the
Character refers to the inherent qualities of the startling occurrence equivocal act
person, rather than to any opinion that may be Spontaneous Verbal act must be
formed or expressed of him by others. exclamation may be contemporaneous
Reputation applies to the opinion which others prior to, simultaneous with or must
may have formed and expressed of his with, or subsequent accompany the
character. to the startling equivocal act to be
occurrence. admissible.
Monuments and inscriptions in public places Reason for Reason for
may be received as evidence of common admissibility: admissibility:
reputation. Trustworthiness and The motive,
necessity—because character and object
statements are made of an act are
PART OF THE RES GESTAE
instinctively, and frequently indicated
because said natural by what was said by
Statements made by a person while a startling and spontaneous the person engaged
occurrence is taking place or immediately prior utterances are more in the act.
or subsequent thereto with respect to the convincing than the
circumstances thereof, may be given in testimony of the
evidence as part of the res gestae. So, also, same person on the
statements accompanying an equivocal act stand.
material to the issue, and giving it a legal Requisites for Requisites for
significance, may be received as part of the res admissibility: admissibility:
gestae. a) There must be a a) Act or occurrence
startling characterized
Res gestae is from the Latin meaning “things occurrence; must be
done”. As applied to a crime, res gestae means b) The statement equivocal;
the complete criminal transaction from its must relate to the b) Verbal acts must
beginning or starting point in the act of the circumstances of characterize or
accused until the end is reached. the startling explain the
occurrence; equivocal act;
c) The statement c) Equivocal act
must be must be relevant treatise, periodical or pamphlet is recognized in

spontaneous. to the issue; his profession or calling as expert in the subject.
d) Verbal acts must
be TESTIMONY OR DEPOSITION AT A FORMER
contemporaneou TRIAL
s with equivocal
act. The testimony or deposition of a witness
deceased or unable to testify, given in a former
case or proceeding, judicial or administrative,
involving the same parties and subject matter,
ENTRIES IN THE COURSE OF BUSINESS may be given in evidence against the adverse
party who had the opportunity to cross-examine
Requisites for admissibility: him.
a) Entries must have been made at or near
the time of the transaction to which they If the witness has been subjected to cross-
refer; examination in a former trial, the rule is
b) Entrant must have been in a position to satisfied, and the former testimony may now be
know the facts stated in the entries; used.
c) Entries must have been made by entrant
in his professional capacity or in the OPINION RULE
performance of his duty;
d) Entries were made in the ordinary or GENERAL RULE: the opinion of a witness is not
regular course of business of duties; admissible. The witness must testify to facts
e) Entrant must be deceased or unable to within their knowledge and may not state their
testify. opinion, even on their cross-examination.
EXCEPTIONS:
ENTRIES IN OFFICIAL RECORDS 1) OPINION OF EXPERT WITNESS
- On a matter requiring special
Entries in official records made in the knowledge, skill, experience or training
performance of his duty by a public officer of which he possesses, that is, when he is
the Philippines, or by a person in the an expert thereon may be received in
performance of a duty specially enjoined by law, evidence. Expert testimony is not
are prima facie evidence of the facts therein admissible as to a matter not in issue.
stated. 2) OPINION OF ORDINARY
WITNESSES:
a) The identity of a person
COMMERCIAL LISTS AND THE LIKE about whom he has adequate
knowledge;
Evidence of statements of matters of interest, to b) A handwriting of a person
persons engaged in an occupation contained in with which he has sufficient
a list, register, periodical, or other published familiarity;
compilation is admissible as tending to prove c) The mental sanity or a
the truth of any relevant matter so stated if that person with whom he is
compilation is published for use by persons sufficiently acquainted; and
engaged in that occupation and is generally d) The witness’ impression of
used and relied upon by them therein. the emotion, behavior, condition
or appearance of a person.
 Reason: it is for the court to form an opinion
LEARNED TREATIES concerning the facts in proof of which
evidence is offered.
A published treatise, periodical or pamphlet on
a subject of history, law, science or art is OPINION OF EXPERT WITNESS
admissible as tending to prove the truth of a
matter stated therein if the court takes judicial It is sufficient that the following factors are
notice, or a witness expert in the subject present:
testifies that the writer of the statement in the a) Training and education;
b) Particular, first-hand familiarity with the the probability or improbability of the

facts of the case; and offense charged, as in prosecutions for
c) Presentation of the authorities or rape or consented abduction wherein the
standards upon which his opinion is victim‘s chastity may be questioned, and
based. in prosecution for homicide wherein the
pugnacious, quarrelsome or trouble-
Before one may be allowed to testify as an seeking character of the victim is a
expert witness, his qualification must first be proper subject of inquiry; and
established by the party presenting him, i.e., he c) With respect to witnesses, such
must be shown to possess the special skill or character evidence must refer to his
knowledge relevant to the question to which he general reputation for truth, honesty or
is to express an opinion. Common subjects of integrity, that is, as affecting his
expert testimony: handwriting, typewritten credibility.
documents, fingerprints, ballistics, medicine,
value of properties and services.
RULE ON EXAMINATION OF A CHILD
CHARACTER EVIDENCE WITNESS (A.M. NO. 004-07-SC)
Character evidence, as a general rule, is not

APPLICABILITY OF THE RULE
admissible in evidence because the evidence of
a person’s character does not prove that such
person acted conformity with such character or Unless otherwise provided, this Rule shall
trait in a particular occasion. Exceptions: govern the examination of child witnesses who
a) In criminal cases, the prosecution may are victims of crime, accused of a crime, and
not at the outset prove the bad moral witnesses to crime. It shall apply in all criminal
character of the accused which is proceedings and non-criminal proceedings
pertinent to the moral trait involved in involving child witnesses.
the offense charged. If the accused,
however, in his defense attempts to MEANING OF “CHILD WITNESS”
prove his good moral character then the
prosecution can introduce evidence of Any person who at the time of giving testimony
such bad moral character at the rebuttal is below the age of 18 years. In child abuse
stage. cases, a child includes one over 18 years but is
b) Also in criminal case, the good or bad found by the court as unable to fully take care
moral character of the offended party of himself or protect himself from abuse,
may always be proved by either party as neglect, cruelty, exploitation, or discrimination
long as such evidence tends to establish because of a physical or mental disability or
the probability or improbability of the condition.
offense charged.
c) In civil cases, the moral character of COMPETENCY OF A CHILD WITNESS
either party thereto cannot be proved
unless it is pertinent to the issue of Every child is presumed qualified to be a
character involved in the case. witness. However, the court shall conduct a
d) In both civil and criminal cases, the bad competency examination of a child (only by the
moral character of a witness may always judge, or court) , motu propio or on motion of a
be proved by either party but not party, when it finds that substantial doubt exists
evidence of his good character, unless it regarding the stability of the child to perceive,
has been impeached. remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the
With respect to the nature or substance of the truth in court. The court has the duty of
character evidence which may be admissible, continuously assessing the competence of the
the rules require that: child throughout his testimony.
a) With respect to the accused, such
character evidence must be pertinent to EXAMINATION OF A CHILD WITNESS
the moral trait involved in the offense
charged; The examination of a child witness presented in
b) With respect to the offended person, it is a hearing or any proceeding shall be done in
sufficient that such character evidence open court. Unless the witness is incapacitated
may establish in any reasonable degree to speak, or the question calls for a different
mode of answer, the answers of the witness

shall be given orally. The party who presents a HEARSAY EXCEPTION IN CHILD ABUSE
child witness or the guardian ad litem of such CASES
child witness may, however, move the court to
allow him to testify in the manner provided in A statement made by a child describing any act
this Rule. or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
LIVE-LINK TV TESTIMONY OF A CHILD admitted in evidence in any criminal or non-
WITNESS (SEC. 25) criminal proceeding subject to the following
rules:
The prosecutor, counsel or the guardian ad a) Before such hearsay
litem may apply for an order that the testimony statement may be admitted,
of the child be taken in a room outside the its proponent shall make
courtroom and be televised to the courtroom by known to the adverse party
live-link television. the intention to offer such
statement and its particulars
The court may order that the testimony of the to provide him a fair
child be taken by live-link television if there is a opportunity to object. If the
substantial likelihood that the child would suffer child is available, the court
trauma from testifying in the presence of the shall, upon motion of the
accused, his counsel or the prosecutor as the adverse party, require the
case may be. The trauma must be of a kind child to be present at the
which would impair the completeness or presentation of the hearsay
truthfulness of the testimony of the child. The statement for cross-
child shall therefore testify in a room separate examination by the adverse
from the courtroom. party. When the child is
unavailable, the fact of such
VIDEOTAPED DEPOSITION OF A CHILD circumstance must be proved
WITNESS by the proponent.
b) In ruling on the admissibility
The prosecutor, counsel, or guardian ad litem of such hearsay statement,
may apply for an order that a deposition be the court shall consider the
taken of the testimony of the child and that it be time, content and
recorded and preserved on videotape. The circumstances thereof which
judge shall preside at the videotaped deposition provide sufficient indicia of
of a child. Objections to deposition testimony or reliability.
evidence and the grounds for the objection shall
be stated and shall rule upon at the time of the The child witness shall be considered
taking of the deposition. unavailable under the following situations:
a) Is deceased, suffers from
The videotaped deposition shall be preserved physical infirmity, lack of
and stenographically recorded. The videotape memory, mental illness, or will
and the stenographic notes shall be transmitted be exposed to sever
to the clerk of the court where the case is psychological injury; or
pending for safekeeping and shall be made a b) Is absent from the hearing
part of the record. The videotaped deposition and the proponent of his
and stenographic notes shall be subject to a statement has been unable to
protective order. procure his attendance by
process or other reasonable
If, at the time of trial, the court finds that the mean.
child is unable to testify, the court may admit
into evidence the videotaped deposition of the When the child witness is unavailable, his
child in lieu of his testimony at the trial. hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
After the original videotaping but before or
during trial, any party may file any motion for
SEXUAL ABUSE SHIELD RULE
additional videotaping on the ground of newly
discovered evidence.
a) The following evidence is NOT of the offer unless a different period is

ADMISSIBLE in any criminal proceeding allowed by the court. In any case, the
involving alleged child sexual abuse: grounds for the objections must be
a. Evidence offered to prove that the specified.
alleged victim engaged in other  Grounds for objection: Hearsay;
sexual behavior; and Argumentative; Leading; Misleading;
b. Evidence offered to prove the Incompetent; Irrelevant; Best evidence rule;
sexual pre-disposition of the alleged Parole evidence rule; Question has no basis
victim.
b) EXCEPTION: Evidence of specific REPETITION OF AN OBJECTION
instances of sexual behavior by the alleged
victim to prove that a person other than the When it becomes reasonably apparent in the
accused was the source of semen, injury, or course of the examination of a witness that the
other physical evidence shall be admissible. questions being propounded are of the same
class as those to which objection has been
made, whether such objection was sustained or
PROTECTIVE ORDERS
overruled, it shall not be necessary to repeat
the objection, it being sufficient for the adverse
Protection of privacy and safety - Any videotape party to record his continuing objection to such
or audiotape of a child that is part of the court class of questions.
record shall be under a protective order. The
court may, motu propio or on motion of any RULING
party, the child, his parents, legal guardian, or
the guardian ad litem, issue additional orders to The ruling of the court must be given
protect the privacy of the child. immediately after the objection is made, unless
the court desires to take a reasonable time to
inform itself on the question presented; but the
ruling shall always be made during the trial and
OFFER AND OBJECTION (RULE 132) at such time as will give the party against whom
OFFER OF EVIDENCE it is made an opportunity to meet the situation
presented by the ruling.
The court shall consider no evidence which has STRIKING OUT OF AN ANSWER
not been formally offered. The purpose for
which the evidence is offered must be specified. Should a witness answer the question before
the adverse party had the opportunity to voice
WHEN TO MAKE AN OFFER fully its objection to the same, and such
objection is found to be meritorious, the court
shall sustain the objection and order the answer
 testimony of a witness - the offer must be
given to be stricken off the record. On proper
made at the time the witness is called to
motion, the court may also order the striking
testify.
out of answers which are incompetent,
 Documentary and object evidence shall be irrelevant, or otherwise improper.
offered after the presentation of a party's
testimonial evidence. Such offer shall be
done orally unless allowed by the court to be TENDER OF EXCLUDED EVIDENCE
done in writing.  If documents or things offered in evidence
are excluded by the court, the offeror may
OBJECTION have the same attached to or made part of
the record.
 Objection to evidence offered orally must be  If the evidence excluded is oral, the offeror
made immediately after the offer is made. may state for the record the name and other
 Objection to a question propounded in the personal circumstances of the witness and
course of the oral examination of a witness the substance of the proposed testimony.
shall be made as soon as the grounds
therefor shall become reasonably apparent. Note: Supreme Court Rulings as of
 An offer of evidence in writing shall be December 2010 – included
objected to within three (3) days after notice
by the facts alleged in the complaint and

limited to what is prayed for therein.
REVISED RULES ON SUMMARY PROCEDURE
 This is without prejudice to the
(MeTC, MTC and MCTC) applicability of Sec. 4, Rule 18 if there
are two or more defendants.
CASES COVERED BY THE RULE
PRELIMINARY CONFERENCE AND
1) CIVIL CASES APPEARANCES OF PARTIES
a. All cases of forcible entry and
unlawful detainer irrespective of the  a preliminary conference shall be held
amount of damages or unpaid rentals not later than 30 days after the last
sought to be recovered. answer is filed. The rules on pre-trial in
b. All other cases, except probate ordinary cases shall be applicable to the
proceedings where the total amount preliminary conference unless
of the plaintiff‘s claim does not inconsistent with the provisions of the
exceed P100,000 outside, or Rule.
P200,000 in Metro Manila, exclusive  The failure of the plaintiff to appear in
of interest and costs. the preliminary conference shall be
cause for the dismissal of his complaint.
2) CRIMINAL CASES The defendant who appears in the
a. Violation of Bouncing Checks Law absence of the plaintiff shall be entitled
(BP 22); to judgment on his counterclaim. All
b. Violation of traffic laws, rules and cross-claims shall be dismissed.
regulations;  If a sole defendant shall fail to appear,
c. Violations of rental laws; the plaintiff shall be entitled to judgment
d. All other criminal cases where the as warranted by the allegations in the
penalty prescribed by law for the complaint and limited to the reliefs
offense charged is imprisonment not prayed for therein. The Rule shall not
exceeding 6 months or a fine not apply where one of two or more
exceeding P1,000 or both, defendants sued under a common cause
irrespective of other imposable of action who had pleaded a common
penalties, accessory or otherwise, or defenses shall appear at the preliminary
of the civil liability arising therefrom; conference.
and in offenses involving damages to
property through criminal negligence,
where the imposable fine does not
exceed P1,000.
e. In offenses involving damage to KATARUNGANG PAMBARANGAY (Secs. 399
property through criminal negligence, 422, LGC)
where the imposable fine does not
exceed P10,000.00
SUBJECT MATTER FOR AMICABLE
 Note: The Rule shall not apply in a civil case
SETTLEMENT
where the cause of action is pleaded with
another cause of action subject to the
The lupon of each barangay shall have authority
ordinary procedure, nor to criminal case
to bring together the parties actually residing in
where the offense charged is necessary
the same municipality or city for amicable
related to another criminal case subject to
settlement of all disputes
the ordinary procedure.
EXCEPT:
EFFECT OF FAILURE TO ANSWER
1) Where one party is the government or
 Should the defendant fail to answer the any subdivision or instrumentality
complaint within 10 days from service of thereof;
summons, the court shall MOTU PROPIO 2) Where one party is a public officer or
or ON MOTION of the plaintiff, shall employee, and the dispute relates to the
render judgment as may be warranted performance of his official functions;
3) Offenses punishable by imprisonment VENUE

exceeding one (1) year or a fine
exceeding P5,000; 1) Disputes between persons actually residing
4) Offenses where there is no private in the same barangay;
offended party; 2) Those involving actual residents of different
5) Where the dispute involves real barangays within the same city or
properties located in different cities or municipality;
municipalities unless the parties thereto 3) All disputes involving real property or any
agree to submit their differences to interest therein where the real property or
amicable settlement by an appropriate the larger portion thereof is situated;
lupon; 4) Those arising at the workplace where the
6) Disputes involving parties who actually contending parties are employed or at the
reside in barangays of different cities or institution where such parties are enrolled
municipalities, except where such for study, where such workplace or
barangay units adjoin each other and the institution is located.
parties thereto agree to submit their
 Objections to venue shall be raised in
differences to amicable settlement by an
the mediation proceedings before the
appropriate lupon;
punong barangay; otherwise, the same
7) Such other classes of disputes which the
shall be deemed waived. Any legal
President may determine in the interest
question which may confront the punong
of justice or upon the recommendation of
barangay in resolving objections to
the Secretary of Justice;
venue herein referred to may be
8) Any complaint by or against
submitted to the Secretary of Justice, or
corporations, partnerships, or juridical
his duly designated representative,
entities. The reason is that only
whose ruling thereon shall be binding.
individuals shall be parties to barangay
conciliation proceedings either as
WHEN PARTIES MAY DIRECTLY GO TO
complainants or respondents;
COURT
9) Disputes where urgent legal action is
necessary to prevent injustice from
1) Where the accused is under detention;
being committed or further continued,
2) Where a person has otherwise been
specially the following:
deprived or personal liberty calling for
a) A criminal case where the
habeas corpus proceedings;
accused is under police custody
3) Where actions are coupled with
or detention;
provisional remedies such as preliminary
b) A petition for habeas corpus by a
injunction, attachment, delivery of
person illegally detained or
personal property, and support pendente
deprived of his liberty or one
lite; and
acting in his behalf;
4) Where the action may otherwise be
c) Actions coupled with provisional
barred by the statute of limitations.
remedies, such as preliminary
injunction, attachment, replevin
and support pendente litem; EXECUTION
d) Where the action may be barred
by the statute of limitations; The amicable settlement or arbitration award
10) Labor disputes or controversies arising may be enforced by execution by the lupon
from employer-employee relationship. within six (6) months from the date of the
11) Where the dispute arises from the settlement. After the lapse of such time, the
Comprehensive Agrarian Reform Law; settlement may be enforced by action in the
12) Actions to annul judgment upon a appropriate city or municipal court.
compromise which can be filed directly in
court. REPUDIATION
The court in which non-criminal cases not falling Any party to the dispute may, within ten (10)
within the authority of the lupon under the Code days from the date of the settlement, repudiate
are filed may, at any time before trial, motu the same by filing with the lupon chairman a
propio refer the case to the lupon concerned for statement to that effect sworn to before him,
amicable settlement. where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be
sufficient basis for the issuance of the COMMENCEMENT OF SMALL CLAIMS

certification for filing a complaint before the ACTION
court.
A small claims action is commenced by filing
with the court an:
1) accomplished and verified Statement of
Claim in duplicate;
RULE OF PROCEDURE FOR SMALL CLAIMS
2) a Certification of Non-forum Shopping;
CASES (AM No. 08-8-7-SC, as amended)
3) two (2) duly certified photocopies of the
actionable document/s subject of the
claim;
SCOPE AND APPLICABILITY OF THE RULE 4) the affidavits of witnesses and other
evidence to support the claim.
This Rule shall govern the procedure in actions
before the:  No evidence shall be allowed during the
a) Metropolitan Trial Courts; hearing which was not attached to or
b) Municipal Trial Courts in Cities; submitted together with the Claim, unless
c) Municipal Trial Courts; and good cause is shown for the admission of
d) Municipal Circuit Trial Courts additional evidence. No formal pleading,
other than the Statement of Claim is
 for payment of money where the value of necessary to initiate a small claims action.
the claim DOES NOT EXCEED P100,000.00
exclusive of interest and costs. RESPONSE
The MTCs shall apply this Rule in all actions The defendant shall file with the court and serve
which are: on the plaintiff a duly accomplished and verified
a) purely civil in nature where the claim or Response within a non-extendible period of ten
relief prayed for by the plaintiff is solely (10) days from receipt of summons. The
for payment or reimbursement of sum of response shall be accompanied by certified
money; and photocopies of documents, as well as affidavits
b) the civil aspect of criminal actions, either of witnesses and other evidence in support
filed before the institution of the criminal thereof. No evidence shall be allowed during the
action, or reserved upon the filing of the hearing which was not attached to or submitted
criminal action in court, pursuant to Rule together with the Response, unless good cause
111 of the Revised Rules of Criminal is shown for the admission of additional
Procedure. evidence. The grounds for the dismissal of the
claim, under Rule 16 of the Rules of Court,
These claims or demands may be: should be pleaded.
a) For money owed under any of the EFFECT OF FAILURE TO FILE RESPONSE
following:
1. Contract of Lease; Should the defendant fail to file his Response
2. Contract of Loan; within the required period, and likewise fail to
3. Contract of Services; appear at the date set for hearing, the court
4. Contract of Sale; or shall render judgment on the same day, as may
5. Contract of Mortgage; be warranted by the facts.
b) For damages arising from any of
the following: Should the defendant fail to file his Response
1. Fault or negligence; within the required period but appears at the
2. Quasi-contract; or date set for hearing, the court shall ascertain
3. Contract; what defense he has to offer and proceed to
c) The enforcement of a barangay hear, mediate or adjudicate the case on the
amicable settlement or an arbitration same day as if a Response has been filed.
award involving a money claim
covered by this Rule pursuant to Sec. PROHIBITED PLEADINGS AND MOTIONS
417 of RA 7160.
a) Motion to dismiss the complaint; b) Motion for a bill of particulars;

c) Motion for new trial, or for h) Motion to declare the defendant in

reconsideration of a judgment, or for default;
reopening of trial; i) Dilatory motions for postponement;
d) Petition for relief from judgment; j) Reply;
e) Motion for extension of time to file k) Third-party complaints; and
pleadings, affidavits, or any other paper; l) Interventions.
f) Memoranda;
g) Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
Settlement discussions shall be strictly
APPEARANCES confidential and any reference to any
settlement made in the course of such
The parties shall appear at the designated date discussions shall be punishable by contempt.
of hearing PERSONALLY. Appearance through a
representative must be for a valid cause. The FINALITY OF JUDGMENT
representative of an individual-party must:
1) not be a lawyer; and After the hearing, the court shall render its
2) must be related to or next-of-kin of the decision on the same day and the same shall be
individual-party. final and unappealable and if it is in favor of the
 Juridical entities shall not be represented by plaintiff, the judgment shall be executed upon
a lawyer in any capacity. his motion.
The representative must be authorized under a
Special Power of Attorney to enter into an
amicable settlement of the dispute and to enter
into stipulations or admissions of facts and of
RULES OF PROCEDURE FOR
documentary exhibits.
ENVIRONMENTAL CASES (AM No. 09-6-8-SC)
EFFECT OF FAILURE TO APPEAR
Failure of the plaintiff to appear shall be cause

for the dismissal of the claim without prejudice. SCOPE AND APPLICABILITY OF THE RULE
The defendant who appears shall be entitled to
judgment on a permissive counterclaim. These Rules shall govern the procedure in civil,
criminal and special civil actions before the
Failure of the defendant to appear shall have RTCs and MTCs involving enforcement or
the same effect as failure to file a Response. violations of environmental and other related
This rule shall not apply where one of two or laws, rules and regulations.
more defendants sued on a common cause of
action appear.
CIVIL PROCEDURE
Failure of both parties to appear shall cause the
dismissal with prejudice of both the claim and PROHIBITION AGAINST TEMPORARY
counterclaim. RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
HEARING; DUTY OF THE JUDGE
Except the Supreme Court, no court can issue a
At the beginning, the judge shall read aloud a TRO or writ of preliminary injunction against
short statement explaining the nature, purpose lawful actions of government agencies that
and the rule of procedure of small claims cases enforce environmental laws or prevent
and shall exert efforts to bring the parties to an violations thereof except the Supreme Court.
amicable settlement of their dispute.
PRE-TRIAL CONFERENCE; CONSENT DECREE
Any settlement or resolution of the dispute shall (SEC. 5, RULE 3)
be reduced into writing, signed by the parties
and submitted to the court for approval.  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  CONSENT DECREE refers to a judicially-
persuade the parties to arrive at a approved settlement between concerned
settlement of the dispute. The judge may parties based on public interest aspect in
issue a consent decree approving the environmental cases and encourages the
agreement between the parties in parties to expedite the resolution of
accordance with law, morals, public order litigation.
and public policy to protect the right of the
people to a balanced and healthful ecology. PROHIBITED PLEADINGS AND MOTIONS
 Evidence not presented during the pre-trial, (SEC. 2, RULE 2)
except newly discovered evidence, shall be
deemed waived.
extension not to exceed fifteen (15)
a) Motion to dismiss the complaint; days;
b) Motion for a bill of particulars; d) Motion to declare the defendant in
c) Motion for extension of time to file default;
pleadings, except to file answer, the e) Reply and rejoinder; and
f) Third party complaint.
hours from date of the receipt of the TEPO by
Motion for postponement, motion for new trial the party or person enjoined. Within said period,
and petition for relief from judgment shall only the court where the case is assigned, shall
be allowed in certain conditions of highly conduct a summary hearing to determine
meritorious cases or to prevent a manifest whether the TEPO may be extended until the
miscarriage of justice. The satisfaction of these termination of the case.
conditions is required since these motions are
prone abuse during litigation. The court handling the case shall periodically
monitor the existence of acts that are the
Motion for intervention is permitted in order to subject matter of the TEPO and may lift the
allow the public to participate in the filing and same at any time as circumstances may
prosecution of environmental cases, which are warrant.
imbued with public interest.
An applicant is exempt from the posting of a
Petitions for certiorari are likewise permitted bond. While the TEPO may be issued ex parte,
since these raise fundamentally questions of this is more of the exception. The general rule
jurisdiction. on the conduct of a hearing pursuant to due
process remains.
TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO) JUDGMENT AND EXECUTION (RULE 5)
Temporary Environmental Protection Order Any judgment directing the performance of acts
(TEPO) - refers to an order issued by the court for the protection, preservation or rehabilitation
directing or enjoining any person or government of the environment shall be executory pending
agency to perform or desist from performing an appeal UNLESS restrained by the appellate
act in order to protect, preserve or rehabilitate court.
the environment.
It may not be stayed by the posting of a bond
The TEPO shall be issued it appears from the and the sole remedy lies with the appellate
verified complaint with a prayer for the issuance court. The appellate court can issue a TRO to
of an Environmental Protection Order (EPO) that restrain the execution of the judgment and
the matter is of extreme urgency and the should the appellate court act with grave abuse
applicant will suffer grave injustice and of discretion in refusing to act on the application
irreparable injury. The applicant shall be for a TRO, a petition for certiorari under Rule 65
exempted from the posting of a bond for the can be brought before the Supreme Court.
issuance of a TEPO.
RELIEFS IN A CITIZEN’S SUIT
The executive judge of the multiple sala court
before raffle or the presiding judge of a single- Any Filipino citizen in representation of others,
sala court as the case may be, may issue ex including minors or generations yet unborn,
parte a TEPO effective for only seventy-two (72)
may file an action to enforce rights or its officials and employees, with the intent to
obligations under environmental laws. harass, vex, exert undue pressure or stifle any
legal recourse that such person, institution or
If warranted, the court may grant to the plaintiff government agency has taken or may take in
proper reliefs which shall include the protection, the enforcement of environmental laws,
preservation or rehabilitation of the protection of the environment or assertion of
environment and the payment of attorney‘s environmental rights.
fees, costs of suit and other litigation expenses.
It may also require the violator to submit a A legal action filed to harass, vex, exert undue
program of rehabilitation or restoration of the pressure or stifle any legal recourse that any
environment, the costs of which shall be borne person, institution or the government has taken
by the violator, or to contribute to a special trust or may take in the enforcement of
fund for that purpose subject to the control of environmental laws, protection of the
the court. environment or assertion of environmental
rights shall be treated as a SLAPP.
PERMANENT ENVIRONMENTAL
PROTECTION ORDER In a case is a SLAPP the defendant may file an
answer interposing as a defense that the case is
The court may convert the TEPO to a permanent a SLAPP. The hearing on the defense of a SLAPP
EPO or issue a writ of continuing mandamus shall be summary in nature. The party filing the
directing the performance of acts which shall be action assailed as a SLAPP shall prove by
effective until the judgment is fully satisfied. preponderance of evidence that the action is
not a SLAPP and is a valid claim.
The court may, by itself or through the
appropriate government agency, monitor the The defense of a SLAPP shall be resolved within
execution of the judgment and require the party thirty (30) days after the summary hearing. If
concerned to submit written reports on a the court dismisses the action, the court may
quarterly basis or sooner as may be necessary, award damages, attorney‘s fees and costs of
detailing the progress of the execution and suit under a counterclaim if such has been filed.
satisfaction of the judgment. The other party The dismissal shall be with prejudice. If the
may, at its option, submit its comments or court rejects the defense of a SLAPP, the
observations on the execution of the judgment. evidence adduced during the summary hearing
shall be treated as evidence of the parties on
the merits of the case. Since a motion to dismiss
WRIT OF CONTINUING MANDAMUS
is a prohibited pleading, SLAPP as an affirmative
defense should be raised in an answer along
CONTINUING MANDAMUS is a writ issued by a with other defenses that may be raised in the
court in an environmental case directing any case alleged to be a SLAPP.
agency or instrumentality of the government or
officer thereof to perform an act or series of
acts decreed by final judgment which shall SPECIAL PROCEDURE / PROCEEDING
remain effective until judgment is fully satisfied.
WRIT OF KALIKASAN (WOK)
The concept of continuing mandamus was
originally enunciated in the case of Concerned The writ is a extraordinary remedy available to
Residents of Manila Bay vs. MMDA, GR 171947- a natural or juridical person, entity authorized
98, Dec. 18, 2008. The Rules now codify the by law, people’s organization, non-
Writ of Continuing Mandamus as one of the governmental organization, or any public
principal remedies which may be availed of in interest group accredited by or registered with
environmental cases. any government agency, on behalf of persons
whose constitutional right to a balanced and
STRATEGIC LAWSUIT AGAINST PUBLIC healthful ecology is violated, or threatened with
PARTICIPATION violation by an unlawful act or omission of a
public official or employee, or private individual
STRATEGIC LAWSUIT AGAINST PUBLIC or entity, involving environmental damage of
PARTICIPATION (SLAPP) refers to an action such magnitude as to prejudice the life, health
whether civil, criminal or administrative, or property of inhabitants in two or more cities
brought against any person, institution or any or provinces.
government agency or local government unit or
Those who may file for this remedy must filed with the SC or CA. The applicant is
represent the inhabitants prejudiced by the exempted from payment of docket fees.
environmental damage subject of the writ to be
PROHIBITED PLEADINGS AND MOTIONS
e) Counterclaim or cross-claim;
a) Motion to dismiss; f) Third-party complaint;
b) Motion for extension of time to file g) Reply; and
return; h) Motion to declare respondent in default.
c) Motion for postponement;
d) Motion for a bill of particulars;
b) When any agency or instrumentality
DISCOVERY MEASURES of the government or officer thereof
unlawfully excludes another from the
A party may file a verified motion for the use or enjoyment of such right.
following reliefs:
a) Ocular Inspection - the court may 2) REQUISITES CONTINUING MANDAMUS
order any person in possession or a) There must be a clear legal right or
control of a designated land or other duty;
property to permit entry for the b) The act to be performed must be
purpose of inspecting or practical;
photographing the property or any c) Respondent must be exercising a
relevant object or operation thereon. ministerial duty;
b) Production or inspection of d) The duty or act to be performed must
documents or things - the court may be in connection with the
order any person in possession, enforcement or violation of an
custody or control of any designated environmental law, rule or regulation
documents, papers, books, accounts, or a right; and
letters, photographs, objects or e) There is no other plain, speedy, and
tangible things, or objects in digitized adequate remedy in the ordinary
or electronic form, which constitute course of law.
or contain evidence relevant to the
petition or the return, to produce and
permit their inspection, copying or The petition shall be filed with the Regional Trial
photographing by or on behalf of the Court exercising jurisdiction over the territory
movant. where the actionable neglect or omission
occurred or with the Court of Appeals or the
WRIT OF CONTINUING MANDAMUS Supreme Court. The petitioner shall be exempt
from the payment of docket fees.
A writ issued by a court in an environmental
case directing any agency or instrumentality of If warranted, the court shall grant the privilege
the government or officer thereof to perform an of the writ of continuing mandamus requiring
act or series of acts decreed by final judgment respondent to perform an act or series of acts
which shall remain effective until judgment is until the judgment is fully satisfied and to grant
fully satisfied. The petition shall contain a sworn such other reliefs as may be warranted resulting
certification of non-forum shopping. from the wrongful or illegal acts of the
respondent. Upon full satisfaction of the
1) GROUNDS FOR CONTINUING judgment, a final return of the writ shall be
MANDAMUS made to the court by the respondent. If the
a) When any agency or instrumentality court finds that the judgment has been fully
of the government or officer thereof implemented, the satisfaction of judgment shall
unlawfully neglects the performance be entered in the court docket.
of an act which the law specifically
enjoins as a duty resulting from an The issuance of a TEPO is made available as an
office, trust or station in connection auxillary remedy prior to the issuance of the
with the enforcement or violation of writ itself. As a special civil action, the WoCMa
an environmental law rule or may be availed of to compel the performance of
regulation or a right therein; an act specifically enjoined by law. Its
availability as a special civil action likewise
complements its role as a final relief in kalikasan can only be filed with the SC or any
environmental civil cases and in the WOK, station of the CA.
where continuing mandamus may likewise be
issued should the facts merit such relief. Discovery measures. The Rule on the WCM
does not contain any provision for discovery
measures, unlike the Rule on WOK which
WRIT OF CONTINUING MANDAMUS VS. incorporates the procedural environmental right
WRIT OF KALIKASAN of access to information through the use of
discovery measures such as ocular inspection
Subject matter. WoCMa is directed against order and production order.
the unlawful neglect in the performance of an
act which the law specifically enjoins as a duty Damages for personal injury. The WCM
resulting from an office, trust or station in allows damages for the malicious neglect of the
connection with the enforcement or violation of performance of the legal duty of the
an environmental law rule or regulation or a respondent, identical Rule 65. In contrast, no
right therein; or (a) the unlawful exclusion of damages may be awarded in a petition for the
another from the use or enjoyment of such right issuance of a WOK consistent with the public
and in both instances, there is no other plain, interest character of the petition. A party who
speedy and adequate remedy in the ordinary avails of this petition but who also wishes to be
course of law. A writ of kalikasan is available indemnified for injuries suffered may file
against unlawful act or omission of a public another suit for the recovery of damages since
official or employee, or private individual or the Rule on WOK allows for the institution of
entity, involving environmental damage of such separate actions.
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
CRIMINAL PROCEDURE
provinces. In addition, magnitude of
environmental damage is a condition sine qua
non in a petition for the issuance of a writ of WHO MAY FILE
kalikasan and must be contained in the verified
petition. Any offended party, peace officer or any public
officer charged with the enforcement of an
Who may file. A writ of continuing environmental law.
mandamus is available to a broad range of
persons such as natural or juridical person, INSTITUTION OF CRIMINAL AND CIVIL
entity authorized by law, people‘s organization, ACTION
NGO, or any public interest group accredited by
or registered with any government agency, on When a criminal action is instituted, the civil
behalf of persons whose right to a balanced and action for the recovery of civil liability arising
healthful ecology is violated or threatened to be from the offense charged, shall be deemed
violated. instituted with the criminal action UNLESS the
complainant
Respondent. The respondent in a petition for a) waives the civil action
continuing mandamus is only the government or b) reserves the right to institute it
its officers, unlike in a petition for writ of separately
kalikasan, where the respondent may be a c) institutes the civil action prior to the
private individual or entity. criminal action.
Exemption from docket fees. The application  Unless the civil action has been instituted
for either petition is exempted from the prior to the criminal action, the reservation
payment of docket fees. of the right to institute separately the civil
action shall be made during arraignment.
Venue. A petition for the issuance of a writ of
continuing mandamus may be filed in the ARREST WITHOUT WARRANT; WHEN VALID
following: (a) the RTC exercising jurisdiction (SEC. 1, RULE 11)
over the territory where the actionable neglect
or omission occurred; (b) the CA; or (c) the SC. A peace officer or an individual deputized by the
Given the magnitude of the damage, the proper government agency may, without a
application for the issuance of a writ of warrant, arrest a person:
a) When, in his presence, the person to be items were seized, or the owner thereof
arrested has committed, is actually and the concerned government agency.
committing or is attempting to commit e) The notice of auction shall be posted in
an offense; or three conspicuous places in the city or
b) When an offense has just been municipality where the items,
committed, and he has probable cause equipment, paraphernalia, tools or
to believe based on personal knowledge instruments of the crime were seized.
of facts or circumstances that the person f) The proceeds shall be held in trust and
to be arrested has committed it. deposited with the government
c) Individuals deputized by the proper depository bank for disposition according
government agency who are enforcing to the judgment.
environmental laws shall enjoy the
PRESUMPTION OF REGULARITY under BAIL
Section 3(m), Rule 131 of the Rules of
Court when effecting arrests for WHERE TO FILE
violations of environmental laws.  Bail may be filed with the court where
the case is pending, or in the absence or
PROCEDURE IN THE CUSTODY AND unavailability of the judge thereof, with
DISPOSITION OF SEIZED ITEMS any regional trial judge, metropolitan
trial judge, municipal trial judge or
Custody and disposition of seized items shall be municipal circuit trial judge in the
in accordance with the applicable laws or rules province, city or municipality.
promulgated by the concerned government  If the accused is arrested in a province,
agency. city or municipality other than where the
case is pending, bail may also be filed
In the absence of applicable laws or rules with any Regional Trial Court of said
promulgated by the concerned government place, or if no judge thereof is available,
agency, the following procedure shall be with any metropolitan trial judge,
observed: municipal trial judge or municipal circuit
a) The apprehending officer having initial trial judge therein.
custody and control of the seized items,  If the court grants bail, the court may
equipment, paraphernalia, conveyances issue a hold-departure order in
and instruments shall physically appropriate cases.
inventory and whenever practicable,
photograph the same in the presence of DUTIES OF THE COURT
the person from whom such items were Before granting the application for bail, the
seized. judge must read the information in a language
b) Thereafter, the apprehending officer known to and understood by the accused and
shall submit to the issuing court the require the accused to sign a written
return of the search warrant within five undertaking, as follows:
(5) days from date of seizure or in case a) To appear before the court that issued
of warrantless arrest, submit within five the warrant of arrest for arraignment
(5) days from date of seizure, the purposes on the date scheduled, and if
inventory report, compliance report, the accused fails to appear without
photographs, representative samples justification on the date of arraignment,
and other pertinent documents to the accused waives the reading of the
public prosecutor for appropriate action. information and authorizes the court to
c) Upon motion by any interested party, the enter a plea of not guilty on behalf of the
court may direct the auction sale of accused and to set the case for trial;
seized items, equipment, paraphernalia, b) To appear whenever required by the
tools or instruments of the crime. The court where the case is pending; and
court shall, after hearing, fix the c) To waive the right of the accused to be
minimum bid price based on the present at the trial, and upon failure of
recommendation of the concerned the accused to appear without
government agency. The sheriff shall justification and despite due notice, the
conduct the auction. trial may proceed in absentia.
d) The auction sale shall be with notice to
the accused, the person from whom the ARRAIGNMENT
b. Qualification of expert witnesses;

The court shall set the arraignment of the and
accused within fifteen (15) days from the time it c. Amount of damages;
acquires jurisdiction over the accused, with 4) Define factual and legal issues;
notice to the public prosecutor and offended 5) Ask parties to agree on the specific trial
party or concerned government agency that it dates and adhere to the flow chart
will entertain plea-bargaining on the date of the determined by the court which shall
arraignment. contain the time frames for the different
stages of the proceeding up to
PLEA-BARGAINING promulgation of decision;
6) Require the parties to submit to the
On the scheduled date of arraignment, the court branch clerk of court the names,
shall consider plea-bargaining arrangements. addresses and contact numbers of
Where the prosecution and offended party or witnesses that need to be summoned by
concerned government agency agree to the subpoena; and
plea offered by the accused, the court shall: 7) Consider modification of order of trial if
1) Issue an order which contains the the accused admits the charge but
plea-bargaining arrived at; interposes a lawful defense.
2) Proceed to receive evidence on the
civil aspect of the case, if any; and AGREEMENTS OR ADMISSIONS - All
3) Render and promulgate judgment of agreements or admissions made or entered
conviction, including the civil liability during the pre-trial conference shall be reduced
for damages. in writing and signed by the accused and
counsel; otherwise, they cannot be used against
 Plea-bargaining is considered at the accused. The agreements covering the
arraignment in order to avoid the situation matters referred to in Section 1, Rule 118 of the
where an initial plea is changed in the Rules of Court shall be approved by the court.
course of the trial in view of a successful
plea bargain. Record of proceedings. All proceedings
during the pre-trial shall be recorded, the
PRE-TRIAL transcripts prepared and the minutes signed by
the parties or their counsels.
After the arraignment, the court shall set the
PRE-TRIAL CONFERENCE within thirty (30) days. PRE-TRIAL ORDER - The court shall issue a
It may refer the case to the branch clerk of pre-trial order within ten (10) days after the
court, if warranted, for a preliminary conference termination of the pre-trial, setting forth the
to be set at least three (3) days prior to the pre- actions taken during the pre-trial conference,
trial. the facts stipulated, the admissions made,
evidence marked, the number of witnesses to
DUTY OF THE JUDGE be presented and the schedule of trial. The
1) Place the parties and their counsels order shall bind the parties and control the
under oath; course of action during the trial.
2) Adopt the minutes of the preliminary
conference as part of the pre-trial SUBSIDIARY LIABILITY
proceedings, confirm markings of In case of conviction of the accused and
exhibits or substituted photocopies and subsidiary liability is allowed by law, the court
admissions on the genuineness and due may, by motion of the person entitled to recover
execution of documents, and list object under judgment, enforce such subsidiary
and testimonial evidence; liability against a person or corporation
3) Scrutinize the information and the subsidiarily liable under Article 102 and Article
statements in the affidavits and other 103 of the Revised Penal Code.
documents which form part of the record
of the preliminary investigation together SLAPP IN CRIMINAL CASES
with other documents identified and
marked as exhibits to determine further Upon the filing of an information in court and
admissions of facts as to: before arraignment, the accused may file a
a. The court‘s territorial jurisdiction motion to dismiss on the ground that the
relative to the offense(s) charged; criminal action is a SLAPP.
The hearing on the defense of a SLAPP shall be admissible when authenticated by the person
summary in nature. The party seeking the who took the same, by some other person
dismissal of the case must prove by substantial present when said evidence was taken, or by
evidence that his acts for the enforcement of any other person competent to testify on the
environmental law are a legitimate action for accuracy thereof.
the protection, preservation and rehabilitation
of the environment. The party filing the action Entries in official records made in the
assailed as a SLAPP shall prove by performance of his duty by a public officer of
preponderance of evidence that the action is the Philippines, or by a person in performance of
not a SLAPP. a duty especially enjoined by law, are prima
facie evidence of the facts therein stated.
The court shall grant the motion if the accused
establishes in the summary hearing that the
criminal case has been filed with intent 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. If the court denies the
motion, the court shall immediately proceed
with the arraignment of the accused.
EVIDENCE
PRECAUTIONARY PRINCIPLE
Precautionary principle states that 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.
When there is a lack of full scientific certainty in

establishing a casual 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.
In applying the precautionary principle, the

following factors, among others, may be
considered:
a) threats to human life or health;
b) inequity to present or future generations;
or
c) prejudice to the environment without
legal consideration of the environmental
rights of those affected.
DOCUMENTARY EVIDENCE
Photographic, video and similar evidence of

events, acts, transaction of wildlife, wildlife by-
products or derivatives, forest products or
mineral resources subject of a case shall be

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2011 Bar Examinations 1

BERT – NOTES in REMEDIAL LAW

Victory goes to those with homicidal instinct to

SYLLABUS FOR 2011 BAR EXAMINATIONS

B. Jurisdiction over the subject matter B. Cause of Action

Necessary parties; Indigent Parties; (2) Fraud, mistake,

1. Nature and purpose of summons in

b. for illness of party or e. Issues to be raised on

f. Effect of levy on third a. Cases when receiver may

c. When petition for certiorari, a. Judgment on foreclosure

c. Remedy against direct

D. Allowance or Disallowance of Will K. Guardianship

1. Contents of the petition 1. Judgments and orders for which

E. Arrest 2. What the court should do when

8. Exceptions to search warrant a. Effect of judicial admissions

b. Public and private c. Leading and misleading

f. Videotaped deposition of a 1. Prohibition against Temporary

G. Supreme Court Rulings as of December C. Special Proceedings

prescribes the punishment for committing them,

CONCEPT OF REMEDIAL LAW RULE-MAKING POWER OF THE SUPREME

Remedial law prescribes the methods of

POWER OF THE SUPREME COURT TO COURT DISTINGUISHED FROM JUDGE

WHAT IS A COURT (b) Second Level (RTCs, Family Courts)

PRINCIPLE OF JUDICIAL HIERARCHY JURISDICTION

This is an ordained sequence of recourse to

Jurisdiction over the person of the defendant is JURISDICTION VERSUS EXERCISE OF

JURISDICTION OVER THE SUBJECT MATTER HOW JURISDICTION IS CONFERRED AND

penalty is imposed but for offenses the Ombudsman in administrative

EXCLUSIVE ORIGINAL JURISDICTION 1) Decisions of CIR in cases involving disputed

CONCURRENT ORIGINAL JURISDICTION

3) with the SC, CA and Sandigabayan in

 Note: In cases where the only  Irrespective of the amount of

CAUSE OF ACTION (Rule 2) To avoid an early dismissal of the complaint, the

 The absence of indispensable party renders

WHEN THE RULES ON VENUE DO NOT KINDS OF PLEADINGS (RULE 6)

EFFECTS OF STIPULATIONS ON VENUE B. ANSWER

 When the matter denied

A counterclaim is any claim which a defending 1. COMPULSORY COUNTERCLAIM

The failure of the defendant to set up a 3. EFFECT ON THE COUNTERCLAIM WHEN

 The certification is FORUM SHOPPING

REQUIREMENTS OF A CORPORATION In pleading a judgment or decision of a

PLEADING AN ACTIONABLE DOCUMENT If the allegations are deemed admitted, there is

The following are not deemed admitted by WHEN A DECLARATION OF DEFAULT IS

Exceptions: EFFECT OF AN ORDER OF DEFAULT

REMEDY AFTER JUDGMENT BUT BEFORE

 So the period of appeal is 15 days from 1) Annulment of marriage;

REMEDY AFTER JUDGMENT BECOMES FINAL

pleading shall not be accepted for filing or shall

 The same periods shall apply to PERSONAL SERVICE

By PERSONAL SERVICE or by REGISTERED MAIL. SERVICE BY MAIL

There are two modes of service of pleadings, SUBSTITUTED SERVICE (FILING)

 Proved by the written or stamped

 Personal service is the preferred mode of PROOF OF SERVICE

Service by ordinary mail is deemed complete AMENDMENT (RULE 10)

PROOF OF FILING AND SERVICE Thus, before an answer is served on the

FORMAL AMENDMENT EFFECT OF AMENDED PLEADING

In an action in personam, the purpose of It shall be served by HANDLING a copy to the

MOTIONS IN GENERAL, DEFINITION OF The rule is a procedural principle which requires

entitled as a matter of right, and not as a matter

GROUNDS Where the dismissal is final but is without

2) Civil action under Rule 65 • The denial should be raised as an

4) The denial of a motion to dismiss is BAR BY DISMISSAL

The failure of the defendant to appear DISTINCTION BETWEEN PRE-TRIAL IN CIVIL

 Failure to file the pre-trial brief shall have Mandatory Mandatory